Software Terms & Conditions

Version: 1.0 Last Updated: 1 July 2020

1. During the Term and subject to the provisions of this Agreement, including restrictions and payment of fees:
   1. Access. whitson grants Customer a non-exclusive, non-transferable, non-sublicensable right, solely for Customer’s Internal Use, for Authorized Users to (1) access the Products, (2) download and reproduce discrete elements of Proprietary Data, (3) store Proprietary Data on computer systems controlled by Customer, and (4) manipulate, analyze, reformat, print, or display such Proprietary Data. whitson has no obligation to deliver or make available any software or other technology used to provide the Products to Customer. Authorized Users shall use the Products solely for the benefit of Customer. Additional Authorized Users and Products may be added pursuant to an email submitted or confirmed by any authorized representative of Customer.
   2. Software as a Service (SaaS). This agreement offers consultancy services that whitson usually provides (the Products) in an automated manner through an automated request management system (“Software as a Service”). The Customer can access and make use of the services through a web portal. The web portal provides a centralized request management system, coupled to a database, containing all the requests and resulting calculations. The calculation requests are to be sent either to a machine or to an engineer. When and if possible, the preference will be to send calculations to a machine but there will be cases that will require manual intervention from an engineer. For the avoidance of doubt, this does not give the Customer any right of usage of any third-party software that whitson may use for calculating the requested outputs.
   3. Creation of Work Product. Customer may incorporate Proprietary Data into its work product (i) as static images that do not display specific data points and from which it is not possible to extract or manipulate such data and/or (ii) in text containing individual data points (“Customer Work Product”). Customer may provide Customer Work Product to third parties only on an ad hoc, asynchronous basis (not updated in real-time or in accordance with a regular schedule). Customer shall attribute whitson by prominently including “Data provided by and used with permission from whitson” and, upon request, shall provide whitson a copy of Customer Work Product. Customer Work Product shall not extend any warranties on behalf of whitson or imply that whitson is responsible for reliability, accuracy, completeness or currency of any Proprietary Data or Customer Work Product. Customer Work Product shall not include packages or summaries of Proprietary Data or material marked “Confidential” or “Not for distribution.” Consulting deliverables that whitson provides to Customer and that comply with this section shall be considered Customer Work Product.
   4. Data Extraction. If whitson extracts data from Customer’s source documents, it may use automated or other methods and such extraction may result in inaccuracies or inconsistencies. whitson does not warrant the accuracy of any extracted data or other data provided via the Products and Customer is responsible for interpreting data and any actions taken. Customer authorizes whitson to use all extracted data to provide the Products and improve products and operations generally, e.g., development, diagnostics, and testing.

2. Customer shall not and shall not permit or authorize any third party to:
   1. Use the Products other than as authorized or sell, lease, license, sublicense, rent, loan, share, pledge, or otherwise transfer, with or without consideration, all or any part of the Products or rights granted under this Agreement, or permit third parties to benefit from the Products, including a timesharing, rental, outsourcing, service bureau, networking, hosted service or other arrangement.
   2. Use the Products to compete with whitson, build a competitive product or service, provide packages or summaries of Proprietary Data, copy any Product features, functions, or graphics, provide Proprietary Data to third parties by lease, rental, transfer, assignment, broadcast, public display, distribution, sale/resale, sublicense, or any other means, or engage in “mirroring” or simulating the Products.
   3. Reverse engineer, decompile, decrypt, or disassemble Products, except to the extent this restriction is prohibited by applicable law, remove proprietary notices or labels, use any robot, spider, or other automated method to access, download, or reproduce Proprietary Data, or use Products in a way that causes a denial of service for other users or interferes with or unduly burdens performance.
   4. Disclose or permit any third party to use confidential information of whitson, including (i) Proprietary Data, (ii) documentation or technical information related to the Products, and (iii) the provisions of this Agreement (including pricing terms).

whitson may suspend or terminate access to the Products if Customer or any Authorized User violates these restrictions.

