Last Updated: October 15, 2015
READ THE TERMS AND CONDITIONS OF THIS TERMS OF USE AGREEMENT
(“AGREEMENT”) CAREFULLY BEFORE USING M/D TOTCO’s WellDataÔ and
WellData/RTÔ WEB SITES. THE WEB SITE SOFTWARE IS COPYRIGHTED
AND LICENSED (NOT SOLD) BY M/D TOTCO. YOUR USE OF
THE WellDataÔ and WellData/RTÔ WEB
SITES IS CONSIDERED AN ACCEPTANCE OF THIS AGREEMENT. IF YOU ARE NOT
WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD REFRAIN FROM
USING / ACCESSING THE WellDataÔ and WellData/RTÔ WEB
SITES AND RETURN ANY RECEIVED PORTIONS OF THE SOFTWARE TO M/D TOTCO.
This TERMS OF USE AGREEMENT (the “Agreement”) is entered into
effective as of the date that END USER accesses / utilizes the web based
Licensed Software via a computer (“Effective Date”) by and between M/D TOTCO,
INC. (“MDT”), a Texas corporation, with principal offices located at
1200 Cypress Creek Rd., Cedar Park Texas 78613, and you (“END USER”). This
Agreement governs your use of any Web site or Web page operated by M/D Totco
(each, a "WELLDATA Web Site," and collectively, the "WELLDATA
Web Sites").
IN CONSIDERATION of the mutual promises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
THIS
AGREEMENT, INCLUDING ALL SCHEDULES ATTACHED HERETO, CONSTITUTES THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN AND PARTIES HERETO AND
SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS OR UNDERSTANDINGS, WHETHER ORAL OR
WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT. M/D TOTCO OFFERS THE WELLDATA WEB
SITE TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS
AGREEMENT. YOUR USE OF THE WELLDATA WEB SITE CONSTITUTES YOUR ACCEPTANCE OF
THIS AGREEMENT. THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND
LIABILITY); AND AN EXCLUSIVE REMEDY. THESE PROVISIONS FORM AN ESSENTIAL BASIS
OF OUR BARGAIN.
1. HOW M/D TOTCO MAY MODIFY THIS AGREEMENT
M/D Totco reserves the right to change the terms, conditions, and
notices under which it offers the WELLDATA Web Sites, including any charges
associated with the use of the WELLDATA Web Sites. You are responsible for
regularly reviewing these terms, conditions and notices, and any additional
terms posted on any WELLDATA Web Site. Your continued use of the WELLDATA Web
Sites after the effective date of such changes constitutes your acceptance of
and agreement to such changes.
2. ADDITIONAL TERMS
Any WELLDATA Web Site may itself contain additional terms (for
example, codes of conduct or guidelines) that further govern use of that
WELLDATA Web Site, including without limitation, particular features or offers
(for example, WellData Offline Viewer program). If any terms contained in this
Agreement conflict with any terms contained within a WELLDATA Web Site, then
the terms in this Agreement shall control.
3. NO COMMERCIAL, UNLAWFUL OR HARMFUL USE OF
THE WELLDATA WEB SITES
The WELLDATA Web Sites are only for your professional use. You
will not use the WELLDATA Web Sites for commercial purposes (eg. grant or sell
access to your account to a third party). You will not use the WELLDATA Web
Sites in any way that is unlawful, or harms M/D Totco, its affiliates,
resellers, distributors, service providers and/or suppliers (each, a "M/D
Totco Party" and collectively, the "M/D Totco Parties") or any
customer of a M/D Totco Party, as determined in M/D Totco's sole discretion. M/D
Totco may tell you about certain specific harmful uses in a code of conduct or
other notices available through a WELLDATA Web Site, but has no obligation to
do so. You may not use the WELLDATA Web Sites in any way that breaches any code
of conduct, policy or other notice applicable to the WELLDATA Web Sites.
Without limiting the generality of this section, you may not use the WELLDATA
Web Sites in any manner that could damage, disable, overburden, or impair any
WELLDATA Web Site (or the network(s) connected to any WELLDATA Web Site) or
interfere with any other party's use of the WELLDATA Web Sites.
