1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions the following terms and expressions shall have the following meanings:
Access Details means the password required to access the Service as allocated to each End User by the Supplier;
Affiliate means any entity from time to time which the Customer directly or indirectly Controls;
Charges means the charges payable by the Customer for the supply of the Service in accordance with clause 6 and the Order Form;
Contract Effective Date has the meaning set out in clause 2.1;
Contract means the contract between the Supplier and the Customer for the supply of the Service in accordance with the applicable Order Form and these Terms and Conditions;
Control means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management of the relevant person, whether through ownership of shares, voting securities, partnership or other ownership interests, agreement or otherwise.;
Customer means the purchaser of the Service from the Supplier as set out in the Order Form;
Customer Default has the meaning set out in clause 5.2;
End User means an individual that is employed or engaged by the Customer or an Affiliate, who has an email address with a domain that is owned by the Customer or an Affiliate, and who has access to the Service pursuant to and in accordance with these Terms and Conditions;
Fair Derivative Works means works using or derived from any Service Data (which may or may not actually incorporate any Service Data) which have been fairly and reasonably created by the Customer or an Affiliate in the ordinary course of the Customer’s and/or its Affiliates’ business, for the purposes of furthering that business and not for the purpose (in whole or in part) of simply copying or reproducing any Service Data or for seeking to be able to retain or use any Service Data after expiry or termination of the Contract;
Initial Term means the period of twelve (12) months commencing on the Service Commencement Date;
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist in the future in any part of the world;
Maximum End User Number means the maximum number of End Users (which may be unlimited), as specified in the Order Form, which are permitted to have access to the Service at any one time during the Term;
One Off Report means an individual, specific report as specified in the Order Form and ordered by the Customer on a one off basis and supplied by the Supplier to the Customer;
Order Form means the order form setting out the details of the Customer’s order for Services and which expressly states that it is subject to these Terms and Conditions;
Renewal Term has the meaning given in clause 10.1;
Service means the service (which may include the supply of a subscription service and/or the one off supply of one or more One Off Reports) supplied by the Supplier to the Customer as more particularly set out in the Order Form;
Service Commencement Date means: (i) in respect of a Service other than the supply of One Off Reports, the date as specified in the Order Form on which the Supplier shall commence the supply of the Service to the Customer; and (ii) where the Service comprises or includes the supply of any One Off Reports, in respect of the supply of those One Off Reports, the date within 7 days of which the Supplier shall supply such One Off Reports;
Service Data means any and all reports (including any One Off Reports), data, information and other material accessible via access to and use of the Service;
Supplier means Westwood Global Energy, Inc., or such other Affiliate of such entity as may be specified in the applicable Order Form;
Term means the duration of the Contract;
Terms and Conditions means these terms and conditions as amended from time to time in accordance their terms; and
Use means use, store, process, display, transmit, copy, reproduce, disassemble and create Fair Derivative Works from.
1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.3 Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.4 A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 A Contract shall come into existence on the date specified in an Order Form (the Contract Effective Date) only once it has been agreed and duly executed by both parties.
2.2 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks, or has sought, to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of twenty (20) days from its date of issue, unless expressly stated otherwise. Any descriptive matter or advertising issued by the Supplier are issued or published for the sole purpose of giving an approximate idea of the Services described in them. Only descriptions expressly set out or referred to in the Order Form shall form part of the Contract and any other descriptive matter or advertising shall not form part of the Contract or have any contractual force.
3. SUPPLY OF SERVICE
3.1 The Supplier shall, subject to the Customer’s compliance with clause 5.1, make the Service (other than any One Off Reports) available to the Customer as from the Service Commencement Date. Where the Service comprises or includes any One Off Reports then the Supplier shall supply any such One Off Reports within 7 days of the Service Commencement Date. The Supplier shall ensure that the Service is in accordance with the description set out in the Order Form in all material respects.
3.2 The Supplier shall use all commercially reasonable efforts to meet any performance dates or times specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Service.
