Subscriber Agreement for Use of GOMsmart
Earth Science Associates
4300 Long Beach Blvd., Ste. 310 Long Beach, CA 90807
Earth Science Associates, Inc. ("ESA"), a corporation organized and existing under the laws of Texas, is willing to grant you a limited, non-exclusive, non-assignable and non-transferable license to access and use GOMsmart, provided and expressly conditioned upon your agreement that all such access and use shall be governed by all of the terms and conditions set forth in this SUBSCRIBER AGREEMENT (the "Agreement"). GOMsmart is licensed and not sold.
You will not be assigned and provided a user name and password for accessing GOMsmart unless you manifest your assent to the terms and conditions of this Agreement by clicking "I accept the Subscriber Agreement" in the purchase process. If you do not agree to the terms and conditions as stated, then ESA is unwilling to license access to and use of GOMsmart and you should click "I do not accept the License Agreement."
You hereby acknowledge and agree as follows:
ESA currently provides users with access to a web-based service providing access to oil and gas data on the Gulf of Mexico and tools for its display and analysis ("GOMsmart"). Unless explicitly stated otherwise, any new features that augment or enhance the current version of GOMsmart shall be subject to this Agreement. You understand and agree that the GOMsmart is provided "AS-IS"
"GOMsmart" includes, without limitation,
(a) The GOMsmart on-line computer system including all electronic databases and services accessed by or through it, and individual items within those databases or services which may constitute independent works of authorship;
(b) all documentation and on-line or printed help and the like provided to you by for GOMsmart or for use in connection with it; and
(c) any other software, product, service, data or information provided by ESA or obtained through GOMsmart (collectively referred to herein as "information").
GOMsmart may only be used by persons agreeing to the terms of this Agreement or another agreement reached with ESA governing use of GOMsmart ("Licensed Users")
2. Ownership and Use
a. GOMsmart is the valuable, exclusive property of ESA and nothing in this Agreement shall be construed as transferring or assigning any such ownership rights to you or any other person or entity. GOMsmart is protected by contract law and various intellectual property laws, including domestic and international copyright laws. Except as permitted in this Agreement, you may not copy, adapt, distribute or publicly display GOMsmart or any portion thereof in any manner whatsoever without ESA's prior written consent. You may not remove, alter or obscure any copyright, legal or proprietary notices in or on any portions of GOMsmart.
b. You may store in the memory of your computer and may manipulate, analyze, reformat, print and/or display for your use only the information received or accessed through GOMsmart pursuant to this Subscriber Agreement. You may not resell, redistribute, broadcast or transfer the information or use the information in a searchable, machine-readable database. You may not sell, rent, lease, sublicense, distribute, transfer, copy, reproduce, publicly display, publish, adapt, store or time-share GOMsmart, any part thereof, or any of the information received or accessed therefrom to or through any other person or entity. Specifically, any person who uses GOMsmart to transfer information to another person or entity who is not a Licensed User of GOMsmart shall be in breach of this Agreement.
c. You agree not to attempt any reverse engineering of any of GOMsmart. You also agree not to decode the signals used by ESA in transmitting any information for any purpose.
d. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software or routine to bypass our robot exclusion headers, or to interfere or attempt to interfere with the proper working of the GOMsmart site or any action being conducted on our site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our site is updated on a real time basis and is proprietary to ESA. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from our website without the prior expressed written permission of GOMsmart.
e. ESA offers only a license for use of GOMsmart by a single individual subscriber that is a natural person and not an entity, who will be identified by a user name and a password assigned by ESA. When more than one license is simultaneously bought from ESA by special arrangement, each license is specific to the individual natural person identified at the time of purchase, and assigned user names and passwords by ESA.
3. Fees and Payments; Charges for GOMsmart
a. In consideration of your use of the GOMsmart and the license granted in this Subscriber Agreement, you shall pay to ESA any and all amounts owing pursuant to this Subscriber Agreement via an automatic debit to your credit card pursuant to the information and authorization you provide. Any sales or use taxes will be payable by you, if applicable. Your use of the GOMsmart will be subject to any credit limits established by or for your credit card issuer.
b. The rate schedule and plans in effect at the time of executing this Subscriber Agreement are displayed on-line during your purchase of a single license or on ESA’ invoice, in the case of the simultaneous purchase of more than one license; however, the fees reflected in the rate schedule are subject to change upon thirty (30) days notice to you. Any such amended rate schedule shall be deemed accepted by you if you use GOMsmart in any manner after the effective date of such changes. ESA reserves the right to modify these terms and conditions of this Subscriber Agreement and GOMsmart. ESA shall use reasonable efforts to notify you (including by facsimile, newsletter, or, if available, network message) in advance of or concurrent with such change. Such modifications may include, without limitation, changes in prices, implementation of user priorities, implementation of rules for use by you and discontinuance of functional aspects of GOMsmart. ESA may also add, withdraw or modify databases within the GOMsmart or services provided through it at any time in its sole discretion. All notices and statements described above shall be displayed on-line, and such display shall constitute effective notice under this Subscriber Agreement on the day ESA places them in GOMsmart.
c. Before completion of the term covered by your subscription to GOMsmart, you will be sent an email reminder. Your subscription will be renewed automatically for the same period unless you "opt-out" as described in the email notice, before the termination of the subscription period.
d. All terms of this agreement apply to individuals who obtain temporary access to GOMsmart for a "Free Trial" evaluation period, except that there is no charge for use during the evaluation period.
