Software Product License. The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software Product is licensed, not sold.
1. Grant of License.
For the limited time period specified in Section 1.3 below, LMKR grants you the following rights, provided that you comply with all terms and conditions of this Evaluation License:
|LMKR grants You a limited, non-exclusive, non-transferable, royalty-free license to install and use one copy of the Software Product on a single computer, device, workstation, terminal, or other digital electronic or analog device ("Device") solely to evaluate the Software Product, test its compatibility with other products and provide feedback to LMKR during the time period identified in Section 1.3 of this Evaluation License. Upon expiration of the permitted time period, Your rights to the Software Product ends and You must remove and destroy all copies of the Software Product and any components thereof from your Device. If You desire to use the Software Product after the completion of the permitted time period specified in Section 1.3 of this Evaluation License, You will need to acquire a valid, non-evaluation license to the Software Product.|
|1.2||Alternative License Grant for Storage/Network Use.|
|As an alternative to the rights granted in the previous section, You may store or install the Software Product on a storage Device, such as a network server, used only to install or run the Software Product on a single computer over an internal network within Your organization for testing, evaluation and providing feedback to LMKR during the time period identified in Section 1.3 of this Evaluation License. A license for the Software Product may not be shared or used concurrently on different Devices.|
|1.3||Permitted Time Period.|
|YOUR RIGHT TO USE THE SOFTWARE PRODUCT SHALL BE EFFECTIVE FROM THE DATE YOU FIRST INSTALL ANY PORTION OF THE SOFTWARE PRODUCT ON ANY DEVICE AND SHALL CONTINUE FOR A PERIOD OF THIRTY (30) DAYS, AT WHICH TIME YOUR RIGHTS SHALL CEASE. THE SOFTWARE PRODUCT IS TIME SENSITIVE AND WILL NOT FUNCTION AFTER APPROXIMATELY 30 DAYS. DEPENDING ON THE CONFIGURATION OF YOUR DEVICE AND OTHER DETAILS, THE SOFTWARE PRODUCT MIGHT STOP FUNCTIONING BEFORE THE EXPIRATION OF THE 30 DAY PERIOD. NOTICE OF EXPIRATION MIGHT NOT BE GIVEN, SO YOU NEED TO PLAN FOR THE EXPIRATION DATE AND MAKE A COPY OF AND REMOVE YOUR IMPORTANT DATA BEFORE EXPIRATION. If you desire to use the Software Product after your evaluation is completed, you will need to acquire a validly licensed copy of the non-evaluation version of the Software Product.|
|1.4||The Software Product is NOT FOR PRODUCTION USE.|
|You may not demonstrate, test, examine, evaluate or otherwise use the Software Product in a live operating environment or with data that has not been sufficiently backed up.|
|Your use of software and content that may be accessed through use of the Software Product may require additional licenses -- please consult the license agreement accompanying such software and content.|
|1.6||Reservation of Rights.|
|LMKR reserves all rights not expressly granted to you in this Evaluation License.|
2. Demand for Examination.
LMKR hereby requests that you fully examine the Software Product during the term of this Evaluation License so that you will be fully familiar with it before obtaining a copy of the non-evaluation version of the Software Product if you choose to obtain a copy of the non-evaluation version. Only your full examination during the evaluation period will determine whether or not the non-evaluation version will be merchantable or fit for your particular purposes.
3. Additional Limitations.
You may not reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation. You may not rent, lease, lend or transfer the Software Product, or Your license to the Software Product, or host the Software Product for third parties. The Software Product is licensed as a single product; its component parts may not be separated for use on more than one computer. You may not disclose the results of any benchmark test of the Software Product to any third party without LMKR's prior written approval. The Software Product may include copy protection technology to prevent the unauthorized copying of the Software Product or may require original media for use of the Software Product on the Device; it is illegal to make unauthorized copies of the Software Product or to circumvent any copy protection technology included in the Software Product.
4. Consent to use data.
LMKR is not obliged to provide technical or other support for the Software Product. However, if LMKR provides any support services to You, You agree that LMKR and its affiliates may collect and use technical information you provide as a part of any such support services related to the Software Product. LMKR agrees not to use this information in a form that personally identifies you.
Without prejudice to any other rights, LMKR may terminate this Evaluation License if You fail to comply with the terms and conditions of this Evaluation License. In such event, You must destroy all copies of the Software Product and all of its component parts.
