HomeMy WebLinkAboutContract 50067 DocuSign Envelope ID:E5D6AB13-B824-4922-9-DB-8D31EE4B80DB
CITY SECRETARY
CONTRACT NO..
drill inginf0
better,faster decisions4C p0� QQ� ORDER FORM
Agreement.Drilling Info,Inc.("D ity of Fort Worth("Customer")agree that Customer's access to the Products
described below shall be governed by t is Order Form and the attached Terms&Conditions including WARRANTY
DISCLAIMERS,INDEMNIFICATION FOR NEGLIGENCE,AUTOMATIC RENEWAL,LIMITATION OF
LIABILITY,AND WAIVER OF JURY TRIAL(collectively the"Agreement").This Agreement amends,restates,and
supersedes any prior agreements between DI and Customer relating to DI products.Customer:(a)has read and understands
the entire Agreement;(b)is authorized and intends to form a legally binding contract with DI;(c)is not a competitor of and
will not compete with DI;(d)agrees that the Agreement,whether printed or electronic,constitutes a"writing"under any
applicable law;and(e)will cause all Authorized Users to abide by the terms of the Agreement.
Products.This Order Form covers the following Products:
• DI Basic for Texas subscription fee of$33,000 plus applicable taxes for 9(Permitted Number)Authorized Users
from 01/04/2018 to 01/03/2019.
• DI Basic for Texas subscription fee of$33,000 plus applicable taxes for 9(Permitted Number)Authorized Users
from 01/04/2019 to 01/03/2020.
• DI Basic for Texas subscription fee of$33,000 plus applicable taxes for 9(Permitted Number)Authorized Users
from 01/04/2020 to 01/03/2021.
PRICING INFORMATION IS CONFIDENTIAL TO DI AND MAY NOT BE DISCLOSED
"Authorized User"means an individual employee or contractor of Customer to whom DI assigns a user ID and password to
access the Products with a unique email address at the domain name www.fortworthgov.org.
Notices.Any notices or correspondence shall be sent to the following individual(s):
Customer Primary: DI Sales:
Name: Forrest Brown Name: Caleb Cummings
Address: 1000 Throckmorton St, Address: Austin,Texas
Fort Worth,Texas 76102-6311
Phone: 817-392-2649 Phone: (512)519-3799
Email: forrest.brown@fortworthtexas.gov Email: caleb.cummings@drillinginfo.com
Customer Billing: DI Legal:
Name: Jean Petr Name: Shawn M.Shillington
Address: Real Property-Lease Mgmt. Address: 2901 Via Fortuna
Property Mgmt.Dept.-City of Fort Worth Building 6,Suite 200
900 Monroe Street,STE 404 Austin,TX 78746
Fort Worth,Texas 76102-6311
Phone: (817)392-8367 Phone: (512)519-3780
Email: jean.petr@fortworthtexas.gov Email: shawn.shillington@drillinginfo.com
City of Fort Worth Drilling Info,Inc.
DocuSigned by:
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Name: �SiJLs �j � a— Name:Shawn M.Shillington
Title: �jf C lticae�+�'e r' Title: Secretary and Assistant General Counsel
Date: /,o? �l g�� 7 Date: 8/18/2017
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CITY SECRETARY
FT. WORTH,TX
DocuSign Envelope ID:E5D6AB13-6824-4922-97DB-8D31EE4B80DB
drillinginfo
'aster decisions TERMS& CONDITIONS
1. Products.During the Term and subject to the terms and conditions of this Agreement,including restrictions and payment of fees:
a. Access.DI grants Customer a non-exclusive,non-transferable,non-sublicensable right,solely for Customer's Internal Use,for the
Permitted Number of Authorized Users to(1)access the Products,(2)download and reproduce discrete elements of Proprietary Data,
(3)store Proprietary Data on computer systems controlled by Customer,(4)manipulate,analyze,reformat,print,or display such
Proprietary Data,and(5)install the object code version of any Local Software included in the Products.DI has no obligation to deliver
or make available any software or other technology used to provide the Products to Customer.Authorized Users shall use the Products
solely for the benefit of Customer.If a new version of any Local Software included in the Products is available,Customer shall
promptly install the new version and Customer's license to previous versions shall terminate.
b. Data Providers.Third party data services may be subject to agreements with data providers that Customer must execute prior to
receiving service.Customer shall comply with all terms imposed by data providers with respect to Products that include data from third
party data providers.Fees for data services are subject to change from time to time by data providers and data providers may terminate
service at any time without notice or liability.If service fees increase and Customer requests in writing(or via email)that DI terminate
the associated data services,DI will do so unless contractually prohibited.If data services are terminated,DI shall cease to provide,and
Customer will no longer be obligated to pay fees for,the terminated data services,without affecting any other services.
