This Oil Patch Pro Customer Agreement (the “Agreement”) is between you and Oil Patch Pro, LLC (“OPP”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. OPP may modify this Agreement from time to time, subject to the terms in Section 23 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing OPP products, you indicate your assent to be bound by this Agreement.
2 OPP Products.
2.1 Types of OPP Products.
This Agreement governs (a) OPP’s hosted or cloud-based solutions (“Hosted Services”), (b) OPP’s commercially available downloadable Apple iOS and Android-powered mobile applications (“Mobile Apps”), and (c) any related maintenance services provided by OPP. Hosted Services & Mobile Apps, together with related Documentation, are referred to as “Products”. The Products and their permitted use are further described in OPP’s standard documentation (“Documentation”). Unless otherwise specified, provisions of this Agreement apply to all Products.
2.2 Changes to OPP Products. OPP reserves the right to alter its Products, including without limitation, implementing user priorities, implementing rules for use by the Customer, and discontinuing certain functional aspects of its Products. OPP may also add, withdraw or alter any of the databases accessible through its Products or the services provided through its Products. If OPP determines that any of these alterations materially change its Products, OPP shall notify Customers by facsimile, newsletter, or, if available, network message in advance of or concurrent with such changes. All notices and statements posted by OPP shall constitute effective notice under the Agreement on the day OPP posts them.
If any such changes have a material adverse effect on the Customer’s use of the Products, the Customer, after giving OPP reasonable notice and opportunity to cure, shall be entitled to terminate the Agreement and receive a pro rata refund of any prepaid subscription fees or charges. OPP reserves its rights to dispute and litigate the issue of whether such changes constitute a material adverse effect.
3 Account Registration. You may need to register for an OPP account in order to place orders or access or receive any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your accounts. You are responsible for all actions taken through your accounts.
4.1 Directly with OPP. OPP’s Product ordering documentation or purchase flow (“Order”) will specify your authorized scope of use for the Products, which may include: (a) number and type of Authorized Users (as defined below), (b) storage or capacity (for Hosted Services), or (c) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product, Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.
5 Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may increase the number of Authorized Users permitted to access the Products by placing a new Order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
6 Products Terms.
6.1 Access to Products. Subject to the terms and conditions of this Agreement, OPP grants you a non-exclusive right to access and use the Products during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. You acknowledge that our Products are on-line & mobile, subscription-based products and that we may make changes to the Products from time to time. The non-exclusive right to access and use the Products includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid Subscription Term in the same way that you use the Products, and New Releases are included in the definition of the Products in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Products that we make generally commercially available.
6.2 Subscription Terms and Renewals. Products are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your online account or through written notice to OPP pursuant to Section 24 (General Provisions). If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
6.3 Credentials. You must ensure that all Authorized Users keep their account passwords for the Products strictly confidential and not share such information with any unauthorized person. User accounts are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify OPP of any unauthorized use of which you become aware.
6.4 Your Data. “Your Data” means any data, content, images or other materials of any type that you upload, submit or otherwise transmit to or through the Products. You will retain all right, title and interest in and to Your Data in the form provided to OPP. Subject to the terms of this Agreement, you hereby grant to OPP a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Product to you and (b) for Products that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Product. OPP may also access your accounts in order to respond to your support requests.
6.5 Security. You understand that use of the Products necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat security measures of OPP, if any, or those of our third party service providers.
6.6 Storage Limits. There may be storage limits associated with a particular Product. These limits are described in the services descriptions on our websites or in the Documentation for the particular Product. OPP reserves the right to charge for additional storage or overage fees at the rates specified on our website. We may impose new, or may modify existing, storage limits for the Products at any time in our discretion, with or without notice to you.
6.7 Responsibility for Your Data.
6.7.1 General. You must ensure that your use of Products and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to OPP and to grant the rights granted to OPP in this Agreement and (ii) Your Data and its transfer to and use by OPP as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. OPP assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
6.7.2 Indemnity for Your Data. You will defend, indemnify and hold harmless OPP from and against any loss, cost, liability or damage, including attorneys’ fees, for which OPP becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Products in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of OPP at your expense.
6.8 Use of SMS or Mobile Data. If you use the Mobile Apps on your mobile phone to send and receive data via SMS or mobile data plan, you are responsible for any fees that your phone service provider charges for SMS, data services, etc. Your phone service provider is not the provider of the OPP Products.
