SCHLUMBERGER CANADA LIMITED, WATERLOO DIVISION
GENERAL TERMS AND CONDITIONS FOR PRODUCTS AND SERVICES
The following are the General Terms and Conditions under which Schlumberger sells, leases, and/or licenses Products and/or performs Services.
1. 0 Definitions
1.1 “Agreement” shall mean Schlumberger’s Quotation to Customer, these General Terms and Conditions for Products and Services, and all applicable Supplemental Terms and Conditions and any addendum thereto.
1.2 “Customer or Company” means the person, firm or other entity to which Products and/or Services are supplied or provided by Schlumberger.
1.3 "Documentation" refers to manuals, handbooks, maintenance libraries, and other publications in whatever form listed in Schlumberger's Price List or supplied in connection with Products or Services.
1.4 "Equipment" refers to computer-related hardware and other equipment that is listed in Schlumberger’s Quotation to Customer.
1.5 “Embedded Software” means third party software included or embedded as part of the Software licensed under this Agreement.
1.6 "External Software" refers to stand-alone, off-the-shelf application software packages listed in Schlumberger’s Quotation, which are licensed or leased to Customer in accordance with the Agreement by the applicable third party software vendors. Such third party software vendors are third party beneficiaries to the Agreement with Customer and shall have the right to enforce the terms and conditions of the Agreement to the extent that they apply to External Software.
1.7 “Geographic Unit” means the area covered by a local area network no larger in radius than 1000 meters from the license server or within the same metropolitan area.
1.8 “Intellectual Property” means all trademarks or trade names (whether common-law or registered), patents, mask works, patents, patent applications, copyrights (whether published or unpublished), trade secrets, know-how, designs, methods, processes, work-flow, inventions, proprietary information and transferable rights relating to Schlumberger’s Products and Services.
1.9 “Party” refers to Schlumberger or Customer; “Parties” refers to Schlumberger and Customer.
1.10 "Products" refers to items listed in Schlumberger’s Quotation to Customer, including but not limited to Software and Equipment.
1.11 "Proprietary Information" refers to, without limitation: Software (including all enhancements, updates, corrections, derivative works and other modifications thereto); any Intellectual Property of Schlumberger; Documentation, diagnostic software, equipment or other materials used by Schlumberger in the performance of installation, warranty work or services; Equipment design information; Schlumberger supplied printed materials; visually transmitted information; and any modifications or components thereof, whether made by Schlumberger or Customer.
1.11 “Quotation” refers to Schlumberger’s written quotation form or proposal or other document that lists the Products and/or Services to be provided to Customer by Schlumberger. Also includes Quotations of Schlumberger Distributors as agreed on a specific Distribution Agreement.
1.12 "Services" refers to Schlumberger software maintenance and support services, custom software development, equipment maintenance services, on-site customer support services, data services, work flow analysis services, site assessment services, customer site data management services, aquifer studies, modeling support and interpretive services, educational services (including training), and any other services identified in Schlumberger’s Quotation to Customer.
1.13 “Software” refers to software identified in Schlumberger’s Quotation to Customer including, without limitation, application software, systems software, External Software, Embedded Software, microcode and firmware, and, where included, documentation and manuals related thereto. With respect to Software, the term "purchase" or “sale” means only "license” or “right to use”, and will under no circumstances be interpreted as the transfer of property title to the software.
1.14 "Software License" or “Software Use” refers to the software license or right to use granted by Schlumberger in accordance with Schlumberger’s Software License Terms and Conditions. A Software License shall provide only a possessory right to the tangible media upon which the Software is delivered to Customer and a nonexclusive right to use the Software listed in Schlumberger’s Quotation to Customer in accordance with the Software License Terms and Conditions. Schlumberger and its licensors shall retain ownership to all intellectual property rights in the Software, including patents and copyrights.
1.15 “Supplemental Terms and Conditions” shall mean any additional terms and conditions, or addendums thereto, that reference these General Terms and Conditions for Products and Services. Supplemental Terms and Conditions shall apply insofar as Schlumberger’s Quotation involves the sale, lease, license or transfer of a particular Product or the performance of a particular Service as set forth in Schlumberger’s Quotation.
1.16 “Schlumberger” means Schlumberger Canada Limited, Waterloo Division.
2.0 Orders
2.1 By requesting Schlumberger’s services, equipment, or products, Customer voluntarily elects to enter into and be bound by the Agreement.
2.2 Prices and fees for Products and Services will be as specified in accordance with Schlumberger’s Quotation that is current at the time an order is accepted from Customer, or in the absence of a quotation, shall be at Schlumberger's then current standard prices and fees. Prices for Services provided under an accepted Quotation may be changed by Schlumberger effective January 1 of the next year, on thirty (30) days' written notice to Customer. Should conditions affecting Schlumberger’s rates, charges and fees materially change earlier than as stated above, Schlumberger and Customer shall meet to discuss and agree to new, mutually acceptable charges, rates and fees.
