As of 09/01/2016
1.1 Services. Subject to the terms and conditions of this Agreement, during the Term (as defined below) PetroSkills shall provide to Subscriber certain hosted software services and/or certain consulting, training and support services as specified in the Services Request or Attachment 1, as agreed to by the parties (the “Services”).
1.2 Ownership. Subscriber acknowledges and agrees that the Services, which may include learning content, access to software tools and documentation, both electronic and printed media, contain copyrighted material, trade secrets, and other proprietary intellectual property are owned/controlled by PetroSkills LLC and/or its parent, affiliates, subsidiaries or contractors and are protected by various intellectual property laws, including without limitation, domestic and international copyright laws, and they may only be used or accessed as specifically provided for in this Agreement. Subscriber’s use and/or access to the Services shall be worldwide, non-transferable, non-assignable and subject to the restrictions and limitations stated in this Agreement.
1.3 Restrictions and Limitations. Subscriber agrees to not store, copy, modify, rent, lease, loan, sell, distribute, transfer, transmit, display, or reverse engineer, in whole or in part, any learning content, or otherwise attempt to discover any programming code or any source code, used in or with the Services and to use the Services solely for Subscribers internal business purposes. Subscriber agrees not to sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Services without prior written consent from PetroSkills. Access to and use of Services is only transferable incident to a sale, transfer or other disposition by Subscriber of all or substantially all of the assets of the subscribing entity. Subscriber may not create derivative works from or in any manner commercially exploit the Services. Subscriber shall not attempt to undermine the security or integrity of computing systems or networks of PetroSkills and its contractors, and shall not attempt to gain unauthorized access.
2. Confidentiality and Nondisclosure
Subscriber acknowledges that in the course of providing said Services, PetroSkills may have access to certain of Subscriber's proprietary information. PetroSkills agrees not to infringe Subscriber's proprietary information. PetroSkills' employees who may have access to Subscriber's proprietary information are under obligation to hold such information in strict confidence and to use such information only in the performance of their employment and to provide Services to Subscriber.
3. Disclaimer / Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, SERVICES ARE OFFERED BY PETROSKILLS ON AN "AS IS" BASIS AND USED BY THE SUBSCRIBER SOLELY AT THE SUBSCRIBER'S OWN RISK. UNDER NO CIRCUMSTANCES SHALL PETROSKILLS' AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, PERFORMING OR DISTRIBUTING PETROSKILLS' SERVICES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS INTERRUPTION, PERSONAL INJURY OR ANY OTHER LOSS WHATSOEVER THAT RESULT FROM THE USE OF OR INABILITY TO USE THE PETROSKILLS SERVICES; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS IN OPERATIONS, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE; OR ANY OTHER MATTER RELATING TO THE SERVICE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PETROSKILLS'S RECORDS, PROGRAMS OR SERVICES. THIS PARAGRAPH SHALL APPLY TO ALL CONTENT AND SERVICES PROVIDED BY PETROSKILLS. DESPITE THE ABOVE DISCLAIMER, IF LIABILITY IS SOMEHOW FOUND, THE AGGREGATE LIABILITY OF PETROSKILLS FOR DAMAGES ARISING OUT OF THE FURNISHING OF ITS ONLINE CONTENT AND/OR LEARNING AND COMPLIANCE MANAGEMENT SERVICES WOULD NEVERTHELESS BE LIMITED TO THE AMOUNTS PAID BY SUBSCRIBER FOR THE SERVICES DURING THE PRECEDING CALENDAR YEAR.
4. Information Security and Service Commitment PetroSkills and its commercial Internet Service Provider have a multi-layered security environment to minimize risk to the privacy, confidentiality, integrity and availability of Subscriber's proprietary information. Specific policies and procedures are also in place to protect the loss, misuse and alteration of Subscriber's proprietary information by PetroSkills employees. In addition, vulnerability analyses are performed annually by an outside security firm. PetroSkills' Service level commitments are:
(i) Network quality — North American network latency (speed) commitment is to provide average round-trip transmissions of 85 milliseconds or less between PetroSkills-designated inter-regional transit backbone network routers in North America, and 120 milliseconds or less between a PetroSkills-designated Hub router in the New York metropolitan area and a PetroSkills-designated Hub router in the London metropolitan area.
(ii) Power availability — Power availability commitment is to provide AC power to the PetroSkills hosted server(s) providing Subscriber's service 100% of the time. Should these specified levels of service fail to be achieved, upon Subscriber request, PetroSkills will credit Subscriber the pro-rata portion of any prepaid hosting fee for the period of service unavailability. Subscriber agrees PetroSkills is not responsible for unavailability of Services due to communication failures between Subscriber's workstations and PetroSkills' Internet Service Provider, or in the event of acts of God. Scheduled outages of service are planned for performing routine system maintenance and upgrades to the Service. PetroSkills will notify Subscriber's System Administrator of record via email at least 48 hours in advance of any scheduled maintenance activities that will affect Subscriber's access to PetroSkills' Services.