c. Creation of Work Product.Customer may incorporate Proprietary Data into its work product(i)as static graphical images that do not
display specific data points and from which it is not possible to extract or manipulate such data and/or(ii)in text containing individual
data points("Customer Work Product").Customer may provide Customer Work Product to third parties only on a non-continuous
basis and(not updated in real-time or in accordance with a regular schedule).Customer shall attribute DI by prominently including
"Data provided by and used with permission from Drillinginfo"and,upon request,shall provide DI a copy of Customer Work Product.
Customer Work Product shall not extend any warranties on behalf of DI or imply that DI is responsible for reliability,accuracy,
completeness or currency of any Proprietary Data or Customer Work Product.Customer Work Product shall not include packages or
summaries of Proprietary Data or any Estimated Ultimate Recovery(EUR)tables,Drilled but Uncompleted wells(DUCs),Play
Assessments,Basin Grading Maps,or material marked"Confidential"or"Not for distribution."Consulting deliverables that comply
with this section shall be considered Customer Work Product.
2. Restrictions.Customer shall not and shall not permit or authorize any third party to:
a. Use the Products other than as authorized or sell,lease,license,sublicense,rent,loan,share,pledge,or otherwise transfer,with or
without consideration,all or any part of the Products or rights granted under this Agreement,or permit third parties to benefit from the
Products,including a timesharing,rental,outsourcing,service bureau,networking,hosted service or other arrangement.
b. Use the Products to compete with DI,build a competitive product or service,provide packages or summaries of Proprietary Data,copy
any Product features,functions,or graphics,provide Proprietary Data to third parties by lease,rental,transfer,assignment,broadcast,
public display,distribution,sale/resale,sublicense,or any other means,or engage in"mirroring"or simulating the Products.
c. Reverse engineer,decompile,decrypt,or disassemble Products,except to the extent this restriction is prohibited by applicable law,
remove proprietary notices or labels,use any robot,spider,or other automated method to access,download,or reproduce Proprietary
Data,or use Products in a way that causes a denial of service for other users or interferes with or unduly burdens performance.
d. Disclose,use,or permit use of any confidential information of DI,including(i)Proprietary Data,(ii)documentation or technical
information related to the Products,and(iii)the terms and conditions of this Agreement(including pricing terms).
DI may suspend or terminate access to the Products if Customer or any Authorized User violates these restrictions.
3. Payments.Fees are due within 30 days of the applicable invoice.Fees are based on access to the Products,not usage.Payment obligations,
including all fees for the entire Term,are non-cancelable and fees paid are non-refundable.Subscription level cannot be reduced during the
Term.DI may suspend or terminate access to the Products in its sole discretion if fees are not paid in accordance with this provision.
Customer will not setoff or offset against DI's invoices amounts that Customer claims are due Customer.Fees are exclusive of taxes,levies,
duties and other fiscal charges,including but not limited to sales tax,use tax,withholding,value-added or similar tax,and property taxes
(collectively,"Taxes").Customer shall not deduct or withhold Taxes.If DI has the legal obligation to pay or collect Taxes,DI will invoice
and Customer shall pay such amounts,unless and only to the extent that Customer provides DI with a valid tax exemption certificate
authorized by the appropriate taxing authority.Customer shall pay interest on any unpaid balances at least 30 days past due at the rate of one
and a half percent(1.5%)per month up to the maximum rate permitted by law plus reasonable expenses incurred by DI in collection efforts.
4. Term and Termination.
a. Renewals.UNLESS CUSTOMER PROVIDES DI WRITTEN TERMINATION NOTICE 60 DAYS PRIOR TO THE END OF
THE TERM CERTIFYING THAT IT WILL COMPLY WITH SECTION 4(C),DI SHALL HAVE THE RIGHT,BUT NOT
THE OBLIGATION,TO RENEW THIS AGREEMENT AND EACH PRODUCT LISTED ON THE ORDER FORM FOR
SUBSEQUENT ONE-YEAR PERIODS(EACH A"RENEWAL TERM").RATES FOR RENEWAL TERMS WILL BE DI'S
THEN-CURRENT RATE.Upon request,Customer shall promptly provide DI an accurate count of its then-current number of
employees and other information requested to determine pricing.
b. Termination.DI shall have the right to terminate the Agreement immediately without refund if Customer violates any of the terms and
conditions of the Agreement.DI shall also have the right to terminate the Agreement immediately without cause at any time upon
notice followed by issuance to Customer of a pro rata refund of the subscription fees applicable to the remainder of Customer's
subscription.Customer's sole and exclusive right to terminate this Agreement shall be termination without cause upon written notice to
DI and payment of all unpaid fees for the full Term without refund or setoff.