3.0 Payment
3.1 Purchased Products and rendered Services. For Product purchases, Customer shall make full payment within thirty (30) days after the date of shipment of the Products or within thirty (30) days of installation of Products where installation services have been requested by Customer, provided Customer maintains credit arrangements satisfactory to Schlumberger. Customer shall make full payment for Services and other items described herein for which no "shipment" is involved within thirty (30) days after receipt of invoice provided Customer maintains credit arrangements satisfactory to Schlumberger. All payments shall be made in the currency set forth on the quotation (or in U.S. dollars if no other currency is indicated). Schlumberger may charge interest on all overdue amounts in accordance with Article 3.4, below. If Customer does not maintain satisfactory credit records, Schlumberger shall receive advanced payment for Products and Services.
3.2 Lease. If the Quotation provides for a lease or rental to Customer of Products from Schlumberger, Schlumberger’s standard Software Lease Terms and Conditions or Equipment Lease Terms and Conditions shall apply in addition to these General Terms and Conditions.
3.3 Obligations. Customer agrees that should any portion of an invoice be disputed, Customer shall promptly pay the non-disputed portion. Within thirty (30) days of receipt of an invoice, Customer shall promptly notify Schlumberger of the reasons for disputing all or part of that invoice and Schlumberger shall promptly produce such evidence as it may have in support of the disputed amount. Having due regard to all the facts, the parties shall seek to reach agreement as to how much, if any, of such disputed amount should be paid. Payment of fees in one invoice shall not be set off or withheld against fees payable in connection with any other matter. Should any outstanding invoice remain unpaid beyond the stipulated time period, Schlumberger shall be entitled to cancel or suspend the provision of the Products or Services without incurring liability to Customer and without prejudice to any of Schlumberger’s other rights hereunder.
3.4 Interest on Late Payments. Schlumberger may at its absolute discretion charge interest, which Customer shall promptly pay, on all amounts not paid strictly in accordance with these Terms and the Service Order. Interest shall accrue at 1.5% per month (18% per annum) or at the maximum amount permitted by law. If unpaid amounts are collected through legal proceedings or by a collection agent, Customer shall pay reasonable costs and attorneys’ fees.
4.0 Taxes
Prices listed do not include any local, state, provincial, federal or national sales, use, excise, personal property, value added, import/export, or other similar taxes or duties, which may be assessed in connection with the Products or the provision of the Services, and Customer agrees to pay all such assessments. In the event Schlumberger must initially pay such assessments, Customer agrees to reimburse Schlumberger within thirty (30) days after receipt of Schlumberger's invoice. Taxes based upon Schlumberger's income shall be the sole responsibility of Schlumberger.
5.0 Shipment
5.1 Shipment. Prices exclude shipping charges. Products will be shipped FOB point of origin. Title to Products shall pass to Customer in the country of origin, at the time of shipment, provided, however, where the Products are leased to Customer title shall remain in the name of Schlumberger. Customer will be responsible for shipping charges and for procuring insurance, unless otherwise specified. Customer shall assume all risks of loss upon Schlumberger's delivery to the carrier.
5.2 Security Interest. Schlumberger retains title to and a security interest in Equipment as security for Customer's payment for the Equipment until the purchase price for the Equipment has been paid in full. Customer agrees to execute such documents as Schlumberger may reasonably require to perfect and further evidence this security interest.
6.0 Installation
6.1 Equipment. Schlumberger shall install Equipment if the price includes installation or if Customer separately purchases installation services.
6.2 Software. Software shall be installed onto Customer’s premises, servers and/or computers in accordance with the applicable Software License Terms and Conditions or Software Lease Terms and Conditions. Unless Schlumberger installation services have been ordered, Customer shall perform such installation.
6.3 Customer Responsibilities. Customer shall provide the necessary environment and electrical power supply connections as specified by Schlumberger and the equipment manufacturer and shall be responsible for transporting the Equipment to its location within Customer's facilities.
7.0 Cancellation Charges
7.1 Equipment. In the event Customer cancels an order for Equipment, Customer shall pay within thirty (30) days thereafter a cancellation and restocking charge in the amount of ten percent (10%) of the total price for the canceled Equipment order. No cancellation by Customer will be accepted after the date of shipping, or for Equipment being specially developed for Customer once development has commenced. For Equipment ordered from Schlumberger supplier(s) on behalf of Customer, the "date of shipment" shall be the date Equipment is shipped from the Schlumberger supplier(s).
7.2 Services. In the event Customer cancels an order for Services, Customer shall pay within thirty (30) days thereafter all previously unbilled costs and expenses incurred by Schlumberger (including labor and materials) prior to receipt of notice of cancellation, plus a cancellation charge in the amount of the lesser of: (a) ten percent (10%) of the total contract price for the Services; or (b) fifty percent (50%) of the difference between the total contract price for the Services less any amounts previously paid by Customer for the Services. No cancellation by Customer will be accepted after the date of completion of the Services. All amounts paid by Customer prior to notice of cancellation are non-refundable and are not subject to offset.
7.3 Software. To the extent permitted by law, Software purchases shall be considered non-returnable and non-refundable.
8.0 Warranty
8.1 Equipment Warranty.
8.1.1 Equipment sold is warranted to be in good and serviceable condition. The warranty period for Equipment shall be as specified in Schlumberger’s Quotation, or for a period of ninety (90) days if no such warranty period is specified. The warranty period begins on the date installation is completed or upon shipment if the Equipment is to be installed by Customer. If Schlumberger is prevented from installing the Equipment by causes beyond its control for more than thirty (30) days from the date of shipment, the warranty period will commence on the thirtieth (30th) day after shipment.
