TERMS OF USE — DRILLINGINFO, INC.

 

THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”) GOVERN YOUR USE OF THE PRODUCTS (THE “PRODUCTS”) BROUGHT TO YOU BY DRILLING INFO, INC. (WHICH OWNS AND OPERATES THE PRODUCTS) (“DI”). THE TERM OF THIS AGREEMENT SHALL BE THE DURATION OF YOUR USE OF THE PRODUCTS. BY ACCESSING OR USING ANY PART OF THE PRODUCTS, YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT, (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT, INCLUDING PROVISIONS RELATED TO WARRANTY DISCLAIMERS (SECTION 6), INDEMNIFICATION FOR NEGLIGENCE (SECTION 7b), AUTOMATIC RENEWAL (SECTION 5a), LIMITATION OF LIABILITY (SECTION 8), AND WAIVER OF JURY TRIAL (SECTION 16).. DI’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. Customer: (a) has read and understands the entire Agreement; (b) is authorized and intends to form a legally binding contract with DI; (c) is not a competitor of and will not compete with DI; (d) agrees that the Agreement, whether printed or electronic, constitutes a “writing” under any applicable law; and (e) will cause all Authorized Users to abide by the terms of the Agreement. This Agreement is effective as of the Commencement Date.

 

  1. During the Term and subject to the provisions of this Agreement, including restrictions and payment of fees:
  2. DI grants Customer a non-exclusive, non-transferable, non-sublicensable right, solely for Customer’s Internal Use, for the number of Authorized Users indicated in the QTY field on the Order Form to (1) use the Products, (2) download and reproduce discrete elements of Proprietary Data, (3) store Proprietary Data on computer systems controlled by Customer, (4) manipulate, analyze, reformat, print, or display such Proprietary Data, and (5) install the object code version of any Local Software included in the Products. DI 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. If a new version of any Local Software included in the Products is available, Customer shall promptly install the new version and Customer’s rights to previous versions shall terminate. Authorized Users shall use the Products and Proprietary Data only at the offices and locations and on the Devices designated by Customer in writing to DI. Additional users and Products may be added pursuant to an email submitted or confirmed by any authorized representative of Customer.
  3. Creation of Work Product. Customer may incorporate Proprietary Data into its work product (i) as static graphical 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 DI by prominently including “Data provided by and used with permission from Drillinginfo” and, upon request, shall provide DI a copy of Customer Work Product. Customer Work Product shall not extend any warranties on behalf of DI or Data Providers or imply that DI or Data Providers 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 any Estimated Ultimate Recovery (EUR) tables, Drilled but Uncompleted wells (DUCs), Play Assessments, Basin Grading Maps, or material marked “Confidential” or “Not for distribution.” Consulting deliverables that DI provides to Customer and that comply with this section shall be considered Customer Work Product.
  4. Data Providers. DI has entered into agreements with certain commodities exchanges and other third-party providers of Market Data (“Data Providers”) wherein DI has been granted the right to receive Market Data and to retransmit the same to Customer. Customer is responsible at all times for any applicable fees charged by Data Providers for all installed users, whether set forth on the Order Form, separately agreed between Customer and the Data Provider, or determined related to an audit pursuant to Section 14. Customer acknowledges that fees for Market Data services are subject to change from time to time by the Data Providers and the Data Providers may terminate services any time without notice or liability. If fees increase and Customer requests in writing (or via email) that DI terminate the associated data services, DI will do so unless contractually prohibited. If data services are terminated, DI shall cease to provide, and Customer will no longer be obligated to pay fees for, the terminated data services, without affecting any other Products. To the extent Customer provides any data to DI for use in the Products, Customer represents and warrants that it has all rights necessary to do so. Each of the Data Providers has exclusive and valuable rights in and to its own Market Data and such Market Data constitutes valuable confidential information, trade secrets and/or proprietary rights of each of the Data Providers, not within the public domain and shall remain as such at least until the Data Provider places their respective Market Data in the public domain or authorizes placement of their respective data in the public domain. But for this Agreement, Customer would have no rights to access to such Market Data. Disclosure of any Market Data, or any breach of any other covenants or agreements contained herein, would cause irreparable injury to each of the Data Providers for which money damages would not be an inadequate remedy. Accordingly, Customer further acknowledges and agrees that each of the Data Providers shall be entitled to specific performance, injunctive and other equitable relief from breach or threatened breach of any provision, requirement, or covenants of this Agreement.
