Standard Terms and Conditions
Software Maintenance and Support Services
Upon
execution of these Standard Terms and Conditions for Software Maintenance and
Support Services (the "Agreement"), Landmark Graphics Corporation ("Landmark")
shall provide software maintenance and support services to Customer, subject to
full compliance with the following terms and conditions. Each of Landmark and
Customer may be referred to individually as a "Party," and collectively as the
"Parties".
In consideration of the mutual
covenants contained herein, the Parties agree as follows:
1.
DEFINITIONS.
1.1
"Customer" shall mean the entity identified in a Quotation.
1.2
"Fee" shall mean the service fee for the Software
Maintenance and Support Services as set forth in a Quotation.
1.3
"Landmark" shall mean Landmark Graphics Corporation, and/or any
subsidiary or affiliate identified in a Quotation.
1.4
"Quotation" means any schedule or quotation issued by Landmark,
referencing this Agreement, and identifying Software Products covered by this
Agreement.
1.5
"Software" means the computer software (including any
documentation and Updated Software) delivered to Customer by Landmark, subject
to the terms and conditions set out in a license agreement, and identified in a
Quotation. Whenever a single, specific type of Software is referenced, the
term "Software Product" shall apply.
1.6
"Software Maintenance and
Support Services" shall mean the maintenance
and support services described in Section 4 of this Agreement.
1.7
"Updated Software" shall
mean a version of the Software which may contain standard releases, patches,
bug fixes, error corrections, modifications, alterations or deletions and
therefore differs from the version in Customer’s possession. Updated Software
does not include any replacement software products separately priced, any new
software products separately priced, any additional options separately priced,
or any software having substantially new or different functions.
2.
TERM. The term of this Agreement shall begin upon
execution, and shall continue for an initial term of twelve (12) months, unless
terminated earlier pursuant to Section 6 of this Agreement (the "Initial
Term"). This Agreement shall automatically renew for successive twelve (12)
month periods, provided that Customer (i) promptly returns a duly executed
renewal Quotation, and (ii) pays the then current Fee for renewal (each a
"Renewal Term"). If Customer allows maintenance to lapse on a Software
Product, and desires to resume maintenance at a later date, Customer will be
charged for the lapsed period of time and the future period at the then current
list price for the Software Maintenance and Support Services.
3.
PAYMENT.
3.1
Invoices. In full consideration for Software Maintenance and
Support Services provided to Customer herein, Customer shall pay Landmark the
Fee for the Initial Term and each Renewal Term. Landmark will invoice Customer
in advance for the Fee applicable to the Initial Term. Landmark will also
invoice the Customer in advance for any Fee applicable to a Renewal Term upon Landmark’s
receipt of Customer’s signed M&S renewal quote. Customer must pay all
invoices for Software Maintenance and Support Services within thirty (30) days
of the issuance of the invoice. Landmark may require Customer to provide
irrevocable letters of credit, cash in advance or other forms of security.
3.2
Late Payments. Customer expressly acknowledges and agrees that if,
at any time, Customer fails to pay any invoice pursuant to the invoice payment
terms, Landmark may suspend performance under this Agreement or any other
related agreement between Landmark and Customer without any further notice to
the Customer, and without forfeiting its right to receive any and all
outstanding Fees or other amounts due to Landmark.
3.3
Taxes. All Fees are exclusive of sales, use or similar
taxes which, if applicable, will be added to each invoice. All taxes, duties,
deductions or withholdings levied by authority other than those of the United
States, or the State of Texas, upon the fees paid to Landmark in connection with
this Agreement and/or any Quotation(s) shall be for the account of Customer and
Customer agrees to promptly pay and discharge any such taxes, duties,
deductions or withholdings on behalf of Landmark and upon request provide
Landmark with a receipt evidencing such payment.
4.
DESCRIPTION OF SOFTWARE
MAINTENANCE AND SUPPORT SERVICES.
4.1
Scope of Software
Maintenance and Support Services.
During the term of this Agreement, Landmark will provide Customer with Software
Maintenance and Support Services for all Software Products listed on a
Quotation referencing this Agreement. Customer agrees to use the Software in
accordance with the published documentation and specifications. Nothing herein
shall be construed to require Landmark to provide Software Maintenance and
Support Services for any operating system software or Software running on
hardware platforms not supported by Landmark. Although Landmark may attempt to
resolve application issues related to non-supported platforms, any problems
requiring extensive support and problem resolution, up to and including call
resolution and dispatched personnel, will be charged to Customer at Landmark’s
standard hourly rate. Landmark is not obligated to provide Customer with
special patches or Updated Software for applications residing on non-supported
platforms. Nothing in this Agreement shall be construed as to require Landmark
to dispatch personnel to Customer’s site or otherwise provide on-site services,
which if mutually agreed shall be governed by the terms and conditions of a
separate consulting services agreement. Software Maintenance and Support Services
expressly do not include network support, application integration or
implementation, reformatting data, data conversion, scripting, training or
support for customized applications or third-party products not provided by
Landmark.