During the term of this Agreement (the "Warranty Period"), PetroSkills warrants the following for each Service:
(i) That PetroSkills has the full authority to enter into this Agreement and to fulfill its obligations under the Agreement, including the right to furnish the Services;
(ii) That Subscriber will quietly and peacefully possess and use the Services provided under the Agreement;
(iii) That PetroSkills will provide to Subscriber any updates or releases, error corrections and/or other improvements in a timely manner, following their release by PetroSkills;
(iv) That all Services provided by PetroSkills will be performed diligently and in a professional manner by qualified personnel;
(v) PETROSKILLS, ITS EMPLOYEES, CONTRACTORS, DIRECTORS, AFFILIATES, AGENTS AND THE LIKE MAKE NO WARRANTY THAT THE SERVICE WILL BE PROVIDED WITHOUT INTERRUPTION OR BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR CONTENT.
(vi) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PETROSKILLS AND ITS EMPLOYEES, CONTRACTORS, DIRECTORS, AFFILIATES, AGENTS AND THE LIKE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES AND CONTENT, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, OR ACCURACY.
(vii) PetroSkills warrants that it has title to the Services and the content, and that Subscriber by using the Services and the content, is not infringing upon third-party intellectual property. PetroSkills shall defend, indemnify, and hold harmless Subscriber for claims of infringement of third-party intellectual property. Damage claims for unavailability of the Service against PetroSkills are expressly limited to the pro-rata portion of any fees prepaid by the Subscriber for the period of the system unavailability. "System unavailability" shall be defined as an unscheduled outage of more than 2 hours, but in no case shall include scheduled outages for maintenance, content upgrade or repair where Subscriber is provided notice of such outages in advance via email notice to the System Administrator of record. Under no circumstances will PetroSkills bear any responsibility for any damages arising as a consequence of such unavailability. PetroSkills agrees to restore to its original state any and all Subscriber information that may be altered inadvertently by a PetroSkills employee.
6. Services / Fees
6.1 Services may include access to application software, and/or learning and compliance management services and/or learning content, and upgrades; 24-hour online technical support via the Internet; and access to PetroSkills technical specialists via an 800 number for one designated Coordinator per Subscriber Entity.
6.2 Subscriber understands and acknowledges that Services are provided on a pay-for-access basis, with fees established based on the level of services and content provided to the subscribing entity. Fees charged are subject to change if changes occur in the scope of services being provided. PetroSkills reserves the right to increase the price on each subsequent renewal of the Agreement, provided that such increases shall not exceed the current annual inflation rate determined by reference to the U.S. Consumer Price Index.
Fees are billed per agreement as outlined in Attachment 1. Any related Professional Services requested by Subscriber will be quoted upon request and billed separately.
6.3 PetroSkills or its designate (including PetroSkills UK, Ltd., PetroSkills Canada, and PetroSkills Foreign Holdings, Inc. Sucursal Colombia) will submit an invoice to Subscriber for payment. Services shall be paid for in advance. All invoices shall be paid in full by Subscriber within thirty (30) days of the invoice date.
6.4 All quoted prices are exclusive of transfer/consumption taxes that may apply, including Sales Tax, Goods and Services Tax, Value Added Tax and the like. All transfer/consumption shall be the financial responsibility of the Subscriber and shall be included as a separate line item on Subscriber’s invoice(s).
6.5 VENDOR REGISTRATION. Subscriber shall, within thirty (30) days of accepting this Agreement, advise PetroSkills of any Subscriber required vendor registration processes and/or requirements that are prerequisites to the payment of a related PetroSkills’ invoice. Subscriber’s failure to timely notify PetroSkills of any prepayment requirement(s) shall constitute a waiver by Subscriber of PetroSkills compliance with the requirement(s).
6.6 Subscriber agrees to provide an appropriate infrastructure for the Services, understanding that Internet connection(s), firewalls, proxy servers and available bandwidth within their Intranet may impact system performance. Minimum service commitment required per Subscriber Entity is one year. Prepayment terms apply to all managed services and content.
7. Applicable Laws and Jurisdiction
Subscriber agrees to comply with all applicable laws, statutes, ordinances and regulations regarding use of the Services.
PetroSkills Content is subject to U.S. export controls and may not be accessed or used by, exported or re-exported to any person or entity located, organized or resident in a country or territory that is, or whose government currently is or becomes, the target of countrywide sanctions imposed by any U.S. government Sanctions Authority (the “Restricted Countries”). Subscriber warrants and represents that it shall not permit any users to access or use any PetroSkills service or content in a Restricted Country or in violation of any U.S. export law or regulation.
