University Grant Program Terms

LMKR UNIVERSITY GRANT AGREEMENT

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These license terms and conditions and the Standard and Extended University Grant Stipulations constitute the entire agreement between LMKR Holdings (“LMKR”) (or based where you live, one of its affiliates) and the University (“University”). PLEASE READ THEM CAREFULLY. These terms apply to the application(s) software (hereinafter “LMKR Software”, including both GeoGraphix® and GVERSE™ Software Suites), specified in the University Grant Program (UGP) Application Form, to be downloaded by the University after submission and subsequent approval by LMKR of the University’s application to participate in the Program. Acceptance of the terms of this Agreement by University does not obligate LMKR to provide the University with LMKR Software. LMKR reserves all rights to refuse acceptance of the application or grant any license or provide any Software without citing any reason whatsoever. In case where LMKR refuses the grant of the license and/or the LMKR Software this Agreement as accepted at the time of application to participate in the Program shall become null and void.

AGREEMENT

1. DEFINITIONS.
   Except for terms elsewhere defined in this Agreement which will have the meaning so ascribed, the following terms, when capitalized, will mean as follows:
   
   “Agreement” means these LMKR Software Terms and Conditions and the Standard and Extended University Grant Stipulations.
   
   “UGP Application Form” means the online application form available on the University Grant Program page of the LMKR website to be used by universities to apply for a University Grant.
   
   “Site” includes University-owned or leased property at the address specified in the UGP Application Form.
   
   “Affiliate” of an entity means any individual, partnership, joint venture, corporation, trust, unincorporated association, or any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with the first entity.  “Control” and its derivatives mean, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting shares, by contract, or otherwise.
   
   “Permitted Assign(s)” means any company or individual that LMKR has bestowed rights via a contractual relationship to provide LMKR Software or Services on LMKR’s behalf.
   
   “On-Site” is defined as any representative or employee of LMKR or an LMKR Affiliate or any employee or representative of an agent of LMKR physically present on the University's premises to perform services of any kind, including installation of LMKR Software, or consulting services.
   
   “University Grant Administrator” means a permanent employee of the University designated as University Grant Administrator who will be the principal point of contact.  All defect and enhancement questions (Corrective Service), concerning the LMKR Software applications listed in the UGP Application Form and provided under this Agreement shall be directed through the University Grant Administrator.  The University is required to provide appropriate levels of training for the person(s) designated as the University Grant Administrator(s).
   
   “LMKR Program Manager” means an LMKR employee designated to act as Program Manager to the University. The LMKR Program Manager will monitor progress of the university’s program, act as a regular point of contact for the university and provide overall coordination of the grant with respect to administration and contracts. Contact information for LMKR Program Manager is specified on the LMKR University Grant Program page on the LMKR website, i.e., http://www.lmkr.com/program/university-grants
   
   “LMKR Software” includes both GeoGraphix® and GVERSE™ Software Suites granted to the University under this Agreement. Manufacturer is LMKR Holdings under license from Landmark Graphics Corporation/Halliburton for GeoGraphix® Software and solely LMKR Holdings (including its parent company, wholly owned subsidiaries and assigns)  for GVERSE™ Software Suite.


2. TERM. 
   LMKR Software licenses shall be granted to the University for a thirty-six (36) month term (hereinafter the "Initial Term").  Upon expiry of the Initial Term, the  Agreement shall renew automatically for successive One (01) year periods (“Renewal Term(s)”), unless terminated earlier in accordance with the Agreement (Collectively the “Term”). At the time of termination, the University shall remove the LMKR Software from University Systems; the University shall offer LMKR proof of destruction of the Software.


3. LICENSE GRANT.
   LMKR grants to the University a nonexclusive, nontransferable license to make educational use of the object version of the LMKR Software or portions thereof solely for the University's own non-commercial use during the Term of the Agreement.
   
   • 3.1.      FLOATING LICENSES.  Each LMKR Software license is a floating license for a single concurrent user unless otherwise stated in the actual LMKR Software license file(s). The LMKR Software may be installed on one (1) host computer at the one (1) Site specified in the UGP Application Form, and the University may use the LMKR Software from any location at such Site. All LMKR Software licenses under this Agreement will be provided in six (06) month intervals until the Term expires.  Under no circumstances will LMKR grant permanent, non-expiring Software license under this Agreement.
     
