General Terms and Conditions
Last updated March 21, 2016.
These general terms and conditions (these “Terms and Conditions”) govern the provision of certain services and software applications under one or more orders for services (each, an “Order”) entered into between Transzap, Inc., a Delaware corporation doing business as Oildex (“Oildex”), and its customer (“Customer”). These Terms and Conditions will be incorporated by reference into each Order, and in the event of any conflict between these Terms and Conditions and the terms and conditions set forth in any Order, those set forth in the Order shall control.
In accordance with the applicable Order, Oildex shall provide certain services and make available certain software applications, as more specifically described in the applicable Order that has been executed and delivered by Oildex and Customer (the “Services”). With respect to any software applications provided as part of the Services, Oildex shall provide the level of service support set forth in the Oildex Service Level Agreement, which is incorporated by reference into these Terms and Conditions.
Subject to the remainder of these Terms and Conditions, together with any additional conditions, limitations or restrictions contained in any Order, Oildex grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to use the Services solely for the purposes for which the Services are provided, as described in the applicable Order. Customer acknowledges and agrees that Oildex shall have no obligation to provide any enhancements, modifications or upgrades to the Services. Customer grants to Oildex and its designees a limited, non-exclusive, non-transferrable license to use, edit, modify, adapt translate, exhibit, publish, reproduce and copy in connection with the provision of the Services the information that Customer inputs, uploads or otherwise provides in connection with Customer’s use of the Services.
3. Restrictions on Use.
Customer may not (a) modify, adapt, decompile, disassemble, decode, reverse engineer or otherwise attempt to derive or gain access to the source code of any Services, (b) copy, reproduce or create derivative works or improvements of the Services, (c) transfer, sell, license, assign, publish, distribute or otherwise make available the Services to any third party, except to its employees and contractors that Customer shall cause to comply with the terms of this Agreement, (d) extract data or information through the Services for purposes of use with third-party software or services other than as authorized by Oildex, (e) input, upload, transmit or otherwise provide to or through the Services any information, code or materials that are unlawful or injurious, (f) bypass or breach any security device or protection employed by the Services or access or use the Services other than by an authorized user through the use of such user’s then valid access credentials, (g) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Oildex’s provision of software or services to any third party, (h) access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any right of any third party or that otherwise violates any applicable law or (i) access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Oildex’s detriment or commercial disadvantage. Customer shall promptly notify Oildex of any unauthorized use of the Services of which Customer becomes aware.
Except for the limited rights expressly granted to Customer under Section 2, Oildex reserves and shall retain all right, title and interest in and to the Services, all modifications or improvements thereto and all intellectual property rights associated therewith, including all worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights and other property rights.
5. Fees & Payment.
In consideration of the Services provided by Oildex, Customer shall pay Oildex the fees set forth in each applicable Order. Except as expressly provided in the applicable Order, all fees due under an Order shall be due and payable net 20. Oildex may charge Customer a 1½% monthly finance charge compounded monthly with respect to all outstanding invoiced amounts not paid within 30 days after Customer’s receipt of the invoice, but in no event shall any finance charge exceed the maximum allowed by law. All fees due under any Order are exclusive of, and Customer shall be solely responsible for, (a) all inbound and outbound telecommunication charges incurred in connection with Customer’s use of the Services and (b) all sales, use, excise and other taxes which may be levied upon either party in connection with the Services, except for taxes based on Oildex’s net income. All payments shall be made in accordance with the payment instructions set forth in the applicable Order.