Subscriber represents and warrants that Subscriber, all Subscriber affiliated companies and their officers, directors, employees, contractors, agents and representatives are not, the target of any Sanctions Law or currently the subject of any Sanctions related investigation, are not located, organized or resident in any of the Restricted Countries, are not directly or indirectly owned or controlled by any person or entity currently included on the list of Specially Designated Nationals and Blocked Person or the Foreign Sanctions Evaders List maintained by the Office of Foreign Asset Control pursuant to any authorizing statute, executive order or regulation.
Services may be terminated by either party after the initial commitment term, without cause, by giving the other party 60 days written notice. If written notice is not given 60 days prior to the end of the initial commitment term, service will automatically renew for recurring additional 12-month periods until timely written notice of termination is received. If Services and pricing under this Agreement are based upon a multi-year commitment term and services are terminated prior to its scheduled expiration date by Subscriber and there are then unpaid any amounts under the Agreement, Subscriber will pay to PetroSkills liquidated damages for early termination equal to the remaining term under the Agreement for which no payment has been made to PetroSkills. In the event either party fails to comply with any of the terms of this Agreement the non-breaching party will give the breaching party written notice of the breach. If the breach is reasonably curable within thirty (30) days and if the breaching party fails to remedy the breach within thirty (30) days after receipt of notice, the non-breaching party may terminate this Agreement without penalty and without further notice. However, if such breach is not reasonably curable within thirty (30) days, this Agreement shall not terminate provided the breaching party commences the cure within said thirty (30) day period and diligently pursues the cure until completion. Upon termination of Services and at the request of Subscriber, PetroSkills will provide Subscriber, via CD-ROM media or electronically, any and all Client-specific content created for Subscriber during the term of the Services and all training record data that has not been transferred as originally specified by Subscriber for scheduled transfers. This information will be delivered to Subscriber within 30 days of the effective termination date. Upon termination of Services, Subscriber will delete all copies and no longer use any applicable PetroSkills software that may be installed at any Subscriber site. Subscriber will certify this action in writing to PetroSkills within 30 days of the effective termination date.
9. Additional Terms
9.1 Software Updates. PetroSkills reserves the right to make improvements or changes (provided they do not degrade performance) in the Services and rates and will advise Subscriber of any changes at least 30 days prior to the effective date.
9.2 Non-Solicitation. Subscriber recognizes and agrees that the PetroSkills’ workers involved in the creation, management and operation of the PetroSkills software Services and/or the creation of content available through the software Services, have specialized skills, knowledge and access to PetroSkills’ trade secrets. Subscriber further agrees that these special abilities and knowledge are of significant value to PetroSkills. Accordingly, during the term of this Agreement and for a period of one (1) year after its termination, Subscriber agrees that it will not, without prior written consent of PetroSkills, either directly or indirectly on Subscriber’s own behalf or in the service or on behalf of others, solicit or attempt to solicit, divert or hire away any worker of PetroSkills involved in the creation, operation or maintenance of the PetroSkills’ software Services or its content.
9.3 Entire Agreement: This Agreement and any subsequently agreed Purchase Order or Request for Services set forth the entire agreement and understanding between the parties as to the subject matter hereof. Neither of the parties shall be bound by any prior or contemporaneous conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided in this Agreement.
9.4 Conflict Resolution. This Agreement shall be governed by and interpreted in accordance with the substantive law of the State of Texas (USA), without consideration of its conflict of law provisions. Any legal action arising from or relating to this Agreement shall be filed in the courts located in Harris County, State of Texas (USA), and the parties irrevocably waive objection to venue and/or personal jurisdiction of said courts. The parties further waive their right to a trial by jury. The prevailing party in any lawsuit arising from or relating to this Agreement shall be entitled to an award of costs and attorney’s fees.
9.5 Severability. If any provision of this Agreement is held to be illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and, provided that the fundamental terms and conditions of this Agreement, including, without limitation, clauses relating to the scope of the Services, payment of fees and ownership of intellectual property remain legal and enforceable, the remainder of this Agreement shall remain operative and binding on the parties.
9.6 Force Majeure. Performance of any obligations under this Agreement, except for the payment of monies when due, by any party shall be excused to the extent and for so long as such performance is prevented by a Force Majeure” event. For the purposes of this Agreement, “Force Majeure” event shall mean any event, circumstance, situation or similar occurrence (other than financial distress or inability to pay debts when due) that prevents or substantially impairs a party’s ability to perform its obligations under this Agreement, and over which the affected party has no ability or authority to effectively control or influence, and includes, without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental acts or regulations, fires, communication line failures, power failures, and earthquakes and the application of any germane law which PetroSkills, in its sole discretion, interprets to prevent, delay or hinder the delivery of goods and services by PetroSkills under this Agreement.
9.7 No amendment to this Agreement can be effective unless made in writing and signed by authorized representatives of Subscriber and PetroSkills.