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DocuSign Envelope ID:E5D6AB13-B824-4922-97DB-8D31EE4B80DB
drillinginfo
W.— TERMS& CONDITIONS
C. Results of Termination.Upon termination or expiration of the Agreement(i)all rights,licenses,and access to the Products terminate,
but the Agreement will otherwise survive;(ii)Customer shall immediately destroy all copies(including copies in email)of Proprietary
Data in Customer's possession or control;(iii)Customer shall cause each Authorized User to certify that it has completed these
procedures and provide such certifications to DI;and(iv)DI may pursue any remedies available at law or in equity.Customer Work
Product may be retained subject to continued application of Section 1 c.If Customer's Product access changes,this provision shall
apply to Products to which Customer no longer has access.If Customer violates this Section 4c,Customer shall pay DI three times
Customer's most recent annual subscription fee,as liquidated damages and not as a penalty.
5. Warranty Disclaimers.DI DISCLAIMS ANY AND ALL WARRANTIES,WHETHER EXPRESS,ORAL,IMPLIED,
STATUTORY,OR OTHERWISE,INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY,TITLE,OR NON-INFRINGEMENT,AND ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM
OF TRADE OR COURSE OF DEALING.DI DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS WILL MEET
REQUIREMENTS OR THAT THEY ARE SUITABLE FOR NEEDS OR THAT THE DATA OR RESULTS ARE CORRECT,
ACCURATE,TIMELY,COMPLETE,SUITABLE,OR RELIABLE.PROPRIETARY DATA IS COMPILED FROM SOURCES
BEYOND DI'S CONTROL AND ERRORS,GAPS,AND INACCURACIES MAY EXIST.THE PRODUCTS AND
PROPRIETARY DATA ARE PROVIDED ON AN"AS IS,WITH ALL FAULTS"BASIS WITHOUT WARRANTIES OF ANY
KIND.CUSTOMER ASSUMES ALL RISK OF ERRORS AND OMISSIONS IN THE PRODUCTS AND PROPRIETARY DATA.
CUSTOMER SHALL IMPLEMENT SUFFICIENT PROCEDURES AND CHECKS TO SATISFY ITS REQUIREMENTS FOR
ACCURACY AND SUITABILITY AND MAINTAIN MEANS FOR THE RECONSTRUCTION OF LOST DATA.THE
PRODUCTS ARE A SUPPLEMENT TO,NOT A SUBSTITUTE FOR,THE KNOWLEDGE,EXPERTISE,SKILL,AND
JUDGMENT OF PROFESSIONALS.CUSTOMER ACCEPTS ALL RISKS IN ITS USE OF THE PRODUCTS INCLUDING BUT
NOT LIMITED TO ANY INVESTMENT,ACQUISITION,DRILLING,WELL TREATMENT,PRODUCTION OR FINANCIAL
DECISIONS.NO INFORMATION OBTAINED THROUGH USE OF THE PRODUCTS SHALL CONSTITUTE TRADING
ADVICE,TRADING RECOMMENDATIONS,OR TRADING INFORMATION.LOCAL SOFTWARE MAY INCLUDE THIRD
PARTY COMMERCIAL SOFTWARE LICENSED BY DI AND SUBLICENSED TO CUSTOMER.LOCAL SOFTWARE MAY
ALSO INCLUDE OR BE DISTRIBUTED WITH OPEN SOURCE SOFTWARE.DI MAKES NO REPRESENTATIONS OR
WARRANTIES,WHETHER EXPRESS OR IMPLIED(INCLUDING,WITHOUT LIMITATION,ANY WARRANTIES OF
MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,TITLE OR NON-INFRINGEMENT)WITH RESPECT TO
THIRD PARTY COMMERCIAL OR OPEN SOURCE SOFTWARE AND SHALL NOT BE LIABLE FOR ANY DAMAGES
REGARDING THE USE OR OPERATION OF ANY SUCH SOFTWARE.CUSTOMER RIGHTS TO USE SUCH SOFTWARE,
INCLUDING ANY REPRESENTATIONS OR WARRANTIES CONCERNING SUCH SOFTWARE,IF ANY,SHALL BE AS
GRANTED UNDER THE APPLICABLE LICENSE AGREEMENT FOR SUCH SOFTWARE.THESE DISCLAIMERS SHALL
APPLY REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.SOME OF THE ABOVE
MAY NOT APPLY IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES.
