RA GEOLOGIA DATA PRODUCTS TERMS AND CONDITIONS
Following are the RA GEOLOGIA E.U. data terms and conditions for licensing the Products and by accessing the Products Client accepts and agrees to be bound by these terms.
1.1 “Affiliate” means any legal entity which controls, is controlled by, or is under common control of either party ownership of more than 50% of assets or stock with control over day-to-day operations).
1.2 “Agreement” means these Data Terms and Conditions, the incorporated Exhibit, and the applicable Order Forms.
1.3 “Client Information” means any confidential or proprietary information or data provided by Client to RA GEOLOGIA E.U. to enable RA GEOLOGIA E.U. to perform its obligations under the Agreement.
1.4 “Confidential Information” means: (a) RA GEOLOGIA E.U. Property; (b) Client Information; (c) the terms of the Agreement; and (d) any information that by its nature, Recipient knows or should know is confidential or proprietary, including Discloser business or technical information.
1.5 “Divisional Affiliate” means any legal entity which is: (i) directly controlled by Client or Client’s parent company (ownership of more than 50% of assets or stock with control over day-to-day operations), and (ii) together with Client operates a distinct and separate business division/unit within the Client enterprise.
1.6 “Documentation” means the material, user guides, and manuals provided by RA GEOLOGIA E.U. to Client for use with a Product.
1.7 “Exhibit” means the Exhibit which contains the terms or conditions specific to the Products.
1.8 “Expenses” means the reasonable and documented expenses incurred by RA GEOLOGIA E.U. to provide Products to Client.
1.9 “Fees” means the money owed to RA GEOLOGIA E.U. for Products or provided in the Order Form. Fees are exclusive of Expenses and Taxes, which will be charged separately to the Client.
1.10 "RA GEOLOGIA E.U. Property" means: (a) the business process, management and analytics technologies of RA GEOLOGIA E.U., including without limitation; any algorithms, analyses, data, databases, Documentation, formats, forecasts, formulas, inventions, know-how, methodologies, processes, tools, trade secrets, and Products, and (b) any and all derivative works, enhancements, or other modifications to any of the above.
1.11 “Order Form” means the document executed by both Parties describing the Product(s) being licensed, the license term, Fees, Expenses, and any special terms or conditions.
1.12 “Product(s)” means all information provided by RA GEOLOGIA E.U. and/or its third party providers to Client under an Order Form which may be accessed electronically or delivered/received in physical format. Products may include any web tools, search engines, or software provided by RA GEOLOGIA E.U. that can be used by Client when accessing Products which Client agrees to use only for purpose of accessing the Products and subject to the restrictions as set forth herein. RA GEOLOGIA E.U. reserves the right to replace or make any change to the Product(s) by providing at least 30 days prior written notice to the Client.
1.13 “Taxes” means value-added, sales, use, import, or any taxes other than taxes assessed upon the income of RA GEOLOGIA E.U.. Client must submit applicable documentation to receive tax exempt status.
2. FEES, PAYMENT, DELIVERY AND TAXES.
2.1 RA GEOLOGIA E.U. will invoice Client for all Fees and Expenses due under any Order Form. Client will pay RA GEOLOGIA E.U. the Fees and Expenses in advance, within 30 days from date of invoice issued by RA GEOLOGIA E.U. and in the currency specified in the Order Form. Fees for Products are nonrefundable. RA GEOLOGIA E.U. may: (a) accrue interest at the lesser of 1% per month or the highest rate permitted in law, and/or (b) discontinue the provision of Products if payment is not received when due. Client has no right of set-off.
2.2 Unless otherwise agreed in the Order Form, RA GEOLOGIA E.U. reserves the right to modify the Fees after the initial 12 month subscription period by providing at least 60 days prior written notice to the Client; provided such change will occur no more than once in any 12 month period.
2.3 Delivery of Products is deemed to occur and risk of loss passes upon delivery or when RA GEOLOGIA E.U. provides access codes to Client that allow Client to access or to take immediate possession of Product.
3. OWNERSHIP OF INTELLECTUAL PROPERTY.
3.1 RA GEOLOGIA E.U. or its third party providers owns all RA GEOLOGIA E.U. Property, and Client owns all Client Information. Client may provide suggestions/feedback which RA GEOLOGIA E.U. may use without any obligation to Client so long as such suggestions/feedback do not include Client Information.
3.2 Neither Party will remove any copyright, trademark, or other proprietary notices of the other Party or any third party on any materials received from the other Party and each Party will reproduce all such notices on all copies of such materials.