4. Password Disclosure.
If, at any time, you learn or suspect that your password has been disclosed or otherwise made known to any person other than yourself, you agree to immediately notify ESA at 562-428-3181 and to confirm such notice in writing or by email at GOMsmart@earthsci.com within seventy-two (72) hours. Upon receiving such notice, ESA will assign a new password to you within a reasonable period of time. Reissuance and reactivation of such passwords may be subject to charges.
5. Delays in Services.
Neither ESA, its service providers or service sponsors (including its and their officers, directors, employees, affiliates, agents, representatives or subcontractors) shall be liable for any loss or liability resulting, directly or indirectly, from delays or interruptions due to electronic or mechanical equipment failures, telephone interconnect problems, defects, weather, strikes, walkouts, fire, acts of God, riots, armed conflicts, acts of war, or to other like causes. ESA shall have no responsibility to provide you access to GOMsmart during interruption due to any such cause.
This Subscriber Agreement and the license rights granted hereunder shall remain in full force and effect unless terminated or canceled for any of the following reasons:
a. upon thirty (30) days written notice by either party of its intent to terminate this Agreement;
b. immediately by ESA if you fail to make any applicable payment to ESA when due or your automatic credit card debit is denied for any reason;
c. immediately by ESA for any unauthorized access or use by you, including, without limitation: (i) concurrent access (or attempt the same) of the GOMsmart with identical user identification and passwords; (ii) permitting another person or entity to use your user identification and password to access GOMsmart; (iii) transmitting information from the GOMsmart to another person or entity who is not a Licensed User of GOMsmart; or (iv) any other access or use of the GOMsmart except as expressly provided in this Agreement;
d. immediately by ESA if you assign or transfer (or attempt the same) any rights granted to you under this Agreement;
e. immediately, if you fail to abide by the rules and regulations relating to the use of, or tamper with or alter any of the software and/or data files contained in, or accessed through GOMsmart;
f. immediately, if you transmit or receive using GOMsmart (or cause the same) any pornographic, obscene, disparaging, defamatory, or libelous information of any nature or form whatsoever, with respect to any other user, company, or any other person or business entity. ESA, at its sole discretion, shall determine whether any information transmitted or received violates this provision; or
g. immediately, if you violate any of the other terms and conditions of this Subscriber Agreement. Termination or cancellation of this Subscriber Agreement shall not affect any right or relief to which ESA may be entitled, at law or in equity. Upon termination of this Subscriber Agreement, all rights granted to you will terminate and revert to ESA.
7. Monitoring and License of Posted Content
You acknowledge that ESA does not pre-screen content posted to the site, but that ESA shall have the right (but not the obligation) in their sole discretion to refuse or move any content that is available via the GOMsmart. Additionally, you acknowledge that ESA reserves the right to, and may from time to time, monitor any and all information transmitted or received through the GOMsmart. ESA, at its sole discretion and without further notice to you, may review, censor or prohibit the transmission or receipt of any information which ESA deems inappropriate (such as that specified in Section 6(f)) or that violates any term or condition of this Agreement.
With respect to all content you elect to post to areas of the GOMsmart that are open for such posting, you grant ESA the royalty-free, perpetual, irrevocable, non-exclusive and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
8. Equipment and Operation.
You shall provide and maintain all telephone and other equipment necessary to access the GOMsmart and the costs of any such equipment and/or telephone connections or use, including any applicable taxes, shall be borne solely by you. You are responsible for operating your own equipment and for familiarity with the information (e.g., calculations and reports) used with or available through the GOMsmart. ESA reserves the right to refuse assistance or to charge additional fees if you seek assistance from ESA with respect to such basic background information or any other matters not directly relating to the operation of GOMsmart.
9. LIMITED WARRANTY AND LIABILITY
a. You acknowledge that the information provided through GOMsmart is compiled from sources which are beyond the control of ESA. Though such information is recognized by the parties to be generally reliable, the parties acknowledge that inaccuracies may occur and ESA does not warrant the accuracy or suitability of the information. FOR THIS REASON, YOU ACKNOWLEDGE THAT GOMSMART IS PROVIDED TO YOU ON AN "AS IS, WITH ALL FAULTS" BASIS. ESA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, ORAL, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF NON-INFRINGEMENT, ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING AND ANY IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT. FURTHER, ESA DOES NOT REPRESENT OR WARRANT THAT GOMSMART WILL MEET YOUR REQUIREMENTS OR ARE SUITABLE FOR YOUR NEEDS. Under this Subscriber Agreement, you assume all risk of errors and/or omissions in GOMsmart, including the transmission or translation of information. You assume full responsibility for implementing sufficient procedures and checks to satisfy your requirements for the accuracy and suitability of GOMsmart, including the information, and for maintaining any means which you may require for the reconstruction of lost data or subsequent manipulations or analyses of the information provided under the Subscriber Agreement. YOU AGREE THAT ESA (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS) SHALL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE GOMSMART FOR ANY PURPOSE WHATSOEVER.