6. Indemnification.
a. DI Indemnity.Subject to Section 6c,DI shall indemnify Customer against any action to the extent based on a claim that the unmodified
Products infringe a U.S.patent issued as of the date hereof or a U.S.copyright,trademark,or trade secret("IP Claim").If adjudged to
infringe,DI shall,at its option(i)procure for Customer the right to continue using the Products,(ii)modify or replace the Products so
that they do not infringe;or(iii)terminate the Agreement and refund the part of the pre-paid subscription fee for the period after
termination.DI shall have no liability for claims based on:(1)use of other than a current,unaltered Products,(2)use of Products in
combination with non-DI products,software,services,or data,(3)third party software or data,including open source or third party
commercial software,(4)failure to use the Products in accordance with the terms of this Agreement or for its intended purpose,or(5)
infringement caused by compliance with Customer's designs,requirements,or specifications.THE FOREGOING STATES THE
ENTIRE LIABILITY OF DI AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO CLAIMS OF
INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.
b. Customer Indemnity.Subject to Section 6c,Customer shall indemnify DI against any claims,actions,losses,liabilities,injuries,
expenses,costs(including all reasonable attorneys'fees and costs of litigation),and damages,resulting from or arising out of
Customer's use of the Products or breach of this Agreement,regardless of the form of action(excluding claims that are covered by DI's
obligations under Section 6a).CUSTOMER'S OBLIGATIONS SHALL APPLY EVEN IF RESULTING FROM A PERSONAL
INJURY OR DUE IN WHOLE OR IN PART TO DI'S NEGLIGENCE OR OTHER FAULT,BREACH OF CONTRACT,
STRICT LIABILITY OR VIOLATION OF THE TEXAS DECEPTIVE TRADE AND PRACTICES ACT.
c. Conditions.The indemnified party shall:(i)promptly notify the indemnifying party in writing of any claim(failure to provide such
prompt notice shall only affect the rights of an indemnified party to the extent that such failure has a prejudicial effect on the defenses
or other rights available to the indemnifying party);(ii)allow the indemnifying party to have sole control of the defense and all related
settlement negotiations(the indemnified party may retain independent counsel at its own expense);and(iii)provide the indemnifying
party with the information,authority and assistance necessary to perform the indemnifying party's obligations under this Section.
7. LIMITATION OF LIABILITY.DI SHALL NOT BE LIABLE UNDER ANY LEGAL THEORY,WHETHER TORT
(INCLUDING WITHOUT LIMITATION NEGLIGENCE),CONTRACT,STRICT LIABILITY,STATUTORY,OR
OTHERWISE,FOR ANY SPECIAL,INCIDENTAL,CONSEQUENTIAL,EXEMPLARY,PUNITIVE,OR INDIRECT
DAMAGES OF ANY KIND,INCLUDING LOSS OF REVENUE,PROFITS,GOODWILL,USE,OR DATA OR THE COST OF
PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES,RELATING TO THIS AGREEMENT OR THE USE OR
INABILITY TO USE THE PRODUCTS,EVEN IF APPRISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.DI
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DocuSign Envelope ID:E5D6AB13-6824-4922-97DB-8D31EE41380DB
A drillinginfo
TERMS& CONDITIONS
SHALL NOT BE LIABLE FOR MOUNTS(INCLUDING LEGAL EXPENSES)IN EXCESS OF THE
FEES PAID BY CUSTOMER TO DI UNDER THIS AGREEMENT IN THE TWELVE(12)MONTHS PRECEDING THE FIRST
EVENTS GIVING RISE TO SUCH LIABILITY MINUS ANY AMOUNTS PREVIOUSLY PAID BY DI TO CUSTOMER IN
SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.THIS SECTION 7 FAIRLY ALLOCATES THE RISKS
BETWEEN THE PARTIES AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE
PARTIES AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS
AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF
LIABILITY FOR CERTAIN DAMAGES SO SOME OF THESE LIMITATIONS MAY NOT APPLY.