4. CONFIDENTIAL INFORMATION. Where either party (“Discloser”) provides the other (“Recipient”) with Confidential Information, it shall be held in strict confidence and shall not be disclosed or used for any purpose other than as specifically authorized/provided in the Agreement without the prior written consent of the other. Confidential Information shall not include information: (i) which is or becomes public knowledge other than by a breach of this clause, (ii) that is required to be disclosed by any applicable law or by any recognized stock exchange, (iii) that is obtained from a third party without breach of an obligation of confidentiality and (iv) information which can be shown to have been independently developed by the parties by means other than through its access to the Confidential Information. Upon any expiration or termination of this Agreement or Order Form, Recipient promptly will return to Discloser or destroy all Discloser Confidential Information that it has in its possession or control related to the Agreement or Order Form as applicable.
5.1 By RA GEOLOGIA E.U..
5.1.1 Except as otherwise specifically set forth in an Order Form, RA GEOLOGIA E.U. will indemnify, defend, and hold harmless Client for any damages (and related attorney’s fees) awarded by a court in favor of any third party alleging that Products infringe or misappropriate any third party intellectual property rights, including any patent, copyright, trademark, or trade secret, in the country(s) of Client’s locations as licensed under an Order Form (“Infringement Claim”).
5.1.2 RA GEOLOGIA E.U. will have no liability under this Section 5.1 for any Infringement Claim arising from: (a) failure to use Products s in accordance with the Agreement, (b) the modification of a Product not specifically authorized in writing by RA GEOLOGIA E.U.; (c) the combination of a Product with any third party software, equipment, or information not specified in the Documentation; (d) the use of a version of a Product other than the then-current version, if the infringement would have been avoided by use of the then-current version; or (e) compliance with designs, plans, or specifications furnished by or on behalf of the Client.
5.1.3 If Products are held or are believed by RA GEOLOGIA E.U. to infringe, RA GEOLOGIA E.U. may choose, at its sole expense, (a) to modify the Products so that they are non-infringing; (b) to replace the Products with non-infringing Products that are functionally equivalent; (c) to obtain a license for Client to continue to use the Products; or if none of (a), (b), or (c) is commercially reasonable, then (d) to terminate the Order Form for the infringing Products and refund Fees paid for such infringing Product(s); in case of provision of subscription Products, prorated from the date of the Infringement Claim. This Section 5.1.3 states the entire liability of RA GEOLOGIA E.U. and Client’s sole and exclusive remedy for any infringement of third party proprietary rights of any kind.
5.2 By Client. Client will indemnify, defend and hold harmless RA GEOLOGIA E.U. for any damages (and related attorney’s fees) awarded by a court in favor of any third party alleging that Client Information used by RA GEOLOGIA E.U. in accordance with the terms and conditions of the Agreement infringes or misappropriates any third party intellectual property rights including any patent, copyright, trademark, or trade secret. If Client Information is held or is reasonably believed by RA GEOLOGIA E.U. to infringe, RA GEOLOGIA E.U. will cease using such Client Information and will not be liable to Client for any breach or failure to perform under the Agreement for which the Client Information to perform under the Agreement for which the Client Information was provided.
5.3 Mutual Indemnification: Each Party will indemnify, defend, and hold the other Party harmless from any claim, demands, liabilities, suits, or expenses of any kind for personal injury or damage to tangible property to the extent arising from its negligence or willful misconduct on either party’s premises.
5.4 Indemnification Procedure. The indemnification obligations of each Party under this Section 5, are contingent upon the indemnified Party providing to the indemnifying Party: (a) prompt written notice of the alleged claim; (b) sole control of the defense or settlement of the alleged claim; and (c) reasonable cooperation and assistance, at the indemnifying Party’s expense. If the indemnified Party chooses to be represented by counsel, it will be at the indemnified Party’s sole cost and expense.
6. LIMITATION OF LIABILITY.
6.1 NEITHER RA GEOLOGIA E.U., ITS THIRD PARTY PROVIDERS, NOR THE CLIENT WILL BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL, OR OTHER INDIRECT DAMAGES SUFFERED BY THE OTHER PARTY, INCLUDING: (a) ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, REVENUE, SAVINGS, OR BUSINESS; (b) LOSS OF DATA OR INFORMATION; (c) LOSS OF GOOD WILL, REPUTATION, OR SIMILAR LOSSES; OR (d) BUSINESS INTERRUPTIONS ARISING OUT OF OR RELATED TO THE AGREEMENT OR ANY USE OF OR INABILITY TO USE PRODUCTS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
6.2 Except for each party’s indemnification obligations under Section(s) 5.1 or 5.2, the maximum liability of RA GEOLOGIA E.U., its third party providers, and/or the Client to the other Party for all claims under this Agreement, in warranty, contract, tort, or otherwise, will not exceed: in the case of Products, the Fees paid by Client in the prior 12 months for the defective Products that are the subject of the claim.