8.1.2 Schlumberger’s sole liability and Customer’s sole remedy for breach of Equipment warranty is limited at Schlumberger’s sole option to either: (a) the repair or replacement of the defective Equipment or part, or (b) the refund of the purchase price of the defective Equipment which is returned by Customer at Customer’s cost to the location specified by Schlumberger.
8.1.3 Equipment may also be warranted by a Schlumberger supplier. Schlumberger’s sole liability in the event of a warranty claim concerning Schlumberger supplier equipment is to transfer to Customer the Schlumberger supplier warranty, and this shall be Customer’s sole remedy.
8.2 Software Warranty. Software is warranted in accordance with Schlumberger’s Supplemental Software License or Software Lease Terms and Conditions, as applicable.
8.3 Service Warranty. Where Services are being purchased by Customer, as set forth in the Agreement, Schlumberger will use reasonable efforts to provide such Services pursuant to Article 9 below and the applicable Supplemental Terms and Conditions for the particular service(s) purchased by Customer, subject to Customer’s fulfillment of its obligations under the Agreement.
8.4 Limitations. Schlumberger's sole responsibility under these warranties shall be to provide the Products and/or Services described in the Agreement with Customer. Warranties do not apply to: (a) any products other than Products or Services listed in the Agreement with Customer; or (b) conditions resulting from improper use or storage of the Products or operation of the Products outside the specified environmental conditions; or (c) conditions resulting from causes external to the Products after delivery; or (d) conditions resulting from modifications to the Products other than modifications made by Schlumberger or Schlumberger's service vendors or representatives; or (e) conditions resulting from Customer's movement of the Products; or (f) Products from which Schlumberger's or Schlumberger's its vendor's serial numbers have been removed; or (g) use of Software with operating system software versions other than Schlumberger-designated versions.
8.5 Disclaimer of Warranties. Except as expressly stated herein, SCHLUMBERGER MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer shall at all times be responsible for the product(s) or result(s) or interpretation(s) produced by Customer and for providing back-up for all software applications and data files stored in the Products.
9.0 Services
Supplemental Terms and Conditions. To the extent the Agreement with Customer includes Customer’s purchase of software maintenance, hardware maintenance, on-site support services, training services, consulting services or other miscellaneous services, the applicable Supplemental Terms and Conditions for the particular service(s) shall apply to Schlumberger’s performance of such services in addition to these General Terms and Conditions.
10.0 Ownership and Protection of Proprietary Information
10.1 Except for those limited licenses or rights to use that may be granted under applicable Supplemental Terms and Conditions, Schlumberger grants no title or license or right to use to Proprietary Information or Intellectual Property, which remains the exclusive property of Schlumberger and, where applicable, Schlumberger’s third party licensors. Customer agrees to secure properly such Proprietary Information and to keep it confidential and not to use the Proprietary Information or Intellectual Property in any manner, except as provided in these General Terms and Conditions or under the applicable Supplemental Terms and Conditions, or make it available to third parties without Schlumberger's prior written consent. Customer shall disclose the Proprietary Information only to its employees on a need-to-know basis. Customer shall maintain adequate internal procedures, including appropriate binding agreements with Customer's employees, consultants and representatives of any kind, to protect the Proprietary Information in the same manner as Customer protects Customer's own confidential proprietary information. Upon any cancellation or termination of this Agreement Customer agrees to return or destroy, at Schlumberger’s direction all such Proprietary Information. The provisions of this Article 10.1 shall survive any cancellation or termination of this Agreement.
10.2 Nothing in these General Terms and Conditions shall impose an obligation of confidentiality on Customer with respect to Proprietary Information which is: (a) rightfully in Customer's possession in a substantially complete and tangible form prior to the time it is received from Schlumberger, (b) hereafter furnished to others by Schlumberger without restrictions on disclosure and use, (c) hereafter furnished to Customer by a third party as a matter of right and without restriction on disclosure or use, or (d) independently developed by Customer without breach of these Terms and Conditions.
10.3 While providing Products or Services to Customer, Schlumberger may develop additional expertise, know-how and other intellectual property which are Schlumberger’s exclusive property and which Schlumberger may freely utilize in providing services for its other customers. Except where expressly and specifically indicated in writing, and in exchange for appropriate payment, Schlumberger does not develop any intellectual property (including copyrights, patents, know-how, and expertise) for ownership by Customer under the Agreement with Customer, and Schlumberger retains sole ownership of and title to any such items created during the course of providing Products and/or Services hereunder.
11.0 Default and Remedies
11.1 Customer Default
11.1.1 Customer shall be in default for failure to meet its payment obligations. Customer shall have thirty (30) days to cure such default after notice by Schlumberger. However, Schlumberger has the right to charge Customer interest in accordance with Article 3.4, above. Schlumberger's right to require interest shall not foreclose Schlumberger from any other remedy provided by these General Terms and Conditions, any applicable Supplemental Terms and Conditions, or applicable law.
11.1.2 Customer shall be in default for its failure to perform any material obligation under, or for any material breach of, the Agreement. In the event of such breach, Schlumberger may, at its option, suspend the provision of any goods or services to Customer called for by this Agreement or, upon written notice to Customer, terminate this Agreement in hole or in part.