6.9 Consent to Use of Data. You agree that OPP may collect and use technical data and
information you submit to the Products, including, but not limited to, UDID and other technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Service, and to anonymously track and report your activity inside of the Service. We may also use this information (in an anonymized and aggregated manner) for analytics purposes (including commercialization of any aggregated and anonymized analytics).
6.10 Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers and third party vendors found on or through the Products, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party vendor. You agree that OPP shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third party vendors found on or through OPP’s Products.
6.11 Links. OPP or third parties may provide links to other websites or resources. Because OPP has no control over such websites and resources, you acknowledge and agree that OPP is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that OPP shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
6.12 Third Party Content. You acknowledge that OPP does not pre-screen content posted by a third party. You agree that you must evaluate, and bear all risks associated with, the use of any such content posted by a third party, including any reliance on the accuracy, completeness, or usefulness of such content. Accordingly, you acknowledge that you may not rely on any such third party content.
6.13 Removals and Suspension. OPP has no obligation to monitor any content uploaded to the Products. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in order to comply with any state or federal law, statute, ordinance, regulation or court order, we may (1) remove Your Data from the Products or (2) suspend your access to the Products. We may suspend your access immediately without notice. You will continue to be charged for the Products during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Product as described in this section.
6.14 Deletion at End of Subscription Term. We may, but shall be under no obligation to, remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
7 Maintenance. OPP will provide the maintenance services for the Products (“Maintenance”) during the Subscription Term for which you have paid the applicable fee (“Maintenance Fee”). Maintenance includes, but is not limited to, uploading, submitting, editing, modifying or otherwise transmitting Your Data to or through the Products or removing or deleting Your Data from the Products. Maintenance is subject to the terms specified in your Order and during the Subscription Term specified in your Order.
8 Training Services. We will provide training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets (“Ancillary Services”). OPP shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you will reimburse OPP for reasonable travel and lodging expenses as incurred.
9 Returns and Financial Terms.
9.1 Return Policy. As part of our commitment to customer satisfaction, it is our customary business practice to allow customers to return a Product within 30 days of payment for any reason or no reason and to receive a refund of the amount paid for the returned Product. In the context of a Product, a return means that we will disable access to the Product. We will not accept returns after the 30-day return period. You understand that OPP may change this practice in the future in accordance with Section 23 (Changes to this Agreement).
9.2 Delivery. We will deliver the applicable login instructions to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Mobile Apps, and you acknowledge that OPP has no further delivery obligation with respect to the Mobile Apps after delivery of the login instructions.
9.3 Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 9.1 (Return Policy) and Section 18 (Indemnification by OPP), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users during your Subscription Term, we will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable.
9.4 Taxes. Your payments under this Agreement exclude any taxes payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes are payable by OPP, you must pay to OPP the amount of such taxes in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes as of the time such taxes are levied or assessed. In that case, you will have the right to provide to OPP any such exemption information, and OPP will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
10 No-Charge Products. We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 10 (No- Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes OPP’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Maintenance, warranty, and indemnity obligations.
11 Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, license, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) circumvent, remove, disable, damage or otherwise interfere with mechanisms in the Products intended to limit your use or serve as security-related features, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
12 Subscription Certifications and Audits. At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to OPP at law or equity or under this Agreement.
13 Ownership and Feedback. Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. OPP has and retains all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for OPP, including without limitation as they may incorporate Feedback (“OPP Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to OPP (“Feedback”). OPP may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits OPP’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
14 Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified in writing as confidential at the time of disclosure or as otherwise identified as such in this Agreement or any other Documentation. Any OPP Technology and any performance information relating to the Products shall be deemed Confidential Information of OPP without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product
15 Term and Termination. This Agreement is in effect for as long as you have a valid Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with written notice to OPP given in accordance with Section 24 (General Provisions) of this Agreement, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Product subscriptions or Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including OPP Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 6.7.2 (Indemnity for Your Data), 9.3 (Payment), 9.4 (Taxes), 10 (No-Charge Products) (disclaimers and use restrictions only), 11 (Restrictions), 12 (Subscription Certifications and Audits), 13 (Ownership and Feedback), 14 (Confidentiality), 15 (Term and Termination), 16.2 (Warranty Disclaimer), 17 (Limitation of Liability), 19 (Third Party Vendor Products), 22 (Dispute Resolution), and 24 (General Provisions).