6.3 The limitations of liability in this Section 6. will not apply to the liability of a Party for: (a) damages related to death or personal injury arising out of the gross negligence or willful misconduct of the Party; (b) any damages or liability incurred as a result of fraud or fraudulent misrepresentation of the Party; or (c) to claims or loss(es) based upon breaches by the Party of its License/Authorized Use or the other Party’s intellectual property rights.
7. TERM AND TERMINATION.
7.1 The term of a Product license will be set forth in the applicable Order Form, and-except as it relates to One-Time Licenses -will automatically renew for additional one-year terms unless terminated as provided in
Section 7.2 of this Agreement. The term of this Agreement shall continue for the term of the Order Form.
7.2 Either Party may terminate an Order Form if: (a) the Party gives written notice to the other Party of its election to terminate at least 30 days before the end of the initial term or renewal term of the Order Form for Products licensed on a term basis; (b) RA GEOLOGIA E.U. no longer has the necessary right from any third party to license or distribute the Product; (c) the other Party commits a breach of any material term or condition of this Agreement and does not cure such breach within 30 days of written notice; or (d) the other Party’s assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other Party for relief under bankruptcy or similar laws and such proceeding is not dismissed within 60 days, or the other Party is adjudged bankrupt.
7.3 Any termination does not relieve either Party of any liability incurred prior to such termination, or for Client’s payment for unaffected Products. Upon the termination of this Agreement, or any Order Form; all Fees and Expenses owed by Client through the date of termination automatically and immediately become due and payable.
7.4 Upon any expiration or other termination of an Order Form, all licenses granted under same immediately will terminate. All terms and conditions of the Agreement will continue to apply to any Order Forms that have not been so terminated.
7.5 Effect of Term or Termination. Unless otherwise provided in the Agreement, Client may not permanently retain Product, including: (a) in any file or on any hard drive, server or other form of memory; or (b) in any printed form. Client represents and warrants that upon any expiration or termination of this Agreement or an Order Form, as applicable, Client immediately will: (x) discontinue all use of Product(s) associated with any expired or terminated Order Forms; (y) destroy any items relating to Products (including but not limited to data, software, and Documentation) and purge any Product data from all electronic media; and (z) upon request from RA GEOLOGIA E.U. provide written certification to RA GEOLOGIA E.U. that Client has complied with this paragraph.
8. ANTI-CORRUPTION AND EXPORT CONTROL.
Both parties shall (i) comply with all applicable laws of the United States and other jurisdictions relating to anti-corruption and agree not to perform, offer, give and receive bribes or corrupt actions in relation to the procurement or performance of this Agreement and (ii) comply with all applicable export laws and regulations of the United States and other relevant local export laws as they apply to the Products provided by RA GEOLOGIA E.U. under this Agreement. Failure to comply with all applicable anti-corruption or export laws will be deemed a material breach of the Agreement.
9.1 General. These terms and conditions together with the applicable Order Form sets forth the entire agreement between the parties and supersedes any and all prior proposals, agreements or communications,
written or oral, of the parties with respect to the subject matter of the Agreement. Nothing contained in any Client-issued purchase order, purchase order acknowledgement, or purchase order terms and conditions (including any online terms as part of the required procurement process) will modify or add any additional terms or conditions to this Agreement. Such document(s) is for Client’s administrative purposes only, and not binding on either party, even if acknowledged, executed, or processed on request of Client. If Client executes the applicable Order Form on behalf of itself and its Affiliate(s), then Client shall be responsible for ensuring compliance with this Agreement by itself, Client’s Affiliate(s), its Authorized Users, and the Authorized Users of Client’s Affiliates. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations hereunder except for payment for any Fees if such delay or failure result from events, circumstances or causes beyond its reasonable control. Except for an assignment to an Affiliate, Client may not assign the rights and obligations under the Agreement to any third
party (whether directly or indirectly, by operation of law or otherwise) without the prior written consent of RA GEOLOGIA E.U., which consent will not be unreasonably conditioned, withheld, or delayed. RA GEOLOGIA E.U. may subcontract any or all of its obligations under this Agreement to subcontractors of its choosing. Client agrees that RA GEOLOGIA E.U. is not deemed subcontractor for purposes of this section. This Agreement is binding on the Parties, their successors, and assigns. The Agreement will be construed under the laws of Colombia each Party hereby submits to the exclusive jurisdiction of Colombian courts. The Parties hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. If any provision of the Agreement is found invalid or unenforceable, the remaining portions will remain in full force and effect. All notices required under the terms and conditions must be in writing and delivered by commercially established courier service, facsimile with written confirmation of delivery; email with written confirmation of delivery, or via certified mail, return receipt requested, to the addresses specified in the Order Form. Any legal notices must also be copied to “Attention: RA GEOLOGIA E.U. Legal Department.” Any cause of action arising under this Agreement shall be asserted within two (2) years of the date upon which such cause of action accrued, or the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later. No failure or delay by either Party to exercise any right they may have operates as a waiver of their rights at any future time. The Parties are independent contractors and nothing in this Agreement will be construed to create a partnership, joint venture or employment relationship between the Parties. The terms and conditions of the Agreement (including Section(s) 4, 5, and 6) will survive the expiration or other termination to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate. If a Client requires training Services for Products licensed under this Agreement, then RA GEOLOGIA E.U. will provide such Services subject to this Agreement. No term of the Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to the Agreement.