11.1.3 The parties agree that a default caused by an unauthorized disclosure or use of the Proprietary Information could cause Schlumberger irreparable harm. Accordingly, the parties agree that Schlumberger will be entitled to seek timely injunctive relief to prevent Customer from completing any unauthorized disclosure or use of Proprietary Information, as well as any other means that Schlumberger deems appropriate to preserve its interests in relation to the Proprietary Information, including without limitation the right to pursue all available remedies at law or equity.
11.2 Schlumberger Default. Should Schlumberger default under these Terms and Conditions, Customer shall give Schlumberger thirty (30) days' written notice to enable Schlumberger to cure such default. If Schlumberger fails to cure such default within said thirty (30) day period, Customer shall have the right to pursue all available remedies at law or equity. Any action brought against Schlumberger under these Terms and Conditions must be brought within twelve (12) months after the cause of action arises.
12.0 Patent and Copyright Indemnity
12.1 Schlumberger shall defend, or at its option settle, any claim, proceeding or action brought against Customer based upon a claim that a Product supplied by Schlumberger or a Service performed by Schlumberger constitutes a direct infringement of a patent or copyright issued under the laws of the country of original delivery or intended destination (as identified by Customer in the Agreement), and Schlumberger shall pay those costs and damages finally awarded against Customer in any such action or proceeding which result from any such claim, provided always that Schlumberger shall have no liability under this Article: (a) unless Schlumberger is notified promptly in writing by Customer of each notice and communication regarding such claim, is given the complete authority, information and assistance necessary for such defense, and is given sole control of the defense of any action on such claim and of all negotiations for its settlement or compromise; or (b) if Customer makes any admission regarding infringement.
12.2 Should a Product or Service become, or in Schlumberger's opinion be likely to become, the subject of a claim of infringement or the like under such patent or copyright laws, Customer shall permit Schlumberger, at Schlumberger's option, to either: (a) procure for Customer the right to continue using the Product or Service, (b) replace or modify the Product or Service so that it becomes non-infringing (provided the same level of functionality is maintained), or (c) accept the return of the Product and grant Customer a credit for the then depreciated value of the infringing Product, which for the purposes of this Article shall be presumed to depreciate by one-fifth (1/5) of its purchase price per year. If the infringing Product is leased or rented to Customer, or is a Service subject to a service agreement, Schlumberger may terminate the lease or rental or service agreement and Customer’s sole remedy in such case shall be the return by Schlumberger of any payments made by Customer for periods after such termination.
12.3 Schlumberger shall have no liability or obligation to Customer under this Article 12 for any patent or copyright infringement or claim thereof based upon: (a) Schlumberger's compliance with Customer's specifications, where such specifications require Schlumberger to modify a Product or Service; (b) the combination of the Product or Service with other items or services not furnished or approved in writing by Schlumberger: (c) any unauthorized addition to or modification of the Product, or alteration of the Services at the request of Customer: or (d) any use of the Product in the performance of a method or process (practice of a process), except where such practice is solely completed by or within the Product. Customer shall defend and hold Schlumberger harmless against any expense, judgment or loss for alleged infringement of any patent, copyright or other proprietary right which results from a claim based upon (a), (b), (c), or (d).
13.0 Limitations on Liabilities and Remedies
Schlumberger's liability for any breach of the Agreement with Customer, or for personal injury (including death) or property damage arising from the use or installation of the Products or the performance of Services, shall not exceed the aggregate purchase price or license or usage fees paid, or lease payments made, for the Products or Services. Costumer agree that neither Costumer or any third party may recover any special, punitive, incidental or consequential damages, including any damages resulting from loss of use, loss of data, loss of profit, cost of substitute software or services or loss of business whether arising out of or in connection with the performance of the Software and regardless of the form of action upon which a claim for such damages may be based, whether in contract, tort (including negligence), strict product liability or any other legal or equitable theory. These limitations apply even if repair, replacement or a refund for the Software does not fully compensate Costumer for any losses and regardless of: i) whether Company knew of or should have known about the possibility of damages; and/or ii) if any limited remedy fails in its essential purpose. Costumer will protect, indemnify, hold harmless and defend Schlumberger of and from any loss, cost, damage, or expense, including attorneys' fees, arising from any claim asserted against Schlumberger that is in any way associated with the matters set forth in this Article 13 including any third party claims.
14.0 Force Majeure
Neither party shall be responsible for delays or failures in performance resulting from events or circumstances beyond the control of such party. Such events shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental acts or regulations, fires, communication line failures, power failures, and earthquakes. Force Majeure cannot be used to excuse or delay any payment obligation.
15.0 Arbitration and Governing Law
Any controversy or claim arising out of or relating to the Products or Services covered in the Agreement with Customer, or any breach thereof, shall be settled by arbitration to be held in the English language in Toronto, Ontario, and in accordance with the commercial arbitration Rules of the American Arbitration Association (for contracts entered into in the United States) or the Canadian Foundation for Dispute Resolution (for contracts outside the United States). The law of the jurisdiction specified in the Quotation (or, if no jurisdiction is identified in the Quotation, the law of the state, province or country where Schlumberger is incorporated) shall govern the construction and interpretation of the Agreement and the rights of the parties thereunder. Any judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereover. Any award rendered by the Arbitrator(s) may include costs against either Party, but under no circumstances are the Arbitrator(s) authorized or empowered to award special, punitive or multiple damages against either Party.