6. Confidential Information.
“Confidential Information” means any non-public information related to a party (the “Disclosing Party”) that the Disclosing Party discloses to the other party (the “Receiving Party”) in connection with an Order or the Services, whether or not identified as confidential or proprietary, including, but not limited to, the Disclosing Party’s proprietary software, technology, trade secrets, know-how, business operations, plans, strategies, pricing, customer information and the terms and conditions of each Order. The Receiving Party agrees, during the term of each Order and for a period of one year thereafter, (a) to hold the Disclosing Party’s Confidential Information in strict confidence, (b) to limit access to the Disclosing Party’s Confidential Information to those of the Receiving Party’s employees or agents having a need to know and who are bound by confidentiality obligations with respect to the Disclosing Party’s Confidential Information at least as restrictive as those contained herein and (c) not to use the Disclosing Party’s Confidential Information for any purpose except as expressly permitted under these Terms and Conditions or an Order. Notwithstanding the foregoing, the Receiving Party shall not be in violation of this Section 6 with regard to a disclosure that is required under applicable law or in response to a valid order by a court or other governmental body, provided that the Receiving Party provides, if legally permissible, the Disclosing Party with prior written notice of such disclosure requirement in order to permit the Disclosing Party to contest the requirement or seek confidential treatment of the applicable Confidential Information. The restrictions on use and disclosure of Confidential Information set forth above shall not apply to any Confidential Information, or portion thereof, that is or becomes a part of the public domain through no act or omission of the Receiving Party, was in the Receiving Party’s lawful possession prior to disclosure of such Confidential Information, as established by the Receiving Party’s competent written records, is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, as established by the Receiving Party’s competent written records, or is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure or violation of such third party’s confidentiality obligations with regard to such Confidential Information. Notwithstanding anything to the contrary herein or in any Order, in connection with the Services, Oildex may collect and store document and user meta-data, and aggregate anonymized user data, including document and user meta-data, usage and volume statistical information, and other statistics (but not contact information) from Customer and other users, and may provide such anonymous aggregated information to third parties.
7. Effect of Termination of Orders.
Upon the termination or expiration of any Order for any reason, Customer shall immediately cease using the Services associated with such Order, and fees for any unexpired portion of the Order term will become immediately due and payable. Unless otherwise provided in the applicable Orders, the expiration or termination of any Order will have no effect on any other Order. Upon the termination or expiration of all Orders for any reason, all rights granted herein to Customer shall immediately terminate, and each party shall return to the other all property (including any Confidential Information) of the other party in its possession or control. The provisions of Sections 3, 4, 5, 6, 7, 8, 9, 10, and 12 shall survive the termination or expiration of each Order.
(a) Oildex Indemnification Obligations. Oildex agrees to defend Customer from and against all third party claims, suits and proceedings brought against Customer, and will pay all final judgments awarded or settlements entered into on such claims, arising out of or resulting from a claim that Customer’s use of the Services as permitted under these Terms and Conditions or any Order infringes any copyright, trade secret or duly issued United States patent of any third party. In the event the Services become, or in Oildex’s opinion are likely to become, the subject of any such suit or action for infringement, Oildex may, at Oildex’s option and expense, (i) procure for Customer the right to continue using the Services, (ii) replace or modify the Services so that they become non-infringing or (iii) if neither (i) nor (ii) are commercially feasible, expire the User ID assigned to Customer, accept return of the Services and give Customer a refund of the fees paid by Customer under the applicable Order, less a reasonable allowance for the period of time Customer has used the Services. Notwithstanding the foregoing, Oildex will have no obligation under this Section 8(a) or otherwise (i) with respect to any infringement claim based upon (A) any use of the Services not in accordance with these Terms and Conditions or any Order or for purposes not intended by Oildex, (B) any use of the Services in combination with other products, equipment, software, or data not supplied by Oildex, (C) any use of any release of the Services other than the most current release made available to Customer or (D) any modification of the Services by any person other than Oildex or (ii) to refund any development costs for the Services. Section 9 states Oildex’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
(b) Customer Indemnification Obligations. Customer agrees to indemnify, defend and hold Oildex harmless from and against any and all third party claims, suits and proceedings, and all losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) of Oildex in connection therewith, arising out of or related to (i) Oildex’s use or possession of Customer information or transaction data, (ii) any breach by Customer of any terms, conditions, representations or warranties set forth herein or (iii) any claims by Customer’s customers or vendors.