3. Fees are due in accordance with the payment terms on the applicable invoice. whitson shall have the right to invoice and require payment in advance of providing access to Products. Fees are based on access to the Products, not usage. Payment obligations, including all fees for the entire Term, are non-cancelable and fees paid are non-refundable. whitson may suspend or terminate access to the Products in its sole discretion if fees are not paid in accordance with this provision. Customer will not setoff or offset against whitson’s invoices amounts that Customer claims are due Customer. Fees are exclusive of taxes, levies, duties and other fiscal charges, including but not limited to sales tax, use tax, withholding, value-added or similar tax, and property taxes (collectively, “Taxes”). Customer shall not deduct or withhold Taxes. If whitson has the legal obligation to pay or collect Taxes, whitson will invoice and Customer shall pay such amounts, unless and only to the extent that Customer provides whitson with a valid tax exemption certificate authorized by the appropriate taxing authority. whitson shall have the right to charge interest on any unpaid balances at least 60 days past due at the rate of one and a half percent (1.5%) per month up to the maximum rate permitted by law plus reasonable expenses incurred by whitson in collection efforts. Time for consulting Products shall be forfeited if not used within one year.

4. Term and Termination.
   1. RENEWALS. AFTER WHITSON PROVIDES NOTICE TO CUSTOMER NOT LESS THAN 60 DAYS PRIOR TO THE END TERM, UNLESS CUSTOMER PROVIDES WRITTEN TERMINATION NOTICE TO WHITSON 30 DAYS PRIOR TO THE END OF THE TERM CERTIFYING THAT IT WILL COMPLY WITH SECTION 4(C), WHITSON SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO RENEW THIS AGREEMENT AND THE PRODUCTS FOR SUBSEQUENT ONE-YEAR PERIODS (EACH A “RENEWAL TERM”). RATES FOR RENEWAL TERMS WILL BE WHITSON’s THEN-CURRENT RATE. Upon request, Customer shall promptly provide whitson an accurate count of its then-current number of employees and other information requested to determine pricing.
   2. Termination. whitson shall have the right to terminate the Agreement immediately without refund if Customer violates any of the terms and conditions of the Agreement. whitson shall also have the right to terminate the Agreement immediately without cause at any time upon notice followed by issuance to Customer of a pro rata refund of the fees applicable to the remainder of the Term. Customer’s sole and exclusive right to terminate this Agreement without cause shall be upon written notice to whitson and payment of all unpaid fees for the full Term without refund or setoff. Customer’s sole and exclusive right to terminate this Agreement for cause shall be after 30 days from the date of delivery to whitson of notice of whitson’s material breach of this Agreement, which notice shall detail such material breach and, should whitson fail to cure such breach to the reasonable satisfaction of Customer, whitson will deliver to Customer a pro rata refund of the fees applicable to the remainder of the Term.
   3. Results of Termination. Upon termination or expiration of the Agreement (i) all rights, subscriptions, and access to the Products terminate, but the Agreement will otherwise survive; (ii) Customer shall immediately destroy all copies (including copies in email) of Proprietary Data in Customer’s possession or control; (iii) Customer shall cause each Authorized User to certify that it has completed these procedures and provide such certifications to whitson; and (iv) whitson may pursue any remedies available at law or in equity. Customer Work Product may be retained subject to continued application of Sections 1c and 2. If Customer’s Product access changes, this provision shall apply to Products to which Customer no longer has access. If Customer violates this Section 4c, Customer shall pay whitson three times Customer’s most recent annual fee, as liquidated damages and not as a penalty.
5. WARRANTY DISCLAIMERS. WHITSON DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, ORAL, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING. WHITSON DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS WILL MEET REQUIREMENTS OR THAT THEY ARE SUITABLE FOR NEEDS OR THAT THE DATA OR RESULTS ARE CORRECT, ACCURATE, TIMELY, COMPLETE, SUITABLE, OR RELIABLE. PROPRIETARY DATA IS COMPILED FROM SOURCES BEYOND WHITSON’s CONTROL AND ERRORS, GAPS, AND INACCURACIES MAY EXIST. THE PRODUCTS AND PROPRIETARY DATA ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” BASIS WITHOUT WARRANTIES OF ANY KIND. CUSTOMER ASSUMES ALL RISK OF ERRORS AND OMISSIONS IN THE PRODUCTS AND PROPRIETARY DATA. CUSTOMER SHALL IMPLEMENT SUFFICIENT PROCEDURES AND CHECKS TO SATISFY ITS REQUIREMENTS FOR ACCURACY AND SUITABILITY AND MAINTAIN MEANS FOR THE RECONSTRUCTION OF LOST DATA. THE PRODUCTS ARE A SUPPLEMENT TO, NOT A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF PROFESSIONALS. CUSTOMER ACCEPTS ALL RISKS IN ITS USE OF THE PRODUCTS INCLUDING BUT NOT LIMITED TO ANY INVESTMENT, ACQUISITION, DRILLING, WELL TREATMENT, PRODUCTION OR FINANCIAL DECISIONS. NO INFORMATION OBTAINED THROUGH USE OF THE PRODUCTS SHALL CONSTITUTE TRADING ADVICE, TRADING RECOMMENDATIONS, OR TRADING INFORMATION. SOFTWARE MAY INCLUDE THIRD PARTY COMMERCIAL SOFTWARE LICENSED BY WHITSON AND SUBLICENSED TO CUSTOMER. SOFTWARE MAY ALSO INCLUDE THIRD PARTY COMMERCIAL SOFTWARE LICENSED BY WHITSON AND USED TO PERFORM CALCULATIONS AND PROVIDE RESULTS TO THE CUSTOMER, WITHOUT SUBLICENSING TO CUSTOMER. SOFTWARE MAY ALSO INCLUDE OR BE DISTRIBUTED WITH OPEN SOURCE SOFTWARE. THESE DISCLAIMERS SHALL APPLY REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME OF THE ABOVE MAY NOT APPLY IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES.

