Central Terms and Conditions

1.USE OF CENTRAL

1.1  Seequent will make Central available to the Customer in accordance with Schedules 1 and 2 of these Terms. The Customer and Authorised Users may access, use and store Material and other data in Central in accordance with the Customer’s Entitlements and this Agreement.

1.2  In relation to Authorised Users:

a. the establishment of user accounts for Authorised Users will be managed by the Customer through the administration portal. The Customer shall maintain an accurate record of all Authorised Users of Central, and shall provide such  record to Seequent as reasonably requested from time to time;

b. the Customer shall ensure that each Authorised User accepts the User Terms and keeps confidential a secure password for their use of and access to Central; and

c. the Customer shall comply with the User Terms and is responsible for ensuring the compliance by Authorised Users with the terms of this Agreement and the User Terms.

1.3   In relation to the use of Central:

a. Seequent hereby grants to the Customer, on and subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable licence to allow Authorised Users to access Central;

b. the Customer shall not store, distribute or transmit through Central any Virus, or any Material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

c. the rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless expressly agreed by Seequent;

d. the Customer shall not:

i. attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of Central except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

ii. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Central, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

iii. access all or any part of Central in order to build a product or service which competes with Central;

iv. make Central available to third parties except where the Customer permits any customer of the Customer to become an Authorised User for the purposes of receiving services from the Customer; or

v.  subject to clause 15, transfer, temporarily or permanently, any of its rights under this Agreement; or

vi. attempt to obtain, or assist third parties in obtaining, access to Central; and

e. the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, Central and notify Seequent promptly of any such unauthorised access or use.

2. CUSTOMER DATA

2.1. The Customer shall own all rights, title and interest in and to all Customer Data and Material and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and Material.

2.2. Seequent shall follow its archiving procedures for Customer Data and Material as described in Schedule 1. In the event of any loss or damage to Customer Data or Material, the Customer’s sole and exclusive remedy shall be for Seequent to use reasonable commercial endeavours to restore the lost or damaged Customer Data or Material from the latest back-up of such Customer Data or Material maintained by Seequent in accordance with the archiving procedure described in Schedule 2. Seequent shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data or Material caused by any third party (except those third parties sub-contracted by Seequent to perform services related to Customer Data or Material to undertake maintenance and back-up).

3. SUPPLIER’S OBLIGATIONS

3.1. Seequent shall perform the Support Services in accordance with the Service Levels.

3.2. Seequent will perform the Services with reasonable skill and care.

3.3. Seequent does not warrant that the Customer’s use of Central will be uninterrupted or error-free.

3.4. This Agreement shall not prevent Seequent from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Agreement.

4. CUSTOMER’S OBLIGATIONS

4.1. The Customer shall:

a. provide Seequent with:

i. all necessary co-operation in relation to this Agreement; and
ii. all necessary access to such information as may be required by Seequent; in order to render the Services and deliver Central, including but not limited to Customer Data, security access information and software interfaces to the Customer’s other business applications; and

b. comply with the terms of this Agreement and all applicable laws and regulations with respect to its activities under this Agreement.

5. CHARGES AND PAYMENT

5.1. The Customer shall pay the Fees for the Services and Entitlements received by the Customer in accordance with this Agreement.

5.2. The Customer shall reimburse Seequent for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by Seequent in performance of the Services provided that such expenses are approved by the Customer.

5.3. All payments under this Agreement shall be made free of deduction or withholding and net of sales, use or other taxes or duties. In the event that the Customer becomes liable to deduct or withhold an amount by way of tax or otherwise from payment of the Fees, or if Seequent are required to collect any sales, use or other taxes from the Customer, the Customer shall pay such additional amount as will be necessary to ensure that the amount of the fees received by Seequent equals the amount that would otherwise have been received in the absence of such deduction, withholding, tax or duty.

6. PROPRIETARY RIGHTS

6.1. The Customer acknowledges and agrees that Seequent and/or its licensors own all intellectual property rights in Central. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of Central or any related documentation.

