This Software as a Service Agreement (the“Agreement”) is a binding agreement solely between you (the “Customer” or“you”) and ROGII Inc. ("ROGII"). This Agreement governs your use o fthe ROGII's software-as-a-service offerings (the "Software"). By clicking the “agree” button you (a) acknowledge that you have read andunderstand this agreement, and (b) accept this agreement and agree that you arelegally bound by its terms. If you do not agree to these terms, do not open theapplication.
“Action” means any claim, action, cause ofaction, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of anynature, civil, criminal, administrative, regulatory, or other, whether at law,in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of votingsecurities, by contract, or otherwise.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in Houston, Texas areauthorized or required by applicable law to be closed for business.
“Documentation” means ROGII’s user manuals,handbooks, and installation guides relating to the Services that Rogii may provide or make available from time to time during the Term to Customer in anyform or medium which describe the functionality, components, features, orrequirements of the Services, including any aspect of the installation, configuration, integration, operation, or use of the Services.
“Intellectual Property Rights” means any andall registered and unregistered rights granted, applied for, or otherwise now or here after in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws,and all similar or equivalent rights or forms of protection, in any part of theworld.
“Losses” means any and all losses, damages,deficiencies, claims, actions, judgments, settlements, interest, awards, penalties,fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and thecost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority,unincorporated organization, trust, association, or other entity.
“SoftwareOutputs” means any displays, data, information, tangible work products, reports, analyses, and other working documents produced by Customer using the Software. Customer will have noobligation to refer to ROGII's name, trademark, logo, acronym or otherdesignation when publishing results or Software Outputs.
2.1 Subject to and conditioned on your compliance with the terms and conditions of this Agreement, ROGII here by grants you a non-exclusive, non-sublicensable non-transferable right to access and use the Services during the Term, for thelimited purpose of drilling wells in the nation in which Customer receives invoices from ROGII.
3.1 All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similarassessments. Without limiting theforegoing, Customer is responsible for all sales, use, and excise taxes, and anyother similar taxes, duties, and charges of any kind imposed by any federal,state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on ROGII's income.
3.2 Payment. Customer shall pay all amounts due and owing to ROGII on or thirty (30) days after the date of ROGII's invoice therefor. Customer shall make all payments here under in US dollars to the address or account as ROGII may specify in writing from timeto time.
3.3 Late Payment. If Customer fails to make any payment whendue then, in addition to all other remedies that may be available to ROGII:
(a) ROGII may charge interest on the past due amount at the rate of 5% per annum calculated daily and compounded monthly or, if lower, the highest rate permittedunder applicable law;
(b) Customer shall reimburse ROGII for all costsincurred by ROGII in collecting any late payment of amounts due or relatedinterest, including attorneys’fees, court costs, and collection agency fees; and
(c) If such failure continues for ninety (90) days following written notice thereof, ROGII may: (i) disable Customer’s use of the Services (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license for the Services hereunderand/or (ii) terminate this Agreement.
4.1 Copy, modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any of the Services;
4.2 Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, orotherwise make available any Services to any third-party, including on or inconnection with the internet or any time-sharing, service bureau, software-as-a-service,cloud, or other technology or service;
4.3 Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
4.4 By passor breach any security device or protection used for or contained in the Services;
4.5 Accessor use the Services in any manner or for any purpose that infringes,misappropriates, or otherwise violates any Intellectual Property Right or otherright of any third party (including by any unauthorized access to,misappropriation, use, alteration, destruction, or disclosure of the data of any other ROGII customer), or that violates any applicable law;
4.6 Accessor use the Services for purposes of competitive analysis of the Services, thedevelopment, provision, or use of a competing software- as-a-service or productor any other purpose that is to ROGII's detriment or commercial disadvantage;or