3.3 The Supplier shall have the right to make any changes to the Service which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Service. The Supplier shall notify the Customer of any such event.
3.4 The Supplier warrants to the Customer that the Service will be provided using reasonable care and skill.
3.5 The Customer shall be entitled to request that the Supplier makes the Service available to any of its Affiliates and the Supplier shall do so provided, where applicable, it does not exceed the Maximum End User Number.
3.6 The Supplier shall be entitled to suspend the provision of the Service at any time where it reasonably believes the Customer has committed or is likely to commit any breach of the Contract.
4. INTELLECTUAL PROPERTY RIGHTS AND LICENSE
4.1 All Intellectual Property Rights in or arising out of or in connection with the Service shall be owned by the Supplier and all Service Data is, as between the parties, the exclusive property of the Supplier.
4.2 Except in respect of One Off Reports, the Supplier hereby grants to the Customer for the Term a non-exclusive, non-transferable, non-sub-licensable (except as set out in clause 4.5), worldwide license for End Users up to the Maximum End User Number to access and Use for the Customer’s and/or its Affiliates own internal business purposes the Service and Service Data, at all times subject to the terms and conditions of the Contract.
4.3 In respect of One Off Reports (if any), the Supplier hereby grants to the Customer a perpetual, non-exclusive, non-transferable, non-sub-licensable (except as set out in clause 4.4), worldwide license to Use the One Off Reports for its and/or its Affiliates own internal business purposes, at all times subject to the terms and conditions of the Contract.
4.4 The Customer shall not: (a) use the Service or any Service Data in any manner to assist or take part in the development, marketing, or sale of a product which is competitive or potentially competitive with the Service; (b) distribute any Service Data, whether on its own or combined with any other data or information (including the Customer’s own data or information) to third parties, unless expressly permitted in these Terms and Conditions or the Customer otherwise obtains the prior written consent of the Supplier.
4.5 The Customer may permit its Affiliates (where the Supplier has made the Service available to them pursuant to clause 3.5) and its and their contractors to access and use for the Customer’s and/or its Affiliates own internal business purposes the Service and Service Data, subject at all times to the terms and conditions of the Contract (including any restrictions in connection with End Users, including the number thereof). The Customer shall procure that such access to and use of the Service and the Service Data by its Affiliates and its and their contractors complies with the terms and conditions of the Contract and the Customer shall at all times be liable for the acts or omissions of its Affiliates and its and their contractors and all of its and their End Users, in each case as if they were party to the Contract.
5. CUSTOMER OBLIGATIONS
5.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Service;
(b) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Service, and ensure that such information is accurate and complete;
(c) procure that each End User completes the registration process (if any) required by the Supplier, and which may include the provision to the Supplier of email addresses for each proposed End User, prior to accessing the Service (and the Customer acknowledges that End Users will not have any access to the Service until such registration process has been completed to the satisfaction of the Supplier);
(d) ensure that only End Users, which have completed any required registration process to the satisfaction of the Supplier and which have been granted Access Details, shall access the Service and not any other person;
(e) ensure that each End User which has been allocated Access Details uses only the specific Access Details that have been allocated to that End User and also does not permit any other person to use those Access Details;
(f) ensure that it and each End User shall keep the Access Details safe and secure and treat them as confidential information; and
(g) not permit any number of End Users in excess of the Maximum End User Number to have access to or to use the Service.
5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Service until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. CHARGES AND PAYMENT
6.1 The Customer shall pay to the Supplier the Charges as set out in and in accordance with the Order Form and this clause 6.
6.2 The Customer shall pay the Supplier within thirty (30) of the date of invoice and in full and in cleared funds to a bank account nominated in writing by the Supplier. The Customer shall pay all such amounts in US Dollars or such other currency as is specified in the Order Form. Time for payment shall be of the essence of the Contract.