8. Ownership/Feedback/Reference.The Products and Proprietary Data and all derivatives thereof(other than Customer Work Product)and
all patents,copyrights,trade secret rights,trademarks,trade names and other proprietary rights associated therewith are the valuable,
exclusive property of DI protected by contract and intellectual property laws.This Agreement does not transfer or assign any ownership
rights to Customer or anyone else.DI reserves the right to alter the Products,implement user priorities,implement rules for use,discontinue
certain functional aspects of the Products,or add,withdraw,or alter any Proprietary Data.Except as expressly provided in this Agreement,
Customer shall have no rights to the Products or any related intellectual property rights whether by implication,estoppel or otherwise,and
DI reserves all rights,title and interest.Customer shall not challenge any right,title or interest of DI in or to,or make any claim or take any
action adverse to DI's ownership of,any such property,including the Proprietary Data.Any ideas,feedback,suggestions,corrections,
alterations,improvements,additional data points,requests,questions,comments,results of any test or evaluation and the like provided by
Customer to DI("Feedback"),including any enhancement,improvements or new features to same,will be the property of DI.Customer
hereby assigns and agrees to assign to DI all right,title and interest worldwide in and to the Feedback and the related intellectual property
rights and agrees to assist DI in securing and perfecting such rights.Customer may use Feedback solely for its own Internal Use.DI may use
in. .^nation provided by Customer to DI directly or indirectly,in accordance with DI's Privacy Policy,available at
httr)://info.drillinginfo.com/privacy-policy/,and DI may collect,develop,create,extract,or otherwise generate statistics and other
information and otherwise analyze Customer's use of the Products("Blind Data").Blind Data will be owned solely by DI and may be used
for any lawful business purpose without a duty of accounting to Customer,provided that such Blind Data does not identify Customer as the
source of such data.DI may publicly identify Customer as a customer,including on its website,government filings,and in marketing
materials,and Customer hereby grants to DI the nonexclusive right to use Customer's name and trademarks(including logos)solely for
such purpose.
9. Unauthorized Use.DI may utilize security keys and other license enforcement mechanisms to prevent operation of the Products outside the
bounds authorized hereunder.Customer shall not attempt to defeat or circumvent any such encryption,security,or license enforcement
mechanisms.Customer will prevent unauthorized use of the Products and immediately notify DI of any unauthorized use.Customer will
require each Authorized User to keep its user ID and password for the Products confidential.If Customer or any Authorized User suspects
that any of its passwords have been disclosed or made known to any other person or if nnv nrevinncly Authorized User ceases to be an
employee or contractor of Customer,Customer will immediately notify DI at support(c4drillinginfo.com.DI shall have the right to suspend,
cap,limit,or disable file transfers,downloads,and exports as part of Product design,to protect Proprietary Data,or to facilitate operations.
10. High Risk Activities.Products are not intended for use in hazardous environments requiring fail-safe performance,including any
application in which failure could lead to death,personal injury,or severe physical or property damage or any nuclear,chemical,or
biological weapons or missile technology('`High Risk Activities").Customer shall not use Products for High Risk Activities.DI have no
liability for damages arising from the use of the Products in any High Risk Activity.
11. Reporting and Audit.Upon request from DI,Customer shall certify in writing that the Products are being used in accordance with this
Agreement,including that only the Permitted Number of Authorized Users are using the Products.Customer will maintain complete and
accurate books,records,and electronic backups in connection with its use of the Products(or in the case of termination,evidence of steps
taken to comply with Section 4c),in sufficient detail to permit DI to verify Customer's compliance with the terms and conditions of this
Agreement.DI shall have the right to perform an inspection and audit of Customer's premises,equipment and records during standard
business hours and upon ten(10)days prior written notice.Customer will make available to DI or its representatives all Customer systems
on which any Local Software or Proprietary Data resides and any records pertaining to the Local Software or Proprietary Data.
12. Force Majeure.DI shall not be liable for any loss or liability related to acts of God,equipment failures,DoS/DDoS or similar attacks,
connection problems,weather,strikes,walkouts,fire,riots,armed conflicts,wild beasts,acts of war,or any causes outside the reasonable
control of DI.DI shall have no responsibility to provide access to the Products during such delays or interruption regardless of the cause.
13. Third Party Content.The Products contain content posted by customers and links to third party websites or resources("Third Party
Content").DI is not responsible for the availability of external sites or resources and has no control over,does not endorse,and does not
make any representations or warranties with respect to Third Party Content.DI is not responsible or liable for any damage related to use of
or reliance on any Third Party Content.Customer shall evaluate,and bear all risks associated with,the use of any Third Party Content,
including any reliance on the accuracy,completeness,or usefulness.Customer's correspondence or business dealings with,or participation
in promotions of,providers of Third Party Content,including payment and delivery of related products or services,and any other terms,
conditions,warranties or representations associated with such dealings,are solely between Customer and such providers.DI respects
intellectual property rights and asks Customer to do the same.DI reserves the right,in its sole discretion,to terminate access for any
Authorized User who is the subject of infringement notifications.
