STANDARD TERMS AND CONDITIONS RENTAL OF SOFTWARE LICENSES
AZIWELL Group
July 2024
STANDARD TERMS AND CONDITIONS
RENTAL OF SOFTWARE LICENSES
Upon acceptance of a Quotation referencing these Standard Terms and Conditions (the Agreement"), Aziwell shall grant to Customer the right to rent license of the Software Products described in the Quotation, as well as provide the Customer maintenance and support services for such Software Products, subject to full compliance with the following terms and conditions, regardless of any legal terms added by Customer, including those on a subsequent purchase order or similar document. Each of Aziwell and Customer may be referred to individually as a Party, and collectively as the Parties.
1. DEFINITIONS.
1.1. "Customer" shall mean the entity identified in the Quotation.
1.2. "Fees" shall mean the license fees or other charges set out in the Quotation.
1.3. "Aziwell" means Aziwell Holdings AS and its Affiliates. The term "Affiliate", when used with respect to Aziwell, shall mean any legal entity directly or indirectly controlled by, controlling, or under common control with Aziwell as identified on the Quotation.
1.4. "Quotation" shall mean the schedule of Software Products referencing this Agreement.
1.5. "Software" shall mean the computer software identified in the Quotation, and Updated Software delivered to Customer by Aziwell, and/or utility software not specifically identified. Whenever a single, specific type of Software is referenced, the term Software Product shall apply.
1.6. "Software Maintenance and Support Services" shall mean maintenance and support services provided by Aziwell to Customer pursuant to this Agreement as further defined below.
1.7. "Updated Software" shall mean a version of the Software which may contain standard releases, patches, bug fixes, error corrections, modifications, alterations or deletions and therefore differs from the version in Customer's possession. Updated Software does not include any replacement software products separately priced, any new software products separately priced, any additional options separately priced, or any software having substantially new or different functions.
2. TERM.
2.1. Aziwell will provide a rental license and Software Maintenance and Support Services for the period of time specified in the Quotation ("Term"). The rental license and Software Maintenance and Support Services shall begin when Aziwell delivers the Software to the Customer, and Customer has agreed to be bound by the terms of this Agreement.
2.2. Customer specifically commits to pay for rental licenses for the Term as specified in the Quotation; provided, however, that in case of a conflict between the terms set forth in the Quotation and the terms set forth in this Agreement, the terms in this Agreement shall be deemed controlling.
3. DELIVERY AND PAYMENT.
3.1. The Software is delivered via electronic download.
3.2. Customer shall pay, in addition to the Fees, any tariffs, sales and/or use taxes, value added taxes, or any other taxes or levies imposed by a governmental agency with respect to the Software or Software Maintenance and Support Services. If Customer is exempt from any taxes, Customer must provide Aziwell with the necessary documentation required by the taxing authority to sustain such an exemption.
3.3. Unless Aziwell requires special credit terms, Customer must pay the Fees as specified in the Quotation within twenty (20) days from the date of Aziwell's invoice or as otherwise stated on the Quotation. Aziwell may require Customer to provide irrevocable letters of credit, cash in advance or other forms of security.
3.4. Aziwell shall provide the Software Maintenance and Support Services as described in this Agreement.
3.5. Should Customer become more than thirty (30) days delinquent in the payment of any sum due Aziwell pursuant to this Agreement or any other agreement between Aziwell and Customer, Aziwell may (a) suspend performance under this or any other related agreement between Aziwell and Customer after ten (10) days from the date of written notice of the proposed suspension to Customer and (b) invoice Customer for interest on any unpaid balance from the date payable until paid at the lesser of 18% per annum or the highest lawful contract rate applicable. In the event Aziwell employs an attorney for collection of any account, Customer agrees to pay reasonable and necessary attorney fees, plus all collection and court costs.
4. WARRANTY.
4.1. Software warranty period is ninety (90) days from the date of delivery.
4.2. Aziwell warrants that the Aziwell-owned Software was developed with reasonable diligence and skill, and
that it substantially conforms to published documentation and source files. If Customer notifies Aziwell in writing during the Software warranty period of substantial non-conformance of Aziwell-owned Software to published documentation and source files, Aziwell will, at its option, repair or replace the affected Software Product. Except as expressly provided above, the Software is deemed accepted AS-IS without any further warranty.
4.3. These warranties do not cover any defects or resulting damage caused by installation or use of hardware or software not furnished by Aziwell, accident (including damage during shipment), neglect, misuse or abuse, or exposure to conditions beyond the environmental, power and operating constraints specified by Aziwell. Furthermore, these warranties do not cover defects or failure resulting from modification or installation by any person or entity other than Aziwell or its authorized representative.