6. Indemnification.
   1. whitson Indemnity. Subject to Section 6c, whitson shall defend Customer against any action to the extent based on a claim that the unmodified Products infringe a U.S. patent issued as of the date hereof or a U.S. copyright, trademark, or trade secret (“IP Claim”). If adjudged to infringe, whitson shall, at its option (i) procure for Customer the right to continue using the Products, (ii) modify or replace the Products so that they do not infringe; or (iii) terminate the Agreement and refund the part of the pre-paid fee for the period after termination. whitson shall have no liability for claims based on: (1) use of other than a current, unaltered Products, (2) use of Products in combination with non-whitson products, software, services, or data, (3) third party software or data, including open source or third party commercial software, (4) failure to use the Products in accordance with the terms of this Agreement or for its intended purpose, or (5) infringement caused by compliance with Customer’s designs, requirements, or specifications. THE FOREGOING STATES THE ENTIRE LIABILITY OF WHITSON AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.
   2. Customer Indemnity. Subject to Section 6c, Customer shall indemnify whitson against any claims, actions, losses, liabilities, injuries, expenses, costs (including all reasonable attorneys’ fees and costs of litigation), and damages, resulting from or arising out of Customer’s use of the Products or breach of this Agreement, regardless of the form of action (excluding claims that are covered by whitson’s obligations under Section 6a). CUSTOMER’S OBLIGATIONS SHALL APPLY EVEN IF RESULTING FROM A PERSONAL INJURY OR DUE IN WHOLE OR IN PART TO WHITSON’s NEGLIGENCE OR OTHER FAULT, BREACH OF CONTRACT, STRICT LIABILITY OR VIOLATION OF THE TEXAS DECEPTIVE TRADE AND PRACTICES ACT.
   3. Conditions. The indemnified party shall: (i) promptly notify the indemnifying party in writing of any claim (failure to provide such prompt notice shall only affect the rights of an indemnified party to the extent that such failure has a prejudicial effect on the defenses or other rights available to the indemnifying party); (ii) allow the indemnifying party to have sole control of the defense and all related settlement negotiations (the indemnified party may retain independent counsel at its own expense); and (iii) provide the indemnifying party with the information, authority and assistance necessary to perform the indemnifying party’s obligations under this Section.

7. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE UNDER ANY LEGAL THEORY, WHETHER TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), CONTRACT, STRICT LIABILITY, STATUTORY, OR OTHERWISE, FOR ANY SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, RELATING TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF APPRISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 7 FAIRLY ALLOCATES THE RISKS BETWEEN THE PARTIES AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF LIABILITY FOR CERTAIN DAMAGES SO SOME OF THESE LIMITATIONS MAY NOT APPLY.