16.0 Assignment
No rights or obligations under the Agreement with Customer shall be assigned by Customer without the express written consent of Schlumberger (such consent not to be unreasonably withheld by Schlumberger), and provided that the assignee is identified to Schlumberger and that the assignee agrees to strictly abide by all the terms and conditions of the Agreement. Schlumberger may assign its rights and obligations under the Agreement in whole or in part to any Schlumberger affiliated company or to its successor in interest in the event of a merger, corporate reorganization, or sale of all or substantially all of its assets relating to its business to which the Agreement pertains.
17.0 Third Party Beneficiaries
You acknowledge that the third party software vendors of either Embedded or External Software are third party beneficiaries to this Agreement and have the right to enforce the terms and conditions of this Agreement as they relate to Embedded or External Software.
18.0 Export Administration Act
Regardless of any disclosure by Customer to Schlumberger of the contemplated ultimate destination of the Products, Customer shall not export or re-export, directly or indirectly, any Product (or the "direct product" of any Software Product) without first obtaining an export (or re-export) license from the relevant government entities, as required.
19.0 Publicity and Public Disclosures
Customer shall not, without obtaining Schlumberger’s prior written approval, use any trade names, trade marks, service marks, company names or other trade designations of Schlumberger and or its affiliated companies in any Customer press releases, advertising literature, or corporate information disclosures (including without limitation financial reports and government regulated information disclosures).
20.0 Miscellaneous Provisions
This Agreement supersedes any previous or contemporaneous communications, representations, or agreements by either Schlumberger or Customer, whether verbal or written, including any terms and conditions on Customer’s order. Customer has not relied upon any representations, oral or written, except as are made in this agreement. Any modification or amendment to this Agreement must be in writing and signed by the authorized representatives of Schlumberger and Customer. The unenforceability of any provision hereunder shall have no effect upon the remaining provisions, which shall continue in full force and effect.
SCHLUMBERGER CANDA LIMITED, WATERLOO DIVISION
Software License Terms and Conditions
These Supplemental Terms and Conditions are in addition to the General Terms and Conditions entered into between Schlumberger and Customer.
1.0 License
The Software is licensed, and not sold, to Customer on a non-exclusive, non-transferable basis. Schlumberger grants to Customer a nonexclusive, nontransferable license (“License”) to use Software and its associated Proprietary Information as set forth in Schlumberger’s written Quotation to Customer, in accordance with these Software License Terms and Conditions. This License shall commence upon Schlumberger's delivery of Software to Customer and shall continue unless terminated by default or cancellation. Schlumberger (and/or Schlumberger's licensor(s), when applicable) shall at all times retain title to all rights to Intellectual Property in and to the Software and Proprietary Information, including all components, additions, modifications and updates. Where title to Intellectual Property of certain Software is retained by Schlumberger's licensors, Schlumberger represents that it has the authority to license such Software to Customer. Customer shall own and have title to the tangible media in which the Software is delivered. Title to the media shall pass to Customer in the country of origin in accordance with the provisions of the Schlumberger General Terms and Conditions.
1.1 Limitations on License
1.1.2 Customer is not authorized and may not authorize anyone else to do any of the following:
(a) Obtain unauthorized access to the Software, for example, by bypassing security features, including but not limited to license control features that limit or record the number of users, in or for the Software;
(b) Reverse engineer, decompile or disassemble the Software except and only to the extent required by law;
(c) Make more copies of the Software than specified in Clause 4.0 of this Agreement;
(d) Publish the Software;
(e) Develop or create modifications, improvements and/or derivative works of the Software;
(f) Display the Software in any manner except as provided herein;
(g) Rent, lease, lend, sub-license or otherwise distribute or assign Customer rights in the Software, including but not limited to assigning or sub-licensing Customer rights to use the Software to third parties without Schlumberger’s prior written consent;
(h) Separate out or use any portion of Embedded Software for any purpose such as commercial or competitive analysis of Schlumberger’s software;
(i) Deliberately modify or disable or otherwise “crack” any feature incorporated in the Software, including those that are intended to prevent access to unlicensed software.
1.1.3 If Customer has purchased Software controlled by a software-based license manager (as opposed to dongle-controlled Software or Software with no license manager), Customer agrees to the following:
(a) Transfer the Software, except for temporary CPU transfer in the event of computer malfunction, is prohibited.
(b) If a Customer’s existing valid license for Software must be permanently transferred onto a substitute CPU, Customer shall notify Schlumberger within thirty (30) days. Customer shall pay any Software transfer fees owed to Schlumberger.
1.1.4 If Customer is the U.S. Government, then the Customer agrees that Software is provided as a “Commercial Item” pursuant to FAR 52.201(c) and in no event shall the Government acquire greater than Restricted/Limited Rights as provided in FAR 52.227-19 (June 1987), FAR52.14 (ALT III) (June 1987), DFARS 252.227-7015 (November 1995), NFS 1852.227-86 (December 1987), or equivalent as applicable.