4. SOFTWARE
Your use of any software associated with the WELLDATA Web Sites
will be governed by the terms and conditions of the end user license agreement
("EULA") accompanying such software (eg. such as Adobe’s Acrobat
Reader, and Sun Microsystems’s Java Virtual Machine). If you receive any
software that is not accompanied by a EULA (eg. such as the WellData Offline
Viewer), then M/D Totco grants to you a non-exclusive, revocable, personal,
non-transferable license to use such software solely in connection with the
WELLDATA Web Sites and in accordance with this Agreement. M/D Totco reserves
all rights to such software not expressly granted to you in this Agreement.
Such software is protected by copyright and other intellectual property laws
and treaties. M/D Totco or its suppliers own the title, copyright, and other
intellectual property rights in such software, and such software is licensed,
not sold. You will not disassemble, decompile, or reverse engineer, such
software, except and only to the extent that such activity is expressly
permitted by applicable law. M/D Totco may automatically check your version of
such software and may automatically download upgrades to such software to your
computer to update, enhance and further develop the WELLDATA Web Sites.
5. INFORMATION AVAILABLE FROM THE WELLDATA
WEB SITES
M/D Totco and its suppliers do not warrant or guarantee the
accuracy or timeliness of any information available from the WELLDATA Web
Sites, even if such information appears in any e-mail, pager, cell phone or
other manners available through the WELLDATA Web Sites. Nothing contained in
the WELLDATA Web Sites is intended to constitute professional advice (from M/D
Totco), including but not limited to, the decisions associated with the
construction of a Well (drilling well) or the management of your business.
6. M/D TOTCO MAKES NO WARRANTY
M/D
TOTCO PROVIDES THE WELLDATA WEB SITES "AS IS," "WITH ALL
FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO
SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE M/D TOTCO PARTIES MAKE NO
REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. THE M/D TOTCO
PARTIES DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND
IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT,
ACCURACY, TITLE, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES
OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3)
WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE WELLDATA WEB SITES WILL
BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE
FACE OF THIS AGREEMENT.
7. LIABILITY LIMITATION; YOUR EXCLUSIVE
REMEDY
IN NO EVENT WILL ANY M/D TOTCO PARTY BE LIABLE FOR ANY DAMAGES,
INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT
OR YOUR USE OF THE WELLDATA WEB SITES, EVEN IF SUCH M/D TOTCO PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER
SECTION 9 IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT
SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED
UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER
THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3)
NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND
LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH
THE WELLDATA WEB SITES, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR
YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST ANY M/D TOTCO PARTY WITH
RESPECT TO THIS AGREEMENT OR THE WELLDATA WEB SITES, THEN YOUR SOLE AND
EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WELLDATA WEB SITES.
8. CHANGES TO THE WELLDATA WEB SITES;
ADDITIONAL LIABILITY LIMITATION
THE M/D TOTCO PARTIES MAY CHANGE THE WELLDATA WEB SITES OR DELETE
FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON. As you use the WELLDATA
Web Sites, you should expect to receive, access or use information, materials,
graphics, software, data and content (collectively, "Content")
originated by M/D Totco and persons other than M/D Totco (any such person is
referred to as a "Third Party"). WITHOUT LIMITING THE GENERALITY OF
SECTIONS 8 AND 9, YOU ACKNOWLEDGE AND AGREE THAT THE M/D TOTCO PARTIES ARE NOT
RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY
INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY,
TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR
DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS 8 AND 9, YOU
ACKNOWLEDGE AND AGREE THAT M/D TOTCO IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY
VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE
WELLDATA WEB SITES, (2) ANY INCOMPATIBILITY BETWEEN THE WELLDATA WEB SITES AND
OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES
YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR
TRANSACTIONS IN CONNECTION WITH THE WELLDATA WEB SITES IN AN ACCURATE OR TIMELY
MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY
CONNECTED WITH YOUR USE OF ANY SERVICES AVAILABLE FROM THIRD PARTIES THOUGH
LINKS CONTAINED ON THE WELLDATA WEB SITES. THE LIMITATIONS, EXCLUSIONS AND
DISCLAIMERS IN SECTIONS 8, 9 AND 10 OF THIS AGREEMENT APPLY TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY
MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW.
