Customer Terms and Conditions
Rubicon Standard Terms & Conditions for Purchase Orders
The following terms and conditions, are the terms and conditions under which Rubicon sells products and/or services to a Customer, unless there is a valid written contract between Rubicon and the Customer, in which case such contract prevails. Rubicon reserves the right, at its sole discretion, to change, modify, add or remove portions of these terms and conditions, at any time, with or without prior notice to the Customer.
- 0 TERMS AND CONDITIONS
- Definitions and Interpretation
- 1.1 In this Agreement, unless the context otherwise requires:
- Definitions and Interpretation
“Affiliate” means, in respect of a party, any of its subsidiaries, its parent company, any subsidiaries of its parent company and any other company within its group of companies;
“Agreements” means these terms and conditions and includes the Particulars and any schedules or appendices;
“Associated Person” means any owner (including any principal, shareholder or other person or entity having a direct or indirect financial interest), officer, director, partner, principal, employee, agent or any other person or entity, directly or indirectly, controlling, controlled by, or under common control with, the Customer;
“Commencement Date” means the date set forth in the Particulars;
“Confidential Information” means the terms of this Agreement and all information belonging or relating to a Party, whether oral, graphic, electronic, written or in any other form, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or that is in fact, or should reasonably be regarded as, confidential to the Party to whom it belongs or relates;
“Consequential Damages” means all indirect, incidental or consequential losses or damages including, without limitation, special, punitive and exemplary damages, loss of earnings or profits, loss of business opportunities, loss of production, loss of value or decrease in earnings from any goods or property including reserves, loss of use, expenses for lost rig or pipeline time, loss of financial advantage, business interruption or downtime;
“Customer” means the customer set forth in the Particulars;
“Customer Indemnified Parties” means Customer and any of its subsidiaries and affiliated companies, its contractors working at the Service Location, and their directors, officers, employees and agents;
“Excluded Taxes” means Taxes on, based on, measured by or with respect to Rubicon’s net or gross income, capital, receipts, franchises, excess profits or conduct of business; and Taxes imposed in a jurisdiction as a consequence of Rubicon carrying on a trade or business or having a permanent establishment in that jurisdiction or otherwise being organized under the laws of or being a resident in that jurisdiction;
“Expiry Date” means the date on which the Term expires;
“Party” means either of Rubicon or the Customer (as the case may be) and “Party” means collectively Rubicon and the Customer;
“person” means any individual, corporation, partnership, joint venture, trust, unincorporated association, or any other judicial entity or a government, state or agency or political subdivision thereof;
“Products” means the products listed in the Particulars;
“Rates” means the rates set forth in the Particulars;
“Service Location” means the location set forth in the Particulars;
“Services” means the services set forth in the Particulars including the provision of equipment and goods in relation to those services and technical advice on the maintenance and operation or use of Rubicon’s Products;
“Taxes” and “Tax” means and includes, without limitation, all present or future taxes of any nature and howsoever termed, license and documentation fees, goods and services taxes, levies, fiscal charges, imposts, duties, fees, assessments, surcharges, withholdings, restrictions, conditions or other charges of whatever nature and however arising which are imposed, assessed, charged, levied, withheld, deducted, demanded or otherwise applied pursuant to applicable law by any person at any time, together with all interest thereon and penalties or similar liabilities with respect thereto but excluding Excluded Taxes, and “Taxation” shall be construed accordingly;
“Rubicon Indemnified Parties” means Rubicon, Rubicon’s directors, officers, employees, agents, consultants and representatives, any of Rubicon’s subsidiaries, its parent company, any subsidiaries of its parent company and any other company within its group of companies, and any sub-contractors employed by Rubicon with the consent of the Customer and their directors, officers, employees, agents, consultants and representatives; and
“Term” means the number of years referred to in the Particulars.
- 1.2 In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) the headings are used for convenience only and do not affect the interpretation of this Agreement;
(c) wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”; and
(d) references to any Party include its successors and permitted assigns.
- 0 AGREEMENT TO PROVIDE PRODUCTS AND SERVICES
- Provision of Products and Services. Subject to the terms of this Agreement, Rubicon agrees to provide to the Customer, and the Customer agrees to purchase from Rubicon, the Products and Services during the Term. The Products and Services will be provided at such times and for such duration as may from time to time be requested by the Customer in writing to Rubicon.
- The Customer acknowledges that Rubicon is an independent contractor, and that neither Rubicon nor any of its principals, partners, employees or subcontractors are servants, agents or employees of the Customer. Nothing in this Agreement shall be construed as creating any agency, partnership, employment or contractor relationship between Rubicon and the Customer.