14. Dispute Resolution. The Agreement shall be governed by the laws of the State of Texas.Any claim or cause of action relating to this
Agreement must be brought in courts located in Austin,Travis County,Texas,except that DI may seek injunctive or equitable relief in any
court.Customer submits to the personal jurisdiction of,and shall not object to venue in,such courts.If Customer does not reside or have a
registered agent in the State of Texas,Customer hereby appoints the Secretary of State of Texas to act as its agent for service of process in
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DocuSign Envelope ID:E5D6AB13-6824-4922-97DB-8D31EE4B80DB
P4 drillinginfo
decisions TERMS& CONDITIONS
the event of any litigation or claim arising out of or relating to the Agreement.The UN Convention on Contracts for the International Sale of
Goods and the Uniform Computer Information Transactions Act(UCITA)are specifically excluded from application.Breach of DI's
intellectual property rights,including confidential or proprietary information and license restrictions,may cause DI irreparable damage for
which recovery of money damages would be inadequate,and DI shall therefore be entitled to obtain injunctive relief to protect such rights.
Customer hereby waives the requirement of a bond in the event DI seeks injunctive relief.In addition to any other relief,at law or in equity,
DI shall be entitled to recover from Customer all attorneys'fees and any costs of any litigation.IN ANY JUDICIAL PROCEEDINGS,
THE PARTIES KNOWINGLY AND VOLUNTARILY,AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH
COUNSEL,WAIVE ALL RIGHTS TO TRIAL BY JURY,AND AGREE THAT ANY AND ALL MATTERS SHALL BE
DECIDED BY A JUDGE WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
15. Assignment.Customer shall not transfer or assign,whether by operation of law,merger(including reverse triangular),change of ownership,
or otherwise,this Agreement or any of the rights conferred or obligations imposed by this Agreement,without DI's written permission,
which may be withheld or conditioned in DI's discretion.No transfer or assignment shall discharge any obligations under this Agreement.
Attempted assignment in violation of this provision shall be void and of no effect.Subject to the foregoing,this Agreement shall inure to the
benefit of and be binding upon the Parties'and their respective permitted successors,transferees,and assigns.If Customer acquires or is
acquired by another DI customer or its affiliate(whether by merger,stock purchase,asset purchase,or otherwise),the acquiring DI
customer's subscription fee may be increased to account for the combined entity.DI may freely assign this Agreement,assign its rights,or
delegate its duties under this Agreement.
16. Relationship of the Parties.This Agreement shall not create or establish an agency,partnership,or joint venture between the Parties and
the Parties jointly and severally disclaim any such relationship.The Parties are acting solely as independent contractors and neither Party
owes any fiduciary,special,implied,or other duty to the other Party.Customer agrees and covenants not to directly or indirectly solicit,
hire,recruit,or induce the termination of employment of any employee or contractor of DI during or within one year after the Term.
17. US Government End Users.Products are deemed to be"commercial computer software"and"commercial computer software
documentation,"respectively,pursuant to DFAR Section 227.7202 and FAR Section 12.212,as applicable.Any use,modification,
reproduction,release,performance,display or disclosure of any part of the Products by the U.S.Government shall be governed solely by the
terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
18. Export Controls.The Products are subject to U.S.Export Administration Regulations.Diversion or use contrary to U.S.or other applicable
law and regulation is prohibited.Customer agrees not to export,import,or transmit Products,Proprietary Data or any other software or
technical data to any country or end user or for any use in(1)any countries subject to U.S.trade embargoes(and all other nations that may
from time to time be included on such a list);or(2)any persons or entities on the U.S."Denied Persons List,""Specially Designated
Nationals List,"and"Entities List;"or(3)other locations or persons prohibited by law.Customer represents that neither the U.S.Bureau of
Industry and Security nor any other governmental agency has issued sanctions against Customer or denied Customer's export privileges.
19. Agreement Interpretation.The Agreement constitutes the entire agreement between the Parties and supersedes any prior or
contemporaneous agreement,whether written or oral,between the Parties with respect to the Products.The Agreement shall be construed as
if both Parties equally participated in its drafting,and thus shall not be construed against either Party as drafter.The Agreement may be
modified only in a subsequent written agreement signed by both Parties specifically referencing this Agreement.No waiver of any provision
of the Agreement by either Party shall constitute a waiver of any remedy available as a result of a subsequent breach of the same provision
unless such waiver is made in writing.If a court determines that any provision of the Agreement is unlawful or unenforceable in any respect,
the court shall reform the Agreement by modifying such provision so as to render it enforceable or,if modifying the provision is not
possible,then deleting such provision.The court shall then fully enforce the Agreement as reformed.If any of the terms and conditions of
the Agreement conflict with any order,text,manual or other document,this Agreement shall prevail and govern,regardless of whether such
other document originated prior or subsequent to the Agreement,or was signed or acknowledged by any director,officer,employee,
representative or agent of DI.The headings appearing in the Agreement are included for the convenience of the Parties and shall not be used
to define,limit,enlarge or interpret the scope of the Agreement or any of its provisions."Including"means including without limitation.