4.7 Otherwise access or use the Services beyond the scope of the authorization granted under Section 4.
Customer shall, during the Term:
5.1 Take all reasonable measures to safeguardthe Services and Documentation (including all copies thereof) frominfringement, misappropriation, theft, misuse or unauthorized access;
5.2 At ROGII's expense, take all such steps as ROGII may reasonably require to assist ROGII and its Affiliates in maintaining the validity, enforceability and ROGII's and its Affiliates’ ownership of the Intellectual Property Rights in the Servicesand Documentation;
5.3 Promptly notify ROGII in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of ROGII's or its Affiliates’ Intellectual Property Rights in or relating to the Services or Documentation; or (ii) any claim that the Services or Documentation, includingany production, use, marketing, sale or other disposition of the Services or Documentation, in whole or in part, infringes, misappropriates or otherwiseviolates the Intellectual Property Rights or other rights of any Person; and
5.4 Fully cooperate with and assist ROGII and its Affiliates in all reasonable ways in the conduct of any Action by ROGII or its Affiliates to prevent or abate anyactual or threatened infringement, misappropriation or violation of ROGII's or its Affiliates’ rights in, and to attempt to resolve any Actions relating to the Services or Documentation, including having Customer's employees testifywhen requested and making available for discovery or trial relevant records,papers, information, samples, specimens and the like.
6.1 The term of this Agreement begins on the Effective Date and will continue in effectuntil terminated by you or Rogii as set forth in Section 6.2 (the “Term”).
6.2 Termination.
(a) This Agreement may be terminated by ROGII at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(b) Uponthe expiration or termination of this Agreement: (i) all rights, licenses andauthorizations granted to Customer hereunder will immediately terminate and Customer shall (A) immediately cease all use of and other activities withrespect to the Services and Documentation; (B) within fifteen (15) days deliver to ROGII, or at ROGII's written request destroy, and permanently erase from alldevices and systems Customer directly or indirectly controls, the Services, the Documentation and ROGII's Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to ROGII in a signedwritten instrument that it has complied with the requirements of this Section
6.2 (b); (ii) Customer will return to ROGII or destroy any documentscontaining any Confidential Information in whatever medium those documentsexist and will not retain any copies of such documents except as required by law; and (iii) all amounts payable by Customer to ROGII of any kind are immediately payable and due no later than three (3) Business Days after theeffective date of the expiration or termination of this Agreement.
6.3 Survival. Upon the expiration or termination of thisAgreement, the provisions of this Agreement which by their very nature shallsurvive expiration or termination of this Agreement will survive any expirationor termination of this Agreement.
7.1 ROGII reserves all rights not expressly granted to Customer in this Agreement. ROGII retains all title, interest and ownership of all Intellectual Property Rights in and to the Services, and an yaccompanying documentation, including, but not limited to, all copyright,patent, trademark, trade secret, and rights and interests of every kind ornature in and to all works based upon, incorporated in, derived from,incorporating or relating to the Services and Documentation or from which the Services are each derived, as well as the right to exploit any of the foregoing in all media and by any manner and means now known or hereafter devised.
7.2 Anyand all trademarks, trade names, and logos used in the Services are and shallremain the exclusive property of ROGII and its Affiliates. This Agreement gives Customer no right to use any such trademarks or trade names or logos without the express written permission of Rogii (other than the incidental display of any of ROGII's trademarksor trade names or logos in use of the Services or software as designed by ROGII), which permission may be withheld by ROGII for any reason and at itssole discretion. Customer agrees that all uses of any trademarks, trade names or logoscontained within the Services shall inure tothe benefit of ROGII.
7.3 Software Outputs. Customer shall own all rights, title and interests in all Software Outputs and Customer may disclose such Software Outputs to third parties without ROGII's prior written consent.
7.4 Duringthe Term and thereafter, Customer shall not contest or otherwise challengeRogii’s or its Affiliates’ rights in the Services or any Intellectual Property Rights of ROGII or its Affiliates used with or included in the Services.
Customerre presents and warrants that the undersigned has the legal capacity to enter into this Agreement, that Customer will use the Services only for lawful purposes and in accordance with this Agreement, and that Customer will not usethe Services to violate any law, regulation or ordinance or any right of ROGII, its Affiliates or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, patent or other Intellectual Property Rights. Customer further represents and warrants that it is under no obligation or restriction, nor will it assume anysuch obligation or restriction, that does or would in any way interfere orconflict with its obligations under this Agreement.
Customer expressly acknowledges and agrees that use of the Services is at Customer’ssole risk. To the maximum extent permitted by applicable law, the Services are provided “as is,” with any and all faults and without warranty of any kind. ROGII and its Affiliates hereby disclaim all warranties and conditions with respect to the Services, either express or implied or statutory,including, but not limited to, the implied warranties and/or conditions ofmerchantability, fitness for a particular purpose, accuracy, and non-infringementof third party rights. ROGII does notwarrant that the Services are error-free or will be uninterrupted, free fromspyware, malware, adware, viruses, worms or other malicious code, or willfunction to meet Customer’s requirements.
