Last Updated: 7 February 2018
THE FOLLOWING TERMS OF SERVICE ARE A LEGAL CONTRACT BETWEEN YOU (‘YOU”) AND THE TOP ENERGY CONSORTIUM, INC. (“ TOP ENERGY”) THIS AGREEMENT IS EFFECTIVE AS OF THE DATE WHEN YOU CHECK THE REQUIRED BOX INDICATING ACCEPTANCE (“EFFECTIVE DATE”).
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SITE. THIS SITE IS NOT INTENDED FOR USE BY ANYONE UNDER THE AGE OF 13. IF YOU ARE ACTING ON BEHALF OF ANYONE UNDER THE AGE OF 13 OR A MINOR AS A PARENT OR GUARDIAN AND PROVIDE CONSENT FOR THAT MINOR TO USE THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE FOR THE MINOR’S USE OF THE WEBSITE.
TOP ENERGY MAY CHANGE OR MODIFY THESE TERMS OF SERVICE AT ANY TIME UPON NOTICE TO YOU, AND YOUR CONTINUED USE OF THE SITE CONSTITUTES ACCEPTANCE.
Top Energy has developed and maintains a website to provide access to digital courseware and other learning resources (the “Site”). The Site may be delivered to you through the Internet via your browser or app (mobile or otherwise). You wish to utilize the Site, and Top Energy has agreed to allow You to use the Site according to the terms and conditions of this Agreement.
You agree as follows:
- License Grant.
- License to Use Site.Upon payment of the fees required under this Agreement, Top Energy grants you a perpetual, nonexclusive, nontransferable, worldwide license (the “License”) to access and use the Site in accordance with this Agreement. All rights not expressly granted to You under the License are reserved by Top Energy.
- Limitations on Use.The Site is for use only by You. Except as permitted by this Agreement, the Site may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or used to create any derivative works. You may not use any network monitoring or discovery software to determine the Site’s or Service’s architecture, or extract information. You may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Site. You may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available the Site to anyone other than You; (ii) modify or make derivative works based upon the Site; or (iii) create Internet “links” to the Site or “frame” or “mirror” any content on any other server or wireless or Internet-based device. You may use the Site only for its intended educational purpose and shall not use the Site in association with sending spam or otherwise duplicative or unsolicited messages. You may not use the Site in association with infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; use or introduce material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; interfere with or disrupt the integrity or performance of the Site; or attempt to gain unauthorized access to the Site.
- Taxes and Duties. Top Energy’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state), local, or other taxes based solely on Top Energy's income. At present that means You are responsible for payment of Texas Sales Tax.
- Payment Information.You agree to provide Top Energy with complete and accurate payment and contact information. This information includes Your legal personal or company name, street address, e-mail address, and name and telephone number of an authorized billing contact. All fees are payable in U.S. dollars. Top Energy reserves the right to determine acceptable methods of payment for the use of its Site.
- Top Energy Proprietary Information.The Site and its Contents (“Top Energy IP”) are owned or licensed by Top Energy and protected by U.S. and international copyright, trademark, service mark, patent and/or other proprietary rights and laws. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to You any license or right under copyright or other intellectual property right law. No part of the Top Energy IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement.
- Top Energy may suspend or terminate this Agreement at any time for violation of this Agreement with no refund and without limitation of any other available legal remedies. Top Energy may also modify, delete or adapt the Site at any time without any notice or obligation to the user at Top Energy's sole discretion.
- Remedies Not Limiting.The remedies provided in this Section are in no way limiting of one another or of any other rights and remedies granted to Top Energy under this Agreement. Top Energy may choose to, but is not required to, place Your account on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.
- Sections 3b (Remedies Not Limiting), 4 (Disclaimer of Warranties), 5 (Limitation of Liability), 6 (Indemnification), and 7 (Additional Miscellaneous Provisions), and this “Survival” provision, shall survive termination of this Agreement regardless of the way this Agreement was terminated.