- 0 CONTROL OF SERVICE LOCATION
- Customer acknowledges that the conditions of, and surrounding, the Service Location at which Rubicon provides Services to Customer have not been created by Rubicon and that Rubicon has no means of determining the hazards and risks to be encountered while performing the Services. Customer accepts all risks and liabilities arising from conditions at the Service Location.
- 0 COMMENCEMENT OF SERVICES
- Rubicon will use its reasonable endeavors to provide the Services on the date and within the time limit specified in the Customer’s order or its written request for Services. However, Rubicon accepts no liability arising from any delay in commencement or completion of the Services for any reason whatsoever.
- 0 TERM AND TERMINATION
- This Agreement shall commence on the Commencement Date and shall continue for duration of the Term unless terminated earlier in accordance with the terms of this clause 5.
- If either Party wishes to renew this Agreement it shall give written notice to the other Party at least three (3) months (but not more than six (6) months) prior to the Expiry Date. On receipt of the written offer to renew this Agreement, both Parties will enter into a new agreement on Rubicon’s then current standard terms and conditions of sale.
- Notwithstanding Clause 5.4, either Party may terminate this Agreement at any time by providing thirty (30) days prior written notice to the other Party.
- Rubicon may terminate this Agreement immediately by written notice to the Customer at any time if the Customer: (a) commits any breach of this Agreement; or (b) fails to pay any amount owing to Rubicon within seven (7) days of due date for payment.
- In the event that Customer terminates this Agreement without cause subsequent to first mobilization and prior to completion by Rubicon, Customer will pay to Rubicon all expenses reasonably and necessarily incurred by Rubicon in connection with the early termination, plus an additional amount of fifteen per cent (15%) of all such expenses, together with demobilization costs and all rates and charges payable for the Products dispatched and Services performed by Rubicon to the date of such early termination, where applicable.
- 0 PRICE AND PAYMENT
- Price Adjustments. Unless otherwise agreed by the Parties in writing, the Rates apply to regular and usual Services. Rates are subject to change by Rubicon in its sole discretion upon thirty (30) days prior written notice to the Customer.
- All payments to be paid by the Customer to Rubicon under this Agreement will be paid to Rubicon by bank wire transfer within thirty (30) days of receipt of an invoice from Rubicon. No payment to Rubicon will be in cash or by bearer instrument.
- No Set Off. All payments made by the Customer to Rubicon under this Agreement will be made in full, without set-off or counterclaim or deduction whatsoever and will be free and clear of any deduction or withholding for or on account of any Tax.
- Late Payments. At Rubicon’s option, interest may be charged at a rate of ten per cent (10%) per annum unless such rate contravenes local law in which case the interest charged will be the maximum allowed by law.
- 0 REPRESENTATIONS AND WARRANTIES RELATING TO PRODUCTS AND SERVICES
- Rubicon warrants that the Products it provides to Customer will be free from defect in materials and workmanship and conform to the plans, specifications and technical information, if any, provided by Customer in writing and accepted by Rubicon in writing. Rubicon warrants that in rendering the Services, Rubicon shall abide by good oilfield and engineering practices. In making recommendations with respect to the Services, Rubicon will provide Customer with the benefit of its best judgment based upon the use of sound engineering principles. Customer acknowledges that Rubicon’s liability and Customer’s exclusive remedy in any cause of action (whether in contract, tort, breach of warranty or otherwise) arising out of the provision of Services is expressly limited to the re-performance of such Services, the replacement of goods or to the allowance to Customer of credit for the cost of such Services. When any Services are rendered it is understood that Customer retains full custody, control, supervision of and responsibility for the work, persons and/or the well and the conduct, supervision and/or operation thereof in connection with the Services provided, and Customer agrees that a representative of Customer will be present at all times to direct such operations and take responsibility for the work. Should such representative be absent for any reason, such absence shall not be deemed a relinquishment to or assumption by Rubicon of such control.
- Other than as provided in clause 10.2, Rubicon gives no representation, warranty or guarantee (arising by law or otherwise), express or implied, with respect to the Services. In particular, Customer acknowledges that any recommendations made by Rubicon are based upon data provided to Rubicon by Customer or its agents or representatives, and are arrived at through the use of interpretation tools, inferences from measurements and empirical relationships which are not infallible, as a result of which test results may differ. Accordingly, Rubicon does not guarantee any particular results from the provision of its Services. Other than as provided in clause 9, Rubicon disclaims any obligation or liability arising in contract or tort, whether or not arising from the negligence of Rubicon, or for any Consequential Damages, it being agreed that all risks incidental thereto are to be borne by the Customer and that Rubicon shall not have any responsibility or liability with respect thereto. In rendering Services pursuant to this Agreement, Rubicon only agrees that it will exert its best efforts in any Services undertaken. Customer agrees to pay for all Services regardless of the results obtained.