8. Ownership / Feedback / Reference. The Products and Proprietary Data and all derivatives thereof (other than Customer Work Product) and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights associated therewith are the valuable, exclusive property of whitson protected by contract and intellectual property laws. This Agreement does not transfer or assign any ownership rights to Customer or anyone else. whitson reserves the right to alter the Products, implement user priorities, implement rules for use, discontinue certain functional aspects of the Products, or add, withdraw, or alter any Proprietary Data. Except as expressly provided in this Agreement, Customer shall have no rights to the Products or any related intellectual property rights whether by implication, estoppel or otherwise, and whitson reserves all rights, title and interest. Customer shall not challenge any right, title or interest of whitson in or to, or make any claim or take any action adverse to whitson’s ownership of, any such property, including the Proprietary Data. Any ideas, feedback, suggestions, corrections, alterations, improvements, additional data points, requests, questions, comments, results of any test or evaluation and the like provided by Customer to whitson (“Feedback”), including any enhancement, improvements or new features to same, will be the property of whitson. Customer hereby assigns and agrees to assign to whitson all right, title and interest worldwide in and to the Feedback and the related intellectual property rights and agrees to assist whitson in securing and perfecting such rights. Customer may use Feedback solely for its own Internal Use. whitson may use information provided by Customer to whitson directly or indirectly, in accordance with whitson’s Privacy Policy, and whitson may collect, store, and use such information, including without limitation user data, document and user meta-data, usage and volume statistical information, and other statistics, to develop, create, extract, or otherwise generate statistics and other information and otherwise analyze Customer’s use of the Products (“Blind Data”) and may disclose such information on an anonymized and aggregated basis to third parties, without restriction. On written consent of Customer, whitson may publicly identify Customer as a customer, including on its website, government filings, and in marketing materials, as permitted in Customer’s written consent, which consent may be revoked by Customer on delivery of thirty-days written notice to whitson. Customer grants to whitson the nonexclusive right to use Customer’s name and trademarks (including logos) solely for such purpose, to the extent approved by Customer in its written consent for so long as such consent is not revoked.

9. Unauthorized Use. whitson may utilize security keys and other enforcement mechanisms to prevent operation of the Products outside the bounds authorized hereunder. Customer shall not attempt to defeat or circumvent any such encryption, security, or enforcement mechanisms. Customer will prevent unauthorized use of the Products and immediately notify whitson of any unauthorized use. Customer will require each Authorized User to keep its user ID and password for the Products confidential and not share user IDs with other individuals. If Customer or any Authorized User suspects that any of its passwords have been disclosed or made known to any other person or if any previously Authorized User ceases to be an employee or contractor of Customer, Customer will immediately notify whitson at support@whitson.com. whitson shall have the right to suspend, cap, limit, or disable file transfers, downloads, and exports as part of Product design, to protect Proprietary Data, or to facilitate operations.

10. High Risk Activities. Products are not intended for use in hazardous environments requiring fail-safe performance, including any application in which failure could lead to death, personal injury, or severe physical or property damage or any nuclear, chemical, or biological weapons or missile technology (“High Risk Activities”). Customer shall not use Products for High Risk Activities. whitson have no liability for damages arising from the use of the Products in any High Risk Activity.

11. Reporting and Audit. Upon request from whitson, Customer shall certify in writing that the Products are being used in accordance with this Agreement, including that only the Authorized Users are using the Products. Customer will maintain complete and accurate books, records, and electronic backups in connection with its use of the Products (or in the case of termination, evidence of steps taken to comply with Section 4c), in sufficient detail to permit whitson to verify Customer’s compliance with the terms and conditions of this Agreement. whitson shall have the right to perform an inspection and audit not more frequently than once per year of Customer’s premises, equipment and records pertaining to the use of the Products during standard business hours and upon thirty (30) days prior written notice. Customer will make available to whitson or its representatives all Customer systems on which any Proprietary Data resides and any records pertaining to the Proprietary Data.

12. Force Majeure. whitson shall not be liable for any loss or liability related to acts of God, equipment failures, DoS/DDoS or similar attacks, connection problems, weather, strikes, walkouts, fire, riots, armed conflicts, wild beasts, acts of war, or any causes outside the reasonable control of whitson. whitson shall have no responsibility to provide access to the Products during such delays or interruption regardless of the cause and shall not be deemed to be in breach of this Agreement as a result thereof.

13. Third-Party Content. The Products contain data obtained from data providers, content posted by customers and links to third party websites or resources (“Third-Party Content”). whitson is not responsible for the availability of external sites or resources and has no control over, does not endorse, and does not make any representations or warranties with respect to Third-Party Content. whitson is not responsible or liable for any damage related to use of or reliance on any Third-Party Content. Customer shall evaluate, and bear all risks associated with, the use of any Third-Party Content, including any reliance on the accuracy, completeness, or usefulness. Customer’s correspondence or business dealings with, or participation in promotions of, providers of Third-Party Content, including payment and delivery of related products or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Customer and such providers. whitson respects intellectual property rights and asks Customer to do the same. whitson reserves the right, in its sole discretion, to terminate access for any Authorized User who is the subject of infringement notifications.