2.0 License Termination
Subject to Customer’s right to cure for non-payment, Schlumberger shall have the right, immediately upon any default by Customer, to pursue all available remedies at law or equity, and may terminate the Agreement and/or this License with Customer. Upon termination of this License, Customer shall discontinue all use of the Software and return the Software and Proprietary Information to Schlumberger, including all copies and related Documentation. If Customer ceases to operate for any reason, including but not limited to bankruptcy or dissolution, and the Software is not transferred in accordance with Article 16 of the Schlumberger’s General Terms and Conditions, Customer shall return the Software to Schlumberger. Customer shall certify in writing that all such Software, Proprietary Information and copies have been returned to Schlumberger and that Customer has discontinued all use of the Software.
3.0 Use
3.1 For purposes of this License, the term “use” shall be limited to the processing of information and the process of copying, recording, or transcribing Software. Use does not include modifying Software in any way, creating derivative versions thereof, reverse assembling, reverse compiling, or reverse engineering Software or distributing it to other parties or making it available for any use, directly or indirectly, by another person, any such utilization of Software being hereby expressly prohibited.
3.2 When requested by Schlumberger, the Customer shall identify in writing the computers, servers, and workstations, and locations where the Software will be used. Software shall be used solely in conjunction with the foregoing computers, servers, and workstations, at authorized locations, and accessed by only the agreed number of seats for which Customer is authorized as set forth in the Quotation to Customer. A Customer-designated computer or server is the processor or equipment configuration on which the Software is first installed pursuant to the license grant. Once installed, Software may be moved from one Customer-designated computer or server to a different computer or server within the same authorized location only after giving notice to Schlumberger and receiving approval in writing to do so. A Customer-designated workstation includes all workstations on a Local Area Network that are physically located within one thousand (1000) meters of a Customer-designated server. Customer understands that the Software will only operate properly on the types of computer equipment using the operating system version(s), as identified by Schlumberger in its published technical specifications. Customer is solely responsible for ensuring that its computer systems comply with such technical specifications.
3.3 Licensed use of the Software shall be restricted to the processing or interpretation by Customer of geological and hydro geological data owned or licensed by Customer in connection with: (a) water resource development where Customer is active as operator or partner; and (b) evaluations for Customer's internal use of such projects in which Customer contemplates becoming active as operator or partner.
3.4 Storage media that Customer receives from Schlumberger may contain certain software that is not covered in Schlumberger’s Quotation. If Customer desires to obtain a license for such separate software, Customer must obtain the appropriate licenses from Schlumberger and pay the appropriate fees. Customer agrees to comply with and not deliberately modify or make inoperable any feature that is incorporated in the Software to prevent access to unlicensed software. Customer acknowledges that Software and Equipment may now or in the future contain security devices for the protection of Software.
3.5 SCHLUMBERGER DOES NOT GUARANTEE RESULTS. ALL INTERPRETATIONS USING THE PRODUCTS, AND ALL RECOMMENDATIONS OR DESCRIPTIONS BASED UPON SUCH INTERPRETATIONS, ARE OPINIONS BASED ON INFERENCES FROM MEASUREMENTS AND EMPIRICAL RELATIONSHIPS AND ON ASSUMPTIONS, WHICH INFERENCES AND ASSUMPTIONS ARE NOT INFALLIBLE, AND WITH RESPECT TO WHICH COMPETENT SPECIALISTS MAY DIFFER. IN ADDITION, SUCH INTERPRETATIONS, RECOMMENDATIONS AND DESCRIPTIONS MAY INVOLVE THE OPINION AND JUDGMENT OF CUSTOMER. CUSTOMER HAS FULL RESPONSIBILITY FOR ALL INTERPRETATIONS, RECOMMENDATIONS AND DESCRIPTIONS UTILIZING THE PRODUCTS. SCHLUMBERGER CANNOT AND DOES NOT WARRANT THE ACCURACY, CORRECTNESS OR COMPLETENESS OF ANY INTERPRETATION, RECOMMENDATION OR DESCRIPTION. UNDER NO CIRCUMSTANCES SHOULD ANY INTERPRETATION, RECOMMENDATION OR DESCRIPTION BE RELIED UPON AS THE SOLE BASIS FOR ANY DRILLING, COMPLETION, WELL TREATMENT, PRODUCTION, STORAGE, MANAGEMENT OR ANY DECISION, OR ANY PROCEDURE INVOLVING ANY RISK TO THE SAFETY OF ANY WATER PROJECT, DRILLING RIG OR ITS CREW OR ANY OTHER INDIVIDUAL. CUSTOMER HAS FULL RESPONSIBILITY FOR ALL SUCH DECISIONS AND FOR ALL DECISIONS CONCERNING OTHER PROCEDURES RELATING TO THE PROJECT OR PRODUCTION OPERATION. CUSTOMER AGREES THAT SCHLUMBERGER SHALL HAVE NO LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY ORDIINARY, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSSES WHICH MIGHT ARISE DIRECTLY OR IINDIRECTLY BY REASON OF CUSTOMER'S USE OF THE PRODUCTS. CUSTOMER SHALL PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND SCHLUMBERGER OF AND FROM ANY LOSS, COST, DAMAGE, OR EXPENSE, INCLUDING ATTORNEYS' FEES ON A SOLICITOR AND OWN CLIENT BASIS, ARISING FROM ANY CLAIM ASSERTED AGAINST SCHLUMBERGER THAT IS IN ANY WAY ASSOCIATED WITH THE MATTERS SET FORTH IN THIS SOFTWARE LICENSE.
