STREAMSIM: Streamsim Technologies, INC., San Francisco, CA, USA
LICENSED PROGRAMS: studioSL, 3DSL, and all modules associated with these programs.
LICENSEE: Current end-user of software.
EFFECTIVE DATE: First date of use of software by LICENSEE.
LICENSE TYPE: Network or Standalone.
LICENSE TERM: From EFFECTIVE DATE to license file expiration date.
LICENSEE PLATFORM: All platforms available for download at www.streamsim.com.
LICENSE FEE: As stated on LICENSEE invoice.
LICENSEE FEE PAYMENT SCHEDULE: As stated on LICENSEE invoice.
MAINTENANCE TERM & SUPPORT: See Section 4 of this agreement.
ENGINEERING SUBSCRIPTION SERVICE: If applicable as stated on LICENSEE invoice.
1. LICENSE GRANT AND RESTRICTIONS
1.1. License Grant. STREAMSIM hereby grants to LICENSEE a non-transferable, non-exclusive license to use the Licensed Program in object code format for Licensee’s internal business use, subject to the terms and conditions of this Agreement.
1.2. Restrictions. LICENSEE may use the Licensed Program to the extent defined by the License Type, License Term, and Licensee Platform as set forth in the attached License Definitions and Fees Schedule, and subject to the payment to STREAMSIM of all applicable Fees. LICENSEE shall not: (i) modify or create any derivative works of the Licensed Program or documentation, including translation or localization; however, use of output from the Licensed Program such as charts or data may be incorporated into databases, electronic files, or other works by LICENSEE without constituting a violation hereunder; (ii) modify the Licensed Program or reverse assemble, disassemble, decompile, or otherwise attempt to derive source code from the software; (iii) use the Licensed Program to develop competing product(s); (iv) redistribute, encumber, sell, rent, lease, sublicense, assign or otherwise transfer rights to the Licensed Program except to any successors in interest to the Licensee pursuant to a merger or acquisition of the Licensee; or (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Licensed Program; or (vi) subvert the License Manager in any way including, but not limited to, using the License Program on more seats than have been explicitly defined in the current license file issued by STREAMSIM.
1.3. Licensee's Use. LICENSEE shall be exclusively responsible for the supervision, management and control of its use of the Licensed Program. LICENSEE is solely responsible for LICENSEE’s selection of the Licensed Program to achieve LICENSEE’s desired results, for its installation, management, operation, use, maintenance and upgrading, and for the results obtained from using the Licensed Program.
1.4. License Delivery. Upon receipt of full payment, STREAMSIM will issue a license to the LICENSEE for the duration of the Maintenance Term. STREAMSIM may issue temporary duration licenses until full payment is received.
1.5.1. Except as otherwise provided in this Agreement, "Confidential Information" shall mean technical information of any nature including, but not limited to, the following: (a) geological and geophysical data; (b) production and injection data; (c) well data; (d) fluid properties; (e) reservoir models; (f) future exploitation strategies; (g) procedures, methods and technical information related to proprietary processes and/or products; and (h) economic data used for forecasting, whether such information is digital, written, verbal, or contained in any other form.
1.5.2. The following shall not constitute Confidential Information: (a) information that is already lawfully known to the receiving Party; (b) information that is or becomes available to the public domain other than through the act of the receiving party; or (c) information that is acquired independently from a third party that has the right to disseminate such information.
1.5.3. LICENSEE shall not provide, disclose or otherwise make available the Licensed Program, or any part thereof, in any form, to any person or entity other than LICENSEE’s employees or contractors without the prior written consent of STREAMSIM. LICENSEE shall use the same degree of care to safeguard the confidentiality of the Licensed Program as it uses to protect its own Confidential Information but under no circumstances less than a reasonable degree of care. LICENSEE shall take appropriate action by instruction, agreement or otherwise with its employees, contractors, and any other user of the Licensed Program to satisfy its obligations under this Agreement with respect to use and security of the Licensed Program.
1.5.4 STREAMSIM shall use the same degree of care to safeguard the confidentiality of LICENSEE Confidential Information as it uses to protect its own Confidential Information but under no circumstances less than a reasonable degree of care. STREAMSIM shall take appropriate action by instruction, agreement or otherwise with its employees, contractors, and any other user of LICENSEE’s Confidential Information to satisfy its obligations under this Agreement.