   
   
   • 3.2.      USE OF LMKR SOFTWARE.
   • 3.2.1.    In support of the University’s own internal use of the Software, the University may:
     • use the object version of the Software;
     • copy the Software into machine readable or printed form for backup, provided that all copies and partial copies shall include LMKR's and all other provided copyright notices;
     • modify or merge the Software into other software, provided that such merged or modified Software will be subject to this license and further provided that such modification may result in termination of the warranty or support and maintenance of the modified Software;
     • except with regard to training books, datasets and other materials, copy the program documentation as required for the University’s own use, provided that all copies shall include LMKR's copyright notices.
   • 3.2.2.    Except as expressly provided herein, the University may not:
     • copy, modify, merge, reverse engineer, reverse assemble, decompile, or disassemble the Software;
     • distribute, publish, transfer, sublicense, or make the Software or program documentation available to other organizations or persons;
     • transfer the Software to another Site without approval of LMKR and payment of the applicable fee.
   • 3.3.      GOVERNMENT RIGHTS TO RESTRICTED SOFTWARE. The University has been licensed to use the LMKR Software and receive Maintenance in the country where it was initially delivered to the University. The exportation of the LMKR Software and supply of Maintenance to certain countries, that are subject to United States, United Nations, European Union or other similar trade sanctions, may be prohibited. The University is responsible for complying with all applicable trade control regulations. The University’s use, export, transfer, assignment or other movement of the LMKR Software in violation of applicable trade control regulations will result in the automatic termination of this Agreement and all rights to use the LMKR Software.
     Furthermore, the license to use the GeoGraphix® Software is provided to the Customer under RESTRICTED RIGHTS.  Use, duplication or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-14, "Rights in Data", FAR 52.227-15, "Representations Concerning Data Rights", and FAR clause 52.227‑19 entitled Commercial Computer Software‑Restricted Rights, as applicable. Manufacturer is LMKR Holdings under license from Landmark Graphics Corporation/Halliburton for GeoGraphix® Software and solely LMKR Holdings (including its parent company, wholly owned subsidiaries and assigns)  for GVERSE™ SUITE


4. COMMERCIAL USE. 
   The LMKR Software is made available for the sole purposes of University-sponsored teaching and research and use with federal, or state originated University projects.  The University shall not use the LMKR Software thus granted in any of the following manners:
   • 4.1.      to solicit, develop or complete proprietary projects or ventures resulting in commercial for profit compensation;
   • 4.2       to use in research or on projects initiated by for profit organizations such as oil companies, services companies, and consulting firms;
   • 4.3.      to engage in commercial marketplace activities including, but not limited to, consulting and basic application training or classes that compete with LMKR or private industry; or
   • 4.4.      to sell time on or provide unlimited access to the LMKR Software to third parties.

   LMKR may terminate this Agreement if the University fails to comply with these terms and conditions, provided LMKR gives the University ten (10) days’ notice prior to the proposed termination, during which time the University fails to cure the breach to LMKR’s reasonable satisfaction.  Upon termination, the University must return to LMKR all LMKR Software copies and documentation, including modified or merged portions in any form, or provide LMKR written confirmation that the University has destroyed the LMKR Software.

5. ANNUAL REVIEWS AND AUDITS. 
   During the Term of this Agreement and for two (02) years thereafter LMKR shall have right and access to make annual reviews of performance and audits as follows:
   • 5.1       Upon written notice from LMKR the University shall cooperate with LMKR in making annual review for performance of the Agreement and make available or otherwise provide access to appropriate, non-confidential documents and University personnel necessary to perform the review.
   • 5.2       The University shall upon receipt of written request from LMKR, provide to authorized LMKR representatives for the purposes of audit of the LMKR installed-base and system configurations, access to any University servers, workstations or ancillary hardware systems on which the LMKR Software has been installed. Audit and access shall, unless otherwise granted in writing by the University, be limited to those control files, directories, application files, license files, and ancillary software systems associated with and necessary to the operation of the LMKR Software. The University Grant Administrator may, in the University’s discretion, be present at all times during the audit. During such audits, any LMKR Software found on the servers, workstations, or ancillary hardware systems not previously authorized under this Agreement or subsequent Amendments to the Agreement or otherwise owned by the University, will be removed from the servers, workstations, or ancillary hardware systems, or otherwise disabled by the LMKR representatives.
   