To the extent not prohibited by law, in no event shall ROGII be liable for personal injury, or any incidental, special, punitive, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, loss of privacy, denials of service (includingcomputer crashes), business interruption or any other commercial damages orlosses, arising out of or related to customer’s use or inability to use the Services, however caused, regardless of the theory of liability (contract, tort, orotherwise), even if ROGII has been advised of the possibility of suchdamages. In no event shall ROGII's totalliability to Customer for all damages exceed the respective payments made to ROGII by Customer under this agreement for the 12 month period preceding a claim.
11.1 Customer shall indemnify, defend, and holdharmless ROGII and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “ROGII Indemnitee”) from and against any and all Losses incurred by such ROGII Indemnitee resulting from any Action by a third party that arise out of orresult from, or are alleged to arise out of or result from:
(a) Any and all Software Outputs;
(b) Any Intellectual Property Rights or otherright of any Person, or any applicable law, is or will be infringed,misappropriated, or otherwise violated by any:
(1) use or combination of the Servicesby or on behalf of Customer or any of its Affiliates with any hardware,software, system, network, service, or other matter whatsoever that is neitherprovided by ROGII nor authorized by ROGII in this Agreement and theDocumentation; and
(2) information, materials, ortechnology directly or indirectly provided by Customer or directed by Customerto be installed, combined, integrated, or used with, as part of, or inconnection with the Services or Documentation;
(c) Any other materials or information (includingany documents, data, specifications, software, content, or technology) provided by or on behalf of Customer, including ROGII's compliance with anyspecifications or directions provided by or on behalf of Customer to the extentprepared without any contribution by ROGII;
(d) The allegation of facts that, if true, wouldconstitute Customer's breach of any of its representations, warranties,covenants, or obligations under this Agreement;
(e) The negligence or more culpable act oromission (including recklessness or willful misconduct) by Customer, or anythird party on behalf of Customer, in connection with this Agreement; or
(f) The use of the Services or Documentation byor on behalf of Customer or any of its Affiliates that is outside the purpose,scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to ROGII's instructions.
11.2 Indemnification Procedure.
Each Party shall promptly notify the otherParty in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1. The Party seeking indemnification (the"Indemnitee") shall cooperate with the other Party (the"Indemnitor") at the Indemnitor's sole cost and expense.
The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel /reasonably acceptable to the Indemniteeto handle and defend the same, at the Indemnitor's sole cost and expense.
The Indemnitee may participate in and observe the proceedings at its own cost andexpense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not beunreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Actionafter giving notice to the Indemnitor, in each case in such manner and on suchterms as the Indemnitee may deem appropriate.
The Indemnitor's failure toperform any obligations under this Section 11.2 will not relieve the Indemnitorof its obligations under this Section 11, except to the extent that theIndemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
Customer shall not assign, or otherwise transfer its rights or obligationsunder this Agreement without the prior, express, written approval ofRogii. Any attempted assignment inderogation hereof shall be null and void and will not relieve Customer of anyof its obligations hereunder.
The Parties are independent contractors and shall have no authority to obligate orbind the other in any respect, and no agency, partnership, franchise, jointventure or employment relationship is intended or created by this Agreement. Neither Party shall make anywarranties or representations on behalf of the other Party.
14.1 The Parties acknowledge that by reason of their relationship under this Agreement,they may have access to and acquire material, data, systems and otherinformation concerning the operation, pricing, business, projections, market goals, financial affairs, products, services, and Intellectual Property Rights of the other Party that may not be accessible or known to the general public,including, but not limited to, the terms of this Agreement, and any informationwhich concerns technical details of the operations of the Services, (collectively, “Confidential Information”) of the other Party.
14.2 Each Party receiving Confidential Information (the “Receiving Party”) agrees tomaintain all such Confidential Information received from the other Party (the“Disclosing Party”), both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party. The Receiving Party further agrees to use the Confidential Information only for the purpose of performing under this Agreement. Customer agrees to treat any source code and the object code of the Services as Confidential Information.