9.2 Publicity. RA GEOLOGIA E.U. may use Client’s name and logo in compiling a list of RA GEOLOGIA E.U.’s Clients. Any additional publicity concerning a Party will require the other Party’s prior written consent.
9.3 Execution. Each person executing the Order Form on behalf of any entity hereby represents and warrants that he or she is duly authorized and has full authority to execute and deliver the Order Form. Each Party consents to the other Party’s use of electronic signatures on the Order Form. Neither party may object to the legal effect or enforceability, as a result of such electronic signature, which will be considered to be an original binding signature.
EXHIBIT FOR DATA PRODUCTS
1.LICENSE TYPES AND DEFINITIONS
1.1 “Authorized User(s)” means employees of Client and/or Client’s Affiliates or Divisional Affiliates, as applicable, who must access a Product solely to help Client use the Product for its licensed purpose. Client assumes full liability and responsibility for the acts and omissions of its Authorized Users and will take all reasonable steps to ensure that no unauthorized persons shall have access to the Product.
1.2 “Client License” means a type of license that allows the Authorized Users (number specified on the Order Form, if applicable) of Client (as of the effective date of the license) to access the Product. A Client License does not include the right to allow use by Authorized Users of Client’s Affiliates.
1.3 “Enterprise-Wide License” means a type of license that allows the Authorized Users (specified on the Order Form, if applicable) of Client and Client Affiliates (as of the effective date of the license) to access the
1.4 “Divisional License” means a type of license that allows the Authorized Users (number specified on the Order Form, if applicable) of Client and Divisional Affiliates (as of the effective date of the license) to access the Product.
1.5 “One-Time License” means a type of license that allows Client to access a single delivery (in any format offered by RA GEOLOGIA E.U.) of a Product and is not based on an ongoing subscription. Any automatic renewal terms in this Agreement will not apply to a One-Time License.
1.6 “Site License” means a type of license that only allows Client to access the Product from the location(s) listed in the Order Form. Proxy or community access from locations not listed in the Order Form is strictly prohibited. Site License may include Client Affiliates’ locations as sites, if the Order Form specifically lists the Client Affiliates’ locations.
1.7 “Standalone License” means a type of license that allows Client the right to download or access the Products on a single computer. Authorized Users shall only be authorized to access the Products on such computer.
1.8 “User License” means a type of license that allows the number of Authorized Users specified in the Order Form to access the Product through user name and passwords either: (i) on a concurrent basis (i.e. allowing up to the specified number of Authorized Users the rights to access the Products simultaneously) or (ii) on a generic/named user basis.
1.9 “Internal Use” means that Authorized Users may use the Product only for Client’s internal business purposes. Except as otherwise specified on an Order Form, Products are not licensed for external use.
2. AUTHORIZED USE
2.1 License Grant. RA GEOLOGIA E.U. grants to Client, and Client hereby accepts, a license that is limited, nonexclusive, nontransferable, nonsublicensable, and revocable (solely to extent provided in Section 7, of the Agreement).
Client may use the Product in the specified media and accompanying Documentation (if any), for its Internal Use only. The Order Form will specify information relevant to the licensegrant, including: (a) the license
type (e.g. Enterprise-Wide, Site, or User), (b) the license term (e.g. perpetual/One-Time or term/subscription), and (c) the Product(s) being licensed.