- 0 CUSTOMER’S COVENANTS
- During the Term the Customer covenants and agrees that it will:
(a) Comply with all applicable laws, regulations and legal requirements from time to time in force and which are binding on it, its business operations or any of its property;
(b) Require its employees to use devices, guards, and proper safe operating procedures as are prudent in connection with the provision of the Services;
(c) Not remove or modify, nor permit the removal or modification of, any safety device, guard or warning sign; and
(d) Provide all means that may be necessary to effectively protect all of its and Rubicon’s employees from serious bodily injury which otherwise may result from the provision of the Services; however, the Customer acknowledges and agrees that Rubicon employees will operate at all times under Rubicon’s standards of safety and Rubicon and its employees shall be at liberty to refuse to perform any Services under working conditions which, in the sole and absolute opinion of Rubicon or its employees acting reasonably, present an unacceptable risk to safety.
- 0 LIABILITY AND INDEMNITY
- Except as otherwise expressly provided herein, the Customer shall indemnify and hold harmless Rubicon from all costs and claims arising out of loss of life or personal injury to the Customer Indemnified Parties caused by the Customer’s negligence regardless of the fault or negligence, whether sole, joint, concurrent, active or passive or otherwise of the Customer Indemnified Parties. Rubicon shall bear an identical obligation to the Customer in respect of the Rubicon Indemnified Parties.
- Except as otherwise expressly noted herein, the Customer shall indemnify and hold harmless Rubicon from all costs and claims as a result of loss of or damage to property belonging to the Customer Indemnified Parties caused by the Customer’s negligence, regardless of the fault or negligence, whether sole, joint, concurrent, active or passive or otherwise of the Customer Indemnified Parties. Rubicon shall bear an identical obligation to the Customer in respect of Rubicon Indemnified Parties.
- Damage to Rubicon’s property during transportation. When, as a result of Services being provided, property of Rubicon is being transported by conveyance belonging to, contracted by or arranged for by Customer, or such property is otherwise in the care of or being operated or controlled by Customer or any other third party by agreement with the Customer, the Customer shall be responsible for and shall indemnify and hold harmless Rubicon from and against all costs, claims, or damages resulting from loss of or damage to Rubicon’s property regardless of the joint, sole, concurrent, active or passive negligence of any party but subject to the negligence of Rubicon.
- Rubicon shall have no liability for and Customer shall indemnify, defend and hold Rubicon harmless against all losses, liabilities, damages, expenses, penalties and claims from or on account of personal injury or damage to property arising out of the operation, handling, or transportation of any Products sold or rented to Customer by Rubicon while the Products are in the possession or control of Customer. For purposes of this paragraph, possession or control by the Customer shall mean: (a) with respect to Products sold to Customer, all points in time following delivery of a Product to a carrier for shipment to Customer: and (b) with respect to Products rented to Customer, all points in time following delivery of a Product to a carrier for shipment to Customer until the Product is returned or recovered by Rubicon and in the possession of Rubicon.
- Rubicon shall have no liability for and Customer shall indemnify, defend and hold harmless Rubicon against all loss, damage, expense, penalty or claim by the Customer, or its agents, employees, officers, contractors or subcontractors or any third persons arising out of Services provided by Rubicon even if caused or contributed to by the negligence or other legal fault of Rubicon.
- Blowout and Rupture. The Customer shall at all times be liable for death of or bodily injury to, or loss of or damage to property belonging to, all persons including Rubicon, its employees, representatives or agents or the employees of Rubicon’s subcontractors, incidental to or resulting from the rupture of a pressure vessel, pipe work, containment device or pipeline or blowout or other loss of control of a well, and for all costs of regaining control of any rupture, blowout or other loss of control, subsurface damage, reservoir damage or surface damage resulting from subsurface damage; and in addition, the Customer shall defend, indemnify and hold harmless Rubicon Indemnified Parties from all costs and claims arising from such bodily injury, death or property loss, regardless of the fault or negligence, whether sole, joint, concurrent, active, passive or otherwise of Rubicon but excepting Rubicon’s gross negligence or willful misconduct. Where the Customer is liable for Rubicon’s property or equipment under this Agreement, Customer shall reimburse Rubicon the amount of the then current repair cost, or the full new replacement cost, as Rubicon may reasonably require.