9. TERMINATION; ACCESS RESTRICTION
M/D Totco may terminate this Agreement, or terminate or suspend
your access to the WELLDATA Web Sites at any time, with or without cause, with
or without notice. Upon such termination or suspension, your right to use the
WELLDATA Web Sites will immediately cease. UPON SUCH TERMINATION OR SUSPENSION,
ANY INFORMATION YOU HAVE STORED ON THE WELLDATA WEB SITES MAY NOT BE RETRIEVED
LATER.
10. WAIVER OF CONSUMER RIGHTS
END USER HEREBY WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS &
COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER
CONSULTATION WITH AN ATTORNEY OF END USER’S OWN SELECTION, END USER VOLUNTARILY
CONSENTS TO THIS WAIVER.
11. GENERAL PROVISIONS
11.1. This Agreement, and all the
rights and duties of the parties arising out of, in connection with, or
relating in any way to the subject matter of this Agreement or the transactions
contemplated by it, shall be governed by, construed, and enforced in accordance
with the laws of the State of Texas (excluding its conflict of laws rules which
would refer to and apply the substantive laws of another jurisdiction). Any
suit or proceeding hereunder shall be brought EXCLUSIVELY in
Harris County, Texas, and each of the parties consents to the personal jurisdiction
of the courts, state and federal, located therein. Each party agrees to waive
any objection that the state or federal courts of Harris County, Texas, are an
inconvenient forum.
11.2. In the event that one or
more of the provisions contained in this Agreement is for any reason held to be
invalid, illegal or unenforceable, such holding shall not affect the remaining
provisions of this Agreement.
11.3. END USER agrees that END
USER is responsible for complying with all applicable U.S. export and trade
laws and all applicable governmental regulations of any country with respect to
the export or use of the System outside of the United States.
11.4. END USER shall not disclose
the terms and conditions of this Agreement and the pricing of M/D Totco’s products
to any third party.
11.5. No failure or delay by MDT
in exercising any right or privilege hereunder shall operate as a waiver
thereof.
11.6. In the event that MDT is
prevented from performing any of its obligations under this Agreement, due to
war, riot, act of God, work stoppage, electrical power interruptions,
mechanical breakdowns, casualties, governmental edict, labor shortage or any
other cause beyond the reasonable control of MDT, then MDT’s obligations shall
be suspended during the time that such circumstance persists.
11.7. All notices required or
permitted hereunder to be effective must be in writing and will be deemed
effective (i) upon delivery to the recipient in person or by an express carrier
with guaranteed next business day delivery, (ii) 3 days after mailing by
registered or certified mail, postage prepaid, return receipt requested, or
(iii) upon delivery by facsimile.
11.8. U.S. GOVERNMENT
RESTRICTED RIGHTS. Any software, documentation, or other technical data
provided by MDT hereunder is provided to the U.S. Government as COMMERCIAL
COMPUTER SOFTWARE -- RESTRICTED RIGHTS pursuant to FAR 52.227-19, DFARS
227.7202-3, or DFARS 227.7203-5 or LIMITED RIGHTS DATA pursuant to FAR
52.227-14 as applicable. Manufacturer is M/D TOTCO, Inc., 1200 Cypress Creek
Rd., Cedar Park, Texas 78613. Under the copyright laws, neither the
documentation, technical data, nor the software may be copied, photocopied,
reproduced, translated, or reduced to any electronic medium or machine-readable
form, in whole or in part, without the prior written consent of MDT, except in
the manner described in the documentation.
12. INTERPRETING THE AGREEMENT; ASSIGNMENT
If any part of this Agreement is determined to be invalid or
unenforceable pursuant to applicable law, then the invalid or unenforceable
provision will be deemed superseded by a valid, enforceable provision that most
closely matches the intent of the original provision and the remainder of this
Agreement will continue in effect. M/D Totco may assign this Agreement, in
whole or in part, at any time with or without notice to you. You may not assign
this Agreement, or assign, transfer or sublicense your rights, if any, in the
WELLDATA Web Sites. Except as expressly stated herein, this Agreement
constitutes the entire agreement between you and M/D Totco with respect to the
WELLDATA Web Sites and it supersedes all prior or contemporaneous
communications and proposals, whether electronic, oral or written, between you
and M/D Totco with respect to the WELLDATA Web Sites. The section titles in the
Agreement are solely used for the convenience of the parties and have no legal
or contractual significance.
