WellData Website Terms Of Use and Notices

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.