  5. Restrictions. 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 DI, 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 DI or Data Providers, including (i) Proprietary Data, (ii) documentation or technical information related to the Products, and (iii) the provisions of this Agreement (including pricing terms).
    5. DI may suspend or terminate access to the Products if Customer or any Authorized User violates these restrictions.
  6. Payments. Fees are due in accordance with the payment terms on the applicable invoice. DI shall have the right to invoice in advance and require payment in advance of providing access to Products. Fees are based on access to the Products and usage as described in the Order Form or SOW. Payment obligations, including all fees for the entire Term, are non-cancelable and fees paid are non-refundable. DI 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 DI’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 DI has the legal obligation to pay or collect Taxes, DI will invoice and Customer shall pay such amounts, unless and only to the extent that Customer provides DI with a valid tax exemption certificate authorized by the appropriate taxing authority. DI shall have the right to charge interest on any unpaid balances at least 30 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 DI in collection efforts.
  7. Term and Termination.
    1. UNLESS CUSTOMER PROVIDES WRITTEN TERMINATION NOTICE TO DI 60 DAYS PRIOR TO THE END OF THE TERM CERTIFYING THAT IT WILL COMPLY WITH SECTION 5(C), DI SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO RENEW THIS AGREEMENT AND THE PRODUCTS FOR SUBSEQUENT PERIODS WHICH SHALL BE THE LONGER OF (A) ONE YEAR AND (B) THE SAME LENGTH OF TIME AS THE ORIGINAL TERM SPECIFIED IN THE ORDER FORM (EACH A “RENEWAL TERM”).  RATES FOR RENEWAL TERMS WILL BE THE GREATER OF (1) DI’S THEN-CURRENT RATE, OR (2) THE RATE ON THE ORDER FORM INCREASED BY 3%. Upon request, Customer shall promptly provide DI an accurate count of its then-current number of employees and other information requested to determine pricing.
    2. DI shall have the right to terminate the Agreement immediately without refund if Customer violates any of the terms and conditions of the Agreement. DI 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 shall have the right to terminate the Agreement if DI violates any of the terms and conditions of the Agreement and the violation is not cured within thirty (30) days after receiving written notice from Customer of the violation. Customer may terminate the Agreement without cause upon written notice to DI and payment of all unpaid fees for the full Term or 100% of the estimated annual revenue, whichever is greater, without refund or setoff.
    3. Results of Termination. Upon termination or expiration of the Agreement (i) all rights, licenses, and access to the Products terminate; (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 DI; and (iv) DI may pursue any remedies available at law or in equity. Customer Work Product may be retained subject to continued application of Sections 1b and 3. If Customer’s Product access changes, this provision shall apply to Products to which Customer no longer has access. If Customer violates this Section 5c, Customer shall pay DI three times Customer’s most recent annual fees, as liquidated damages and not as a penalty.
  8. Warranty Disclaimers. DI 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. DI 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 DI’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. LOCAL SOFTWARE MAY INCLUDE THIRD-PARTY COMMERCIAL SOFTWARE LICENSED BY DI AND SUBLICENSED TO CUSTOMER. LOCAL 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.
    1. DI Indemnity. Subject to Section 7c, DI 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, DI 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. DI 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-DI 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 DI AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.
    2. Customer Indemnity. Subject to Section 7c, Customer shall indemnify DI 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 DI’s obligations under Section 7a). CUSTOMER’S OBLIGATIONS SHALL APPLY EVEN IF RESULTING FROM A PERSONAL INJURY OR DUE IN WHOLE OR IN PART TO DI’S NEGLIGENCE OR OTHER FAULT, BREACH OF CONTRACT, STRICT LIABILITY OR VIOLATION OF THE TEXAS DECEPTIVE TRADE AND PRACTICES ACT.
    3. 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.