- Rubicon’s Pollution. Rubicon shall be liable at all times for, and shall defend, indemnify and hold harmless Customer Indemnified Parties from all costs and claims on account of pollution or contamination directly associated with Rubicon’s equipment and operation regardless of the fault or negligence, whether sole, joint, concurrent, active, passive or otherwise of the Customer or howsoever arising but excluding the gross negligence or willful acts or omissions of the Customer.
- Other Pollution. The Customer shall be liable at all times for, and shall defend, indemnify and hold Rubicon Indemnified Parties harmless from all costs and claims on account of all other pollution or contamination not referred to in clause 10.7 including, but not limited to, contamination in any way connected with the use of radioactive material in the wellbore, pollution from slush pit breakage or seepage, fire, blowout, catering, or any other uncontrolled flow of oil, gas, water or other substance as well as the use or disposition of chemically treated drilling fluids, cuttings or lost circulation materials or fluids or items or equipment in the possession and control of the Customer and directly associated with the Customer’s equipment or facilities regardless of the fault or negligence, whether sole, joint, concurrent, active, passive or otherwise, of Rubicon.
- Downhole Loss. The Customer shall indemnify and hold Rubicon Indemnified Parties harmless from and against loss of or damage to Rubicon’s down hole equipment while below the rotary table including the cost, if any, of recovery regardless of the fault or negligence, whether sole, joint, concurrent, active of passive of Rubicon but excluding Rubicon’s gross negligence or willful misconduct. Customer’s liability for loss or damage shall be either the actual repair or replacement cost as Rubicon may reasonably require.
- Third Parties. Subject to the specific indemnity provisions contained in this Agreement, losses to Third Parties and their personnel and property shall be governed according to law and any finding or apportionment of negligence between the Parties. For the purpose of this clause 9.10, the term “Third Parties” shall mean all parties other than Customer Indemnified Parties and Rubicon Indemnified Parties.
- Consequential Damages. Neither Rubicon nor Customer shall be liable to the other for any Consequential Damages.
- All indemnity obligations of Customer under this Agreement are in no way limited by the insurance provisions of this Agreement as the Parties intend that the indemnity obligations shall be enforceable regardless of the fulfillment of the insurance provisions and regardless of the legal enforceability of those provisions. All insurance provisions of Customer under this Agreement are in no way limited by the indemnity provisions of this Agreement as the Parties intend that the insurance obligations shall be enforceable regardless of the fulfillment of the indemnity provisions and regardless of the legal enforceability of those provisions.
- All indemnity obligations of Customer include indemnity against claims for personal injury, property damage, death, special damage, consequential damage, indirect damages, incidental damage, reservoir damage, subsurface damage, surface damage, pollution, contamination, contribution and indemnity against claims based in whole or in part on negligence, products liability, defective design, failure to warn, subsurface trespass, breach of express or implied warranty, breach of contract and violation of any state, federal, county, parish municipal or other governmental statute, ordinance, act, rule or regulation.
- 0 PRODUCT WARRANTY
- Customer acknowledges and agrees that Products rented or sold by Rubicon to Customer pursuant to this Agreement have been selected by Customer based upon Customer’s own criteria and that such selection and all determinations made by Customer with respect thereto have been made according to Customer’s own choice and not upon any representation or warranty, express or implied, by Rubicon or its employees, officers, agents or other representatives.
- Rubicon expressly warrants to Customer that Products manufactured by Rubicon and sold or rented to Customer shall be free from defects in material and workmanship as of the date of delivery of such Products to Customer.
- Products sold or rented to Customer pursuant to this Agreement may:
(a) be newly manufactured;
(b) be assembled from new or serviceable used parts that are equivalent to new parts in performance; or
(c) have been previously used or installed.
- For the purposes of this clause 10, the phrase “defects in material and workmanship” means a deviation in a material respect from the published specifications or performance standards for the purchased or rented Products or from otherwise identical products manufactured or rebuilt by Rubicon.
- Rubicon’s sole liability and Customer’s exclusive remedy for breach of Rubicon warranty as provided for in clause 10.2 of this Agreement is limited to credit for the purchase or rental price of the Product or the repair or replacement of any defective Product or part or component of a Product provided Rubicon is notified thereof by Customer within thirty (30) calendar days of receipt of the Products and which Rubicon determines was defective due to faulty material or workmanship. Customer shall pay transportation and insurance costs to ship Products to Rubicon if an off-site repair location is designated by Rubicon. Rubicon will pay the return costs if the Product was defective.