16 Warranty and Disclaimer.
16.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
16.2 WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND OPP AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. OPP SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OPP. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER OPP NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
17 Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US $20. THIS SECTION 17 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 12 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 17 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
18 Indemnification by OPP. We will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes the patent rights, copyrights, trade secret rights, and all other similar intellectual and industrial property rights of any sort throughout the world (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by OPP (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a subscription for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund any prepaid amounts for the terminated portion of the Subscription Term. OPP’s indemnification obligations above do not apply: (1) if the total aggregate fees received by OPP with respect to your subscription to Products in the 12 month period immediately preceding the claim is less than US$5,000; (2) if the Product is modified by any party other than OPP, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-OPP product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 6.7.2 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Products; or (7) if you settle or make any admissions with respect to a claim without OPP’s prior written consent. THIS SECTION 18 (INDEMNIFICATION BY OPP) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY OPP UNDER THIS AGREEMENT.
19 Third Party Vendor Products. OPP or third parties may from time to time make available to you third-party products or services, including but not limited to integrations as well as implementation, customization, training, and other consulting services. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. OPP does not warrant or support non-OPP products or services, whether or not they are designated by OPP as “verified” or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with OPP products, you acknowledge that OPP may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such integrations with the OPP products. OPP shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party integration vendors.
20 Publicity Rights. We may identify you as an OPP customer in our promotional materials. You may request that we stop doing so by submitting an email to sales@OilPatchPro.com at any time. Please note that it may take us up to 30 days to process your request.
22 Dispute Resolution
22.1 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in the following city: Austin, TX (USA). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
22.2 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Texas, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 22.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, any State or Federal court in Austin, Texas, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Austin, Texas, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, OPP may bring a claim for equitable relief in any court with proper jurisdiction.
22.3 Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 22.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
22.4 Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
23 Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your OPP accounts, or in the Product itself) on or before the 30th day in which the change will go into effect. If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal of a Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
24 General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your accounts. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to OPP, P.O. Box 163552, Austin, TX, USA 78716, Attn: General Counsel or such other address as we may from time to time designate for delivery of notice hereunder. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes. The Products were developed fully at private expense. All other use is prohibited. This written Agreement and the other Documentation represent the final agreement between the parties relating to the subject matter hereof and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
25 Waiver of Consumer Rights. TO THE EXTENT NOW OR HEREAFTER APPLICABLE, CUSTOMER HEREBY WAIVES CUSTOMER’S RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES- CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF CUSTOMER’S OWN SELECTION, CUSTOMER VOLUNTARILY CONSENTS TO THIS WAIVER.
IN FURTHERANCE OF THE FOREGOING, CUSTOMER REPRESENTS THAT IT HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS OF THE TRANSACTION THAT IS THE SUBJECT OF THIS AGREEMENT. CUSTOMER REPRESENTS THAT IT IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION IN RELATION TO OPP. THE FOREGOING WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY CUSTOMER, AND CUSTOMER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL LICENSED IN TEXAS AND SELECTED OF ITS OWN FREE WILL IN CONNECTION WITH THE NEGOTIATIONS AND EXECUTION OF THIS AGREEMENT AND THIS WAIVER AND HAS HAD THE OPPORTUNITY TO DISCUSS THE FOREGOING WAIVER AND ITS MEANING WITH SUCH COUNSEL. CUSTOMER UNDERSTANDS THE LEGAL CONSEQUENCES OF SIGNING THIS WAIVER. THE PROVISIONS OF THIS WAIVER SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
26 Express Negligence Rule. IT IS THE EXPRESS INTENTION OF CUSTOMER AND CUSTOMER HEREBY AGREES THAT EACH AND EVERY INDEMNITY SET FORTH IN THIS SECURITY INSTRUMENT OR IN ANY OF THE OTHER DOCUMENTATION (INCLUDING, WITHOUT LIMITATION, THE INDEMNITIES SET FORTH IN SECTION 6.7.3 OF THIS AGREEMENT) WILL APPLY TO AND FULLY PROTECT EACH INDEMNIFIED PARTY EVEN THOUGH ANY CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES) THEN THE SUBJECT OF INDEMNIFICATION MAY HAVE BEEN CAUSED BY, ARISE OUT OF, OR ARE OTHERWISE ATTRIBUTABLE TO, DIRECTLY OR INDIRECTLY, THE NEGLIGENCE (EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) IN WHOLE OR IN PART OF SUCH INDEMNIFIED PARTY AND/OR ANY OTHER PARTY.