 

  1. 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. DI’S CUMULATIVE AND AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO DI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENTS GIVING RISE TO SUCH LIABILITY MINUS ANY AMOUNTS PREVIOUSLY PAID BY DI TO CUSTOMER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT. THIS SECTION 8 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. THIS SECTION SHALL NOT APPLY TO VIOLATIONS OF SECTION 3.
  2. 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 DI protected by contract and intellectual property laws. This Agreement does not transfer or assign any ownership rights to Customer or anyone else. DI 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 DI reserves all rights, title and interest. Customer shall not challenge any right, title or interest of DI in or to, or make any claim or take any action adverse to DI’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 DI (“Feedback”), including any enhancement, improvements or new features to same, will be the property of DI. Customer hereby assigns and agrees to assign to DI all right, title and interest worldwide in and to the Feedback and the related intellectual property rights and agrees to assist DI in securing and perfecting such rights. Customer may use Feedback solely for its own Internal Use.
  3. Privacy Policy. DI may use information provided by Customer to DI directly or indirectly, in accordance with DI’s Privacy Policy, available at http://info.drillinginfo.com/privacy-policy/, and DI 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.
  4. Customer Publicity. DI may publicly identify Customer as a customer, including on its website, government filings, and in marketing materials. Customer grants DI the nonexclusive right to use Customer’s name and logos solely for such purpose.
  5. Unauthorized Use. DI 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 DI 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 DI at support@drillinginfo.com. DI 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
  6. Reporting and Audit. Upon request from DI or any Data Provider, Customer shall certify in writing that the Products are being used in accordance with this Agreement, including that only the permitted number of Authorized Users are using the Products. During regular business hours, and upon ten (10) days of prior written notice, any persons designated by DI and acting on behalf of DI or a Data Provider may have access to Customer’s offices or locations in order to observe the use made of Proprietary Data and to examine and inspect any Devices, attachments or apparatuses, as well as any books and records required to be maintained by Customers in connection with its receipt and use of Proprietary Data. Customer will make available to DI or such Data Provider or their respective representatives all Customer systems on which any Local Software or Proprietary Data resides and any records pertaining to the Local Software or Proprietary Data. 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 5c), in sufficient detail to permit DI to verify Customer’s compliance with the terms and conditions of this Agreement and shall maintain the records and books mentioned for six (6) years following the period to which the records relate . Customers will make prompt adjustments (including interest at the rate of 1 ½% per month), through DI, to compensate any Data Provider that discovers an under-reported use of Proprietary Data by Customer. Customer will be liable for the reasonable costs of any audit that reveals a discrepancy in such Data Provider’s favor of five percent (5%) or more of the amount of fees actually due such Data Provider.
  7. Force Majeure. DI shall not be liable for any loss or liability related to a Force Majeure event. Such events include, flood, extraordinary weather condition, earthquake, or acts of God, equipment failures, DoS/DDoS or similar attacks, connection problems, weather, strikes, walkouts, fire, riots, armed conflicts, terrorism, labor dispute, action of government, communications or power failure, equipment or software malfunctions, wild beasts, acts of war, or any causes outside the reasonable control of DI. DI 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.
  8. 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”). DI 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. DI 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. DI respects intellectual property rights and asks Customer to do the same. DI reserves the right, in its sole discretion, to terminate access for any Authorized User who is the subject of infringement notifications.
  9. 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 Austin, Travis County, Texas, except that DI 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 DI’s intellectual property rights, including confidential or proprietary information and restrictions on use, may cause DI irreparable damage for which recovery of money damages would be inadequate, and DI shall therefore be entitled to obtain injunctive relief to protect such rights. Customer hereby waives the requirement of a bond in the event DI seeks injunctive relief. In addition to any other relief, at law or in equity, DI shall be entitled to recover from Customer 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.
  10. 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 DI’s written permission, which may be withheld or conditioned in DI’s discretion. 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 DI customer or its affiliate (whether by merger, stock purchase, asset purchase, or otherwise), the acquiring DI customer’s fee may be increased to account for the combined entity. DI may freely assign this Agreement, assign its rights, or delegate its duties under this Agreement.
  11. 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 DI during or within one year after the Term.
  12. US Government End Users. Products are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of any part of the Products by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
  13. Export Controls. The Products are subject to U.S. Export Administration Regulations. Diversion or use contrary to U.S. or other applicable law and regulation is prohibited. Customer agrees not to export, import, or transmit Products, Proprietary Data or any other software or technical data to any country or end user or for any use in (1) any countries subject to U.S. trade embargoes (and all other nations that may from time to time be included on such a list); or (2) any persons or entities on the U.S. “Denied Persons List,” “Specially Designated Nationals List,” and “Entities List;” or (3) other locations or persons prohibited by law. Customer represents that neither the U.S. Bureau of Industry and Security nor any other governmental agency has issued sanctions against Customer or denied Customer’s export privileges.
  14. 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 DI. 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.
  15. Definitions.
    1. “Authorized User” means an individual employee or contractor of Customer to whom DI assigns a user ID and password to access the Products with a unique email address at a domain name controlled by Customer.
    2. “Customer” means the purchaser of Products indicated on the Order Form or listed on a DI invoice.
    3. “Device” means any equipment that receives, accesses, or displays Market Data.
    4. “DI 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 DI to Customer, other than Market Data.
    5. “Internal Use” means ordinary use for internal business purposes, not including any activities described in Section 3.
    6. “Local Software” means any software included in the Products to be installed on Customer equipment, such as DI Desktop or Transform Essential, other software used to facilitate Authorized User access to the Products, and application programming interfaces (“APIs”). “Local Software” does not include third-party software.
    7. “Market Data” means information and data pertaining to futures contracts and options contracts or similar derivative instruments traded on the exchanges as well as associated index data, that includes, without limitation, opening and closing range prices, high-low prices, settlement prices, current bid and ask prices, last sale prices, price limits, requests for quotations, estimated and actual contract volume data, text messages pertaining to market activity, contract specifications, fast or late messages, and, as determined by the Data Providers, may include information respecting exchange-for-physical (EFP) or against actuals (AA) transactions. With Respect to Subscriber’s obligations under this agreement, Market Data includes information, data, and materials that are derived from the foregoing that convey information to Subscriber that is substantially equivalent to Market Data.
    8. “Order Form” means, if applicable, the order form executed by DI and Customer describing the Products.
    9. “Party” and collectively “Parties” means DI and Customer.
    10. “Products” means products listed on the Order Form or DI invoice, Proprietary Data, and anything else DI provides to Customer.
    11. “Proprietary Data” means DI Data and Market Data.
    12. “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.