- The express warranty provided for in this clause 10 does not cover repair of defects attributable to:
(a) Products not manufactured by Rubicon;
(b) accidents, misuse, negligence or failure of Customer to follow instructions for proper use, care and maintenance of Products; or
(c) external factors not within the control of the Parties including fire, flood, and acts of God.
- Customer acknowledges and agrees that in no event shall Rubicon be liable for:
(a) any Consequential Damages even if Rubicon knew or should have known of the possibility of such damages; or
(b) claims, demands or actions against Customer by any person or entity, except as provided for in clause 13.
- With respect to Products manufactured or rebuilt by someone other than Rubicon (“Third Party Products”) but sold or rented to Customer by Rubicon, Rubicon makes no warranties, express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose, which warranties are hereby expressly waived by Customer, and Customer agrees that it is purchasing or renting the Third Party Products, as applicable, “as is”, and Customer agrees to look solely to the warranties and remedies, if any, provided by the manufacturer of such Products. Customer acknowledges and agrees that Rubicon has not made and does not make any representation, express warranty, implied warranty or covenant whatsoever with respect to merchantability, condition, quality, durability, suitability or fitness for purpose of the Third Party Products in any respect or in connection with or for any purpose or use of Customer, or any other representation, warranty or covenant of any kind or character, express or implied with respect thereto, and Customer expressly waives any warranties to which it may be entitled, by operation of law or otherwise, express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose.
- 0 RESPONSIBILITY
- Customer acknowledges and agrees that Products rented to Customer pursuant to this Agreement are and shall remain the property of Rubicon. Customer further agrees, at its sole cost and expense, to maintain each such Product in good working order, ordinary wear and tear excepted, and to protect, preserve and repair each such Product while in the possession or under the control of Customer. Customer, however, agrees not to repair, alter, or modify any Product without the prior written consent of Rubicon. Customer further agrees that if any such Product requires repairs not covered by an express warranty set forth in this Agreement, Customer shall notify Rubicon of the need for such repair and Rubicon, at its option, shall have the right to make such repair. Customer, at its expense, shall deliver the damaged Product to Rubicon and Rubicon shall make such repairs or cause such repairs to be made and Customer shall pay to Rubicon, on demand: (a) the cost of such repair as provided for in Rubicon’s then current pricing schedules; and (b) all shipping costs incurred by Rubicon in returning the repaired Product to Customer. If any Product rented to Customer pursuant to this Agreement is not in good working order, ordinary wear and tear excepted, at such time as it is returned to or recovered by Rubicon, Customer shall pay to Rubicon the cost to repair or replace such Product at the rates in effect in Rubicon’s pricing schedules at the time of such return or recovery.
- Services and Products. Customer recognizes that above-surface and subsurface conditions in and about any well or work may involve hazards to life and property and obstacles to the functioning of Products and the performance of Services, and that such conditions are under the exclusive control of Customer and that such conditions have not been inspected or investigated by Rubicon and are not now and have never been subject to the control of Rubicon. Rubicon is not responsible for such conditions and assumes no liability or responsibilities for such conditions. In the event of failure of Products or Services furnished pursuant to this Agreement, Rubicon shall not be liable for loss of any well or hole itself, including, without limitation, the casing or destruction of productive formation, strata or reservoir beneath the surface or any damage arising from pollution or contamination, or any other Consequential Damages, even if Rubicon knew or should have known of the possibility of such damages.
- Rubicon reserves the right to remove Products rented to Customer or its equipment and personnel used in connection with Services from any well at any time if in its sole opinion the well or other conditions make such action advisable.
- 0 INSURANCE
- Each Party shall carry insurance (with reliable insurance companies that are satisfactory to the other Party) in the amounts set forth in the Particulars. All such insurance shall be effective prior to the commencement of any work under this Agreement. In each such policy, to the extent of the liabilities assumed by the Party providing such insurance, that Party shall cause: (i) all deductibles to be for its own account: (ii) the insurer to waive all rights of subrogation against the other Party: (iii) the other Party to be listed as additional insured: and (iv) such policy to be primary as to any existing valid and collectible insurance of Rubicon or otherwise. Before engaging in any work under this Agreement, each Party must deliver to the other Party a satisfactory certificate of insurance evidencing the foregoing insurance. Each Party shall cause its insurer(s) to agree to give the other Party at least thirty (30) days’ written notice of cancellation or expiration of any such policies or any other changes that would materially reduce the limits of coverage of such policies.
