T-REX SOFTWARE AS A SERVICE (SAAS) SUBSCRIPTION AGREEMENT
This Software as a Service (SaaS) Subscription Agreement constitutes an agreement (this “Agreement”) by and between PetroPower, LLC (“Service Provider”, “we” or “us”) and the corporation, limited liability company, partnership, sole proprietorship, or other business entity that wishes to use the Service and enter into this Agreement (“Customer”, “you”).
PLEASE READ THIS SOFTWARE AS A SERVICE (SAAS) SUBSCRIPTION AGREEMENT CAREFULLY. BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS (SOFTWARE AS A SERVICE (SAAS) SUBSCRIPTION AGREEMENT. THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS SOFTWARE AS A SERVICE (SAAS) SUBSCRIPTION AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
“Customer Data” means all electronic data or information submitted by Customer to the Service. Customer Data does not include electronic data or information about Customer’s use of the Service, the performance of the Service, or anonymized aggregated Customer Data.
“Hardware” means the hardware provided by the Service Provider and installed at Customer’s site to facilitate the Service.
“Order Form” means the ordering documents for Customer's purchases from Service Provider that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein.
“Service” means the T-REX cloud-based software as a service provided by Service Provider via http://www.petropower.com and/or other designated websites, including associated offline components, as described by the User Guide. The Service includes the Hardware.
“Service Provider Data” means all electronic data or information about Customer’s use of the Service, the performance of the Service, or anonymized aggregated Customer Data.
“User Guide” means the online user guide for the Service, accessible via http://www.petropower.com, as updated from time to time.
“Users” means individuals who are authorized by Customer to use the Service. Users may include but are not limited to employees, consultants, contractors and agents of Customer.
2. Service.
2.1 Provision of Service. Service Provider shall make the Service available to Customer and its Users pursuant to this Agreement and all Order Forms during a subscription term. Customer agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Service Provider with respect to future functionality or features.
3. Use of the Service.
3.1 Service Provider Responsibilities. Service Provider shall: (i) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than Users the Customer Data; (ii) maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer's Users, at no additional charge; and (iv) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Service Provider shall give at least 8 hours notice via the Service and which Service Provider shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. EST Friday to 3:00 a.m. EST Monday); or (b) any unavailability caused by circumstances beyond Service Provider's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Service Provider employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Service Provider's possession or reasonable control, and denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users' compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and
appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Service Provider promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Service.
3.3 Hardware. The Hardware shall remain the property of the Service Provider. Customer shall be responsible for damage to, and the maintenance and repair of, the Hardware. Customer shall not add (or permit any third party to add) any additional device or equipment to the interior space of the housing for the Hardware. Customer shall be subject to a return and replacement fee if Customer fails to timely return the Hardware to Service Provider upon termination of this Agreement.
3.4 Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.5 Third-Party Providers. Certain third-party providers, some of which may be listed on pages within Service Provider's website, offer products and services related to the Service, including implementation, customization and other consulting services related to customers’ use of the Service and applications (both offline and online) that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service's application programming interface. Service Provider does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Service Provider as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Service) may be offered by Service Provider to Customer, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by Customer in connection with a separate purchase by Customer of such additional functionality. Customer's use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this Agreement. No purchase of such third-party products or services is required to use the Service.
3.6 Publicity. Vendor may issue press releases relating to this Agreement and Customer’s use of the Service without the Customer’s prior written consent. Either party may include the name and logo of the other party in lists of customers or Service Providers in accordance with the other party's standard guidelines.
4. Fees & Payment.
4.1 Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an Order Form, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Because fees are based on monthly units, fees for subscriptions purchased in the middle of a monthly period will be charged for that monthly period in full and going forward based on the number of monthly periods remaining in the subscription term.
4.2 Invoicing & Payment. Fees for the Service will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net 30 days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information on the Service.
4.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Service Provider's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Suspension of Service. If Customer's account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Service Provider reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
4.5 Taxes. Unless otherwise stated, Service Provider's fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Service
Provider's net income or property. If Service Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Service Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Service Provider reserves all rights, title and interest in and to the Service, Hardware and the Service Provider Data, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 RESTRICTIONS. CUSTOMER SHALL NOT (I) MODIFY, COPY OR CREATE DERIVATIVE WORKS BASED ON THE SERVICE; (II) FRAME OR MIRROR ANY CONTENT FORMING PART OF THE SERVICE; (III) REVERSE ENGINEER THE SERVICE OR THE HARDWARE; OR (IV) ACCESS THE SERVICE OR HARDWARE IN ORDER TO (A) BUILD A COMPETITIVE PRODUCT OR SERVICE, OR (B) COPY ANY IDEAS, FEATURES, FUNCTIONS OR GRAPHICS OF THE SERVICE OR THE HARDWARE.