   
6. •  6.1       ON-SITE SOFTWARE MAINTENANCE & SUPPORT.
     No On-site maintenance, support or services will be provided under this Agreement. Any on-site maintenance and/or support services will be under a separate agreement between LMKR and/or its affiliate and the University at the prices and under the standard terms and conditions in use by LMKR. The actual on-site service will be provided by representatives or employees of LMKR and/or its Affiliate or Permitted Assign(s).
   • 6.2       SOFTWARE MAINTENANCE & SUPPORT.
     During the Term of this Agreement, LMKR will provide the following Software maintenance and support services at no cost to the University:
     • 6.2.1    Corrective Service Support shall be supplied by LMKR available via LMKR support portal, e-mail and/or telephone for the Term of this Agreement.   All contact for corrective service will be accepted only from the University's designated University Grant Administrator(s) as specified in the UGP Application Form.
     • 6.2.2    University faculty, staff and students may be granted access to LMKR’s customer support portal and will be able to leverage LMKR’s extensive database of solutions for previously submitted cases and technical white papers.  Such students must be enrolled in a course using LMKR Software or are performing research using LMKR Software as a part of their participation or instruction of a degree program and must be identified in writing directed to the LMKR Program Manager by the University Grant Administrator at the beginning of each academic period (semester, trimester, or quarter).
     • 6.2.3    Maintenance updates and new software releases will be provided as they occur and as they become available.  University will be responsible for any costs associated with obtaining the updates and software releases in compliance with Article 7.0 of this Agreement.
     • 6.2.4    All LMKR provided Software documentation is currently supplied "on-line".  Documentation will be provided in "on-line" form only for subsequent software releases and updates at no additional charge.


7. TAXES, TARIFFS, DUTIES.
   LMKR is not responsible for the payment of any and all taxes, including, but not limited to, fees, duties, assessments, tariffs (of any kind), national insurances or any other form of government charge levied against the LMKR Software or the provision of services under this Agreement.  The University shall be fully responsible for such taxes, including sales, use excise taxes and Value Added Taxes.  If the University is exempt from any such tax, the University will provide LMKR with the necessary documentation required by the taxing authority to sustain such exemption.  Furthermore, the University shall pay any and all taxes, fees, duties, assessments, licenses, tariffs (of any kind), national insurances or any other form of government charge assessed against the LMKR Software or provision of services under this Agreement.


8. DELIVERY AND TITLE.
   • 8.1.      Delivery will be Ex Works LMKR Standard download website, i.e., support.lmkr.com. There will be no physical delivery of LMKR Software under this Agreement.
   • 8.2.      Title to the LMKR Software remains with LMKR, at all times, or if Software is that of a third-party vendor, then said vendor shall retain title. In all cases the Software may not be sold or otherwise transferred.


9. TRAINING:
   • 9.1       TRAINING AT LMKR TRAINING FACILITY.  Training may be available to the University and its personnel who are full-time faculty, staff, and students.  This training shall take place at one of LMKR's or it's Affiliate’s or Permitted Assign(s) regional training facilities.  One free seat per course is available to all universities in the LMKR University Grant Program on a first come, first served basis. A   university may take up to 5 courses per year for free. Additional courses other than the specified limit of 5 courses per year will be available for universities to attend on a 50% discount of the published list prices. For all additional courses attended by a university, the University will be invoiced by the training facility where the training will take place and the University shall make payment in advance in U.S. Dollars.  The payment may be made by check, wire transfer, or electronic transfer. Seats are available on a “stand-by” basis only, and may be canceled at any time by LMKR due to class size or training facilities limitations.  Cancellation of the seats will be at LMKR's discretion.    The University must apply in writing or via e-mail to the Program Manager for approvals and provide a list of University personnel wishing to take a particular course.  Upon approval the Program Manager will notify both LMKR's Training Coordinator (“the Coordinator”) and the University of approval.  Thereafter, the University may contact the Coordinator directly for course scheduling.  Scheduling and course availability will always be at the discretion of the Coordinator.  Training participants will be responsible for any related expenses incurred during training (e.g., travel, lodging, food).  If requested by the University, individual training in a regularly scheduled class at LMKR or Affiliate’s or other representative’s facilities not covered by the above policy will be billed to the University at regular commercial rates.  The University and trainees shall be responsible for obtaining all necessary visas for the country in which the LMKR training facility is located.
   
