TnC - old - ZAX

 

By accepting the Services, Customer accepts these terms:

 

 

 

1.1 “Affiliate” means any entity controlling, controlled by or under common control with the referenced Party, where ‘control’ is defined as the ownership of fifty-one percent (51%) or more of the voting shares of such entity.

 

1.2 “Agreement” means the Quotation signed by Customer and accepted by Company, and these terms and conditions, with any subsequent Amendments.

 

1.3 “Amendment” means any addendum, modification or supplement to this Agreement signed by the authorized representatives of Company and Customer.

 

1.4 “Company” means the legal entity indicated in the Quotation, and its Affiliates, and is sometimes referred to collectively as Stochastic Asset Management.

 

1.5 “Company Group” means Company, its contractors and subcontractors of any tier, co-interest owners, joint venturers, colessees, and invitees and its/their Affiliates, shareholders, directors, officers, employees, agents, consultants and servants.

 

1.6 “Confidential Information” includes, but is not limited to: any Services provided, and any equipment or other materials contained within or used by Company to perform or provide the Services; and, unless specified otherwise herein, other trade secrets, confidential or proprietary information exchanged between the Parties.

 

1.7 “Customer” means the party indicated in the Quotation, and its Affiliates, requesting any Services.

 

1.8 “Customer Group” means Customer, its clients, if any, its contractors and subcontractors of any tier, co-interest owners, joint venturers, co-lessees, and invitees and its/their Affiliates, shareholders, directors, officers, employees, agents, consultants and servants.

 

1.9 “Intellectual Property” means all trademarks or trade names (whether common-law or registered), logos, icons, patents, mask works, patent applications, copyrights (whether published or unpublished), trade secrets, know-how, designs, methods, processes, work-flow(s), inventions, proprietary information and transferable rights under written agreements relating to Services.

 

1.10 “Injury Claim” means all liability, claims, demands, proceedings and causes of action for or on account of bodily injury, illness, or death.

 

1.11 “Party” means Company or Customer; “Parties” means Company and Customer.

 

1.12 “Quotation” means Company’s contract form listing the Services requested by Customer.

 

1.13 “Services” means any consulting, installation, training, on-site support, or other services, not including the delivery of any hardware, set out in the Scope of Work in the Quotation and in accordance with this Agreement.

 

1.14 “Scope of Work” means the specific Services outlined in the Quotation.

 

1.15 “Term” means, for Services, the period specified in the Quotation.

 

 

 

 

2.1 Company will provide Customer with the Services described in one or more Scope(s) of Work to be attached to and/or incorporated into the Quotation, according to the terms and conditions of the Agreement.

 

2.2 Company will use reasonable efforts to perform any Services within the time schedule provided in the Scope of Work (or, if no time schedule is provided, within a reasonable time). However, any such schedule is only an approximation and Company’s performance may be delayed by events beyond Company’s reasonable control, Force Majeure, or Customer’s acts or omissions. When a Party anticipates or becomes aware of a delay, it will notify the other Party as soon as possible.  

 

2.3 Where for any reason any adjustments are required to the Services or to any time schedule, Company reserves the right to charge additional amounts. The Parties will work together in good faith to mitigate the impact of any changes and will mutually agree on any necessary changes to the Quotation (“Change Order”). Company will not be obliged to perform any changed Service unless and until such Change Order is agreed. If no such Change Order is agreed within fourteen (14) days, then either Party may terminate the provision of the Services upon fourteen (14) days written notice to the other Party, and Customer will pay all charges due up to the termination date.

 

2.4 Whilst performing the Services Company’s employees, agents and subcontractors will abide by Stochastic Asset Management Standards and Guidelines regarding health, safety and ethical conduct.

 

 

 

 

3.1 All applicable fees are specified in the Quotation. If the Quotation does not include the fees for the Services, the fees will be at the then current prices in Company’s price book. Company reserves the right to increase pricing at any time.

 

3.2 Company may charge a handling fee of 15% for all third party services required to carry out the Services, and for other direct reimbursable items, including travel and lodging.

 

3.3 If the Services are suspended by Customer, Company may charge mobilisation and demobilisation fees, and stand-by fees equal to the applicable daily rate fees specified in the Quotation.

 

3.4 Fees listed do not include any local, state, provincial, federal or national sales, use, excise, personal property, value added, import/export, or other similar taxes or duties, which may be assessed in connection with Services. In the event Company must pay such taxes upfront, Customer agrees to reimburse Company within thirty (30) days after receipt of Company's invoice. Taxes based upon Company's income are the sole responsibility of Company.