5.3 Federal Government End Use Provisions. Service Provider provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Service Provider to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
5.4 Customer Data. As between Service Provider and Customer, Customer owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information of Customer under this Agreement.
5.5 Service Provider Data. As between Service Provider and Customer, Service Provider owns all rights, title and interest in and to all Service Provider Data. Service Provider Data is deemed Confidential Information of Service Provider under this Agreement.
5.6 Suggestions. Service Provider shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Service.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Service, business and marketing plans, technology and technical information, product designs, and business processes. Customer Data shall be considered Confidential Information of the Customer. Service Provider Data shall be considered Confidential Information of the Service Provider. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. Warranties & Disclaimers.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Service Provider represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with applicable general industry standards.
7.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICE PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. INDEMNIFICATION.
CUSTOMER SHALL BE LIABLE FOR, AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SERVICE PROVIDER, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, OR REPRESENTATIVES (“SERVICE PROVIDER GROUP”) FROM AND AGAINST ANY AND ALL CLAIMS WHICH ARISE OUT OF THE PERFORMANCE OF THE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE FOLLOWING:
I. LOSS OF OR DAMAGE TO ANY WELL OR HOLE OR ANY CUSTOMER OR THIRD-PARTY OIL AND GAS PRODUCTION FACILITIES;
II. RESERVOIR SEEPAGE OR POLLUTION ORIGINATING UNDERGROUND OR FROM THE PROPERTY OF CUSTOMER OR ANY THIRD PARTY HOWSOEVER;
III. BLOW-OUT, FIRE, EXPLOSION, CRATERING OR ANY WELL OR RESERVOIR OR ANY OTHER UNCONTROLLED WELL CONDITION (INCLUDING THE COSTS TO CONTROL A WILD WELL AND THE REMOVAL OF DEBRIS);
IV. DAMAGE TO OR ESCAPE OF PRODUCT, OR SUBSTANCE FROM ANY FACILITY, INCLUDING ANY PIPELINE OR OTHER SUBSURFACE FACILITY; AND/OR
V. BODILY INJURY, PROPERTY DAMAGE AND ANY RELATED DAMAGES TO CUSTOMER OR THIRD PARTIES. IT IS THE EXPRESS INTENTION OF BOTH CUSTOMER AND SERVICE PROVIDER THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY CUSTOMER TO INDEMNIFY AND PROTECT SERVICE PROVIDER GROUP FROM THE CONSEQUENCES OF SERVICE PROVIDER GROUP’S OWN NEGLIGENCE, FAULT OR STRICT LIABILITY, WHETHER THAT NEGLIGENCE, FAULT OR STRICT LIABILITY IS THE SOLE, JOINT OR CONCURRING CAUSE OF A CLAIM, LOSS, OR EXPENSE (BUT EXPRESSLY EXCLUDING THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SERVICE PROVIDER GROUP).
9. LIMITATION OF LIABILITY.
9.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $1,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL SERVICE PROVIDER HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Term and Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of Subscriptions. Subscriptions commence on the start date specified in the relevant Order Form and continue for the subscription term specified therein. Subscriptions shall automatically renew for additional periods of one (1) month at the list price in effect at the time of renewal unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term.
10.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Service Provider shall refund Customer any prepaid fees covering the remainder of the subscription term after the date of termination.
10.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Service Provider prior to the effective date of termination.
10.5 Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination, Service Provider will make available to Customer for download a file of Customer Data. After such 30-day period, Service Provider shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
10.6 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
11. General Provisions.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Service Provider shall be addressed to the following:
Attn: Notices
PetroPower, LLC
3003 E. 37th Street North, Suite 100
Wichita, KS 67219
Email: info@petropower.com
Notices to Customer shall be addressed to Customer’s address on the Order Form.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Service Provider. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. The validity, performance, and construction of this Agreement shall be governed by the laws of the State of Kansas (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction).
11.8 Venue; Waiver of Jury Trial. The state and federal courts located in Sedgwick County, Kansas shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.10 Changes to Agreement. Service Provider may make changes to the terms and conditions of this Agreement from time to time. When Service Provider makes changes, Service Provider will make the updated Agreement available on http://www.petropower.com/agreement and update the “Last Updated” date at the beginning of this Agreement accordingly. Please check this Agreement periodically for changes. Any changes to the Agreement will apply on the date that they are made and, by way of example, your continued use of the Service after the Agreement has been updated will constitute your binding acceptance of the updates.
11.11 Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.