   
   • 9.2       ON-SITE TRAINING.  No On-site training will be provided under this Agreement. On-site training will be provided by LMKR or an LMKR Affiliate or Permitted Assign(s) by entering into a separate agreement between LMKR or LMKR Affiliate or LMKR Delegate and the University at the standard price and under standard terms and conditions in use by LMKR or LMKR Affiliate or Permitted Assign(s). 


10. INTELLECTUAL PROPERTY RIGHTS.
    The University shall grant to LMKR a non-exclusive, royalty free irrevocable fully paid up license to use, copy, sublicense and modify all copyrightable derivative works of the prospective Software created by the University. This clause shall survive in perpetuity.  The University will grant to LMKR a “right of first refusal” option to license any other intellectual property rights to inventions developed by the University arising from, related to and/or based upon the prospective Software.  Remuneration will be negotiated on a case-by-case basis.


11. LIMITATIONS OF LIABILITY AND INDEMNIFICATION.
      EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO REPRESENTATIONS OR WARRANTIES BY LMKR, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THIRD-PARTY CLAIMS OF INFRINGEMENT ON THE INTELLECTUAL PROPERTY RIGHTS OF THE THIRD PARTY, NEITHER LMKR NOR ITS SUPPLIERS WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF DATA, PROFITS, OR USE OF HARDWARE) TO THE UNIVERSITY OR ANY OTHER PARTY. IN THE EVENT THE REMEDIES OF THE UNIVERSITY SET FORTH HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, THE SOLE OBLIGATION OF LMKR SHALL BE TO ACCEPT RETURN OF THE LMKR SOFTWARE.

    University hereby indemnifies and holds LMKR and its Affiliates harmless from and against any and all claims, losses, damages, penalties, interest, costs or expenses (including attorneys’ fees) arising from or relating to any breach of any representation, warranty or covenant of University in this Agreement.

12. TERMINATION.
    • 12.1.    Either party has the right to terminate the Agreement at any time.  Such notice of termination shall be delivered in writing to the effected parties ninety (90) days prior to actual termination.
    
    
    • 12.2.    LMKR may terminate the Agreement if the University fails to comply with the terms and conditions of the Agreement and the terms of any Amendments attached hereto, provided the University is given thirty (30) days written notice prior to the proposed termination.  During the notice period the University will have the opportunity to remedy the non-compliance situation. If the University is shown to LMKR’s reasonable satisfaction to be in compliance within the thirty (30) days’ notice period, LMKR shall not terminate the Agreement for such non-compliance.
    
    
    • 12.3.    Upon termination regardless of reason or cause, the University agrees to immediately return all LMKR Software, copies and documentation owned or otherwise provided by LMKR, including modified or merged portions in any form, or provide written confirmation and proof that such LMKR Software and documentation has been destroyed and permanently removed from the University site(s).
    