4.4. Aziwell does not warrant that the operation of the Software will be uninterrupted or error free or that Aziwell will correct all errors. Aziwell does not warrant that the Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer. Aziwell does not warrant any third party software even if included with other Aziwell-owned Software. However, the original suppliers may provide their own warranties as specified in the documentation accompanying such third party software.
4.5. Aziwell further warrants to the Customer that Aziwell will perform the Software Maintenance and Support Services described herein in accordance with the terms of this Agreement.
4.6. THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. AZIWELL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
5. SOFTWARE RENTAL LICENSE.
5.1. In consideration of payment of the Fees stated in the Quotation, Aziwell will provide Customer with online license, license key(s) or password(s) corresponding to the Software Products and number of licenses listed on the Quotation.
5.2. Aziwell grants to Customer a nonexclusive, non-transferable license to use the object version of the Software solely for Customer's own internal use during the term of this Agreement. Customer may:
a) install and use the Software on a multiple computers, each session will consume one license up to the purchased amount of licenses;
b) copy the Software into machine-readable or printed form for backup, provided that all copies and partial copies include Aziwell's copyright notices;
c) except for training books and materials, copy the documentation as required for Customer's internal use only, provided that all copies shall include Aziwell's copyright notices; and
d) run multiple operating system ("OS") environments on a single physical hardware system such as a license server if Customer has virtual machine ("VM") technology. Current VM technologies permit the Customer to run multiple OS environments (and copies of the same software applications) on the same license server. If Customer is going to install and use Aziwell Software on a VM, Customer agrees to the following:
i. Customer shall not duplicate the Software or the license file in order to run it on more than one (1) OS environment under a single license. For sake of clarity, the Customer is only entitled to run the number of licenses purchased.
ii. If Customer installs Software on a VM, Customer's use of that Software will remain subject to the same use restrictions (e.g., the Software cannot be reverse engineered, decompiled or disassembled) and the same export control requirements as set forth in the original license terms and conditions for that Software.
5.3. Except as provided in Section 5.2, Customer shall not:
a) copy, modify, merge, reverse engineer, reverse assemble, decompile or disassemble the Software;
b) distribute, publish, transfer, timeshare, sublicense or make the Software or documentation available to other entities, organizations or persons;
c) transfer the Software to another site without approval of Aziwell and payment of the applicable fee; or
d) publish any results of tests run on the Software.
5.4. If Customer is located in a country requiring registration of Software licenses with government authorities, Customer is responsible for meeting all such requirements.
6. DESCRIPTION OF SOFTWARE MAINTENANCE AND SUPPORT SERVICES.
6.1. Scope of Software Maintenance and Support Services. During the term of this Agreement, and subject to full compliance with the terms and conditions of this Agreement, Aziwell will provide Customer with Software Maintenance and Support Services for all Software Products listed on a Quotation referencing this Agreement. Customer agrees to use the Software in accordance with the published documentation and specifications. Nothing herein shall be construed to require Aziwell to provide Software Maintenance and Support Services for any operating system software or Software running on hardware platforms not supported by Aziwell. Although Aziwell may attempt to resolve application issues related to non-supported platforms, any problems requiring extensive support and problem resolution, up to and including call resolution and dispatched personnel, will be charged to Customer at Aziwell's standard hourly rate. Aziwell is not obligated to provide Customer with special patches or Updated Software for applications residing on non-supported platforms. Nothing in this Agreement shall be construed as to require Aziwell to dispatch personnel to Customer's site or otherwise provide on-site services, which if mutually agreed shall be governed by the terms and conditions of a separate consulting services agreement.
6.2. Updated Software. During the term of this Agreement, Aziwell will make available to the Customer any Updated Software and related documentation, including any release notes and any interim reports of significant errors and corrections. Customer acknowledges and understands that Updated Software documentation is currently only offered in digital format. Customer is responsible for its own integration and implementation of any Updated Software that is made available. Customer agrees that all licensed copies of any particular Software Product residing on the same network server will be maintained to the same version at all times. Customer also acknowledges and understands that Updated Software may not be backwards compatible with earlier versions, and may not function properly in mixed version environments.
6.3. Applications Support Line. During normal business hours of the local Aziwell support center, Aziwell will respond to questions about Aziwell Software usage. Aziwell will respond to Customer as soon as reasonably possible after receipt of Customer's request for support. Extended hours support is available for an additional fee.
6.4. Obsolescence. Customer is advised to use the most current Updated Software made available by Aziwell. Aziwell shall only be obligated to support the most current updated versions of Software Products. Aziwell may, at any time, terminate support for a superseded release or earlier version of a Software Product. Aziwell may terminate Software Maintenance and Support Service for an entire Software Product upon a minimum thirty (30) days’ notice. In the event that Software Maintenance and Support Services are terminated for one or more of the Software Products covered by this Agreement, this Agreement will remain in effect through the then current contract term.