1.5.5. Both STREAMSIM and LICENSEE agree that neither Party shall use the name of the other or refer to this Agreement for publicity, advertising, press release or announcements without the prior review and written consent of the other Party unless otherwise required by a court of competent jurisdiction.
1.5.6. The confidentiality obligations set forth in this Agreement for each item of Confidential Information shall terminate 3 years after the date of first disclosure of such item by the disclosing party to the receiving party.
1.6. Network License. A Network License is administered by a License Manager with a valid license key installed on LICENSEE’s network. A License Manager is third-party software provided by STREAMSIM and installed on a License Server computer on LICENSEE’s network to allow LICENSEE the use the Licensed Program as set forth in the License Definitions and Fees Schedule. STREAMSIM will only guarantee that computers running on the same subnet as the License Server can correctly use the Network License. The same subnet is defined as both the client computer and the computer on which the License Manager is installed sharing the same first three (3) numbers of their respective IP addresses. To the best of its ability, STREAMSIM will provide assistance to ensure LICENSEE to use the Licensed Program on computers outside of the License Server’s subnet. STREAMSIM however, does not guarantee that the Licensed Program will function correctly across subnets.
1.7. Changing License Server. LICENSEE may change the License Server at no charge at the time of expiration of the annual license key. Upon request by LICENSEE, and acceptance and signature of STREAMSIM 's License Server Change Agreement, Streamsim may issue a new license key at no additional cost locked to a new License Server before expiration of the current license key.
1.8 Virtual Server. Upon request by LICENSEE, STREAMSIM may issue a license key that is locked to a virtual machine. For a license key locked to a virtual machine, LICENSEE agrees to install the license server on one virtual machine only. Running the license server on two or more virtual machines simultaneously represents a breach of this Agreement. License keys locked to a virtual machine are issued only if LICENSEE has Standard Maintenance and Support.
2.1. Ownership. The Licensed Program and all related documentation are the proprietary information of and the property of STREAMSIM. STREAMSIM shall retain all right, title and interest, including all intellectual property rights, in and to the Licensed Program and all related software and documentation developed by STREAMSIM. STREAMSIM obtains no right, title and interest, including all intellectual property rights, in and to any of LICENSEE’s data or the results obtained from the Licensed Program under this Agreement.
2.2. Markings. LICENSEE shall not remove or obscure any of STREAMSIM’s proprietary rights notices, or fail to reproduce them on any authorized copies, of the Licensed Program and related documentation in any form.
3. FEES AND PAYMENT
3.1. Fees. The applicable License Fee and other fees are set forth in the attached License Definitions and Fees Schedule or shall be set forth by agent(s)/reseller(s) of STREAMSIM.
3.2. Payment Terms. The License Fee Payment Schedule is set forth in the attached License Definitions and Fees Schedule.
3.3. Taxes. LICENSEE shall pay any and all sales, use, excise, or other taxes related to the License Fee(s) under this Agreement. In addition, if LICENSEE is or was required by law to make any deduction(s) or withholding(s) from any payment due to STREAMSIM under this Agreement, then the gross amount payable by LICENSEE to STREAMSIM shall be increased so that, after any such deduction(s) or withholding(s), the net amount received by STREAMSIM will not be less than it would have received had no such deduction or withholding been required (the “Net Amount”).
3.4. Overdue Payment. If LICENSEE fails to pay the license fee when due, STREAMSIM may invoice, and LICENSEE shall pay, a late payment charge of one percent (1%) of the undisputed amount per month. If LICENSEE disputes a bill or portion thereof, LICENSEE shall, prior to the due date of the bill, give written notice to STREAMSIM of the amounts it disputes and provide with such written notice the specific details and reasons for disputing the amount.
4. MAINTENANCE, SUPPORT AND CONSULTING
4.1. Standard Maintenance and Support. During the License Term and subject to current payment of all License and Maintenance Fees, STREAMSIM shall provide the following standard maintenance and support to LICENSEE:
4.1.1. Updates. STREAMSIM may make and release from time to time improvements, refinements, bug fixes, error corrections, updated documentation, modifications and other updates to the Licensed Program.
4.1.2. New Versions. STREAMSIM may make and release from time to time a new version of the Licensed Program incorporating Updates and other functional improvements.
4.1.3. Support. STREAMSIM will provide telephone, online meeting, and email support during normal business hours (9:00 am to 5:00 pm, Monday through Friday, excluding holidays, local STREAMSIM office times), relating to the installation and running the then current version of the Licensed Program.