- Notwithstanding clause 12.1, the Parties agree that with respect to all Services performed under this Agreement, Customer has the option to pay to Rubicon’s insurer the premium required by Rubicon’s insurer or its agents or authorized representatives to extend all of Rubicon’s insurance policies to include coverage for Customer indemnities as required under this Agreement, and such insurance protection shall be governed by the law specified in clause 26.1. If Customer makes this election, Rubicon will arrange to have Customer billed for the premium by Rubicon’s insurers. The Parties agree that the insurance obligations set forth in this Agreement are for the purpose of supporting Rubicon’s indemnity obligations. The insurance requirements in no way expand Rubicon’s indemnity obligations and do not take precedence over or supersede the indemnity obligations which Customer owes to Rubicon. The insurance coverage which Rubicon is obliged to obtain, including waiver of subrogation and additional insured status, is not designed to protect Customer indemnities from those risks specifically allocated to the Customer in this Agreement or to those risks not specifically addressed herein.
- Notwithstanding any provision of this Agreement to the contrary, failure to secure the insurance coverage set out in this clause shall not relieve either Party from its obligations under this Agreement.
- 0 PATENT INFRINGEMENT
- Rubicon, at its own costs and expense, will defend and indemnify Customer against any claim charging Customer with infringement of a patent of a third party to the extent such suit relates to Products sold or rented to Customer pursuant to this Agreement and which are manufactured by Rubicon, provided Customer: (a) gives Rubicon prompt written notice of such claim; (b) permits Rubicon to defend or settle the claim; and (c) provides all reasonable assistance to Rubicon in defending or settling the claim.
- As to any Product manufactured by Rubicon and subject to the provisions of clause 13.1, which is or, in the opinion of Rubicon may become subject to a claim of infringement, Rubicon may elect to: (a) obtain the right of continued use of such Product for Customer; or (b) replace or modify such Product to avoid such claim. If neither alternative is available on commercially reasonable terms, then Customer, at the request of Rubicon, will discontinue use and return such Product to Rubicon and, if the Product was purchased by Customer pursuant to this Agreement, Rubicon will grant a credit for the purchase price paid to it, less a reasonable offset for its use. If the particular Product has been rented from Rubicon by Customer, Customer shall discontinue use and return such Product to Rubicon and thereafter this Agreement shall terminate with respect to the rental terms of such Product; provided, in such event, Customer shall receive a pro-rata refund of any advance rental payments which it has made to Rubicon for the rental of such Product.
- 0 CONFIDENTIALITY AND INTELLECTUAL PROPERTY
- Confidentiality: Each party (“Receiving Party”) receiving, possessing or otherwise acquiring Confidential Information of the other party (“Disclosing Party”) acknowledges that the Disclosing Party’s Confidential Information is the property of, confidential to or a trade secret of the Disclosing Party. The Receiving Party must:
(a) keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all the Disclosing Party’s Confidential Information coming into its possession or control;
(c) not use the Confidential Information for its personal benefit or for the benefit of any person or entity other than the Disclosing Party and only use the Confidential Information to the extent necessary to perform its obligations under this Agreement;
(d) not memorise, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement; and
(e) take all reasonable steps to ensure that its employees comply at all times with the terms of this clause 14.1.
- Patent Indemnity/Limitation. Equipment or materials that Rubicon has manufactured, purchased or leased are warranted to be free of patent or other intellectual property restrictions. Rubicon gives no other warranty against patent or intellectual property infringement and accepts no liability in respect thereof. For the avoidance of doubt, if Rubicon supplies equipment or materials which have been varied or specifically purchased or leased to meet Customer’s specific requirements or to Customer’s own specifications, or if Rubicon uses Customer supplied or required equipment or materials, no warranty is given and Customer accepts full liability in respect of infringement of patents or other intellectual property rights and agrees to indemnify Rubicon against all claims, losses or costs arising there from.
- Rights to Intellectual Property. Rubicon shall be the sole owner of, and be entitled to the full and unrestricted right, including the right to apply for patent or other protection in its own name, to exploit any invention, technical information or know-how, any intellectual property arising from or developed in the course of providing the Services.