3.6 Software is licensed for use in the country where first delivered and may not be transferred outside such country without Schlumberger's prior written consent.
4.0 Copying Software
Customer is encouraged to a duplicate of the Software and Customer's data maintained by such Software FOR BACKUP PURPOSES ONLY to protect against the loss of Customer's data. Customer may make a single (1) archival copy of the Software as provided by applicable national copyright law and under international treaties. Customer agrees not to copy or reproduce Software or any portion thereof for any other purpose. Customer shall reproduce all copyright, patent, and proprietary rights notice(s) as a part of the informational content of any copy of the Software in any form. In the case of disk, tape, or other storage media, Customer shall reproduce such notice(s) in a visually legible form on the exterior of the media or first page of the printed volume. Customer is hereby granted the right to make a reasonable number of printed copies of user documentation and help files contained in the distribution media with the Software for its own internal use only, provided that such printed copies bear Schlumberger’s original copyright notice. Customer’s use of such printed copies shall be subject always to the terms and conditions of the Agreement and this Software License.
5.0 Software Warranty
5.1 Warranty. Subject to Clauses 5.3 and 5.4, if Customer follows the instructions and operate the Software on computer systems that comply with Schlumberger’s published technical specifications, Schlumberger warrants that during the term of the warranty period, the Software will perform as described in the Schlumberger Documentation that Customer receives in or with the Software. Schlumberger does not provide any warranty for Software that has not been properly licensed.
5.2 Term of Software Warranty. The warranty period for Software is:
(a) ninety (60) days from the date of physical shipment of the Software, if the Software is shipped via physical media; or
(b) sixty (30) days from receipt of the license key for the Software for Software delivered via electronic transmission or by Customer download from a server.
5.3 Remedy. Schlumberger will make its good faith efforts to correct defects in the Software that prevent the substantial use of the Software when used in accordance with Schlumberger’s Software specifications. Customer agrees, however, that Customer must notify Schlumberger of any defects Customer encounters during the stated warranty period in order to enforce this warranty. Customer agrees that Schlumberger does not warrant that the Software is error free or that all errors will or can be corrected.
5.4 Limitations on Warranty. The warranty will not cover any errors or failure in the Software when caused, directly or indirectly, by Customer’s acts or failures to act, the act of others, events beyond the reasonable control of Schlumberger, failures in hardware, software, firmware products or data supplied by Customer, a third-party, or Schlumberger, unless such hardware, software, or firmware is the subject of a current warranty from Schlumberger.
5.5 External Software Warranty. Schlumberger does not warrant the form or content of External Software or related documentation that Schlumberger provides. Customer accepts any External Software "As Is". However, Schlumberger will pass through any applicable third party vendor’s warranties for External Software supplied by Schlumberger to Customer as the end user, and Customer agrees that this is Customer’s exclusive remedy.
5.6 Disclaimer of Warranties. Except as expressly stated herein, SCHLUMBERGER MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE PROVIDED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.0 Export Regulations
Customer has been licensed to use the Software in the country where it was delivered to Customer. Because of the country(ies) of origin of the Software, the exportation of the Software to certain countries that are subject to United States, United Nations, European Union or other similar trade sanctions may be prohibited. Customer is responsible for complying with all applicable trade control regulations. Customer’s export, transfer, assignment or other movement of the Software in violation of applicable trade control regulations will result in the automatic termination of this Agreement and all rights to use the Software.
7.0 Ownership and Protection of Proprietary Information
7.1 All title, ownership and Intellectual Property rights in and to the Software and any modifications, improvements, enhancements or derivative works of the Software (including any that Costumer make) will vest and remain with Schlumberger and/or its licensors. This Agreement does not grant Costumer any intellectual property rights in the Software or any other Schlumberger software.
Costumer agree that Schlumberger, in its sole discretion, may incorporate as its own and use (including distribution in source code form under a commercial, or other license) any and all feedback or guidance Costumer provide regarding the Software. Costumer hereby assign to Schlumberger all rights, title and interest in any feedback or guidance Costumer provide regarding the Software and agree to execute all documents necessary to implement such assignment.
If the Software licensed to Costumer contains third-party software, Schlumberger represents that it has the authority to license any third-party software belonging to Schlumberger’s licensors to Costumer.
7.2 Costumer agree to use Costumer’s best efforts to safeguard the Schlumberger’s Proprietary Information as Costumer would Costumer’s own confidential and proprietary information. Costumer will disclose the Proprietary Information only to Costumer’s employees on a need-to-know basis. Costumer will maintain adequate internal procedures, including appropriate binding agreements with Costumer’s employees, to protect the Proprietary Information in the same way as Costumer protect Costumer’s own confidential information. If this Agreement is cancelled or terminated, Costumer agree to return or destroy, at Schlumberger’s direction, all Proprietary Information. The provisions of this Article 6.0 will survive any cancellation or termination of this Agreement.
