Confidentiality and Limitation of Liability
CONFIDENTIALITY AND PROPRIETARY RIGHTS
1.01. Confidential and Proprietary Information. As a result of receiving the services provided by Service Provider, Customer acknowledges that it will have access to or acquire knowledge of confidential and proprietary information of Service Provider. Confidential and proprietary information includes but is not limited to trade secrets, ideas, know-how, partners, suppliers, manufacturers, hardware, devices, equipment, designs, data, reports, documents, policies, procedures, strategies, methods, passwords, code, structures, systems, techniques, programs, pricing, estimates, equipment costs, contractual terms and arrangements, and other information that is not publicly available. Customer (including all officers, employees, agents, and directors) shall not, at any time during the Term of this Agreement or following termination of this Agreement, disclose any confidential or proprietary information to any third party except as required by law or with the prior written consent of Service Provider. Customer shall notify Service Provider in writing if it is required by law to disclose any confidential information. Likewise, Service Provider shall not disclose any of Customer’s confidential or proprietary information to any third party except as required by law or with the prior written consent of Customer. Service Provider shall notify Customer in writing if it is required by law to disclose any confidential information. The terms of this provision shall survive the termination of the Agreement.
1.02. Security. Customer agrees to comply with any security procedures set out by Service Provider. Customer shall limit knowledge of any of Service Provider’s trade secrets, ideas, know-how, designs, partners, suppliers, manufactures, hardware, devices, equipment, data, reports, documents, policies, procedures, strategies, methods, passwords, code, structures, systems, techniques, programs, contractual terms and arrangements to only those employees who need to know. Customer shall protect any confidential and proprietary information disclosed to it with the same degree of care used to protect its own confidential and proprietary information. Service Provider shall limit knowledge of any of Customer’s trade secrets, ideas, know-how, designs, data, reports, documents, policies, procedures, strategies, methods, passwords, code, structures, systems, techniques, programs, contractual terms and arrangements to only those employees who need to know. Service Provider shall protect any confidential and proprietary information disclosed to it with the same degree of care used to protect its own confidential and proprietary information.
1.03. Use of Customer Data for Development and Improvement. Customer agrees to allow Service Provider to use Customer’s data to develop and improve the products, services, and equipment provided by Service Provider.
1.04. License. This Agreement does not grant Customer any right or license to any intellectual property owned by Service Provider. Customer understands that all trade secrets, ideas, know-how, designs, partners, manufacturers, hardware, data, reports, documents, policies, procedures, strategies, methods, passwords, code, structures, systems, techniques, methods, devices, equipment, contractual terms and arrangements are the intellectual property of Service Provider. Service Provider grants Customer a limited and revocable license to use only the applicable trade secrets, ideas, know-how, designs, partners, manufacturers, hardware, data, reports, documents, policies, procedures, strategies, methods, passwords, code, structures, systems, techniques, programs, devices, equipment, contractual terms and arrangements for the term of this Agreement and only for the purposes set forth in this Agreement. Customer agrees that it shall not attempt to reverse engineer, recreate, take apart or take apart any device provided by Service Provider to either compete with Service Provider or circumvent business relationship between Service Provider and Customer. Any information, data, know how or other material developed by Service Provider under this Agreement are the sole property of Service Provider.
1.05. Internal Use Only. Service Provider is providing services for the Customer’s benefit. Customer (including its officers, employees, agents, and directors) may not use the Services to support any third party or make the Services available to any third party unless Service Provider, in its sole discretion, gives its prior written consent.
TERM
2.01. Length of Term. This Agreement shall commence on the signing of this agreement and remain in effect during the use of Service Provider and for three (3) years after termination of relationship.