 

 

 

4.1 Unless otherwise stated in the Quotation, payment for Services is due within thirty (30) days from the date of invoice, in the currency indicated on the Quotation. If no currency is indicated, U.S. Dollars will apply for all Services delivered.

 

4.2 If Customer in good faith does not agree with the amount of an invoice and chooses to dispute any portion of it, Customer agrees that it will pay any non-disputed portion and notify Company within thirty (30) days of receipt of an invoice of the reasons for disputing all or part of that invoice, and Company agrees to provide Customer with the necessary information to support the dispute. Customer agrees that Company may cancel, suspend or terminate the Services for which payment is in dispute without incurring any liability to Customer.

 

4.3 Customer may not set off or withhold payments due on one invoice against fees payable from another invoice.  

 

4.4 Customer agrees to pay interest on all due and unpaid invoices in accordance with this Agreement. Interest will accrue at the higher of 1.5% per month or part thereof or the maximum amount permitted by law. Customer agrees to pay all reasonable and documented costs and attorneys’ fees incurred by Company if any unpaid amounts are collected through legal proceedings or by a collection agent.

 

 

 

5.2 Provided Company receives all payments for the Services, Company will undertake reasonable efforts to correct any errors or omissions regarding the Services that are brought to its attention within three (3) months after the Services are completed.  

 

5.3 EXCEPT FOR THE PRECEDING WARRANTY, COMPANY MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH ITS PERFORMANCE OF THE SERVICES OR, ANY DELIVERABLES HEREUNDER, OR CUSTOMER’S USE OF THE SERVICES OR DELIVERABLES.  

 

5.4 For the avoidance of doubt, Company will not as part of the Services verify or warrant the accuracy or completeness of Customer’s data assets. Company does not warrant the accuracy of data transmitted into Company by electronic processes or other means, and will not be responsible for accidental or intentional interception of data by others. Customer is advised to make backup copies of any information or data provided to Company. Company’s liability for any loss by Company of Customer’s data, information or other assets will be limited as outlined in this Agreement.  

 

 

 

 

6.1 Subject to the paragraphs below, Company agrees to release, indemnify, defend, protect, and hold harmless Customer Group from and against any Injury Claim from or regarding any member of Company Group, or damage to, or loss or destruction of property whether owned, hired, leased or otherwise provided, by Company Group.  

 

6.2 Customer agrees to release, indemnify, defend, protect, and hold harmless Company Group from and against any Injury Claim from or regarding any member of Customer Group, or damage to or loss or destruction of property whether owned, hired, leased or otherwise provided by any member of Customer Group.  

 

6.3 To the extent of its willful misconduct or deliberate default, Company agrees to release, indemnify, defend, protect and hold harmless Customer Group from and against any and all liability, claims, demands, proceedings and causes of action due to third party claims arising from or in connection with this Agreement. To the extent of Customer’s willful misconduct or deliberate default, Customer agrees to release, indemnify, defend, protect and hold harmless Company Group from and against any and all liability, claims, demands, proceedings and causes of action due to third party claims arising from or in connection with this Agreement.  

 

6.4 Notwithstanding anything to the contrary herein, Customer will be responsible for and agrees to release, indemnify, defend, protect, and hold harmless Company Group from and against all liability, claims, demands, proceedings and causes of action arising out of or in connection with: (a) transportation of Company property, equipment, materials or products from Customer offices or remote site(s); (b) while Company property, equipment, materials or products is being used hereunder by any person or entity other than any member of Company Group, whether in an emergency or otherwise; or (c) for any liability, claims, demands, proceedings and causes of action exceeding Company’s monetary cap.  

 

6.5 Except as set forth above in this Section  6, the indemnities contained herein will apply even if caused, in whole or in part, by the joint, sole, or concurrent negligence, gross negligence, willful misconduct, deliberate default, strict liability or other fault, whether active or passive, of any person, including the indemnitee. Additionally, to the extent either Party has contractual indemnities with a third party that relate to the Services, the terms of these indemnities expressly apply to any liability, claims, demands, proceedings and causes of action asserted against Company or Customer by such third party.  

 

6.6 Each Party will notify the other Party immediately of any claim, demand, or suit that may be presented to or served upon it by any party arising out of or as a result of Services, affording such other Party full opportunity to assume the defense of such claim, demand, or suit and to protect itself under the obligations assumed by such Party.  