6.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of sales tax chargeable for the time being . The Customer shall be responsible for, and will promptly pay, all taxes of any kind (including sales and use taxes) associated with the Contract or Customer’s receipt or use of the Service, except for any taxes based on Supplier’s net income.
6.4 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of the lesser of (a) 4% per cent per annum above the LIBOR rate from time to time and (b) any maximum rate under applicable law. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.6 Other than in respect of any One Off Reports, the Supplier reserves the right to increase the Charges specified in the Order Form, provided that such charges may only be increased as from the commencement of each Renewal Term (if any). The Supplier will give the Customer written notice of any such increase at least 90 (ninety) days before the proposed date of the increase.
7.1 The Service Data is intended for use by the Customer and its Affiliates only. Use of the Service Data outside the terms of the Contract is strictly prohibited. The Supplier does not guarantee the completeness or accuracy of any of the Service Data. Where the Service Data includes any opinions and/or analysis by the Supplier it is variously based on Supplier’s experience, knowledge and data and information (whether or not forming part of the Service Data) as well as third party and publicly available data and information sources, in each case as was available to it at the time. Any such opinions and/or analysis have been arrived at, at that particular time, after reasonable consideration and enquiry but the Supplier does not guarantee their completeness or accuracy. As such opinions and analysis and the Service Data itself have been made at a particular time they are also subject to change and the Supplier is not under any duty or obligation to advise the Customer of any such changes. Subject to clause 8.1, the Supplier shall not have any liability for any reliance placed on any of the Service Data.
8. LIMITATION OF LIABILITY
8.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:
(a) fraud or fraudulent misrepresentation; or
(b) any other liability which cannot be limited or excluded by applicable law.
8.2 SUBJECT TO CLAUSE 8.1, THE SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE CONTRACT FOR ANY (A) LOSS OF PROFITS, SALES OR BUSINESS, AGREEMENTS OR CONTRACTS, ANTICIPATED SAVINGS, USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION; OR (B) DAMAGE TO GOODWILL; OR (C) INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, REMOTE, SPECULATIVE OR CONSEQUENTIAL LOSS.
8.3 SUBJECT TO CLAUSE 8.1, THE SUPPLIER’S TOTAL LIABILITY TO THE CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE CONTRACT SHALL BE LIMITED TO THE GREATER OF $50,000 (FIFTY THOUSAND US DOLLARS) AND 100% OF THE TOTAL CHARGES PAID UNDER THE CONTRACT.
THE EXPRESS PROVISIONS OF THE CONTRACT ARE IN PLACE OF ALL WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTES, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.1 Confidential Information means, subject to clause 9.2, the following information whether in written, electronic or oral form and whether or not it is designated by the disclosing party as “confidential” or “proprietary”: (a) the terms and existence of the Contract; (b) details of the Service and the Service Data; and (c) any business or technical information of Supplier or Customer, including but not limited to any information relating to Supplier’s or Customer’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how; and (d) the Customer’s evaluation or opinion of the Supplier’s performance under the Contract.
9.2 Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault or breach of the Contract by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party.
9.3 During the Term, and for a period of five (5) years after any expiry or termination of this Agreement, each party will not use the other party’s Confidential Information except as permitted herein, and will not disclose such Confidential Information to any third party except to employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under the Contract. However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors.
9.4 Notwithstanding clause 9.3, each party may disclose the terms of the Contract pursuant to an acquisition, merger, sale of substantially all of such party’s assets, financing, or as required by securities laws or regulations; provided that the receiving party shall be bound to a confidentiality agreement to the extent possible.
10. TERM AND TERMINATION
10.1 The Contract will commence on the Contract Effective Date and will, subject to clause 10.2, remain in full force and effect until the end of the Initial Term unless terminated earlier in accordance with the terms of the Contract. On the expiry of the Initial Term and on each successive anniversary of the expiry of the Initial Term the Contract shall be automatically renewed for a further period of twelve (12) months (each a Renewal Term) unless either party gives the other party written notice of its intention not to so renew the Contract at least sixty (60) days prior to the expiry of the Initial Term or the relevant Renewal Term.