b. YOU ACKNOWLEDGE AND AGREE THAT YOU HEREBY ASSUME ALL RESPONSIBILITY (AND THEREBY HOLD ESA HARMLESS), BY WHATEVER MEANS YOU DEEM MOST APPROPRIATE FOR YOUR NEEDS FOR DETECTING AND ERADICATING ANY VIRUS OR PROGRAM WITH A SIMILAR FUNCTION.
c. YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS ESA (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS) FOR AND AGAINST ALL CLAIMS BROUGHT BY PERSONS OR ENTITIES OTHER THAN THE PARTIES TO THIS SUBSCRIBER AGREEMENT ARISING FROM OR RELATED TO YOUR ACCESS AND USE OF GOMSMART, INCLUDING ANY INFORMATION OBTAINED THROUGH GOMSMART.
e. IF THERE SHALL, NOTWITHSTANDING THE ABOVE PROVISIONS, AT ANY TIME BE OR ARISE ANY LIABILITY ON THE PART OF ESA BY VIRTUE OF THIS SUBSCRIBER AGREEMENT OR BECAUSE OF THE RELATION THEREBY ESTABLISHED, WHETHER DUE TO THE NEGLIGENCE OF ESA OR OTHERWISE, SUCH LIABILITY IS AND SHALL BE LIMITED TO $500.00 AS LIMITED DAMAGES AND NOT AS A PENALTY. THIS LIABILITY SHALL BE COMPLETE AND EXCLUSIVE.
f. THE PROVISIONS CONTAINED IN THIS SECTION 9 SHALL SURVIVE TERMINATION OF THIS AGREEMENT, EXCEPT WHEN SUPERCEDED BY ANOTHER AGREEMENT BETWEEN THE PARTIES.
10. Dealings With Advertisers
Your correspondence or business dealings with, or participation in promotions of advertisers or ESA’s partners found on or through GOMsmart, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that ESA shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such entities or individuals in GOMsmart.
GOMsmart may provide, or third parties may provide, links to other World Wide Web sites or resources. Because ESA has no control over such sites and resources, you acknowledge and agree that ESA is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that ESA shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
12. Third Party Content
You acknowledge that ESA does not pre-screen content posted by a third party. You agree that you must evaluate, and bear all risks associated with, the use of any such content posted by a third party, including any reliance on the accuracy, completeness, or usefulness of such content. In this regard, you acknowledge that you may not rely on any such third party content.
13. User Help and Support
ESA has developed, and makes accessible within GOMsmart, extensive on-line help resources to assist users in their use of GOMsmart. In addition to these resources, licensed users may contact ESA by email at GOMsmart@earthsci.com, or through forum(s) accessible within GOMsmart, in order to seek technical help and support for their user of GOMsmart. IT IS EXPRESSLY ACKNOWLEDGED BY THE PARTIES THAT NEITHER TELEPHONE NOR PERSONAL ON-SITE SUPPORT ARE PROVIDED BY THIS SUBSCRIBER AGREEMENT AND THE SUBSCRIBER IS NOT ENTITLED TO DEMAND TELEPHONE OR PERSONAL ON –SITE SUPPORT FROM ESA UNDER THIS SUBSCRIBER AGREEMENT
14. No Conflicting Terms
In the case of any conflict between this Subscriber Agreement and any help text or other documents, this Subscriber Agreement shall govern, whether such other document(s) is/are prior to or subsequent to this Subscriber Agreement, or signed or acknowledged by any director, officer, employee, representative or agent of ESA.
15. Attorney's Fees.
If ESA takes action (by itself or through its representatives) to enforce any of the provisions of this Subscriber Agreement, including collection of any amounts due hereunder, ESA shall be entitled to recover from you (and you agree to pay), in addition to all sums to which it is entitled or any other relief, at law or in equity, reasonable and necessary attorney's fees and any costs of any litigation.
16. Governing Law; Limitations; Venue.
This Subscriber Agreement shall be governed by the laws of the State of California, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. To the extent allowed by applicable law, any claims or causes of action arising from or relating to your access and use of GOMsmart contemplated by this Subscriber Agreement must be instituted within the lesser of one (1) year from the date upon which such claim or cause arose or was accrued, or that time explicitly allowed. Further, any such claim or cause of action may only be brought exclusively in the state or federal courts located in Los Angeles County, California, and you hereby agree to submit to the exclusive personal jurisdiction of such courts.
If any provision of this Subscriber Agreement is found to be unlawful or unenforceable in any respect, the court shall reform such provision so as to render it enforceable (or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision); and, as so reformed or modified, fully enforce this Subscriber Agreement.
Sections 2c, 2d, 3a, 9, 14, 15, 16, 17, and 19 shall survive termination of this Agreement.
19. Entire Agreement.
This Subscriber Agreement is complete at the time you agreed to it by completing the enrollment process, and this Subscriber Agreement constitutes the entire agreement between the parties, and no other agreement, written or oral, exists between you and ESA.