4.2
Updated Software. During the term of this Agreement, Landmark will
make available to the Customer any Updated Software and related documentation,
including any release notes and any interim reports of significant errors and corrections.
Customer acknowledges and understands that Updated Software documentation is
currently only offered in digital format. Customer is responsible for its own
integration and implementation of any Updated Software that is made available.
Customer agrees that all licensed copies of any particular Software Product
residing on the same network server will be maintained to the same version at
all times. Customer also acknowledges and understands that Updated Software
may not be backwards compatible with earlier versions, and may not function
properly in mixed version environments.
4.3
Applications Support Line. During normal business hours of the local Landmark
support center, Landmark will respond to questions about using the Software.
Landmark will respond to Customer as soon as reasonably possible after receipt
of Customer’s request for support. Extended support is available for an
additional fee.
4.4
Travel and Related Charges . Landmark’s support technicians will not be required
to visit the Customer’s site unless in Landmark’s determination the error
cannot be identified by other means. If travel is necessary, Customer shall
reimburse Landmark for actual travel expenses and necessary lodging and meals
at Landmark’s local per diem rate. Landmark will invoice Customer for such
expenses upon completion of the service call and Customer shall make payment
within thirty (30) days of the date of such invoice.
4.5
Obsolescence. Customer is advised to use the most current Updated
Software made available by Landmark. Landmark shall only be obligated to support
the most current updated versions of Software Products. Landmark may, at any
time, terminate support for a superceded release or earlier version of a
Software Product. Landmark may terminate Software Maintenance and Support Service
for an entire Software Product upon a minimum thirty (30) day’s notice. In the
event that Service is terminated for one or more of Landmark’s Software
Products covered by this Agreement, this Agreement will automatically terminate
as to such Software Products and a pro rata portion of any prepaid charges will
be refunded.
5.
WARRANTY AND LIMITATION
OF LIABILITY.
5.1
Landmark warrants to Customer
that Landmark will use commercially reasonable efforts to perform the Software
Maintenance and Support Services described herein with the care, skill and
diligence commonly accepted in the petroleum industry.
5.2
Except
as expressly provided above, LANDMARK makes no warranties and Customer hereby
waives any express or implied warranty including, without limitation, the
implied warranty of fitness for a particular purpose or merchantability.
5.3
In no
event shall either Party be liable for any special, indirect, consequential or
punitive damages to the other Party or any other Person as a result of the
performance or non-performance of any Services or portion thereof described
herein (including, without limitation, loss of data, profits, interest, opportunity, revenues, production, business interruption, or use of hardware or software), whether
foreseeable or not, even if the Parties have been advised of the possibility of
such damages. Each Party hereby waives, discharges and releases the other
Party from any liability or responsibility for any such damages.
5.4
Landmark’s maximum aggregate
liability with respect to, arising from or in connection with this Agreement,
whether in contract or tort (including negligence and breach of statutory
duty), or otherwise at law or in equity shall under no circumstances exceed a
hundred percent (100%) of the Fees paid by Customer in the preceding twelve
(12) months under this Agreement.
6.
TERMINATION .
6.1
Customer may terminate this
Agreement if Landmark has materially breached the terms and conditions of this Agreement
and fails to cure such breach within thirty (30) days of prior written notice.
6.2
Landmark may immediately terminate
this Agreement:
(a)
Customer has materially breached
the terms and conditions of this Agreement and Customer fails to cure such breach
within thirty (30) days of prior written notice;
(b)
If Customer fails to pay any
invoice for Software Maintenance and Support Services within thirty (30) days
of the issuance of the invoice;
6.3
This Agreement shall
immediately terminate with respect to any particular Software Product on the
date any license of such Software Product expires or is terminated for any
reason.
6.4
Fees paid in advance, net of
any amount due to Landmark by Customer, will be refunded to Customer on a pro
rata basis in the event that the Software Maintenance and Support Services or
any portion thereof are terminated (but not suspended) for any reason other
than those stated in 6.2 above.
6.5
The termination of this
Agreement for any reason shall not (i) relieve either Party from any expense,
liability or obligation or any remedy therefore which has accrued or attached
prior to the date of such termination, nor (ii) cause either Party to lose,
surrender or forfeit any rights or benefits which have accrued at the time of
such termination.
7.