6. Intellectual Property Rights.
All title and copyrights in and to the Software Product (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software Product), the accompanying printed materials, and any copies of the Software Product are owned by LMKR or its suppliers. All title and intellectual property rights in and to the content that is not contained in the Software Product, but that may be accessed through use of the Software Product, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties; this Evaluation License grants you no rights to any such content. If this Software Product contains documentation that is provided only in electronic form, you may print one copy of such electronic documentation; You may not copy the printed materials accompanying the Software Product. The Software Product is protected by copyright laws and international treaty provisions. Therefore, You must treat the Software Product like any other copyrighted materials except that You may either (a) make one copy of the Software Product solely for backup or archival purposes or (b) install the Software Product on a single computer provided You keep the original solely for backup or archival purposes. You may not copy any printed materials accompanying the Software Product.
7. Patent and Copyright Indemnity.
|Company agrees to indemnify Customer and pay any costs and damages finally awarded for third party claims based on an actual or alleged infringement of any patent, copyright or registered trademark granted or registered at the effective date of this Agreement in any State which is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, and resulting from the use of the Software or Services in accordance with their intended purpose as specified in technical specifications of the Software or in the Statements of Work for the Services.|
|7.2||Company’s indemnity above is conditional upon Customer giving prompt notice to Company of any claim for infringement and Customer not making any declaration, arrangement or admission in respect of such claims and taking all necessary actions to enable Company to conduct on Customer’s behalf any litigation or negotiations related to the claims raised. The foregoing states the Company’s entire liability for patent, copyright and trademark infringement.|
|7.3||Company will have no liability or obligation to Customer under this section 7 for any patent or copyright infringement or claim based upon:|
a) Company's compliance with Customer’s specifications, where such specifications require Company to modify the Software or Services;
b) the combination of the Software or Services with other software, products or services not furnished or approved in writing by Company;
c) any unauthorized addition to or modification of the Software or Services;
d) any use of the Software in the performance of a method or process (practice of a process), except where such practice is solely completed by or within the Software; or
e) any use of the Software or Services that does not correspond to the Documentation. Customer will defend and hold Company harmless against any expense, judgment or loss for alleged infringement of any patent, copyright or other proprietary right which results from a claim based upon (a), (b), (c), (d), or (e) above.
|7.4||If the Software becomes, or in Company's opinion are likely to become, the subject of a claim of infringement or the like under such patent or copyright laws, Customer will permit Company, at Company's option, to either:|
a) procure for Customer the right to continue using the Software;
b) replace or modify the Software, Maintenance or Services, so that it becomes non-infringing (provided the same level of functionality is maintained); or
Note: If the infringing Software is a Rented License, Company may terminate the license and Customer’s sole remedy in such case will be the return by Company of any fees made by Customer for periods after such termination.
8. Applicable law.
This Evaluation License is governed by the laws of the State of Texas, US without applicability of its conflict of laws principle.
Any controversy or claim arising out of or relating to the Software, Maintenance or Services covered in the Agreement with Customer, or any breach thereof, will be settled by arbitration to be held in the English language at a mutually agreeable location in accordance with the commercial arbitration Rules of the American Arbitration Association (for contracts entered into in the United States) or the International Chamber of Commerce (for contracts outside the United States). Any award rendered by the arbitrator(s) may include costs against either Party and may be entered into a court of competent jurisdiction for enforcement, but under no circumstances are the arbitrator(s) authorised or empowered to award special, punitive or multiple damages against either Party. Any action brought against Company under this Agreement must be brought within twelve (12) months after the cause of action arises.
9. Disclaimer of warranties.
To the maximum extent permitted by applicable law, LMKR and its suppliers provide the Software Product and any (if any) support services related to the Software Product ("Support Services") AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software Product, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE PRODUCT.
10. Exclusion of incidental, consequential and certain other damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LMKR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EVALUATION LICENSE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LMKR OR ANY SUPPLIER, AND EVEN IF LMKR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Limitation of liability and remedies.
|11.1||Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of LMKR and any of its suppliers under any provision of this Evaluation License and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by you for the Software Product. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.|
To the fullest extent permitted by law, Customer agrees that neither Customer nor any third party may recover any special, punitive, incidental, indirect or consequential damages and any damages of or resulting from:
Customer will protect, indemnify, hold harmless and defend Company of and from any loss, cost, damage, or expense, including attorneys' fees, above Company’s limit of liability.
