FRACTEST LLC DBA SOURCE WATER WATCH SOFTWARE LICENSING AGREEMENT
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR THE “AUTHORIZED USER”) AND FRACTTEST LLC, A TEXAS LIMITED LIABILITY COMPANY LOCATED AT 6060 NORTH CENTRAL EXPRESSWAY SUITE 560 DALLAS, TEXAS 75206 (“WE” OR “COMPANY”). BEFORE USING ANY PART OF THE SOFTWARE (AS DEFINED BELOW), YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS SOFTWARE LICENSING AGREEMENT (THE “AGREEMENT” OR THIS “SLA”) AS THEY GOVERN YOUR ACCESS TO AND USE OF THE FRACTEST SOFTWARE (THE “SOFTWARE”). THE COMPANY IS WILLING TO LICENSE AND ALLOW THE USE OF THIS SOFTWARE ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS SLA. IF YOU DO NOT AGREE WITH THIS SLA, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SOFTWARE.
TERMS AND CONDITIONS
- LICENSE GRANT. The Software is provided by Company, and this SLA provides to you and/or your company a revocable, limited, non-exclusive, royalty-free, non-transferable license to use the Software conditioned on your continued compliance with the terms and conditions of this SLA.
- RESTRICTIONS. The foregoing license is limited. You may not use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit any data provided by Company through the Software in any manner not expressly permitted by this SLA. In addition, you may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the Software in any manner not expressly permitted herein.
- PAYMENT. You shall pay Company either a one-time report fee (the “Report Fee”) or a monthly subscription fee equal to fee in effect at that time for so long as you use the Software in accordance with this SLA (the “Monthly Subscription Fee”). The Report Fee shall be paid prior to accessing any reports through the Software. The Monthly Subscription Fee shall be paid to Company within the first five (5) days of the month for the month that you wish to use the Software. The Monthly Subscription Fee and/or the Report Fee will be confirmed in an acceptance email sent to you upon initiation of the license granted herein.
- USER OBLIGATIONS. By downloading, accessing, or using the Software in order to view our information and materials or submit information of any kind, you represent that you are at least the legal age of majority and will, at all times, provide true, accurate, current, and complete information when submitting information or materials through the Software, including, without limitation, when you provide information via an online registration or submission form. In addition, you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the This SLA is also expressly made subject to any applicable export laws, orders, restrictions, or regulations.
- PROPRIETARY RIGHTS. This SLA provides only a limited license to access and use the Software. Accordingly, you expressly acknowledge and agree that Company transfers no ownership or intellectual property interest or title in and to the Software to you or anyone else. All text, graphics, ideas, inventions, user interfaces, designs, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation, unless otherwise indicated, are owned, controlled, and licensed by Company and its successors and assigns and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided herein, Company does not grant any express or implied right to you or any other person under any intellectual or proprietary rights. Accordingly, your unauthorized use of the Software may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. The Company, the Company logo, and all other names, logos, and icons identifying Company and its programs, products, and services are proprietary trademarks of Company, and any use of such marks, including, without limitation, as domain names, without the express written permission of Company is strictly prohibited. Other service and entity names mentioned herein may be the trademarks and/or service marks of their respective owners.
- FEEDBACK AND SUBMISSIONS. Company welcomes your Feedback and suggestions about Company’s products or services or the Software. By transmitting any suggestions, information, any video, writing, comments, remarks, ideas, graphics, photographs, material, or other content (collectively, “Feedback”) to Company, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Company and enable Company to use such Feedback. In addition, any Feedback received will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Company to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
- DISCLAIMER. WHILE COMPANY ENDEAVORS TO PROVIDE RELIABLE INFORMATION, SERVICES, PROGRAMS, SOFTWARE, AND MATERIALS, THE SOFTWARE IS PROVIDED ON AN “AS‐IS” AND “AS AVAILABLE” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. YOU ASSUME THE SOLE RISK OF MAKING USE OF THE SOFTWARE. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE RESULTS THAT CAN BE ACHIEVED FROM OR THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE DATA PROVIDED AND/OR THE SOFTWARE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. COMPANY ALSO MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT ANY DOWNLOADABLE FILES OR INFORMATION WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES.
- LIMITATION OF LIABILITY. You expressly absolve and release Company from any claim of harm resulting from a cause beyond Company’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SOFTWARE, WITH THE DELAY OR INABILITY TO USE THE SOFTWARE, OR FOR ANY DATA, INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS AVAILABLE THROUGH THE SOFTWARE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. NOTWITHSTANDING THE FOREGOING, TOTAL LIABILITY OF COMPANY FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SOFTWARE SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO COMPANY IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE DURING THE PRIOR THREE
- INDEMNITY. You agree to defend, indemnify, and hold harmless Company and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by you of this SLA.
- GOVERNING LAW. This SLA has been made in and will be construed and enforced solely in accordance with the laws of the United States of America and the State of Texas, U.S.A. as applied to agreements entered into and completely performed in the State of Texas. You and Company each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction, and venue of the courts in the State of Texas for any disputes between us under or arising out of this SLA. You also agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this SLA and acknowledge that either party may seek attorney’s fees in any proceeding. Any claim you might have against Company must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this SLA and is hereby disclaimed. Company makes no representation that the Software is appropriate or available for use in other locations outside the State of Texas, and access to the Software from states, territories, or nations where any aspect of the Software is illegal is prohibited. You access the Software on your own volition and are responsible for compliance with all applicable local laws with respect to your access and use of the Software. A printed version of this SLA and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this SLA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Please contact Company if you wish to receive a printed copy of this SLA.
- TERM AND TERMINATION. This SLA and your right to use the Software will take effect at the moment you click “I ACCEPT” or you install, access, or use the Software and is effective until terminated as set forth below. This SLA will terminate automatically if you click “I REJECT”. In addition, Company reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this SLA, to deny your access to the Software or to any portion thereof in order to protect its name and goodwill, its business, and/or other Authorized Users, and this SLA will also terminate automatically if you fail to comply with this SLA, subject to the survival rights of certain provisions identified below. Termination will be effective without notice. You may also terminate this SLA at any time by ceasing to use the Software, but all applicable provisions of this SLA will survive termination, as identified below. Upon termination, you must destroy all copies of any aspect of the Software in your possession. In addition to the miscellaneous section below, the provisions concerning Company’s proprietary rights, Feedback, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of this SLA for any reason.
- MISCELLANEOUS. You acknowledge that any breach, threatened or actual, of this SLA will cause irreparable injury to Company, such injury would not be quantifiable in monetary damages, and Company would not have an adequate remedy at law. You therefore agree that Company shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this SLA. Accordingly, you hereby waive any requirement that Company post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Company to enforce any provision of this SLA. The parties agree that this SLA is for the benefit of the parties hereto as well as Company’s licensors. Accordingly, this SLA is personal to you, and you may not assign your rights or obligations to any other person or entity without Company’s prior written consent. Failure by Company to insist on strict performance of any of the terms and conditions of this SLA will not operate as a waiver by Company of that or any subsequent default or failure of performance. If any provision (or part thereof) contained in this SLA is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language. No joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this SLA or your utilization of the Software. Headings herein are for convenience only. This SLA represents the entire agreement between you and Company with respect to use of the Software, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and Company with respect to the Software. No amendment, change, or modification of this SLA shall be valid unless in writing and signed by you and the Company. You or the Company shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected party shall, as soon as practicable (i) notify the other party of the Force Majeure Event and its impact on performance under this Agreement and (ii) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder. This SLA may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this SLA, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.