6.2. Seequent confirms that, to the best of its knowledge, it has all the rights in relation to Central that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

7. CONFIDENTIALITY

7.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not include information that:

a. is or becomes publicly known other than through any act or omission of the receiving party;
b. was in the other party’s lawful possession before the disclosure;
c. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
d. is independently developed by the receiving party, which independent development can be shown by written evidence; or
e. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

7.2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

7.3. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

7.4. Seequent acknowledges that the Customer Data is the Confidential Information of the Customer.

7.5. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

7.6. The above provisions of this clause 7 shall survive termination of this Agreement, however arising.

8. INDEMNITY

8.1. Seequent shall defend the Customer, its officers, directors and employees against any claim that Central infringes any patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

a. Seequent is given prompt notice of any such claim;
b. the Customer provides reasonable co-operation to Seequent in the defence and settlement of such claim, at Seequent’s expense;
c. the Customer takes all reasonable steps to mitigate its losses or damage; and
d. Seequent is given sole authority to defend or settle the claim.

8.2. In the defence or settlement of any claim under clause 8.1, Seequent may obtain for the Customer the right to continue using Central, replace or modify Central so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement without liability to the Customer. Seequent shall have no liability if the alleged infringement is based on:

a. a modification of Central by anyone other than Seequent;
b. the Customer’s use of Central in a manner contrary to the instructions given to the Customer by Seequent and this Agreement; or
c. the Customer’s use of Central after notice of the alleged or actual infringement from Seequent or any appropriate authority.

8.3. The foregoing states the Customer’s sole and exclusive rights and remedies, and Seequent’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

9. LIMITATION OF LIABILITY

9.1. This clause 9 sets out the entire financial liability of Seequent (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

a. arising under or in connection with this Agreement;
b. in respect of any use made by the Customer of Central, or any part of it; and
c. in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

9.2. Except as expressly and specifically provided in this Agreement:

a. the Customer assumes sole responsibility for results obtained from the use of Central by the Customer, and for conclusions drawn from such use. Seequent shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Seequent by the Customer in connection with Central, or any actions taken by Seequent at the Customer’s direction; and

b. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

9.3. Subject to clause 9.1 and clause 9.2:

a. Seequent shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and

b. Seequent’s total aggregate liability in contract (including in respect of the indemnity at clause 9.1), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to NZD100,000.

10. TERM AND TERMINATION

10.1. This Agreement shall commence on the Effective Date and shall continue for so long as the Customer has Entitlements or receives Services unless otherwise terminated as provided in this clause 10. Where the Customer is using Central through a trial, this Agreement and the Customers Entitlements will terminate at the end of the specified period for the trial unless Seequent agrees to extend the trial (which agreement can be withheld at Seequent’s discretion) or the Customer converts its trial to Fee-paying use of Central. Where the Customer has purchased Entitlements with a specified term, this Agreement shall automatically renew for periods equal to that term unless the Customer provides 30 days’ notice that it does not wish to renew the Agreement prior to the expiry of the initial term or any subsequent renewal period. Upon renewal, Seequent’s then current list Fees that apply to the Entitlements shall become payable unless otherwise agreed by Seequent in writing.

10.2. Without affecting any other right or remedy available to it, Seequent may suspend the Customer’s (and its Authorised Users’) access to Central immediately upon written notice in the event that:

a. the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment; or
b. Seequent becomes aware of any unauthorised use of Central obtained through the use of any of the Customer’s Authorised User’s account details.

10.3. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

a. the other party breaches any material term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of five days after being notified in writing to do so; or
b. the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.

10.4. On termination or expiry of this Agreement for any reason:

a. all licences granted under or in relation to this Agreement shall immediately terminate;
b. each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
c. Seequent shall use reasonable commercial endeavours to deliver any back-up of Customer Data to the Customer within 90 days of the termination or expiry of this Agreement, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Seequent in returning or disposing of Customer Data; and
d. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.

11. FORCE MAJEURE

11.1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.