    
13. GENERAL.
    • 13.1.    Neither LMKR nor the University shall be liable for non-performance caused by circumstances beyond their reasonable control including, but not limited to, work stoppages, delay in transportation, delay in delivery by vendors, fire, civil disobedience, wars, or acts of nature.
    • 13.2.   Except as provided herein, this Agreement and the accompanying Attachments and Amendments, constitute the entire agreement between the parties with respect to the subject matter hereof, and shall supersede and cancel all prior agreements or understandings, of the University with LMKR or its subsidiaries, either oral or in writing, including any different or conflicting terms and conditions which may appear on any purchase order or form submitted by the University (except that quantities, dates, installation location and means of transportation may be specified by the University's order and LMKR's acknowledgment thereof).
    • 13.3.    This Agreement may be amended only by a written agreement between the parties.  Any provision of the Agreement may be waived only in writing by the party to be bound thereby.  Waiver of any breach or failure to enforce any Term of this Agreement shall not be deemed a waiver of any subsequent breach or right to enforce this agreement.
    • 13.4     This Agreement was written in English.  In the event of any conflict between the English version and any translations, the English version of the Agreement shall control.
    • 13.5.    This Agreement and all Attachments shall be governed by and construed in accordance with the laws of  United States, exclusive of conflicts of law principles. The parties hereby submit themselves to the exclusive jurisdiction of the courts of Houston, Texas.  
    • 13.6    NOTICES.  All notices, authorizations and requests sent under the Agreement shall be to the address supplied in the UGP Application Form.
    • 13.7.    All notices, authorizations and requests in connection with this Agreement shall be deemed given on the day they are transmitted by e-mail to the contact supplied in the UGP Application Form.
    • 13.8     Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be resolved by arbitration.  The arbitration shall be in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which shall administer the arbitration and act as appointing authority  , including the rendering of the award, which shall take place. The arbitration, including the rendering of the award, shall take place in Houston, Texas.  The language to be used in the arbitration shall be English.  The arbitrators shall interpret this Agreement in accordance with the substantive laws of USA.  Judgment upon the award of the arbitrators may be entered in any court having jurisdiction thereof. Nothing herein shall be construed to prevent a Party from seeking equitable relief in a court of competent jurisdiction.  The parties acknowledge that breach of this Agreement may result in irreparable harm and loss, and upon a breach of this Agreement the non-breaching party shall be entitled to seek immediate injunctive relief, which is in addition to, not in lieu of remedies at law.  Each party hereby waives any bond requirement associated with the pursuit of injunctive relief.
    • 13.9     EXPORT.  University may not export nor re-export any LMKR Software without first obtaining authorization from the United States Department of Commerce and/or the United States Department of Treasury, as applicable.  If the University fails to comply with this requirement, it shall be liable to LMKR for any damages, loss or penalties that it may incur as a result thereof, and LMKR may be prohibited from servicing or supporting the LMKR Software until the University complies.


14. SURVIVORSHIP OF TERMS AND STIPULATIONS.
    The terms and stipulations set forth in Articles 5, 7, 8.2, 10, 11, 12.3, 13.4, 13.5, and 13.8 shall survive the termination or expiration of this Agreement.

1. REPORTING MECHANISMS. LMKR requires all university grant partners to complete a semi-annual Progress Report summarizing the activities, status, and plans of all active projects at the University involving LMKR Software. These reports will coincide with the expiry and renewal of each 6-month license, and must be completed electronically in the format provided by the Program Manager and returned before the next batch of license files can be issued to the University.

   Additionally, the University shall provide advance notice of all University sponsored workshops, presentations, and conferences which involve LMKR provided software applications.

2. DATA SETS. LMKR anticipates that any non-proprietary or public domain data used in conjunction with the LMKR Software will be available on a non-exclusive basis to LMKR for public relations, training, testing and marketing purposes. LMKR data set requests may include data documentation, copies of the data in its original format and copies of the same data in LMKR format.  Any duplication costs will be paid by LMKR.


3. WRITTEN MATERIALS/PUBLICATIONS/ACKNOWLEDGEMENTS. The University may publish three (03) articles per year on a voluntary basis during the Term of the Agreement referencing LMKR Software.  The University will inform the Program Manager in advance of publication, of the titles of any articles, reports, or other publications which have been submitted and/or accepted for publication along with the date and place of any publications or pending publications relating to projects or research work done with the assistance of LMKR Software.  All written materials, published or unpublished, containing and/or discussing work done with the assistance of LMKR Software, will acknowledge LMKR Holdings, the LMKR University Grant Program, and the grant of applications software provided to the University. Acknowledgments shall carry the following or similar wording: “University Name acknowledges support of this research/project by LMKR HOLDINGS via the LMKR University Grant Program.”