14.3 Not with standing the foregoing, the obligations set forth herein shall not apply to Confidential Information which:
(a) Is or becomes a matter of public knowledgethrough no fault of or action by the Receiving Party;
(b) Receiving Party can prove was lawfully in theReceiving Party’s possession prior to disclosure by the Disclosing Party;
(c) Subsequent to disclosure, is rightfullyobtained by the Receiving Party from a third party who is lawfully inpossession of such Confidential Information without restriction;
(d) Receiving Party can prove is independentlydeveloped by the Receiving Party without resort to the Confidential Information; or
(e) Based on the reasonable advice of counsel to the Receiving Party, is required by law or judicial order, provided that the Receiving Party shall give the Disclosing Party prompt written notice of suchrequired disclosure in order to afford the Disclosing Party an opportunity toseek a protective order or other legal remedy to prevent the disclosure, andshall reasonably cooperate with the Disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure.
Customer acknowledges that when you use the Services, ROGII may use automatic means (including, for example, cookies and web beacons) to collectinformation about Customer’s desktops, computers or mobile devices and aboutCustomer’s use of the Services. Customer also may be required to providecertain information about themselves as a condition to using the Services orcertain of their features or functionality. All information ROGII collects through or in connection with the Services is subject to ROGII's Privacy Policy, as amended from time to time, available at https://rogii.com/privacy-policy (“Privacy Policy”). By downloading, installing, using, and providing information to or through the Services, Customer consents to all actions taken by ROGII with respect to yourinformation in compliance with the Privacy Policy.
The Services may display,include, or make available third-party content (including data, information,applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). Customer acknowledges and agrees that ROGII is not responsible for Third-Party Materials, including their accuracy,completeness, timeliness, validity, copyright compliance, legality, decency,quality, or any other aspect thereof. ROGII does not assume and will not haveany liability or responsibility to Customer or any other for any Third-PartyMaterials. Third-Party Materials and links thereto are provided solely as aconvenience to Customer, and Customer may access and use them entirely at Customer’s own risk and subject to such third parties' terms and conditions.
Customer stipulates and agrees that any breach of this Agreement by itor its representatives shall result in irreparable harm to ROGII, that moneydamages would not be a sufficient remedy for any such breach of this Agreement by ROGII or its representatives, and that in addition to all other remedies, ROGII shall be entitled to seek specific performance and injunctive or otherequitable relief in favor of ROGII, as a remedy for any such breach, without proof of actual damages. Customer further agrees to waive, and to use itscommercially reasonable efforts to cause its representatives to waive, anyrequirement for the securing or posting of any bond in connection with suchremedy. In the event of litigation relating to this Agreement, if a court ofcompetent jurisdiction reaches a final non-appealable judgment with respectthereto, then the non-prevailing Party in such litigation shall be required toreimburse the prevailing Party for its reasonable legal fees and expenses incurred in connection with such litigation, including any appeal therefrom.
18.1 This Agreement shall be construed under and governed by and enforced in accordancewith the laws of the state of Texas, without regard to its principles ofconflicts of laws and the Parties here to expressly consent to personal jurisdiction in Houston, Texas, which shall be the exclusive jurisdiction forany action brought in connection with this Agreement or any rights affected by exercise of the terms here of. Each Partyhereto also irrevocably waives any objection on the grounds of venue, forum nonconveniens or any similar objection, and irrevocably consents to service ofprocess by mail to the address set forth herein for each Party. The parties waive any right to trial by jury in any action, proceeding or counter claimarising out of or relating to this agreement.
18.2 Except for a Party’s indemnification obligations and the duty to make payments whendue under this Agreement, neither Party shall be liable or deemed to be inmaterial breach for any delay or failure in performance under this Agreement orinterruption of service resulting directly or indirectly from acts of God, orany causes beyond the reasonable control of such Party.
18.3 If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
18.4 This Agreement constitutes the entire agreement between the Parties with respect toits subject matter and supersedes all prior and contemporaneous agreements,whether written or oral. Failure by either Party to enforce any provision of this Agreement shall not be deemed awaiver of future enforcement of that provision.
18.5 This Agreement may be executed in multiple counterparts, each of which shall bedeemed to be an original, but all of which together shall constitute one andthe same instrument.
18.6 All notices to ROGII under this Agreement are to be provided at 11750 Katy Freeway, Suite 700, Houston, Texas, or otherwise at any other address ROGII provides to Customer in writing.