- Disclaimer of Warranties. Top Energy does not represent or warrant that this Site will be error-free, or free of viruses or other harmful components. The Site is provided on an “as is” and “as available” basis, and, unless otherwise stated in this Agreement, Top Energy expressly disclaims all warranties, including the warranties of merchantability, and fitness for a particular purpose and non-infringement. Top Energy disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to any errors in or omissions from this Site or any other unavailability caused by circumstances beyond Top Energy's reasonable control, including, without limitation, force majeure, acts of government, floods, fires, earthquake, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks
- Limitation of Liability.
- THE LIABILITY OF TOP ENERGY TO YOU FOR ANY AND ALL CLAIMS, CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT PAID TO TOP ENERGY BY YOU.
- TOP ENERGY SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THIS SITE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- You agree to indemnify, defend and hold harmless Top Energy, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Site or Site from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees (collectively, “Losses”), resulting from or in connection with: (i) any breach by You of this Agreement; (ii) violation of any applicable laws by You; or (iii) any misuse, loss, damage, corruption, or destruction of the Site by You.
- Additional Miscellaneous Provisions.
- Top Energy respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Top Energy will respond expeditiously to claims of copyright infringement committed using the Site if such claims are reported in writing to Top Energy's Designated Copyright Agent at the address listed below.
- Governing Law; Jurisdiction; Venue; Attorney’s Fees.This Agreement shall be construed in accordance with, and governed by, solely by the laws of the State of Texas, except for that body of law addressing conflicts of law. For any disputes that are not resolved by way of arbitration, as outlined below, You hereby consent to exclusive venue and jurisdiction for actions concerning or relating to this Agreement in the federal or state courts located in Travis County, Texas. In any action to interpret or enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees it incurs. You agree to submit to the jurisdiction of said courts and waive any defense of forum non conveniens. You waive all rights to jury trials.
- Any controversy or claim arising out of or relating to this Agreement shall be finally settled by binding arbitration in accordance with the most current commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted by one arbitrator chosen by Top Energy, and shall be conducted in Travis County, Texas, and judgment on the arbitration award may be entered in any court having jurisdiction. However, subject to the foregoing arbitration provision, You agree to submit to the personal jurisdiction of the courts located within the city and county of Austin, Travis County, Texas. Either You or Top Energy may seek an interim or preliminary relief from a court of competent jurisdiction in Travis County, Texas, necessary to protect the rights or property of You or Top Energy (or its agents, suppliers, and subcontractors) pending the completion of arbitration. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST TOP ENERGY ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
- You are responsible for compliance with all import and export regulations (including documentation requirements of any authority); compliance with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries. You acknowledge that the Site may be subject to export restrictions imposed by the United States government and governments of any of the other countries in which Top Energy operates. You will comply with, and fully co-operate with Top Energy in relation to these restrictions.
- This Agreement shall be binding upon and shall be for the benefit of Top Energy and its respective legal representatives, successors, and permitted assigns; provided, that You shall not be entitled to assign, sublicense, or delegate this Agreement, in whole or in part, without Top Energy's prior written consent, which consent may be withheld in the sole discretion of Top Energy. Any attempted assignment, delegation, or assumption of this Agreement not in accordance with this Section will be of no force or effect.
- Entire Agreement; Waiver; Relationship of the Parties.This Agreement constitutes the entire agreement between the parties as to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements, representations, and understandings, whether oral or in writing, except as may be expressly incorporated by reference into this Agreement. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by both parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, or employment relationship between the Parties, and You shall not have any right to bind Top Energy or incur any obligation on Top Energy's behalf without Top Energy's prior written consent.
- Severability of Terms.If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, You nevertheless agree that the court should endeavor to give effect to the intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
- Notices and Contact Information.Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and sent to Top Energy either in writing to:
Top Energy Training
Center for Petroleum and Geosystems Engineering
The University of Texas at Austin
1 University Station C0304
Austin, Texas 78712
or to this email address: [email protected]
Written or email notice shall only be effective upon confirmation of receipt by Top Energy.