13. YOU HAVE LIMITED TIME TO BRING YOUR CLAIM
YOU AND M/D TOTCO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR
RELATED TO THE WELLDATA WEB SITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE
CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
14. COPYRIGHT AND TRADEMARK NOTICES; OTHER
ACKNOWLEDGEMENTS
All contents of the WELLDATA Web Sites are Copyright © 2004 M/D
Totco Corporation and/or its suppliers, all rights reserved. M/D Totco,
WELLDATA, WELLDATA logo, and/or other M/D Totco products and services
referenced herein may also be either trademarks or registered trademarks of M/D
Totco in the United States and/or other countries. The names of actual
companies and products mentioned herein may be the trademarks of their
respective owners. Any rights not expressly granted herein are reserved.
15. OTHER NOTICES
Third
Party Account Information
By using WELLDATA’s information forwarding services within the
WELLDATA Web Sites, you authorize M/D Totco and its agents to access third
party sites designated by you or on your behalf, to supply / retrieve
information requested by you, and you appoint M/D Totco and its agents as your
agent for this limited purpose. Each time you enter your account login
information, you are permitting M/D Totco and its agents to process your
request and use information submitted by you to accomplish the foregoing.
Last
Updated: October 15, 2015
1.
THIS IS AN AGREEMENT BETWEEN YOU AND M/D TOTCO
This
is an agreement ("Agreement") between you and M/D Totco Corporation
(or, if applicable based on where you live, one of its affiliates) ("M/D
Totco"). You represent that you are at least 18 years of age and have
attained the age of majority in the province, state or country in which you
reside, and any information that you submit is correct.
5.
MATERIALS YOU POST OR PROVIDE; COMMUNICATIONS MONITORING
For
materials you post or otherwise provide to M/D Totco related to the WELLDATA
Web Sites (a "Submission"), you grant M/D Totco permission to (1)
use, copy, distribute, transmit, publicly display, publicly perform, reproduce,
edit, modify, translate and reformat your Submission, each in connection with
the WELLDATA Web Sites, and (2) sublicense these rights, to the maximum extent
permitted by applicable law. M/D Totco will not pay you for your Submission.
M/D Totco may remove your Submission at any time. For each Submission, you
represent that you have all rights necessary for you to make the grants in this
section. To the maximum extent permitted by applicable law, M/D Totco may
monitor your e-mail, or other electronic communications and may disclose such
information in the event it has a good faith reason to believe it is necessary
for purposes of ensuring your compliance with this Agreement, and protecting
the rights, property, and interests of the M/D Totco Parties or any customer of
a M/D Totco Party. Further, by using the WELLDATA Web Sites, you are giving M/D
Totco the right, without charge, to use the Submissions and any information stored
thereon to improve your user experience through, amongst others, troubleshooting
and improvements to current services as well as new product or service
developments.
12.
CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
If
this Agreement is with M/D Totco Corporation, claims for enforcement, breach or
violation of duties or rights under this Agreement will be adjudicated under
the laws of the State of Washington, without reference to conflict of laws
principles. If this Agreement is with a M/D Totco affiliate, claims for
enforcement, breach or violation of duties or rights under this Agreement will
be adjudicated under the laws of the place of incorporation for such M/D Totco
affiliate, without reference to conflict of laws principles. All other claims,
including, without limitation, claims under or for violation of consumer
protection laws, unfair competition laws, and in tort, will be adjudicated under
the laws of your state of residence in the United States, or, if you reside
outside the United States, under the laws of the country to which the subject
WELLDATA Web Sites are directed. If this Agreement is with M/D Totco
Corporation, you hereby irrevocably consent to the exclusive jurisdiction and
venue of state or federal courts in King County, Washington, USA in all
disputes arising out of or relating to the use of the WELLDATA Web Sites. If
this Agreement is with a M/D Totco affiliate, you hereby consent to the
exclusive jurisdiction and venue of the courts located in the place of
incorporation for such M/D Totco affiliate in all disputes arising out of or
relating to the use of the WELLDATA Web Sites.
17.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant
to Title 17, United States Code, Section 512(c)(2), notifications of claimed
copyright infringement should be sent to Service Provider's Designated
Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL
RECEIVE NO RESPONSE.