- No Reverse Engineering. During the Term and for an unlimited period thereafter, the Customer shall, and shall procure that its Affiliates and Associated Persons will not, use any of confidential information of Rubicon or its Affiliates (including any knowledge or know-how relating to the Products (or any other goods and products of Rubicon and its Affiliates (“Rubicon’s Other Products”)) acquired pursuant to the performance of this Agreement) to develop or in any way replicate, or help any other person to develop or in any way replicate, any goods or products that are substantially similar to the Products or any of Rubicon’s Other Products or are reasonably likely to compete with the Products or Rubicon’s Other Products in any jurisdiction.
- 0 PROHIBITIONS ON RE-SALE OR RE-EXPORT
15.1 Rubicon’s Products and Services are supplied to the Customer at the destination indicated on the purchase order or invoice for its own use. Customer warrants that it will be the end-user of any equipment, materials, components, chemicals, product or any other item supplied by Rubicon to the Customer, and that it will not re-sell, re-export, transfer or otherwise dispose of any portion of the equipment, materials, components, chemicals, product or any other item to any other person or entity or to any other country.
15.2 Customer is aware that the sale or provision of certain goods to certain countries is restricted by the laws of the country in which Rubicon is incorporated or registered, the U.S., the U.K., and the European Union or of other countries whose laws may apply to either Rubicon, Rubicon’s Affiliates or the Customer, and that the Customer will not do any act or resell any item in violation of such laws.
15.3 Customer is familiar with and will comply with all applicable laws and regulations, in particular U.S. export controls and economic sanctions including but not limited to the Export Administration Regulations (EAR) of the U.S. Department of Commerce and the regulations of the Office of Foreign Assets Control of the U.S. Department of the Treasury.
15.4 Customer further certifies that neither it nor any of its employees, affiliates or representatives are or ever have been included on the Denied Persons List, the Entity List, the Unverified List, the Specially Designated Nationals List, the Debarred List or the Nonproliferation Sanctions, the World Bank list of ineligible firms, or any similar lists.
16.0 TERMS OF PAYMENT
All payments to Rubicon by the Customer shall be made within thirty (30) days of the date of the invoice. Interest shall be charged monthly thereafter at the rate of two percent (2%) per month from the date due until the date the outstanding amount is paid.
- 0 TRANSPORTATION TERMS
Transportation with respect to Products sold or rented to Customer, unless otherwise quoted, are F.O.B shipping point. No freight will be charged on any shipment picked up by Customer at Rubicon facilities or delivered by Rubicon vehicles. Title to Products sold and risk of loss of Products sold or rented to Customer pass to Customer upon delivery to carrier.
- 0 SHIPPING DATES
All statements of date of shipment are estimates. The shipment of any order may be delayed by causes beyond Rubicon’s control and Rubicon shall not be responsible for any such delays.
- 0 TAXES AND OTHER CHARGES
Any Tax based on or measured by the charges or collections for the sale or rental of Products or the rendering of Services, and any customs, excise, import and other duties, documentation charges, freight charges and transfer fees shall be paid by Customer and added to the stated price of the Products and Services.
- 0 CANCELLATION AND RETURNS
Orders for Products of special design, size or material are not cancelable after receipt at the factories of Rubicon. Special prices will be charged for altered Products made to Customer specifications. Credit will not be allowed for Products returned without prior written authority.
- 0 CHANGE OF DESIGN
Rubicon reserves the right to change or modify the design of any Product without obligation to furnish or install such changes or modifications on Products previously or subsequently sold or rented to Customer.
- 0 RENTAL OF PRODUCTS
Rental charges commence when Products leave Rubicon’s factory or service base point and continue until returned to Rubicon. Cost of restoring rented Products to good working order, except ordinary wear and tear, after use will be charged to Customer at Rubicon’s then current schedule of prices and charges. Customer shall, at its expense, return all rented Products to Rubicon’s factory or service base point upon the expiration of the term of the rental.
- 0 SECURITY
In addition to any statutory lien which may be available to secure any sums due under this Agreement, Customer grants Rubicon a security interest on any Products purchased by Customer pursuant to this Agreement and upon Customer’s interest in the hydrocarbons, and the proceeds from the sale of such hydrocarbons, which may be produced from any well or wells with respect to which Rubicon may furnish Services or Products, whether sold or rented, pursuant to this Agreement. That portion of any insurance proceeds payable to Customer which reimburses Customer for the loss, damage or destruction of Products furnished by Rubicon are assigned to Rubicon. Customer waives any right of subrogation that it may have with respect to any insurance policy.
- 0 WELL CONDITIONS
Well conditions which prevent satisfactory operation of Products or equipment used in connection with the provision of Services or the use of Products do not relieve Customer of responsibility for charges for Services or Products furnished or the purchase price thereof or rental due thereon.