SOFTWARE LICENSE. Customer acknowledges and understands that use of
the Software supported pursuant to this Agreement is subject to the terms and
conditions of a separate Landmark license agreement. Customer also
acknowledges and understands that the use of any Updated Software that is provided
pursuant to this Agreement, are also subject to the terms and conditions of the
Landmark license agreement corresponding to the updated Software Product.
8.
GENERAL .
8.1
Force Majeure. Except for the obligation of payment, neither Party
will be liable for non-performance caused by circumstances beyond their
reasonable control, including without limitation work stoppages, delays in
transportation, terrorist acts, delay in delivery by vendors, fire, civil
disobedience, war, epidemics or acts of nature.
8.2
Export Controls. Customer acknowledges that the Software and Updated
Software are subject to the export controls of the United States of America,
including the regulations and oversight of the Departments of Commerce and
Treasury. Unless authorized by the U.S. Government, Customer may not export or
re-export the Software or the Updated Software directly or indirectly to any
countries subject to U.S. export restrictions or to any person identified on
U.S. Government export exclusion lists. If Customer fails to obtain such
authorization, then Landmark may be obligated to suspend or cease Software
Maintenance and Support Services, and Landmark may in its own discretion
immediately terminate or suspend such Software Maintenance and Support Services
without obligation to refund any amounts paid by Customer.
8.3
Audit. During the term of this Agreement, Landmark may,
upon reasonable notice, request an audit of the installation locations of the
Customer relating to the use of the Software under this Agreement. Customer
will have the right to exclude any trade secrets or sensitive business
information from the audit. Any audit performed will be reasonable in
duration, and performed during normal working hours when done at Customer's
facilities.
8.4
Savings Clause. If any section of this Agreement or the application
thereof shall be invalid or unenforceable, in whole or in part, the remainder
of this Agreement or the application thereof shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
8.5
Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, exclusive of conflict of laws
principles.
8.6
Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination, or invalidity thereof,
shall be resolved by arbitration. The arbitration shall be in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
which shall administer the arbitration and act as appointing authority.
The arbitration, including the rendering of the award, shall take place in Houston, Texas. The language to be used in the arbitration shall be English.
The arbitrators shall interpret this Agreement in accordance with the
substantive laws of Texas. Judgment upon the award of the arbitrators may
be entered in any court having jurisdiction thereof. Nothing herein shall be
construed to prevent a Party from seeking and obtaining equitable relief in a
court of competent jurisdiction
8.7
Entire Agreement. This Agreement and any Quotation or schedule
specifically referencing this Agreement constitute the entire agreement between
the Parties with respect to the subject matter hereof, and supercedes and
cancels all prior and contemporary agreements or understandings (oral, written
or electronic) including any different, conflicting or additional terms which
appear on any purchase order or form Customer submits.
8.8
Amendments and
Modifications. Landmark may modify
the terms and conditions of this Agreement at any time by providing written
notice to Customer, pursuant to Section 8.9 of this Agreement. If Customer
does not agree to the modified terms and conditions, Customer shall terminate
this Agreement by providing Landmark with written notice of its intent to
terminate this Agreement. Upon such termination, Landmark shall provide
Customer a pro rata portion of any prepaid amount received by Landmark prior to
the effective date of the termination. Customer acknowledges that Customer
accepts, and will be deemed to accept, any modified terms and conditions upon
(i) request for Software Maintenance and Support Services (whether by telephone
or web-access, or otherwise), (ii) downloading or installing Updated Software
made available, and/or (iii) failing to provide written notice of its intention
to terminate this Agreement within thirty (30) days of Landmark’s notice of
modifications to the terms and conditions.
8.9
Notices. All written notices to be provided by Customer to
Landmark under this Agreement shall be sent by (i) certified letter to the
address for Landmark shown in the Quotation or (ii) facsimile to Landmark’s fax
number as shown in the Quotation. Such written notice shall be deemed to have
been duly made by Customer upon compliance with this provision. All written
notices to be provided by Landmark to Customer under this Agreement may be (i)
sent by certified letter to the address for Customer set forth in the Quotation,
(ii) sent by facsimile to Customer’s fax number as set forth in the Quotation,
(iii) provided to Customer via e-mail, or (iv) posted on the Landmark
web-site or posted on a site linked to the Landmark web-site. Such written
notice shall be deemed to have been duly made by Landmark upon compliance with
this provision.
8.10
Assignments. Neither Party shall be entitled to assign all or any
part of this Agreement, or any rights or obligations therein, to any third
party without the prior written consent of the non-assigning Party, which
consent shall not be unreasonably withheld. Provided however, that Landmark may
assign all or any part of this Agreement to a subsidiary or affiliate of
Landmark.