2.2 Creation of Works from the Product. Client may create reports or presentations (collectively “Work”) using information from the Product provided such Work is for Client’s Internal Use only. Nothing in this section will operate so as to vest in Client any proprietary rights in any Products or portions of Work in any way derived from Products.
2.2.1 Amount of Product in Works. Client undertakes: (i) that the information from the Product used in the Work will be insubstantial and de minimis in nature and will not be primarily a copy of the Product, and (ii) not to create Work that uses a portion of the Product that could reasonably be considered substantial.
2.2.2 Work Not to be Commercialized. Client must never use Work: 1) to produce a commercial product or service, or 2) directly for revenue generating purposes.
2.2.3 Citing RA GEOLOGIA E.U. in Work. In Work, Client will represent RA GEOLOGIA E.U. or its third party provider as the source of the Product information in the following form: “Includes content supplied by [NAME OF RA GEOLOGIA E.U. COMPANY or its third party provider]; Copyright © [NAME OF RA GEOLOGIA E.U. COMPANY or its third party provider], [publication year]. All rights reserved”.
2.2.4 Use of Work at End of Term or Termination. Upon termination or expiry of this Agreement and/or Order Form, subject to payment of the applicable Fees, and subject to Client’s continued compliance with the Agreement; RA GEOLOGIA E.U. at its sole discretion may consent to permit Client to continue to access Work created by Client.
2.3 Other Copying and Distribution. Except as specifically authorized in Section 2.2.2 or the applicable Order Form, Client may not copy, distribute, publish, republish, scan, transfer, sell, license, lease, give, permanently retain, decompile, reverse engineer, or otherwise reproduce, disclose or make available to others, or create derivative works from the Product or any portion thereof. Client may make a reasonable number of copies of any Documentation, provided all such copies include all legends, copyright and other proprietary notices that appear on the original.
2.4 Protection of RA GEOLOGIA E.U. Intellectual Property. Client agrees to take commercially reasonable actions on a day to day basis to assist RA GEOLOGIA E.U. in the protection of its and its third party providers’ intellectual property.
2.5 Effect on Assignment or Change of Control. Client acknowledges additional Fees may be payable for License(s) granted under an Order Form to this Exhibit upon: (a) an assignment of this Agreement and/or such License(s); or (b) a change of control, proposed merger, consolidation, combination, or reorganization
involving Client or Client’s Affiliates, as applicable.
3.1. RA GEOLOGIA E.U. Data Products. Any Product provided by RA GEOLOGIA E.U. under this Exhibit is provided “AS IS.” Product(s) are compiled from materials furnished to or obtained by RA GEOLOGIA E.U. from outside sources. RA GEOLOGIA E.U. does not warrant the completeness or accuracy of the information, that Client’s use of Product(s) will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy Client’s requirements.
3.2 Disclaimer. RA GEOLOGIA E.U. AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER STATUTORY, ARISING FROM COURSE OF DEALING, OR OTHERWISE, INCLUDING WITHOUT LIMITATION TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CLIENT ASSUMES ALL RISK IN USING THE RESULTS OF PRODUCT(S).
Upon reasonable notice by RA GEOLOGIA E.U. to Client, and not more than once annually (unless prior violations have been discovered), during the term of this Agreement and 1 year thereafter, RA GEOLOGIA E.U. may audit relevant records (e.g. records related to Client’s use of Products) at Client’s location during normal business hours to enable RA GEOLOGIA E.U. to ensure Client’s compliance with the Agreement.
5. SECURITY MEASURES.
5.1 RA GEOLOGIA E.U. reserves the right to employ security measures to monitor usage of the Products to ensure Client’s compliance with the Agreement so long as these security measures are not prohibited by law. Any attempt to circumvent such access restrictions or RA GEOLOGIA E.U. security measures will be considered a material breach of this Exhibit.
5.2 For certain Products, RA GEOLOGIA E.U. will issue to Client a password to access the Products, which Client acknowledges is only for Client’s and its Authorized Users’ use and may not be shared with anyone else. Client is solely responsible for all use, authorized or unauthorized, of Products (including use by Authorized Users). Client must notify RA GEOLOGIA E.U. immediately of any unauthorized use of Products and/or passwords.
6. ENABLING SOFTWARE.
If the Products licensed under this Exhibit are provided along with any web tool, search engine or software in order to access the Products (“Enabling Software”), Client agrees to use the Enabling Software only for purpose of accessing the Products and subject to the restrictions as set forth herein.