   The University will also make non-confidential written materials available to the LMKR University Grant Program and allow their distribution to LMKR employees, clients, customers, and selected industry representatives within the laws of copyright.  Reproduction costs for large quantities of publications to be distributed as described above will be borne by LMKR.  LMKR expects that each completed project will result, at a minimum, in the submission of a project summary “white paper” to LMKR, via the LMKR Program Manager.

4. INDUSTRY TRADE SHOWS/UNIVERSITY PRESENTATIONS. Periodically, LMKR may invite certain universities to display their work at industry trade shows.  Should university personnel schedules permit trade show participation, LMKR will sponsor the university group, supply booth space and equipment, and subsidize travel, food, and lodging expenses for the designated university personnel.  In such cases the University partners are expected to supply the appropriate domain experts, demonstration data set(s) of their work, and to develop cohesive interactive workstation demonstrations around their data, using LMKR Software.  This is and shall not be an endorsement of any products/services of LMKR by the University.>

   LMKR may also request that select individuals formally present their work to LMKR personnel at Company facilities.  In such cases, schedules and expenses will be handled in a manner similar to industry trade show participation described in the preceding paragraph.

5. LMKR USERS MEETINGS. LMKR sponsors annual users meetings throughout the year in various cities worldwide.  Active university software grant partners may be invited to attend and give presentations concerning LMKR-related work at their university sites.  Registration, travel and lodging expenses for university participants to the users meeting are not paid by LMKR.

6. APPLICATION SOFTWARE DEVELOPMENT. The University shall grant LMKR a “right of first refusal” option to license any software or software prototypes developed by professors, students or researchers utilizing any aspect of the LMKR Software, specified in the UGP Application Form and granted under this Agreement, for further evaluation, development, production and/or marketing.  Remuneration will be negotiated on a case-by-case basis.
7. INSTRUCTIONAL DOCUMENTATION, TEACHING MATERIALS. The University shall grant LMKR a “right of first refusal” option to license of any instructional documentation, course outlines and/or teaching materials (alone or in conjunction with existing LMKR materials) developed by professors, students, or researchers utilizing any aspect of the LMKR Software, specified in the UGP Application Form and granted under this Agreement, for further evaluation, development, production and/or marketing.  Remuneration will be on a case-by-case basis.


8. CURRENT VERSION.  The University agrees to install and run the latest version of LMKR Software available to all licensees of LMKR Software within 180 days of it general access release date.


9. CLASSROOM INSTRUCTION. The University may include LMKR Software in the curriculum within one class of a minimum of 20 students on a voluntary basis during the Term of this Agreement.


10. FACULTY TRAINING.  During first six months of the Term of the Agreement at least one (1) faculty member will agree to obtain the necessary training required to properly instruct students in the use of LMKR Software. This training may be obtained by attending LMKR training courses, taking any relevant computer-based training modules and/or self-study.  LMKR will not be responsible for any expenses associated with this training.


11. KNOWLEDGE ARTICLES.  The University may provide LMKR technical papers or white papers on a voluntary basis leveraging LMKR Software to include on the LMKR customer support portal.  The publication of the knowledge articles will cite the University personnel as the author, but will not result in compensation for the University.

ATTACHMENT “B”
LMKR UNIVERSITY GRANT PROGRAM
EXTENDED UNIVERSITY GRANT STIPULATIONS

1. From time-to-time LMKR may request the use of the University’s facilities by LMKR employees for local demonstrations subject to a written agreement and availability.
2. From time-to-time LMKR may request the use of the University’s facilities by LMKR employees for local customer training subject to a written agreement and availability.
3. LMKR may, from time to time find it advantageous to enter into separate agreements for the purposes of testing and evaluation of Alpha or Beta version software.  In these cases specific Alpha or Beta test agreements will be drawn up between LMKR and the University.  These agreements shall exist separately of the University Grant Agreement.  In the event the University requests evaluation of any LMKR Software whether Alpha, Beta, or production version, the University shall provide an evaluation plan in writing to LMKR along with the request for evaluation.