 

6.7 The indemnitee shall not make any declaration, arrangement or admission in respect of such claim and shall take all necessary actions to enable the indemnifying Party to have control and conduct of such claim, any litigation, or any negotiations related to the claim.

 

 

 

 

7.1 Company owns and will retain all rights to the Intellectual Property embodied in the Services or which are created in the course of providing such Services to Customer. This Agreement does not grant Customer any Intellectual Property rights in the Services.

 

7.2 In connection with the Services, Company may develop new technology and/or improve existing Company technology either on its own or in conjunction with Customer. Ownership of all such technology and all associated Intellectual Property will automatically vest in and remain Company’s exclusive property. Where the right to use any third-party Intellectual Property is required for the Services, and such Intellectual Property cannot lawfully be used for the purposes of this Agreement without a license from such third party, Company will use all reasonable endeavors to secure such rights for itself and Customer upon terms that permit the use of such Intellectual Property by Customer. Ownership of all third-party Intellectual Property will remain such third party’s exclusive property.

 

7.3 The Parties agree to use all reasonable safeguards to protect the other Party’s Confidential Information as the Party would protect its own Confidential Information of similar importance, but in no event less than industry standard. The Parties will disclose the Confidential Information only to its employees on a need-to-know basis and, except as is necessary to provide or use any Services, not to any third party without the prior written consent of the disclosing Party. If this Agreement is cancelled or terminated, the receiving Party agrees to immediately return or destroy, at the disclosing Party’s direction, all of the other Party’s Confidential Information.

 

7.4 Customer warrants and represents that it owns and has the right to disclose any Confidential Information that will be provided to Company for the purpose of enabling Company to provide the Services. Customer will retain title to its Confidential Information.  

 

7.5 Unless Customer expressly requests otherwise in writing, Company may at its sole discretion retain for any period of time copies of Customer’s Confidential Information supplied to Company in connection with the Services, but Company will be under no obligation to retain such material.

 

7.6 The confidentiality obligations contained in this section 7 do not apply to Confidential Information which is: (i) rightfully in a Party’s possession prior to the time it is received from the other Party; (ii) publicly known without fault of the receiving Party before or after disclosure to it; (iii) provided to a Party by a third party who has an authorized and unrestricted right to disclose it; (iv) independently developed by the receiving Party without breach of this Agreement or reference to the information provided by the disclosing Party; or (v) disclosed as required by law following prior written notice to the other Party.

 

7.7 Customer agrees that Company, in its sole discretion, may incorporate as its own and use any and all comments, suggestions, requests, requirements, improvements, feedback, or other input Customer provides regarding the Services rendered by Company (“Feedback”).  Feedback is not Confidential Information and Customer hereby assigns to Company all rights, title and interest in any Feedback and agrees to execute all documents necessary to carry out such assignment.

 

 

 

 

8.1 Company agrees to indemnify Customer and pay any costs and damages finally awarded for claims by a third party based on an actual or alleged infringement of any patent, copyright or registered trademark granted or registered at the effective date of this Agreement in any State which is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, and resulting from the use of Services in accordance with their intended purpose as specified in the Scope of Work for the Services.

 

8.2 Company will have no liability or obligation to Customer under this section 8 for any claim based upon: (i) Company's compliance with Customer’s specifications, where such specifications require Company to modify Services; (ii) the combination of Services with other software, products or services not furnished or approved in writing by Company; (iii) any unauthorised addition to or modification of Services; (iv) any use of Services that does not correspond to Stochastic Asset Management published standards or specifications.

 

Customer will defend and hold Company Group harmless against any expense, judgment or loss for alleged infringement of any patent, copyright or other proprietary right which results from a claim based upon (a), (b), (c) or (d) above.     8.3 Company’s indemnity above is conditional upon Customer giving prompt notice to Company of any claim for infringement and Customer not making any declaration, arrangement or admission in respect of such claims and taking all necessary actions to enable Company to conduct on Customer’s behalf any litigation or negotiations related to the claims raised. The foregoing states the Company’s entire liability for patent, copyright and trademark infringement.

 

8.4 If Services become, or in Company's opinion are likely to become, the subject of a claim of infringement or the like under such patent or copyright laws, Customer will permit Company, at Company's option, to either: (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services, so that it becomes noninfringing (provided the same level of functionality is maintained); or (iii) grant Customer a credit for the remaining value of the infringing Services.