14. Dispute Resolution. The Agreement shall be governed by the laws of the State of Texas. Any claim or cause of action relating to this Agreement must be brought in courts located in Fort Worth, Tarrant County, Texas, except that whitson may seek injunctive or equitable relief in any court. Customer submits to the personal jurisdiction of, and shall not object to venue in, such courts. If Customer does not reside or have a registered agent in the State of Texas, Customer hereby appoints the Secretary of State of Texas to act as its agent for service of process in the event of any litigation or claim arising out of or relating to the Agreement. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are specifically excluded from application. Breach of whitson’s intellectual property rights, including confidential or proprietary information and restrictions on use, may cause whitson irreparable damage for which recovery of money damages would be inadequate, and whitson may therefore be entitled to obtain injunctive relief to protect such rights. In addition to any other relief, at law or in equity, the prevailing party shall be entitled to recover all attorneys’ fees and any costs of any litigation. IN ANY JUDICIAL PROCEEDINGS, THE PARTIES KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

15. Assignment. Customer shall not transfer or assign, whether by operation of law, merger (including reverse triangular), change of ownership, or otherwise, this Agreement or any of the rights conferred or obligations imposed by this Agreement, without whitson’s written permission, which will not be unreasonably withheld, delayed, or conditioned. No transfer or assignment shall discharge any obligations under this Agreement. Attempted assignment in violation of this provision shall be void and of no effect. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the Parties’ and their respective permitted successors, transferees, and assigns. If Customer acquires or is acquired by another whitson customer or its affiliate (whether by merger, stock purchase, asset purchase, or otherwise), the acquiring whitson customer’s subscription fee may be increased to account for the combined entity. whitson may freely assign this Agreement, assign its rights, or delegate its duties under this Agreement.

16. Relationship of the Parties. This Agreement shall not create or establish an agency, partnership, or joint venture between the Parties and the Parties jointly and severally disclaim any such relationship. The Parties are acting solely as independent contractors and neither Party owes any fiduciary, special, implied, or other duty to the other Party. Customer agrees and covenants not to directly or indirectly solicit, hire, recruit, or induce the termination of employment of any employee or contractor of whitson during or within one year after the Term.

17. Agreement Interpretation. The Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous agreement, whether written or oral, between the Parties with respect to the Products. The Agreement shall be construed as if both Parties equally participated in its drafting, and thus shall not be construed against either Party as drafter. The Agreement may be modified only in a subsequent written agreement signed by both Parties specifically referencing this Agreement. No waiver of any provision of the Agreement by either Party shall constitute a waiver of any remedy available as a result of a subsequent breach of the same provision unless such waiver is made in writing. If a court determines that any provision of the Agreement is unlawful or unenforceable in any respect, the court shall reform the Agreement by modifying such provision so as to render it enforceable or, if modifying the provision is not possible, then deleting such provision. The court shall then fully enforce the Agreement as reformed. If any of the terms and conditions of the Agreement conflict with any order, text, manual or other document, this Agreement shall prevail and govern, regardless of whether such other document originated prior or subsequent to the Agreement, or was signed or acknowledged by any director, officer, employee, representative or agent of whitson. The headings appearing in the Agreement are included for the convenience of the Parties and shall not be used to define, limit, enlarge or interpret the scope of the Agreement or any of its provisions. “Including” means including without limitation.

18. Definitions.
    1. “Software as a Service (SaaS)” is a software distribution model in which a third-party provider (here whitson) hosts applications and makes them available to the Customer over the Internet.
    2. “Authorized User” means an individual employee or contractor of Customer to whom whitson assigns a user ID and password to access the Products with a unique email address under the control of Customer.
    3. “Customer” means the purchaser of Products indicated on the Order Form or listed on a whitson
    4. “Internal Use” means ordinary use for internal business purposes, not including any activities described in Section 2.
    5. “Order Form” means, if applicable, the order form executed by whitson and Customer describing the Products.
    6. “Party” and collectively “Parties” means whitson and Customer.
    7. “Products” means the products listed on the Order Form or whitson invoice, Proprietary Data, and anything else whitson provides to Customer.
    8. “Proprietary Data” means the data points, databases, elements, records, documents, analyses, models, maps, tables, charts, and other data to which Customer has access using the Products or that is otherwise provided by whitson to Customer.
    9. “Term” means the period from the earliest date on the Order Form until the latest date on the Order Form (even if such dates are in separate lines), or one year if Customer has not executed an Order Form, together with any Renewal Terms.