20. Definitions.
a. "Customer"means the purchaser of Products indicated on the Order Form or listed on a DI invoice.
b. "Internal Use"means ordinary use for internal business purposes,not including any activities described in Section 2.
c. "Local Software"means any software included in the Products to be installed on Customer equipment,such as DI Desktop or
Transform Essential,other software used to facilitate Authorized User access to the Products,and application programming interfaces
("APIs")."Local Software"does not include third party software.
d. "Order Form"means,if applicable,the order form executed by DI and Customer describing the Products.
e. "Party"and collectively"Parties"means DI and Customer.
f. "Permitted Number"means the number of Authorized Users permitted to use the Products.
g. "Products"means DI products listed on the Order Form or DI invoice,Proprietary Data,and anything else DI provides to Customer.
h. "Proprietary Data"means the data points,databases,elements,records,documents,analyses,models,maps,tables,charts,and other
data to which Customer has access using the Products or that is otherwise provided by DI to Customer,including Well Logs,LAS files,
County Scans,Unit Geology,Estimated Ultimate Recovery(EUR),Geology Play Models,Basin Grading Maps and LandTrdCTM maps.
Proprietary Data does not include data obtained from third party data providers on a pass-through basis.
L "Term"means the earliest date on the Order Form until the latest date on the Order Form(even if such dates are in separate bullets),or
one year if Customer has not executed an Order Form,together with any Renewal Terms.
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ADDENDUM TO AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
DRILLING INFO,INC.
This Addendum to Agreement is entered into by and between Drilling Info, Inc.,
("Seller") and the City of Fort Worth ("City"), collectively the "parties", for a purchase of
licenses.
The Contract documents shall include the following:
I. The Order Form and Terms and Conditions; and
2. This Addendum to the Conditional Sale Agreement.
Notwithstanding any language to the contrary in the attached Order Foran and Terms and
Conditions (collectively the "Agreemenfl, the Parties hereby stipulate by evidence of execution
of this Addendum("Addendum")below by a representative of each party duly authorized to bind
the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall
be applicable to the Agreement as follows:
1. Term. The Agreement shall commence upon the signing of the Agreement and
shall expire three years after signing the Agreement,unless terminated earlier in accordance with
the provisions of the Agreement or otherwise extended by the parties. The Agreement may be
renewed for number of renewals at City's option, each a "Renewal Term." City shall provide
Seller with written notice of its intent to renew at least thirty (30) days prior to the end of each
term.
2. Termination.
a. Convenience. Either City or Seller may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the
non-breaching Party must give written notice to the breaching party that describes the
breach in reasonable detail. The breaching party must cure the breach ten (10) calendar
days after receipt of notice from the non-breaching party,or other time frame as agreed to
by the parties. If the breaching party fails to cure the breach within the stated period of
time, the non-breaching party may, in its sole discretion, and without prejudice to any
other right under the Agreement, law, or equity, immediately terminate this Agreement
by giving written notice to the breaching party.
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will
notify Seller of such occurrence and the Agreement shall terminate on the last day of the
Addendum to Agreement Page 1 of 5
fiscal period for which appropriations were received without penalty or expense to the
City of any kind whatsoever, except as to the portions of the payments herein agreed
upon for which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Seller for services actually
rendered up to the effective date of termination and Seller shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Seller shall
provide City with copies of all completed or partially completed documents prepared
under the Agreement. In the event Seller has received access to City information or data
as a requirement to perform services hereunder, Seller shall return all City provided data
to City in a machine readable format or other format deemed acceptable to City.
3. Attorney§' Fees. Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken,or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed in accordance with the laws of the United States and
state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the
Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent
the Agreement is required to be governed by any state law other than Texas or venue in Tarrant
County, City objects to such terms and any such terms are hereby deleted from the Agreement
and shall have no force or effect.
5. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity;such provisions are hereby deleted and shall have no force or effect.