12. WAIVER

12.1. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

13. SEVERANCE

13.1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

13.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

14. ENTIRE AGREEMENT

14.1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.2. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

14.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement provided that nothing in this clause shall limit or exclude any liability for fraud.

15. ASSIGNMENT

15.1. The Customer shall not, without the prior written consent of Seequent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

16. NO PARTNERSHIP OR AGENCY

16.1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any
commitments for or on behalf of any other party.

17. VARIATION

17.1. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18. THIRD PARTY RIGHTS

18.1. This Agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns).

19. NOTICES

19.1. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the CEO or COO of the other party.

19.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received when transmitted provided that no automatic notification of failed delivery is received.

20. ARBITRATION

20.1. Where this Agreement is governed by Colorado law, Arbitration shall be held in Denver, Colorado (the “Arbitration Location”). Each party submits and irrevocable waives any objection to in personam jurisdiction in the Arbitration Location and the forum and convenience of the state and federal courts thereof. Except in cases in which Seequent has the right, but not the obligation, to seek injunctive relief, any controversy, claim, or dispute arising under or related to this Agreement shall be finally resolved by arbitration in accordance with the then-effective rules of the American Arbitration Association (“AAA”); provided, however, that there is no requirement that the arbitration proceed through or under the auspices of the AAA. Such arbitration shall take place in the Arbitration Location. Judgment upon the award rendered by the arbitrators may be entered in any court having appropriate jurisdiction. The foregoing shall not restrict nor prevent Supplier from seeking injunctive relief in any court of competent jurisdiction.

21. DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in this clause apply in this Agreement.

21.1. Definitions:

Agreement: these terms and conditions, the Schedules attached to them, the User Terms and any other terms and conditions agreed in writing by the parties to apply to the Customer’s use of Central.
Authorised Users: those employees and independent contractors of the Customer who are Entitled to use Central and any third party that the Customer permits to be an Authorised User.
Business Day: any day which is not a Saturday, Sunday or public holiday in Christchurch, New Zealand.
Central: the hosted software system developed by Seequent for the purpose of streamlining the process of managing multiple geological models and visualising new data, as provided under this Agreement.
Confidential Information: information that is proprietary or confidential to a party or identified as Confidential Information in clause 7.
Customer Data: the data inputted into Central by the Customer, by Authorised Users, or by Seequent on the Customer’s behalf.
Customer Issue: any of the following:

a. improper use, misuse or unauthorised alteration of Central by the Customer;
b. any use of Central by the Customer in a manner inconsistent with the then-current documentation provided by Seequent or this Agreement; or
c. the use of a non-current version of Central (including any updates or patches made available to the Customer).

Effective Date: the date this Agreement is entered into by the Customer.
Entitlements: the access rights granted to the Customer and its Authorised Users by Seequent; “Entitled” shall have a corresponding meaning.
Fees: the fees payable to Seequent, as specified on the Website or as otherwise agreed through any agreement between the parties.
Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic or pandemic, or default of suppliers or sub-contractors.
Material: any messages, files, data, software, images, photographs, code and other materials uploaded to Central by an Authorised User.
Normal Business Hours: 8.00 am to 5.00 pm local New Zealand time, each Business Day.
Service Levels: the service level response times referred to in the table at clause 2.1 of Schedule 2.
Services: the services to be provided by Seequent under this Agreement.
Support Services: the maintenance and support of Central set out in Schedule 1.
User Terms: the terms and conditions required to be accepted by Authorised Users when they are granted access to Central, as updated from time to time.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: www.seequent.com.

21.2. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

21.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

21.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

21.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular

21.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

21.7. A reference to writing or written includes e-mail.

21.8. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.