All Interpretations, Recommendations, and Well or Reservoir Descriptions (as defined below) and decisions resulting from use of the Software, Services or any deliverables are opinions and decisions based on inferences from measurements and empirical relationships which are not infallible and involve individual opinions and judgments with respect to which competent specialists may differ. In addition, such Interpretations, Recommendations, Well or Reservoir Descriptions, and decisions may involve information and data furnished by Customer the accuracy and reliability of which are not the responsibility of Company. Therefore, Company provides no warranty for accuracy, correctness or completeness of, and Customer takes full responsibility for, all Interpretations, Recommendations, Well or Reservoir Descriptions and decisions resulting from use of the Software, the Services or any deliverables.
Under no circumstances should Customer treat or rely upon the use of the Software, the Services or any deliverables, including any Interpretation, Recommendation, and Well or Reservoir Description, as the sole basis for any decision, be it operational, technical, financial, commercial or otherwise, relating to the wellbore, the reservoir or the field, including, but not limited to, any decision relating to well planning, drilling safety and performance, field development, well control, production optimization, contingency planning, and infrastructure and systems design and optimization.
Customer acknowledges that the Software is designed and intended for use only in accordance with the Documentation. Any other use may result in defects, errors or damage to the Software, hardware or data, including loss of data. Company shall have no liability or obligation to Customer for such defects, errors or damage to the Software, data or hardware attributed to such use. "Interpretations, Recommendations and Well or Reservoir Descriptions" includes the processing, review and analysis of data, the making of models, workflows, estimates, descriptions, and simulations using data, and the recommending of an action or set of actions based on the foregoing.
12. Third Party Beneficiaries.
You acknowledge that the third party software vendors of Embedded and External Software are third party beneficiaries to this Agreement and have the right to enforce the terms and conditions of this Agreement as they relate to Embedded or External Software.
13. Audit Rights.
From time to time, and with reasonable notice and during Business Hours, Company may audit Customer’s books and records, facilities and any authorized computers where the Software may be located to confirm the appropriate use of the Software in accordance with the terms of this Agreement, including that there has been no unauthorized distribution of the Software. Audit rights shall also extend to ensure the proper use of any Embedded or External software contained within the Software. Audit rights are not intended to extend to the review of any confidential or proprietary information that belongs to Customer.
14. Export Regulations.
Customer has been licensed to use the Software and receive Maintenance in the country where it was initially delivered to Customer. The exportation of the Software and supply of maintenance to certain countries, that are subject to United States, United Nations, European Union or other similar trade sanctions, may be prohibited. Customer is responsible for complying with all applicable trade control regulations. Customer’s use, export, transfer, assignment or other movement of the Software in violation of applicable trade control regulations will result in the automatic termination of this Agreement and all rights to use the Software.
15. Publicity and Public Disclosures.
Customer may not, without first obtaining Company’s prior written approval, use any Company or LMKR trade names, trademarks, service marks, company names or other trade designations in any of Customer’s press releases, advertising literature, or corporate information disclosures (including without limitation financial reports and government regulated information disclosures). Unless required by applicable laws, rules or regulations, neither Party shall issue or publish, or permit any agent or Affiliate to issue or publish, any press releases or otherwise publicize or cause any agent or Affiliate to make any public statements, or otherwise publicize any information with respect to (i) the content of this Agreement, (ii) the work contemplated to be performed under this Agreement, and/or (iii) any transactions or occurrences arising as a result of performance under this Agreement, without the prior written approval of the other Party. Furthermore, the Parties agree to confer with each other prior to any publication of any such information and set forth such agreement in a separate writing.
Customer may not assign or transfer any of its rights or obligations under the Agreement without the express written consent of Company, and, if consent is granted, Customer agrees to be responsible for the assignee’s strict adherence to all terms and conditions of the Agreement. Company may assign its rights and obligations under the Agreement to any LMKR Affiliate or to any successor in interest in the event of a merger, corporate reorganization, or sale of all or substantially all of its assets relating to its business to which the Agreement pertains. Company may assign its rights and obligations in External Software to the third party owners of such External Software.
17. Force Majeure.
Neither Party will be responsible for delays or failures in performance resulting from events or circumstances beyond the control of such Party and which, by the exercise of reasonable due diligence of such Party, could not reasonably have been avoided. Such events will include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental acts or regulations, fires, communication line failures, power failures, and earthquakes. Force Majeure cannot be used to excuse or delay any payment obligation.
18. Entire Agreement.
This ELA (including any addendum or amendment to this ELA which is included with the Software Product) is the entire agreement between you and LMKR relating to the Software Product and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software Product or any other subject matter covered by this ELA. To the extent the terms of any LMKR policies or programs for support services conflict with the terms of this ELA, the terms of this ELA shall control.