 

 

9.0     Limitations on Liabilities and Remedies

 

 

9.1 Customer can recover from Company damages up to the aggregate amount of the fees Customer has paid over the previous 12 month period for the Services that have caused such damages.

 

9.2 To the full extent permitted by law, Customer agrees that neither Customer nor any third party may recover any special, punitive, incidental, indirect or consequential damages and any damages resulting from:

 

(i)    loss of use;  

 

(ii)   loss of data;  

 

(iii)  loss of revenue, profit, anticipated profit or loss of business;

 

(iv)  loss of investment; or  

 

(v)   cost of substitute services;

 

 

whether arising out of or in connection with the use of the Services or any deliverables (and anything produced therefrom), regardless of the form of action upon which a claim for such damages may be based, whether in contract, tort (including negligence), strict product liability or any other legal or equitable theory.  

 

 

These limitations apply even if replacement or a refund for Services does not fully compensate Customer for any losses and regardless of: i) whether Company knew of or should have known about the possibility of damages; and/or ii) if any limited remedy fails in its essential purpose.  

 

 

9.3 Customer will protect, indemnify, hold harmless and defend Company Group of and from any loss, cost, damage, or expense, including attorneys' fees, above or outside Company’s limit of liability.

 

9.5 Customer agrees that Company will have no liability for: (i) any ordinary or direct losses which might arise by reason of Customer’s use of the Services; and (ii) any loss, damage or destruction of Customer data during the delivery of Services unless such loss, damage of destruction is due to Company’s intentional misconduct, in which case Company’s liability for damages will be limited to the actual costs of recovering and reloading such data from the most recent database back-up copy verified and authenticated by Customer. Notwithstanding anything to the contrary contained herein, in no event will Company be liable to re-accomplish Customer’s data assets regardless of the form or action upon which such liability may be based, whether in contract, tort (including negligence, gross negligence or willful misconduct), strict product liability or any other legal or equitable theory. For purposes of this Agreement, “reaccomplish” includes obtaining data by means of re-drilling or relogging a well, or reshooting a seismic line or survey.

 

9.6 All Interpretations, Recommendations, and Well or Reservoir Descriptions (as defined below) and decisions resulting from use of the Services or any deliverables are opinions and decisions based on inferences from measurements and empirical relationships which are not infallible and involve individual opinions and judgments with respect to which competent specialists may differ. In addition, such Interpretations, Recommendations, Well or Reservoir Descriptions, and decisions may involve information and data furnished by Customer the accuracy and reliability of which are not the responsibility of Company. Therefore, Company provides no warranty for accuracy, correctness or completeness of, and Customer takes full responsibility for, all Interpretations, Recommendations, Well or Reservoir Descriptions and decisions resulting from use of the  Services or any deliverables.   

 

9.7 Under no circumstances should Customer treat or rely upon the use of the Services or any deliverables, including any Interpretation, Recommendation, and Well or Reservoir Description, as the sole basis for any decision, be it operational, technical, financial, commercial or otherwise, relating to the wellbore, the reservoir or the field, including, but not limited to, any decision relating to well planning, drilling safety and performance, field development, well control, production optimization, contingency planning, and infrastructure and systems design and optimization.  

 

"Interpretations, Recommendations and Well or Reservoir Descriptions" includes the processing, review and analysis of data, the making of models, workflows, estimates, descriptions, and simulations using data, and the recommending of an action or set of actions based on the foregoing.

 

 

 

 

Neither party will be responsible for delays or failures in performance resulting from events or circumstances beyond the control of such party and which, by the exercise of reasonable due diligence of such Party, could not reasonably have been avoided. Such events will include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental acts or regulations, fires, communication line failures, power failures, and earthquakes. Force Majeure cannot be used to excuse or delay any payment obligation.

 

 

 

 

(a)    United Arab Emirates. If Customer uses the Services in the United Arab Emirates, UAE law governs the interpretation of this Agreement, regardless of its conflicts of law principles.

 

(b)     Outside of the United Arab Emirates. If Customer uses the Services in any other country, the laws of the country specified in the Quotation apply and if the Quotation is silent, the laws of England apply regardless of its conflicts of law principles.