The confidentiality obligations contained in this Clause 6.2 do not apply to Proprietary Information which is:
(a) Rightfully in Costumer’s possession prior to the time it is received from Schlumberger:
(b) Provided by Schlumberger to others free of any restrictions on disclosure and use;
(c) Provided to Costumer by a third party who has an authorized and unrestricted right to disclose; or
(d) Independently developed by Costumer without breach of these Terms and Conditions.
If You have chosen to order Maintenance for the licensed Software, You are entitled to the following and these additional terms and conditions apply:
8.0 Scope of Maintenance.
8.1 Costumer’s right to receive Maintenance for the Software licensed to Costumer is subject to Costumer payment of the annual maintenance fees and Costumer compliance with the terms of this Agreement.
8.2 Maintenance includes the following for the current version and for the two immediately prior versions of the Software:
(a) Costumer access to telephone support and access to Company's Software support portal, and customer support staff for reporting Software malfunctions and assistance in the use of the Software. Telephone support is limited to providing assistance with technical difficulties in using the Software only.
(b) Company’s provision of new versions, updates (including bug fixes and patches) or enhancements to current versions of the licensed Software, as they become available;
(c) Company’s provision of updates and enhancements to existing Documentation, as they become available; and
(d) Company’s reasonable efforts to correct defects in the Software program codes and procedural documents supplied with the Software where such errors are brought to Company’s attention during the Maintenance Term and where Company, in its sole discretion, recognizes them as having a detrimental effect on the performance of the Software.
8.3 All modifications made to the Software as part of Maintenance will be in computer readable form which will be sent to Costumer via mail, courier or e-mail at the discretion of Company. Software updates and upgrades may also be made available to Costumer through Company’s support portal, provided, however, that updates and upgrades will only be sent to Costumer authorized representatives. Costumer will be responsible for loading such media according to Company's instructions.
8.4 Exclusions from Maintenance.
8.4.1 Costumer are not entitled to receive any Maintenance for Software that Costumer have modified. Any modifications Costumer make to the Software including to any Embedded or External Software will render the Maintenance void. Company will not be liable to Costumer for any errors, losses or damage resulting from modifications that Costumer make to the Software. Company is only responsible for maintaining the unaltered release of the Software licensed to Costumer under this Agreement.
8.4.2 Maintenance does not include application development, software programming support or step by step instructions for Software configuration above and beyond general usage questions. Company may at its discretion determine if the requested assistance is above and beyond normal operating questions. Advanced assistance may be provided to Costumer under the terms of a separate consulting services agreement.
8.4.3 In addition to the above, Maintenance excludes the following:
(a) Software problems created through Costumer fault or negligence;
(b) Software problems that do not significantly impair or affect the operation of the Software;
(c) Except as provided herein, Software problems resulting from hardware malfunction;
(d) Software not sold or licensed by Company;
(e) Training on the use or benefits of the Software (training services are available and may be purchased under separate terms); and
(f) Installation of updates on Costumer computer system (installation services are available and may be purchased under separate terms).
8.4.4 Software updates are provided only for standard hardware platforms and operating systems supported by Company as indicated in the Software technical specifications. Costumer is responsible for making or arranging for updates to interfaces for non-standard devices or custom applications (if applicable).
8.5 Maintenance Term. The Maintenance Term shall be for an initial term as specified in the Quotation (i.e. the annual Maintenance fee will be pro-rated for any months remaining for the balance of the calendar year in which the Software was first licensed to Costumer). Upon expiration of the initial term, and as long as Costumer have paid the then current Maintenance fees, maintenance will be provided for consecutive, twelve-months terms beginning January 1.
8.6 Either party may terminate Maintenance by providing sixty (60) days written notice to the other party, and the termination will be effective January 1 of the following year. Failure to notify Company of Costumer intent to terminate could result in an automatic renewal and subsequent charge for Maintenance.
8.7 Maintenance will automatically expire when Costumer Software License expires or is otherwise terminated or when Costumer fail to pay Maintenance fees when due.
9.0 Maintenance Fees
9.1 Fees for Maintenance are specified in the Quotation. If the Quotation does not include the fees for Maintenance, the price of Maintenance will be at Company's then current prices in Company’s price book. All Payments for Maintenance are payable in advance. Costumer agrees to pay any Maintenance fee invoice within thirty (30) days of receipt. Company may, in its discretion, determine to withhold Maintenance until payment has been received.
9.2 Costumer agrees to provide Company with at least sixty (60) days advance written notice of Costumer intent to not renew the Maintenance. Failure to notify Company with sufficient time will result in automatic renewal and Costumer may become liable for an additional year’s charges.
9.3 Company may increase the Maintenance fees by giving Costumer not less than thirty (30) days prior written notice of increases which will become effective on the subsequent January 1 renewal. Notwithstanding the foregoing, no increase in Maintenance will apply for any period for which Costumer have paid in advance.
9.4 Reinstatement. Costumer may reinstate lapsed Maintenance by making full payment of the Maintenance fees that would have been due from the expiration of the last active Maintenance period through the reinstatement date. A reinstatement administrative fee of five percent (5%) of the back maintenance fees may also apply.
Top of page
Shopping Cart (
Print this page