(c) Indemnification Procedure. The indemnifying party’s indemnification obligations under this Section 8 are conditioned upon the indemnified party (i) giving prompt notice of the claim to the indemnifying party, (ii) granting, at the indemnifying party’s election, sole control of the defense or settlement of the third party claim or action to the indemnifying party (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of or result in any ongoing material liability to the indemnified party) and (iii) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the claim.
(a) Oildex warrants that the Services provided to Customer will be performed by qualified personnel in a professional manner.
(b) Customer represents and warrants to Oildex that (i) the making of any Order does not violate any agreement, right or obligation existing between Customer and any other person or entity, (ii) the Customer information, transaction data and marks do not infringe on any third party patent, copyright, trademark, trade secret or other proprietary rights and (iii) the Customer information and transaction data, and Oildex’s use of them will not violate any law, rule or regulation.
(c) Except for the limited warranties set forth in this Section 9 and the credit provided for certain Services under the SLA, the Services and all other information, products and services provided by Oildex hereunder, are provided “AS IS” and “AS AVAILABLE,” without representations or warranties of any kind. OILDEX HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. OILDEX FURTHER DISCLAIMS ANY WARRANTY THAT THE SERVICES OR ITS CONTENTS WILL BE COMPLETE, ACCURATE, UNINTERRUPTED, SECURE OR ERROR FREE OR THAT THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL INFORMATION IN THE SERVICES IS SUBJECT TO CHANGE WITHOUT NOTICE. In the event the Services are unavailable for any reason, Oildex’s sole obligation, and Customer’s sole remedy, shall be to use commercially reasonable efforts to bring the Services back online as soon as practicable or as otherwise provided in the SLA. Oildex makes no guarantee that all messages sent through the Services will be received. Oildex accepts no responsibility or liability for the accuracy or completeness of any Customer information or transaction data or for any transactions or the consequences of any transactions entered into through use of the Services.
10. Limitations of Liability & Damages.
IN NO EVENT SHALL EITHER OILDEX OR CUSTOMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DATA LOSS, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS, ARISING OUT OF OR RELATED TO ANY ORDER OR THESE TERMS AND CONDITIONS, THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS HEREUNDER OR ANY USE OF OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Oildex’s total aggregate liability for any damages arising out of or related to any Order will not exceed the last (most recent) six months of fees paid by Customer under the applicable Order. Customer acknowledges that this Section 10 has been included as a material inducement for Oildex to enter into each Order and Oildex would not have entered into any Order but for the limitations of liability set forth herein.
11. Default & Remedies.
(a) Default by Oildex. The occurrence of any of the following will be a “Default” by Oildex: (i) Oildex fails to perform or observe any of its obligations under any Order or these Terms and Conditions, which failure continues 30 days after receiving written notice from Customer of such failure; or (ii) Oildex’s insolvency or liquidation as a result of which Oildex ceases to do business for a continuous period of at least one month.
(b) Default by Customer. The occurrence of any of the following will be a “Default” by Customer: (i) Customer fails to pay, when due, any fees or charges owing to Oildex under any Order or these Terms and Conditions; (ii) Customer breaches any representation or warranty made by Customer in any Order or these Terms and Conditions; (iii) Customer fails to perform or observe any of its other obligations under any Order or these Terms and Conditions, which failure continues 30 days after receiving written notice from Oildex of such failure; or (iv) Customer’s insolvency or liquidation as a result of which Customer ceases to do business for a continuous period of at least one month.
(c) Customer’s Remedies. If Oildex commits a Default, Customer will be entitled, at its election, to terminate the applicable Order or seek any available remedies at law or in equity. Customer’s right of recovery for any such Default will be limited as elsewhere provided in the applicable Order or these Terms and Conditions, including, without limitation, Section 10.
(d) Oildex’s Remedies. If Customer commits a Default, Oildex will be entitled, at its election, to exercise any one or more of the following remedies, then or at any time thereafter: (i) to exercise any remedy for such Default set forth elsewhere in the applicable Order or these Terms and Conditions; (ii) to pursue any remedy available at law or in equity, (iii) to terminate the applicable Order; (iv) to suspend Services; and (v) to remove any or all of the Customer equipment and any other property of Customer to the extent reasonably necessary to ensure compliance with any law or regulation or to prevent harm to the business or equipment of Oildex or any of its customers.