21.9. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

21.10. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

SCHEDULE 1
HOSTING, SUPPORT AND MAINTENANCE SERVICES

1. Seequent will contract with a third party of its choosing to host Central in the cloud and will be responsible for managing that environment.
2. Seequent will provide security services, monitoring, back-up, release management and change control, and administration services in relation to Central.
3. Seequent shall develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include a daily full back-up of Customer Data. In the event of data loss, Seequent shall provide recovery services to try to restore the most recent back-up.
4. Seequent shall provide release management and change control services to ensure that versions of servers, network devices, storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by Seequent to maintain Central.
5. The services to be provided by Seequent include the installation and administration of additional hardware, operating system and other software, and other resources as necessary to maintain Central.
6. Seequent may interrupt the availability of Central to perform emergency maintenance at any time without notice to the Customer. In addition, Seequent may interrupt the availability of Central during Customer business hours for unscheduled maintenance, provided that it has given the Customer at least three days’ advance notice. Seequent shall at all times endeavour to keep any service interruptions to a minimum.
7. Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features.
8. Seequent shall maintain and update the software in Central. During maintenance periods, Seequent may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems.
9. Irrespective of the number of Authorised Users, Central includes 100GBs of storage. In the event that the Customer requires additional storage because it has exceeded its storage limits or requests additional storage, such additional storage will be charged for in 100GB units at Seequent’s list prices then in place unless otherwise agreed in writing.

SCHEDULE 2
SERVICE LEVELS

1. SUPPORT REQUESTS
1.1. The Customer may request Support Services by emailing [email protected] (a “Support Request”).
1.2. Each Support Request shall include:

a. description of the issue;
b. the number of Authorised Users effected by the issue;
c. the time the Customer first became aware of the issue; and
d. the start time of the issue (if known by the Customer).

1.3. The Customer shall provide Seequent with:

a. prompt notice of any issues; and
b. such output and other data, documents, access, information, assistance as are reasonably necessary to assist Seequent to reproduce conditions similar to those present when the Customer detected the relevant issue and to respond to the relevant Support Request.

1.4. The Customer acknowledges that in order to properly assess and resolve Support Requests, it may be necessary to permit Seequent access at the Customer’s system, files, equipment and personnel. The Customer shall provide such access promptly, provided that Seequent complies with all the Customer’s security requirements and other policies and procedures notified to Seequent.

1.5. Seequent is not obliged to provide support services in relation to matters it reasonable determines to be a Customer Issue. In the event that Seequent provides Support Services in relation to a Customer Issue, Seequent shall be entitled to charge the Customer for the time spent investigating and resolving the Customer Issue in accordance with Seequent’s then current rates.

2. SEVERITY CLASSIFICATION

2.1. Seequent shall:

a. prioritise all Support Requests based on its reasonable assessment of the severity level of the issue reported; and
b. respond to all Support Requests in accordance with the response times specified in the table set out below:

3. AVAILABILITY OF CENTRAL

3.1. Seequent’s target uptime for Central is 99% (“Target Uptime”). For the purpose of this clause, Target Uptime means that Central will not be interrupted by an outage classified as L1 for more than 1% of any calendar quarter. Uptime is measured over a calendar quarter and includes access to Central from Leapfrog and Central Browser.

3.2. Below are a list of events and activities that are excluded from measurement of Target Uptime:

a. Scheduled Maintenance;
b. Customer Issues;
c. Failures of the Customer’s internet connectivity;
d. Factors outside Seequent’s reasonable control, including internet access related problems, Force Majeure Events, and third-party services or technology; and
e. The Customer’s equipment, services, or technology not provided by Seequent.

4. PATCHING AND UPDATES

4.1. Seequent will perform the following updates in relation to Central:

a. Operating System patching will be completed every four weeks in coordination with the Microsoft Windows patch distribution. Patches are applied automatically, and the typical outage duration is between 30 seconds to 2 minutes, depending on the content of the update. If a critical security patch is released by Microsoft then an emergency patch will be deployed within 48 hours. If any publishing events are interrupted during an update, users will be able to resume the publishing after the update has been completed.
b. Some Central updates may require coordination with the Customer’s application (e.g. Leapfrog). When performing a major upgrade of Central, Seequent will co-ordinate with the Customer’s IT contact notified to Seequent in writing.