2.02. Force Majeure. Neither party is responsible for any failure to perform its obligations under this contract, if it is prevented or delayed in performing those obligations by an event which is beyond the control and without the fault or negligence of the party and which by the exercise of reasonable diligence the party was unable to prevent or foresee. Such events include riot, war, invasion, terrorism, natural disaster, labor disputes affecting the subject matter of this Agreement, and discontinuation of services, products, or equipment provided by third parties. Where such an event occurs, the party shall immediately notify the other party. Such an event does not relieve the party of any obligation which arose before the occurrence of that event nor does it relieve the party of any obligation to pay any money owed in a timely manner.
WAIVER, DISCLAIMERS AND LIMITATIONS OF LIABILITY
3.01. Waiver. Failure of either party to insist upon strict compliance with any of the terms or conditions of this Agreement shall not be deemed a waiver of any breach, term, or condition. Any waiver or relinquishment of any right or power shall not be deemed a waiver or relinquishment of any other right, power, or subsequent breach, whether or not similar. To be effective, a waiver must be in writing and signed by the party granting the waiver.
3.02. Warranty and Disclaimers. Service Provider shall perform its obligations under this Agreement in a good and workmanlike manner. However, Customer acknowledges that services provided by Service Provider will rely on equipment, networks, products, and services provided by third parties, including the internet and cellular networks, and that Service Provider is not liable or responsible for any failures or errors arising from any third party equipment, networks, products, or services including the internet and cellular networks. Customer is responsible for maintaining any equipment provided by Service Provider. Customer acknowledges that Service Provider does not provide and cannot guarantee access to the internet or cellular networks, or sufficient access speeds. Customer acknowledges that it is possible that the internet, cellular networks, or other third party equipment or services may fail, that such failure may result in system failure or loss of service, and that Service Provider is not responsible for any damages (including but not limited to indirect, special, incidental, or consequential damages) arising as a result of such failure or loss of service. Customer acknowledges that Service Provider will employ rapid software development and that the rapid software development and implementation of software changes and upgrades may result in system failure or loss of service from time and time, and that Service Provider is not responsible for any damages (including but not limited to indirect, special, incidental, or consequential damages) arising from such failure or loss of services. Except as otherwise provided in this agreement, Service Provider is providing all equipment and services as is, without warranty of any kind, and expressly disclaims any and all warranties.
3.03. Limitations of Liability and No Special Damages. Notwithstanding any contrary provision herein, both parties agrees that, to the fullest extent permitted by law, neither party shall be liable to the other for any special, indirect, incidental, or consequential damages, whether caused by the other party’s (including its directors, officers, agents, contractors, partners and employees) negligence, errors, omissions, strict liability, breach of contract, breach of warranty or any other cause or causes. Notwithstanding any contrary provision herein, both parties agree that the other party’s including its directors, officers, agents, contractors, partners and employees) liability for any and all injuries, claims, losses, expenses, causes of action, or damages arising out of or in any way related to this Agreement or the services that are the subject matter of this Agreement (including but not limited negligence, errors, omissions, strict liability, breach of contract, breach of warranty or any other cause or causes) shall not in any circumstances exceed the full value of purchase and/or licensing fees paid to Service Provider within the 180 days preceding being put on notice as to any claim, dispute or otherwise. This limitation shall not apply to any acts of fraud, gross negligence, or willful injury.
Side Note: Basically, what our lawyer is trying to say here is that in no event will we be held liable to your company for more money than you’ve paid us. Why? Because we don’t charge you enough money to carry enough insurance to make this venture profitable. We could charge you (substantially) more, but we don’t think you’d like that either. Liability and Special Damages could put us out of business, and it’s important we remain an ongoing entity to continue to serve the oil & gas community.