 

 

 

***If purchasing a “B3” branded product, you will also be bound to the terms and conditions expressed below, set forth by Ponderosa Advisors, LLC, a Colorado limited liability company ***

 

Terms of Service — B3 Reports

This B3 Terms of Service (this “TOS”) between Ponderosa Advisors, LLC, a Colorado limited liability company d/b/a B3  (“B3”), and the customer identified in the attached B3 Order Form (“Customer”), sets forth the terms and conditions pursuant to which B3 will provide to Customer the B3 Report Product to which Customer subscribes.  This TOS is incorporated by reference into each Order Form. In the event of any conflict between any provision of the Order Form and any provision of this TOS, this TOS shall control.

 

Grant of Access.  Subject to the terms, conditions and restrictions of the Agreement (including this TOS) and to Customer’s full and prompt payment of all Service Fees when due and without set off, B3 hereby grants Customer, solely in their capacity as such, limited, non-exclusive, non-transferrable, non-sublicensable, revocable permission to access the B3 Report subscribed to by Customer under the applicable Order Form, (i) only during the applicable Subscription Term or such shorter period as may be specified in or provided for under the Agreement or this TOS, (ii) solely for Customer’s internal business purposes, (iii) accessed by Customer’s Authorized Users (an Authorized User is an employee of Customer), and (iv) solely for use by Customer’s employees and contractors.

