PUMPJACK ONLINE TERMS OF SERVICE
These Pumpjack Online Terms of Service (this "Agreement") are entered into by Pumpjack Pro L.L.C. ("Pumpjack") and the entity executing this Agreement ("Customer"). This Agreement governs Customer use of Pumpjack Online (the "Service"). BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. In consideration of the foregoing, the parties agree as follows:
"Account" refers to the billing account for the Service.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
"Customer Data" refers to data in electronic form input or collected through the Service by or from Customer.
"Documentation" means any accompanying documentation made available to Customer by Pumpjack for use with the Processing Software, including any documentation available online.
"Materials" refers to written and graphical content provided by or through the Pumpjack online Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
"Service" refers to the “Pumpjack Online” service.
"Software" means the Processing Software.
"Third Party" means any third party (i) to which Customer provides access to Customer Account or (i) for which Customer use the Service to collect information on the third party's behalf.
The words "include" and "including" mean "including but not limited to."
2. Fees and Service.
Subject to Section 14, the Service is provided on a per well basis per month per account. Pumpjack may change its fees and payment policies for the Service from time to time. The changes to the fees or payment policies are effective upon Your acceptance of those changes which will be posted at http://www.PumpjackOnline.com. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys' fees) incurred by Pumpjack will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with Your Account.
3. Member Account, Password, and Security.
To register for the Service, the Customer must complete the registration process by providing Pumpjack with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You will notify Pumpjack immediately upon learning of any unauthorized use of Your Account or any other breach of security. Pumpjack's (or its wholly-owned subsidiaries') support staff may, from time to time, log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues.
4. Nonexclusive License.
Subject to the terms and conditions of this Agreement, Pumpjack grants Customer the right to remotely access, view and download Your Reports stored at http://www.PumpjackOnline.com. You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (vi) use data labeled as belonging to a third party in the Service for purposes other than generating, viewing, and downloading Reports. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service and Reports.
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
6. Information Rights and Publicity.
Customer will not (and will not allow any third party to) use the Service to track, collect or upload any data that personally identifies an individual (such as a name, email address or billing information), or other data which can be reasonably linked to such information by Pumpjack.
To the extent permitted by applicable law, Customer will indemnify, hold harmless and defend Pumpjack and its wholly owned subsidiaries, at Customer's expense, from any and all third-party claims, actions, proceedings, and suits brought against Pumpjack or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by Pumpjack or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Customer breach of any term or condition of this Agreement, (ii) Customer use of the Service, (iii) Customer violations of applicable laws, rules or regulations in connection with the Service, (iv) any representations and warranties made by Customer concerning any aspect of the Service, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Customer use of the Service, the Software or Reports; (vi) violations of Customer obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software or Reports. Pumpjack will provide Customer with written notice of any claim, suit or action from which Customer must indemnify Pumpjack. Customer will cooperate as fully as reasonably required in the defense of any claim. Pumpjack reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer.
9. Third Parties.
If Customer uses the Service on behalf of the Third Party or a Third Party otherwise uses the Service through Customer's Account, whether or not Customer is authorized by Pumpjack to do so, then Customer represents and warrants that (a) Customer is authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that Customer has under this Agreement, (b) Pumpjack may share with the Third Party any Customer Data that is specific to the Third Party's Data, and (c) Customer will not disclose Third Party's Customer Data to any other party without the Third Party's consent.
10. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, PUMPJACK MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
11. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, PUMPJACK WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PUMPJACK OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. PUMPJACK'S (AND ITS WHOLLY OWNED SUBSIDIARIES' TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $500 (USD).
12. Proprietary Rights Notice.
The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of Pumpjack (and its wholly owned subsidiaries). All rights in and to the Software not expressly granted to Customer in this Agreement are reserved and retained by Pumpjack and its licensors without restriction, including, Pumpjack's (and its wholly owned subsidiaries') right to sole ownership of the Software, Materials, and Documentation. Without limiting the generality of the foregoing, Customer agrees not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Pumpjack; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Pumpjack other than in the name of Pumpjack; or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
13. Term and Termination.
Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, Pumpjack will stop providing, and Customer will stop accessing the Service. In the event of any termination (a) Customer will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical Report data will no longer be available to You.
14. Modifications to Terms of Service and Other Policies.
Pumpjack may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service. You should look at the terms regularly. Pumpjack will post notice of modifications to these terms at http://www.PumpjackOnline.com or policies referenced in these terms at the applicable URL for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If Customer does not agree to the modified terms for the Service, Customer should discontinue use of Pumpjack Online. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Pumpjack, (ii) Customer accepts updated terms online, or (iii) Customer continues to use the Service after Pumpjack has posted updates to the Agreement or to any policy governing the Service.
15. Miscellaneous, Applicable Law and Venue.
Pumpjack will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between Customer and Pumpjack concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of California without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Harris County, Texas. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to Pumpjack must be sent to: Pumpjack Pro LLC, 4201 Cypress Creek Parkway, Suite 410, Houston, TX 77068-3498, USA, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Customer may not assign or otherwise transfer any of Customer rights in this Agreement without Pumpjack's prior written consent, and any such attempt is void. The relationship between Pumpjack and Customer is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 12, 13, and 15.