7. PROPRIETARY RIGHTS, PATENTS AND COPYRIGHTS, CONFIDENTIALITY.
7.1. Customer acknowledges that Aziwell is the sole and exclusive owner of, or otherwise has legal right to, the Software and all patents, copyrights, trade secrets, trademarks, and other intellectual properties and proprietary rights therein. No title to or ownership of the Software or the patents, copyrights, trade secrets, trademarks, or other proprietary rights contained therein is transferred to Customer by this Agreement.
7.2. Customer acknowledges and agrees that its use of the Software Products may contain components manufactured or owned by companies and/or individuals (“Supplier”) other than Aziwell (“Third Party Software”). Such Third Party Software shall be governed by the applicable end user license terms of the Third Party Software and Customer hereby agrees to be bound by such terms.
7.3. Customer agrees that the Software is confidential and proprietary information in which Aziwell claims trade secret rights and that the Software is disclosed to Customer on a confidential basis. Customer shall keep the Software confidential and prevent the Software from being (a) used except as permitted by the license granted herein, or (b) disclosed to any person or entity other than Customer's employees or agents solely for the purposes of Customer's permitted use of the Software. Customer's obligations of confidentiality under this Agreement do not apply to any information or material provided to Customer by Aziwell hereunder, which (i) is or becomes, through no fault of Customer, part of the public knowledge; (ii) is made or becomes available to Customer from a third party lawfully in possession of same and having no obligation of confidentiality to Aziwell with respect thereto; or (iii) is already in Customer's possession in written form prior to disclosure to Customer by Aziwell hereunder without obligation of confidentiality. Customer shall protect the Software from theft, misappropriation, and unauthorized reproduction. Customer may not transfer the Software to another party without first obtaining Aziwell's express written approval; and in the event that Aziwell grants permission to transfer, Customer agrees to assure that the receiving party is bound to like obligations of confidentiality with respect to the Software. It is expressly understood that the obligation of confidentiality will survive any termination or cancellation of this Agreement.
7.4. Customer consents to Aziwell listing them in their promotional materials and press releases related to its good and services
8. LIMITATIONS OF LIABILITY.
8.1. IN NO EVENT WILL AZIWELL OR ITS SUPPLIERS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, PROFITS OR USE OF HARDWARE OR SOFTWARE). Customer accepts full responsibility for any investment or decisions made based on use or results from the Software. Any interpretations or analyses of geophysical or other Customer data, and any recommendation or geological description based upon such interpretations or analyses are opinions based upon inferences from measurements and empirical relationships and assumptions, which inferences and assumptions are not infallible, and with respect to which professional geoscientists may differ. Accordingly, Aziwell cannot and does not warrant the accuracy, correctness or completeness of any such interpretation, recommendation or geological description. As such, any interpretation, recommendation or geological description resulting from the Software for the purpose of any drilling, well treatment, production or financial decision will be at the sole risk of Customer. If Customer's contractual remedies fail of their essential purpose, Aziwell's sole obligation is to return the amount Customer paid for the Software and accept the return of the Software. Under no circumstances will Aziwell or its suppliers be liable for damages exceeding amounts Customer paid during the last twelve (12) months for the Software Product giving rise to the claim. Any action against Aziwell for claims under this Agreement must be brought within eighteen (18) months after the cause of action accrues.
9. EXPORT AND SANCTIONS COMPLIANCE.
9.1. Customer acknowledges that the Software covered by this agreement is subject to control under the Norwegian Export Administration Regulations administered by the Norwegian government. Customer may not use, transfer, export or re-export any Software without first obtaining any required authorization from the Norwegian government, as applicable.
Customer further certifies that Software covered under this agreement will NOT be used for exploration or production for deep water, Arctic offshore or shale projects that:
(1) have the potential to produce minerals, oil or gas in Russia, North Korea, Iran and Venezuela or in maritime area claimed by Russia and extending from its territory, including, not limited to, the Yuzhno-Kirinskoye Field.
Customer confirms that it shall disclose the End User sites where the Software will be used (if different from Customer’s site).
Without limitation to the foregoing, Customer certifies that:
a) Customer is not: (i) incorporated, located or ordinarily resident in Russia or in any jurisdictions subject to comprehensive Norwegian and EU sanctions, which such jurisdictions may change from time to time.; (ii) owned or controlled by or acting on behalf of the governments of Sanctioned Territories; (iii) identified on any of the relevant EU Lists of prohibited persons, including but not limited to the; or (iv) who is otherwise majority owned or controlled by any of the foregoing (together "Restricted Persons").
b) Customer shall not export, re-export, ship, transfer, sell or permit access, directly or indirectly, to the Software, to or for the benefit of any Restricted Person, or otherwise use the Software in, or in connection with any project or transaction involving, any Sanctioned Territory.
c) Customer shall not use or allow any third party to use the Software for any purpose prohibited by applicable Trade Restrictions, including, but not limited to, military, nuclear, chemical, missile or biological weapons related end uses.