- 0 DEFAULT
If the Customer fails to comply with any of the terms or conditions of this Agreement or if Customer becomes insolvent, bankrupt, fails to pay its debts as they mature or if the Products rented to Customer or any part of the Products are abused, illegally used or misused or if Rubicon deems the accrued or unbilled rent or purchase price insecure, Rubicon shall have the right, without legal proceedings, to the extent permitted by the laws of location where Products are located, to enter the premises where Products are located and take possession thereof without being liable to any party and Rubicon also shall have the right to exercise any other right and/or remedy available to it at law. Upon Rubicon repossessing its rented Products, this Agreement shall be terminated, but the rental costs shall remain due and payable. Costs of repossessing Products shall be the sole cost of Customer and shall be paid to Rubicon on demand.
- 0 DISPUTE RESOLUTION AND GOVERNING LAW
- The terms and provisions of this Agreement shall be governed by, interpreted and construed in accordance with the laws of the country in which Rubicon is incorporated or registered.
- In the event of a dispute between the Parties arising out of or relating to this Agreement, or the breach thereof, either Party may give notice to the other Party of the dispute and the Parties shall make every effort to amicably resolve, reconcile, and settle such dispute between them. To this extent the Parties shall consult and negotiate with each other, in good faith and understanding of their mutual interests to reach a just and equitable solution satisfactory to both Parties. Should an amicable resolution not be possible within thirty (30) days of the date of the notice, either Party may refer the dispute to arbitration administered by the DIFC-LCIA Arbitration Centre (Centre) in accordance with the Arbitration Rules of the Centre before one arbitrator appointed by the Centre in compliance with its rules. The venue of the arbitration shall be the Dubai International Financial Centre and the language of the arbitration shall be English. The Parties agree that the award rendered by the arbitrator shall be final and binding on both Parties and judgment may be entered upon it in any court having jurisdiction thereof. The successful party to the arbitration shall be entitled to an award for reasonable legal fees, as determined by the arbitrator.
- 0 MISCELLANEOUS
- Force Majeure. Neither Party shall be responsible for any failure or delay in complying with the terms of this Agreement, other than an obligation to pay money, where such failure or delay is due to causes beyond its reasonable control. These causes shall include, but not be restricted to: fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor disputes, labor shortages, transportation embargoes or failures or delays in transportation, inability to secure necessary raw materials or machinery, acts of God, acts of any government, whether national, municipal or otherwise, or any agency thereof and judicial action. The Party so affected by the force majeure shall notify the other Party as soon as practicable of its existence. The Parties shall then meet and endeavor to alleviate the effect and extent thereof. If the force majeure event persists for a period in excess of thirty (30) days either Party may terminate this Agreement by giving the other Party thirty (30) days’ written notice thereof.
- This Agreement may not be amended except by an agreement in writing between the Parties.
- In the event that any provision of this Agreement is prohibited or unenforceable in any jurisdiction such prohibition or unenforceability shall not invalidate or render unenforceable such provision in any other jurisdiction, nor shall it invalidate or render unenforceable the other provisions of this Agreement.
- Notices and all other communications provided for in this Agreement must be in writing and are deemed be given when personally delivered or when couriered or upon proof of facsimile transmission to the following address:
(a) If to Rubicon, at its principal place of business for the time being; and
(b) If to Customer, to its address set out in this Agreement, or to such other address as either Party may furnish to the other in writing in accordance herewith, except that notices of changes of address are effective only upon receipt.
- Except as otherwise provided in this Agreement, each Party agrees to pay its own expenses incurred in connection with the transactions contemplated by this Agreement, including without limitation, any legal fees.
- Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Customer, Rubicon and their respective successors and permitted assigns. The Customer may not assign any of its rights or transfer or purport to transfer any of its obligations without the prior written consent of Rubicon. Rubicon may assign any of its rights or transfer any of its obligations without the prior written consent of the Customer.
- Further Assurances. Subject to the limitations otherwise provided in this Agreement, the Parties shall from time to time do and perform such other and further acts and execute and deliver any and all further agreements and instruments as may be required by law or reasonably requested by the other Party to carry out and affect the intent and purpose of this Agreement.
- Sole and Entire Agreement. This Agreement is the sole and entire agreement between Rubicon and the Customer in relation to the provision of the Products and Services, and supersedes all previous agreements in relation to those Products and Services. Where applicable, Customer’s verbal or written direction to supply the Products, equipment, goods and Services shall, in the absence of a signature to this Agreement, constitute acceptance of all the terms and conditions of this Agreement.