3.04. Mutual Indemnification for Injury to Party’s Own Employees or Property. Notwithstanding any contrary provision herein, Customer will indemnify, defend, and hold harmless Service Provider (including its directors, officers, agents, contractors, partners and employees) from and against any and all claims, actions, liabilities, losses, costs and expenses arising from or in connection with this Agreement or the performance of this Agreement on account of personal injury, illness, death, property damage, or property loss to Customer and/or its directors, officers, agents, employees, contractors or invitees, but not including acts of fraud, gross negligence, or willful injury by Service Provider. Notwithstanding any contrary provision herein, Service Provider will indemnify, defend, and hold harmless Customer (including its directors, officers, agents, contractors, partners and employees) from and against any and all claims, actions, liabilities, losses, costs and expenses arising from or in connection with this Agreement or the performance of this Agreement on account of personal injury, illness, death, property damage, or property loss to Service Provider and/or its directors, officers, agents, employees, contractors or invitees, but not including acts of fraud, gross negligence, or willful injury by Customer. Each party agrees to give the other party prompt written notice of any claims, to tender the defense to the indemnifying party, and to grant the indemnifying party the right to control settlement and resolution, provided that in defending or settling such claim the indemnifying party shall not prejudice the rights of or disclose the Confidential Information of the indemnified party, without the prior written consent of the indemnified party (which consent shall not be unreasonable withheld).
MISCELLANEOUS
4.01. Assignment. This Agreement shall be binding upon the parties hereto, their successors, and assigns. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party and any attempt to do so without such consent will be null and void. Consent shall not be unreasonably withheld. However, no consent shall be required for either party to assign the Agreement to a subsidiary or purchaser of substantially all of the assets of such party. All assignments shall be subject to this Agreement and all of its terms and provisions and shall not relieve the assignor of its duties under this Agreement.
4.02. Governing Law, Legal Fees, Dispute Resolution. This Agreement shall be governed and construed in accordance with the laws of the State of Oklahoma, irrespective of the state’s choice of law principles. Each party consents and submits to this exclusive jurisdiction and exclusive venue and waives the right to challenge personal jurisdiction or venue as improper or inconvenient. In the event of any controversy or dispute between Service Provider and the Customer arising out of or relating to this Agreement, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If the parties are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), parties agree to submit such controversy or dispute to binding arbitration in accordance with the Oklahoma Uniform Arbitration Act. Written notice shall be mailed to Service Provider and shall set forth the basis of the claim and/or dispute. The claim must be submitted to arbitration within 180 days of the date Service Provider receives written notice of the dispute or else the claim is barred. The Arbitration will take place in Oklahoma County with a neutral arbitrator to be selected by the parties. The Arbitrator will divide the costs of arbitration among the parties, including attorney fees. Customer agrees that in no event can the amount awarded by the Arbitrator exceed the purchase and/or licensing fees paid to Service Provider within the 180 days preceding being put on notice as to any claim, dispute or otherwise.
4.03. Anti-Solicitation. Our employees, contractors, partners and fabricators are really bright (sorry, you can’t have them…) Customer agrees not to solicit any employee, contractor, partner, fabricator, or manufacturer of Service Provider unless a written waiver is obtained from Service Provider. If Customer attempts to solicit or contract directly with any employee, contractor, partner, fabricator, or manufacturer from Service Provider, Customer agrees to pay Service Provider the equivalent of three (3) years of all preceding transaction amounts between Service Provider and its employee, contractor, partner, fabricator, or manufacturer or $250,000, whichever is greater. This provision shall survive termination of this Agreement.
4.04. Amendment. This Agreement may be changed, modified, or amended only by written agreement signed by all parties.
4.05. Severability. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, rules, and regulations. In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason and in any respect, that shall not affect the remainder of this Agreement, which shall remain in full force and effect in accordance with its terms.
4.06. Entire Agreement. This Agreement, and any exhibits to this Agreement, constitute the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes any prior written or oral agreements.
4.07. Notices. Any notice required to be given to Service Provider pursuant to this Agreement or by law shall be in writing and shall be sent by personal delivery or via first class mail to the following address. All notices shall be deemed to have been sent by either the date of personal delivery or three (3) days following the date such notice was mailed via first class mail.
Greasebook, LLC
205 NW 63rd, STE 360
Oklahoma City, OK 73116