 

 

 

 

Any controversy or claim arising out of or relating to the Services covered in the Agreement with Customer, or any breach thereof, will be settled by arbitration to be held in the English language at a mutually agreeable location in accordance with the commercial arbitration Rules of the the International Chamber of Commerce. Any award rendered by the Arbitrator(s) may include costs against either Party and may be entered into a court of competent jurisdiction for enforcement, but under no circumstances are the Arbitrator(s) authorized or empowered to award special, punitive or multiple damages against either Party. Any action brought against Company under this Agreement must be brought within twelve (12) months after the cause of action arises.

 

 

 

 

Customer may not assign or transfer any of its rights or obligations under the Agreement without the express written consent of Company, and, if consent is granted, Customer agrees to be responsible for the assignee’s strict adherence to all terms and conditions of the Agreement. Company may assign its rights and obligations under the Agreement to any Stochastic Asset Management Affiliate company or to its successor in interest in the event of a merger, corporate reorganization, or sale of all or substantially all of its assets relating to its business to which the Agreement pertains.  

 

 

 

 

The use of the Services in certain countries, that are subject to European Union, United States, United Nations, or other similar trade sanctions, may be prohibited. Customer is responsible for complying with all applicable trade control regulations. Customer’s use of the Services in violation of applicable trade control regulations will result in the automatic termination of this Agreement.

 

 

 

 

Customer may not, without first obtaining Company’s prior written approval, use any Company or Stochastic Asset Management trade names, trademarks, service marks, company names or other trade designations. Unless required by applicable laws, rules or regulations, neither Party shall issue or publish, or permit any of its agent or affiliate to issue or publish, any press releases or otherwise publicize or cause any of its agent or affiliate to make any public Scope, or otherwise publicize any information with respect to i) the content of this Agreement, and/or ii) any transactions or occurrences arising as a result of performance under this Agreement, without the prior written approval of the other Party. Furthermore, the Parties agree to confer with each other prior to any publication of any such information and set forth such agreement in a separate writing.

 

 

 

 

16.1  Each Quotation may have its own term and expiration. Termination of one Quotation will not affect other Quotations. The Agreement will terminate at the expiry or termination the last outstanding Quotation.

 

16.2  Until Company substantially completes the Services, Customer may terminate the Services at any time with forty-five (45) days prior written notice to Company, subject to payment of liquidated damages equal to 10% of the total fees due for those Services.

 

16.3   Either Party may immediately terminate any applicable Services: (a) if the other Party has committed a material breach of the Agreement and does not remedy such breach within thirty (30) days of written notice of the breach; or (b) if the other Party becomes bankrupt or insolvent, or proceedings are commenced for it to be wound up or put under receivership; or (c) any change in law prevents Company from providing all or any part of the Services. Under any such circumstances Customer will pay for all Services delivered up to the termination date and Company will have no liability to deliver any Services after the termination date.  

 

16.4 If Customer terminates the Quotation under Clause 16.2 or Stochastic Asset Management terminate the Quotation under Clause 16.3, Customer shall pay all documented and reasonable costs, charges and expenses incurred by Stochastic Asset Management as a result of such termination.

 

 

 

 

17.1 Company may freely sub-contract any part of the Services to its selected sub-contractors. Company may at any time obtain the assistance of its Affiliates in the performance of the Services.  

 

17.2  Customer will not solicit the employment of any Company employee until not less than six (6) months has elapsed from the receipt of the final invoice for the Services.  

 

17.3 Company may provide services similar to the Services to other customers. The provision of Services does not create any partnership, joint venture, agency or employee/employer relationship of any kind between Company and Customer. Company is an independent contractor with respect to performance of the Services. All persons employed by each Party are, and will remain, the employees and agents of that Party and are not, and will not become, employees or agents of the other Party.

 

17.4 This Agreement supersedes any previous or contemporaneous communications, representations, or agreements by either Company or Customer, whether verbal or written, including any terms and conditions on any Customer Quotation. Customer has not relied upon any representations, oral or written, except as are made in this Agreement.  

 

17.5 In the event that this Agreement is executed in two languages, English will be the controlling language.

 

17.6 Additional orders subject to this Agreement may be placed by execution by the parties of an additional Quotation which references the unique contract number on the front of the Agreement.

 

17.7  Any modification or amendment to this Agreement must be in writing and signed by the authorized representatives of Company and Customer. The unenforceability of any provision hereunder will have no effect upon the remaining provisions, which will continue in full force and effect. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith or the arbitrator may modify this Agreement to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

 

17.8 The following provisions are intended to survive the termination or expiration of this Agreement: section 7, 8, 9, 11, 12 and 14.