10.2 Where the Contract is only in respect of the supply of one or more One Off Reports, the Contract will only remain in full force and effect until the completion of the supply by the Supplier of such One Off Reports.
10.3 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.4 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if there is a change of Control of the Customer.
10.5 On expiry or termination of the Contract for any reason:
(a) subject to clause 10.6, the Customer shall immediately cease to access or Use the Service or any Service Data (other than the One Off Reports) and other than any license granted pursuant to clause 4.3 any licenses granted hereunder shall immediately terminate;
(b) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of any Service supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) subject to clause 10.6, each party shall return or destroy all of the other party’s Confidential Information (other than any One Off Reports);
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication survive expiry or termination shall continue in full force and effect, including clauses 1, 4.1, 4.3, 6, 7, 8, 9, 10 and 11.
10.6 The Customer and its Affiliates shall be entitled to continue to Use Fair Derivative Works after the date of expiry or termination of the Contract provided:
(a) such Use is fair and reasonable and in the ordinary course of the Customer’s and/or its Affiliates’ business and otherwise in accordance with these Terms and Conditions;
(b) any Service Data which has been incorporated into such Fair Derivative Works at all times remains incorporated in that same Fair Derivative Work and all such Use of such Service Data is as part of that same Fair Derivative Work; and
(c) any Service Data which has been incorporated into such Fair Derivative Works is not in any way used to create any other derivative works.
11.1 Each party warrants to the other that it has the requisite power and authority to enter into and perform its obligations under the Contract and that the Contract will constitute valid, lawful and binding obligations on it. The Customer warrants that it shall at all times comply with all applicable laws and regulations in connection with its use of the Service and the Service Data.
11.2 The Customer shall not subcontract, assign or transfer the whole or any part of the Contract without the Supplier’s prior written consent. Any attempt to assign, subcontract or transfer the whole or any part of the Contract without such consent will be null and void. The Supplier shall be entitled to subcontract, assign or transfer the whole or any part of the Contract at any time without the consent of the Customer.
11.3 Neither party shall be responsible for any failure or delay in the performance of any of its obligations under the Contract due to any circumstance, event or cause beyond its reasonable control.
11.4 The parties to the Contract are independent contractors and the Contract will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf.
11.5 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
11.6 The Supplier shall be entitled to prepare and issue a press release announcing the existence of the Contract and to refer to the Customer as its customer and a user of the Service in its marketing and publicity materials.
11.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.8 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: (a) waive that or any other right or remedy; or (b) prevent or restrict the further exercise of that or any other right or remedy.
11.9 These Terms and Conditions and the Order Form together form the Contract and constitute 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.
11.10 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
11.11 No one other than a party to the Contract shall have any right to enforce any of its terms.
11.12 Any notice or communication required or permitted to be given pursuant to the Contract shall be in writing signed by the party giving such notice or communication and shall be hand delivered or sent by recognized international courier, to addresses of Supplier and User as specified on the applicable Order Form.
Each party may change its address for receiving notices by giving notice to the other party of such change. The effective date of any notice or communication issued pursuant to the Contract shall be (i) if delivered by hand, upon receipt, and (ii) if delivered by courier, three (3) business days after it is provided to such courier.
11.13 If any term or provision of the Contract, or the application thereof to any person or circumstance, shall at any time or to any extent be invalid, illegal or unenforceable in any respect as written, any court or arbitrator construing the Contract may modify or limit such provision so as to render it valid and enforceable to the fullest extent allowed by law. Any such provision that is not susceptible of such reformation shall be ignored so as not to affect any other term or provision hereof, and the remainder of the Contract, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid, illegal or unenforceable, shall not be affected thereby and each term and provision of the Contract shall be valid and enforced to the fullest extent permitted by law.
11.14 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the laws of the State of Texas. Each party irrevocably agrees that the Federal courts of the United States of America located in Houston, Harris County, Texas shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.