(a) Force Majeure. If the performance of any obligation under any Order or these Terms and Conditions (except the making of payments) is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, including fire, flood, casualty, strike, labor condition, unavoidable accident, communications line failures, riot, “acts of God,” acts of war or terrorism or by any enactment of law, order of any legally constituted authority or by any other similar cause (a “Force Majeure Event”), such obligation shall be suspended during the period of such interruption or interference. In the event that a Force Majeure Event continues for a period of 30 days, either party shall have the right to terminate the applicable Order upon 30 days prior written notice to the other party. Both parties agree to use commercially reasonable efforts to minimize the extent of any delay in performance caused by a Force Majeure Event.
(b) Export Administration. Customer acknowledges that materials downloaded from the Services may contain encryption technology that requires an export license from the United States or foreign governments and agrees to comply with all applicable export and import control laws and regulations in its use of the Services and any data downloaded in connection therewith. Customer will defend, indemnify and hold harmless Oildex from and against all claims, suits, proceedings, ,losses, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising in connection with any violation of such laws or regulations by Customer or any of its agents, officers, directors or employees.
(c) Independent Contractors. The parties are independent contractors and nothing in any Order or these Terms or Conditions shall be construed to constitute either party as the agent of the other party for any purpose whatsoever. Neither party shall bind or attempt to bind the other party to any contract or the performance of any other obligation, or represent to any third party that it has the right to enter into any binding obligation on the other party’s behalf.
(d) Notices. Any notices and all payments required under any Order or these Terms and Conditions shall be addressed to the parties at the addresses set forth in the applicable Order or at such other address, as the parties shall designate in writing from time to time. All notices shall be in writing and shall be served by either personal delivery, commercially recognized overnight delivery service or certified or registered mail (return receipt requested). Except as otherwise provided herein, such notices shall be deemed given when delivered.
(e) Entire Agreement; Modification and Addenda. Each Order, together with these Terms and Conditions, sets forth the entire agreement between the parties, and supersedes any and all prior agreements, written or oral, of the parties, with respect to the subject matter of such Order. Each Order may be modified only by a written instrument duly executed by an authorized representative of Oildex and Customer, including the addition of any Order. From time to time, Oildex may amend these Terms and Conditions effective 60 days following written notice of such amendments (“Amendment Notice”) to Customer. In the event of any such amendment to these Terms and Conditions, Customer may object to such amendment by delivering written notice of such objection (“Objection Notice”) with 30 days following delivery of the Amendment Notice. In the event that Customer delivers an Objection Notice, Oildex may, in its sole and absolute discretion, elect to waive the effect of such amendment with respect to all existing Orders, in which case, the parties will remain bound with respect to such Orders by the Terms and Conditions without giving effect to such amendment. If Oildex does not elect to waive the effect of such amendment, and the parties have not otherwise resolved in writing all objections stated in the Objection Notice, then Customer may terminate any or all existing Orders effective as of the end of such 60-day period by given written notice of such termination to Oildex, and absent any such notice of termination, Customer shall be deemed to have accepted and agreed to such amendment without modification.
(f) Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of any Order or these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(g) Severability. If any provision of any Order or these Terms and Conditions is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
(h) Governing Law. Each Order and these Terms and Conditions will be governed by and construed in accordance with the laws of the State of Colorado, without reference to any conflict of laws principles that would otherwise require the application of the laws of another jurisdiction.
(i) Assignment. Except for assignments to Oildex affiliates or to any entity that succeeds to the business of Oildex in connection with a merger or acquisition, to which assignments Customer hereby consents, neither party may assign any Order without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempted transfer, assignment or delegation in violation of the foregoing will be void.
(j) No Third-Party Beneficiaries. Each Order and these Terms and Conditions are for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of any Order or these Terms and Conditions.
(k) Counterparts. Each Order may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.