These assurances and commitments will survive termination of this Agreement.
10. TRAVEL AND RELATED CHARGES.
Aziwell's support technicians will not be required to visit the Customer's site unless in Aziwell's determination the error cannot be identified by other means. If travel is necessary, Customer shall reimburse Aziwell for actual travel expenses and necessary lodging and meals at Aziwell's local per diem rate. Aziwell will invoice Customer for such expenses upon completion of the service call and Customer shall make payment within twenty (20) days of the date of such invoice.
11. TERMINATION.
11.1. Customer may terminate this Agreement for cause upon 30 days written notification to Aziwell after allowing Aziwell the opportunity to cure any default.
11.2. Aziwell may terminate this Agreement if Customer fails to comply with these terms and conditions, provided Aziwell has given Customer ten (10) days’ notice prior to the proposed termination, during which time Customer fails to cure the breach to Aziwell's reasonable satisfaction.
11.3. Upon termination for any reason, Customer must destroy all Software copies and documentation, including modified and merged portions thereof in any form and provide to Aziwell written confirmation of such destruction.
11.4. Software Maintenance and Support Services for any Software Product shall terminate automatically, without notice, upon the termination or expiration of the license.
11.5. Termination does not relieve Customer of its obligation to pay all Fees attributable to the Term, or for any previously delivered Software. Upon termination, Customer agrees to reimburse Aziwell for any costs incurred in cancelling or rescheduling Customer's order.
11.6. Provisions herein which by their nature extend beyond the termination or expiration of this Agreement will remain in effect until fulfilled.
12. GENERAL.
12.1. Force Majeure. Except for the obligation of payment, neither Party will be liable for non-performance caused by circumstances beyond their reasonable control, including without limitation work stoppages, delays in transportation, terrorist acts, delay in delivery by vendors, fire, civil disobedience, war, epidemics or acts of nature.
12.2. Audit. Aziwell may, upon reasonable notice, request an audit of the installation locations of the Customer relating to the use of the Software under this Agreement. Customer will have the right to exclude any trade secrets or sensitive business information from the audit. Any audit performed will be reasonable in duration, and performed during normal working hours when done at Customer's facilities.
12.3. Entire Agreement. This Agreement and any Quotation referencing this Agreement constitute the entire agreement between the Parties with respect to this subject and supersede and cancel all prior agreements or understandings (whether oral, written or electronic), as well as any different, conflicting or additional terms which appear on any purchase order or form Customer submits (except that quantities, dates, installation location and means of transportation may be specified by Customer's purchase order and Aziwell's acknowledgment).
12.4. Amendment and Waiver. This Agreement may only be amended by written agreement between the Parties. The Parties may waive provisions of this Agreement in writing only. Any waiver of any provision of this Agreement shall not be deemed a waiver of any subsequent rights in this Agreement.
12.5. Notice. All notices, authorizations and requests by both Aziwell and Customer in connection with this Agreement will be deemed given on the day they are transmitted to the other party at the address as stated on the Quotation. Notice shall be sent via email to Aziwell at [email protected] and if to Customer to the address stated on the Quotation.
12.6. Savings Clause. If any section of this Agreement or the application thereof shall be invalid or unenforceable, in whole or in part, the remainder of this Agreement or the application thereof shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
12.7. Governing Law. This Agreement is governed by and construed in accordance with the laws of Norway, exclusive of conflict of laws principles. Any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the Rules of the Oslo Court effective at the time notice of arbitration is served. The Parties expressly agree that the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods do not apply to the Agreement or to transactions processed under the Agreement.
12.8. Injunctive Relief. The Parties acknowledge that breach of this Agreement may result in irreparable harm and loss, and upon a breach of this Agreement the non-breaching Party shall be entitled to immediate injunctive relief from a court of competent jurisdiction, which is in addition to, not in lieu of remedies at law.
12.9. Assignment. Customer shall not sell, sublicense, assign, mortgage, encumber or otherwise transfer, including by operation of law, this Agreement, in whole or in part, or any Software Product or copies thereof, without the prior written consent of Aziwell. Any attempt by Customer to sell, sublicense, assign or transfer any of its rights, duties or obligations under this Agreement, or any Software Product or copies thereof, in whole or in part, shall be void and Customer's license shall automatically terminate. This Agreement shall inure to the benefit of the successors and assigns of Aziwell.