6. Indemnity. To the extent the Agreement requires City to indemnify or hold Seller
or any third party harmless from damages of any kind or character, City objects to these terms
and any such terms are hereby deleted from the Agreement and shall have no force or effect.
7. Unauthorized Access (Hacking). Use of the DI System involves access via the
Internet, which the Parties acknowledge and agree is an essentially unregulated conduit.
Therefore, neither party shall be held responsible for unauthorized third parties who gain access
and introduce errors, viruses, or other harmful components, or cause data to be lost, hacked,
accessed, modified, or viewed so long as the Parties exercise reasonable efforts to maintain an
acceptable level of security to prevent such unauthorized access.
8. Usage Volume. The Parties acknowledge and agree that City's use of the DI
System by its licensed users does not and will not be considered a "disproportionately large
demand on the DI System that adversely impairs DI System operating efficiencies" for purposes
of the DI System Terms and Conditions.
Addendum to Agreement Page 2 of 5
9. Data Security. The Parties acknowledge and agree that City's use of firewalls,
individual user ID's and passwords and other computer security measures constitute "an
acceptable level of security" and "adequate security measures" for purposes of the Terms and
Conditions.
10. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of
funds. If such funds are not appropriated or become unavailable, City shall have the right to
terminate the Agreement except for those portions of funds which have been appropriated prior
to termination.
11 o Confidential Information. City is a government entity under the laws of the State
of Texas and all documents held or maintained by City are subject to disclosure under the Texas
Public Information Act. To the extent the Agreement requires that City maintain records in
violation of the Act, City hereby objects to such provisions and such provisions are hereby
deleted from the Agreement and shall have no force or effect. In the event there is a request for
information marked Confidential or Proprietary, City shall promptly notify Seller. It will be the
responsibility of Seller to submit reasons objecting to disclosure. A determination on whether
such reasons are sufficient will not be decided by City,but by the Office of the Attorney General
of the State of Texas or by a court of competent jurisdiction.
12. Addendum Controlline. If any provisions of the attached Agreement, conflict
with the terms herein, are prohibited by applicable law, conflict with any applicable rule,
regulation or ordinance of City,the terms in this Addendum shall control.
13. Immigration Nationality Act. City actively supports the Immigration &
Nationality Act(INA)which includes provisions addressing employment eligibility,employment
verification, and nondiscrimination. Seller shall verify the identity and employment eligibility of
all employees who perform work under the Agreement. Seller shall complete the Employment
Eligibility Verification Form(I-9),maintain photocopies of all supporting employment eligibility
and identity documentation for all employees, and upon request, provide City with copies of all
I-9 forms and supporting eligibility documentation for each employee who performs work under
the Agreement. Seller shall establish appropriate procedures and controls so that no services will
be performed by any employee who is not legally eligible to perform such services. Seller shall
provide City with a certification letter that it has complied with the verification requirements
required by the Agreement. Seller shall indemnify City from any penalties or liabilities due to
violations of this provision. City shall have the right to immediately terminate the Agreement for
violations of this provision by Seller.
14. No Boycott of Israel. Seller acknowledges that in accordance with Chapter 2270
of the Texas Government Code, City is prohibited from entering into a contract with a company
for goods or services unless the contract contains a written verification from the company that it:
(1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The
terms"boycott Israel"and"company"shall have the meanings ascribed to those terns in Section
808.001 of the Texas Government Code. By signing this addendum, Seller certifies that Seller's
Addendum to Agreement Page 3 of
signature provides written verification to City that Seller: (1) does not boycott Israel; and (2)
will not boycott Israel during the term of the Agreement.
15. Right to Audit. Seller agrees that City shall,until the expiration of three(3)years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Seller involving transactions relating to the
Agreement. Seller agrees that City shall have access during normal working hours to all
necessary Seller facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Seller reasonable
advance notice of intended audits.
(signature page follows)
Addendum to Agreement Page 4 of 5
Executed this the day of , 2017.
CITY:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract,including ensuring all performance
By: and reporting requirements.
Mme:
Title: Assistant City Mana er
Date: �D� ��'�l � By:
ame:
Approval Recommended: Title:
Approved as to Form and Legality:
By:
Name:
Title: _ By: z�
J B. ng
Attest: Gy �fftleAssis t City Attorney
"`} Contract Authorization:
_ M&
Title: Secrets )(AS
r '
SELLER:
Drilling Info,Inc.
By: � 1
Name: Shawn M.Shillington
Title: Secretary and Assistant General
Counsel
Date: 11-13-17 �--
- _ OFFICIAL RECORD
CITY SECRETARY
IT.WORTH,TX
Addendum to Agreement Page 5 of 5