Notwithstanding the above, STREAMSIM is obligated to provide standard support and maintenance to LICENSEE only if LICENSEE is using the then current version of the Licensed Program as provided by STREAMSIM to LICENSEE, together with any updates released by STREAMSIM. Standard support and maintenance do not include Engineering Consulting services.
4.2. Engineering Consulting. In the event that LICENSEE requires Engineering Consulting, LICENSEE and STREAMSIM shall agree to the terms and conditions thereof in writing under a separate agreement. Engineering Consulting may include: technical and scientific support to LICENSEE in the use of the Licensed Program; project investigation, planning and execution; presentation of results in electronic, verbal or hardcopy formats; and other services which may be agreed to by STREAMSIM.
4.3. Engineering Subscription Service. In the event that LICENSEE acquires an Engineering Subscription Service, LICENSEE and STREAMSIM shall agree:
4.3.1 Period. As defined by the Engineering Subscription Service Duration.
4.3.2. Software Used by Streamsim. All deliverables are restricted to capabilities available in the latest version of STREAMSIM software. Client-specific developments are explicitly excluded. The use of other software or tools for which STREAMSIM has no license shall be the responsibility of LICENSEE.
4.3.3. Deliverables. Deliverables are outlined in Exhibit A, and will depend on the data quality and data availability provided by LICENSEE. No deliverables will be provided to LICENSEE until full payment is received by STREAMSIM. STREAMSIM will not write engineering reports or produce presentation-ready slides. STREAMSIM will document all work including producing plots and images using studioSL. Documentation and data will be saved in studioSL input/output files, PowerPoint, Word, Excel, Google Doc, Google Sheets, or Google Slides depending on the preference of LICENSEE. STREAMSIM will also read and review any documentation written by LICENSEE for correctness and accuracy.
4.3.4. Data Formats. LICENSEE and STREAMSIM agree to use flat ASCII files as basic data exchange mechanism or data formats that the Licensed Program supports. STREAMSIM will not extract data from data bases, data formats that are unsupported by Licenses Program, or formats that require software tools unavailable to STREAMSIM to read. Data and models are exchanged via cloud access using a solution agreed upon between STREAMSIM and LICENSEE (email, dropbox, google drive, AWS, sharefile.com, company FTP server, etc).
4.3.5 No Warranty. The Deliverables provided by STREAMSIM shall be in accordance with good industry standard practices using skilled labor. However, due to the inherent uncertainties of reservoir modeling and forecasting, STREMASIM does not warrant any Deliverables provided.
4.4 Expired Maintenance. In the case of a Perpetual License Term and in the event that LICENSEE does not renew Standard Maintenance and Support, LICENSEE may request (1) a one-time, non-expiring license key locked to a unique hardware MAC-address for the version of the Licensed Program existing at the date of maintenance expiration or (2) an annual license key renewable for two years from date of maintenance expiration for the version of the Licensed Program existing on the date of maintenance expiration permitting LICENSEE to change the License Server at each anniversary. Beyond two years, a permanent non-expiring license key locked to a unique hardware MAC-address will be issued. In no case will STREAMSIM provide LICENSEE a license locked to a virtual machine/MAC.
5. WARRANTIES AND INFRINGEMENT DEFENSE
5.1. Authority. Each Party warrants that it has the full right, power and authority to enter into this Agreement, and is capable of performing all obligations under this Agreement.
5.2. Limited Warranty. STREAMSIM warrants that the Licensed Program will materially conform to the Licensed Program functional specifications set forth in the then current Licensed Program manuals and release documentation for a period of 90 days after the Effective Date of this Agreement. STREAMSIM does not warrant that the operation of the Licensed Program will be uninterrupted or error free. This limited warranty does not apply to defects resulting from: (i) use with software not supplied by STREAMSIM; (ii) modifications by LICENSEE; or (iii) operation outside of the systems requirements as indicated by STREAMSIM. In the event of non-conformity during the warranty period, STREAMSIM will use best efforts to correct such non-conformity; or if after a reasonable period of time, STREAMSIM is unable to correct such non-conformity, LICENSEE will be entitled to a pro-rated refund of the License Fee paid during such warranty period.