 

Proprietary Rights.  Customer acknowledges and agrees that (i) the B3 Report and all Intellectual Property Rights therein or thereto are valuable property of B3, (ii) that the B3 Report and the data from which it is derived are original compilations pursuant to United States Copyright Law and B3 has dedicated substantial time and resources to collecting, managing, and compiling the B3 Report; (iii) that the B3 Report  includes trade secrets of B3; and (iv) that B3 exclusively owns, and shall retain, all right, title, and interest, including all Intellectual Property Rights, in and to the B3 Report.

 

Prohibitions on Use  Customer may not (i) remove, obscure, suppress or modify in any way, any of the proprietary markings ( including any trademark, service mark, copyright notices, brand markings, or logos), used by B3 in relation to the B3 Report, (ii) allow or enable a third party to access or use any B3 Report, (iii) license, sublicense, rent, loan, share, pledge, or otherwise transfer, or assign, with or without consideration, any B3 Report, (iv) use the B3 Report to compete with B3 or assist or build a competitive product or service.

DISCLAIMERS OF WARRANTIES.  B3 PROVIDES THE B3 REPORT “AS IS,” AND “AS AVAILABLE”, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, B3 HEREBY 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 OR USAGE OF TRADE OR COURSE OF DEALING.  B3 DOES NOT REPRESENT OR WARRANT THAT THE B3 REPORT WILL MEET REQUIREMENTS OR THAT IT IS SUITABLE FOR NEEDS OR THAT IT  WILL BE SECURE, CORRECT, ACCURATE, TIMELY, COMPLETE, SUITABLE, OR RELIABLE.  THE B3 REPORT IS COMPILED FROM SOURCES BEYOND B3’S CONTROL AND ERRORS, GAPS, AND INACCURACIES MAY EXIST. CUSTOMER SHALL IMPLEMENT SUFFICIENT PROCEDURES AND CHECKS TO SATISFY ITS REQUIREMENTS FOR ACCURACY AND SUITABILITY. B3 REPORTS ARE A SUPPLEMENT TO, NOT A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF PROFESSIONALS.  CUSTOMER ACCEPTS ALL RISK IN ITS USE OF THE B3 REPORT INCLUDING BUT NOT LIMITED TO ANY INVESTMENT, ACQUISITION, PRODUCTION, LEGAL OR FINANCIAL DECISIONS.  NO INFORMATION OBTAINED THROUGH THE B3 REPORT CONSTITUTES LEGAL ADVICE, TRADING ADVICE, TRADING RECOMMENDATIONS, OR TRADING INFORMATION.

 

Limitation of Liability.  B3 shall not be liable under any theory of liability, whether tort (including without limitation negligence), contract, strict liability, statutory, or otherwise, for any special, incidental, consequential, exemplary, punitive, or indirect 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 the Agreement or this TOS, even if apprised of the possibility of such damages in advance.  In no event shall B3’s have any liability hereunder or otherwise with respect to any claims arising from or incident to the Agreement for any amount or amounts which in the aggregate exceed the Service Fees paid by Customer to B3 under the Agreement in the 6 months preceding the first event giving rise to such liability minus any amounts previously paid by B3 to Customer in satisfaction of any liability under the Agreement.  This Section 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 the 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.

 

Termination.  B3 shall have the right to terminate access to the B3 Report and/or the Agreement without refund of any Service Fees, if Customer defaults under or breaches any of the terms, conditions, restrictions or other provisions of the Agreement. B3 shall also have the right to terminate access to the B3 Report and/or the Agreement, immediately and without cause at any time upon notice to Customer, followed by issuance to Customer of a pro rata refund of the Service Fees applicable to the remainder of the Subscription Term.   Customer’s sole and exclusive right to terminate this Agreement shall be termination without cause, upon written notice to B3 and payment of all unpaid Service Fees without refund or set off.

 

Governing Law, Jurisdiction, Remedies.  The laws of the State of Colorado, excluding its conflict-of-law rules, shall govern this Agreement. B3 and Customer agree to submit to the non-exclusive jurisdiction of, and agree that venue is proper in, state courts in the City and County of Denver, Colorado or the United States District Court for the  District of Colorado (if federal subject matter jurisdiction applies), in any legal proceeding arising out of, based on or relating to this Agreement. The rights, powers, remedies and privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges provided by applicable Law.