5.3. Warranty Disclaimer. STREAMSIM MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE QUALITY, ACCURACY, CORRECTNESS, COMPLETENESS OR USEFULNESS OF THE Licensed Program. STREAMSIM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
5.4. Infringement Defense. STREAMSIM will defend LICENSEE against any claims, suits or proceedings to the extent based on any allegations that the Licensed Program constitutes an infringement of any United States patent or copyright of a third party, provided: STREAMSIM is notified promptly in writing and given full authority, information, and assistance for the defense of such claim, suit or proceeding; and STREAMSIM is given all reasonable cooperation from LICENSEE in any effort to settle, or mitigate damages from, such claim, suit or proceeding. At any time during the course of any such third party infringement claim, suit or proceeding, or if in STREAMSIM’s opinion the Licensed Program is likely to become the subject of a claim of infringement, STREAMSIM may, at its option and expense: (i) procure for LICENSEE the right to continue using the Licensed Program guaranteeing LICENSEE’s indemnity; (ii) replace or modify the Licensed Program so that it does not infringe and the modifications are accepted by LICENSEE; or (iii) terminate this Agreement and return the License Fee to LICENSEE less reasonable depreciation for use and obsolescence upon its return to STREAMSIM.
5.5. Infringement Defense Limitations. STREAMSIM will have no liability to LICENSEE under this Section if any alleged infringement claim is based on: (a) LICENSEE’s use of the Licensed Program in connection or in combination with equipment, devices of Licensed Program not delivered by STREAMSIM, if such infringement claim could have been avoided by the use of the Licensed Program with other equipment, devices or Licensed Program; or (b) LICENSEE’s use of the Licensed Program in a manner for which it was not authorized or intended, if such infringement claim would have been avoided but for such use.
THE RIGHTS GRANTED TO LICENSEE UNDER THIS SECTION SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED INFRINGEMENT OF ANY U.S. PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL STREAMSIM BE LIABLE, WHETHER BASED ON CONTRACT, TORT, WARRANTY OR OTHER LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING LOST DATA OR LOST PROFITS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE Licensed Program, OR THE USE OF Licensed Program, EVEN IF STREAMSIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND LICENSEE HEREBY RELEASES STREAMSIM FROM ANY LIABILITY FOR ALL SUCH LOSSES AND DAMAGES. IN NO EVENT SHALL STREAMSIM’S TOTAL CUMULATIVE LIABILITY FOR CLAIMS OF ANY KIND ARISING FROM THIS AGREEMENT EXCEED THE LICENSE FEE PAID DURING THE WARRANTY PERIOD, AND AFTER THE WARRANTY PERIOD IN NO EVENT SHALL EXCEED THE MOST RECENT FEE FOR THE MAINTENANCE PLAN, AND LICENSEE HEREBY RELEASES STREAMSIM FROM ANY LIABILITY IN EXCESS OF SUCH AMOUNT. THIS LIMITATION OF LIABILITY SHALL ALSO PROTECT STREAMSIM’S DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, AND SHALL APPLY REGARDLESS OF THE FAULT, NEGLIGENCE OR STRICT LIABILITY OF STREAMSIM AND SUCH OTHER PARTIES.
7. TERM AND TERMINATION
7.1. Term. Unless otherwise terminated earlier under this Section, this Agreement shall commence as of the Effective Date and shall continue for the License Term as set forth in the attached License Definitions and Fees Schedule. There shall be no refund of any paid fees to LICENSEE if LICENSEE decides to no longer use the software during the current Maintenance Term.
7.2. Yearly Maintenance Renewal. In the case of a Perpetual License, LICENSEE may extend the Maintenance Term under this Agreement by one calendar year. Upon request by LICENSEE, STREAMSIM or agent(s)/reseller(s) will invoice a renewal cost to LICENSEE. If payment is received by STREAMSIM within 90 days following the last active Maintenance Term expiration date, the Maintenance Term will be extended under this Agreement by one calendar year.
7.3 Expiration of License Term. If the License Term is limited and LICENSEE has not renewed or extended the License Term, upon expiration of the License Term period, the Licensed Program will automatically cease operating. LICENSEE is solely responsible for saving all data and results that may be generated by the Licensed Program prior to the expiration of the License Term. Upon STREAMSIM’s request, LICENSEE shall, within ten (10) days after the date of expiration, destroy all copies of the Licensed Program and certify in writing to STREAMSIM that such destruction has occurred. Using the program beyond the License Term represents a breach of this Agreement.
7.4. Termination for Breach. If LICENSEE breaches any of its obligations under this Agreement, STREAMSIM may, in addition to other remedies which it may have, terminate this Agreement immediately by written notice. If STREAMSIM terminates this Agreement pursuant to this Section, LICENSEE shall, within ten (10) days after the date of termination, destroy all copies of the Licensed Program and certify in writing to STREAMSIM that such destruction has occurred. STREAMSIM will not refund LICENSEE for any fees paid for the remaining License Term. If LICENSEE believes STREAMSIM has breached this Agreement, LICENSEE agrees to provide written notice to STREAMSIM setting out the alleged breach. If STREAMSIM fails to cure an undisputed breach within the thirty (30) day period, LICENSEE will have the right to pursue all available remedies at law or equity. Any action brought against STREAMSIM under this agreement must be brought within twelve (12) months after the cause of action arises.
7.5. Survival. Notwithstanding any termination of this Agreement, the following Sections shall survive: Section 1.4 (Confidentiality); Section 2 (Ownership); Section 5.3 (Warranty Disclaimer); Section 5.5 (Infringement Defense Limitation); Section 6 (Limitation of Liability); Section 8 (Other Provisions).
8. OTHER PROVISIONS
8.1. Relationship. The relationship of the parties under this Agreement is that of independent contractors, and neither Party is an employee, agent, partner, or joint venturer of the other. All notices shall be given in writing to the contact person first set forth above, by certified mail, fax or courier, each with return receipt confirmation.
8.2. Entire Agreement. This Agreement along with all attachments constitutes the sole and entire understanding between the parties and supersedes all previous understandings either oral or written on the subject matter of the Agreement.
8.3. Modifications and Waivers. No modification, amendment or other change in this Agreement shall be effective for any purpose unless specifically set forth in writing signed by both parties. Either Party may at any time insist upon strict compliance with these terms and conditions notwithstanding any previous custom or practice to the contrary. Neither Party’s failure to exercise any of its rights shall constitute or be deemed a waiver or forfeiture of such rights.
8.4. Purchase Orders. LICENSEE may submit purchase order(s) for the Licensed Program listed in this Agreement and/or related maintenance services (and any requested changes to such order(s)) to STREAMSIM in writing. Any information, terms and/or conditions, or other language contained in any document(s) or purchase order(s) furnished by LICENSEE to STREAMSIM in excess of or outside of such information, terms and/or conditions or in conflict with any terms and conditions contained in this Agreement are null and void.
8.5. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without reference to conflict of laws principles. Any legal actions arising out of this Agreement shall be brought in San Francisco County, California. LICENSEE shall comply with all applicable U.S. laws and regulations that may govern the export of the Licensed Program abroad.
8.6. Export or Re-Export. The Licensed Program is exported from the United States in accordance with the Export Administration Regulations with an ECCN classification on 0D999. Any diversion contrary to US law is prohibited.
8.7. Force Majeure. Neither Party shall be liable for failure in performance under this Agreement (except for payment obligations) if occasioned by any cause beyond the control of the parties, such as fire, flood, strikes, unavoidable accidents, war, embargo, governmental regulations, etc. (a "Force Majeure event"). In the event of a Force Majeure event, the affected Party shall promptly notify the other Party, and undertake to do its utmost in order to reestablish conditions favorable for the performance of this Agreement.
Deliverables that may be provided to LICENSEE by STREAMSIM as part of the Engineering Subscription Service are described below and are associated with each reservoir listed here. For purposes of this Agreement, a reservoir is a single hydraulically connected geologically body with injection and production or multiple hydraulically disconnected geological bodies with comingled production and injection.
Reservoirs that deliverables may be associated with:
All deliverables must fall within the current functionalities of the Licensed Program applied to LICENSEE’s reservoir model as built by STREAMSIM and/or LICENSEE using data provided by LICENSEE. See Section 4.3.3.
Any deliverables not provided to LICENSEE by the end of the Engineering Subscription Service Duration are understood to be incomplete or not possible to generate using the available information and/or within the available time and will not be provided.
Data provided by LICENSEE to build reservoir model(s) used for generating the deliverables must be provided by LICENSEE to STREAMSIM in a timely manner to allow STREAMSIM to generate deliverables within the Engineering Subscription Service Duration. Data provided by LICENSEE must be provided in formats that STREAMSIM can readily interpret and use as outlined in Section 4.3.5. STREAMSIM will provide LICENSEE with instructions and descriptions of what data is needed and the expected formats of such data.
Deliverables may include: