BSE Services Terms
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TERMS AND CONDITIONS FOR SERVICES
Definitions. In addition to terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings, unless the context otherwise requires:
“Affiliate” or “Affiliates” means (in relation to either Party) any Person directly or indirectly controlled by, controlling, or under common control with that Party, including any of the foregoing which becomes an Affiliate after the date of an Order.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.
“Controlling” and “controlled” have correlative meanings.
“Applicable Law” means those laws (common or statutory), rules, regulations, codes, administrative and judicial orders and directives, rulings, interpretations, permit conditions and restrictions or similar requirements or actions of any federal, state, provincial, or local government, or any agency or executive or administrative body of any of the foregoing, in each case that govern or pertain, as of the date of the applicable Order, to (i) the Parties’ respective obligations under any Order; (ii) Blue Spark’s performance and/or Customer’s use of Services; and/or (iii) the health, safety and welfare of individuals working at or visiting any Work Site.
“Blue Spark” means and includes Blue Spark Energy Inc. (with respect to Services performed in Canada) or Blue Spark Energy LLC (with respect to Services performed in the United States of America (“U.S.”) and each of their respective Affiliates from time-to-time providing Services to or on behalf of Customer and identified as “Blue Spark” in the Order pertaining to such Services.
“Blue Spark Facility” means the Blue Spark manufacturing plant, stocking point or other location at or from which any materials, equipment, tools are delivered to Customer, as specified in Orders.
“Blue Spark Group” means and includes, individually or in any combination, Blue Spark and its Affiliates and each of their respective officers, directors, employees, contractors, subcontractors, consultants, vendors, agents, representatives, invitees, licensees, successors and/or assigns.
“Blue Spark Tools” means tools or equipment used or employed by Blue Spark in performing Services.
“Claim(s)” means all claims (including those for property damage, environmental damage, personal injury, illness, disease, maintenance, cure, loss of consortium, loss of support, or death), damages, liabilities (including contractual liabilities), losses, demands, liens, encumbrances, government imposed fines and/or penalties, causes of action of any kind (including actions in rem or in personam), obligations, costs, judgments, interest and awards (including payment of reasonable lawyers’ fees and costs of litigation), of any kind or character, whether under judicial proceedings, administrative proceedings or otherwise, arising out of, or in any way relating to Blue Spark’s performance of Services under any Order, and expressly including any claims that may be brought by (or losses suffered by) spouses, heirs, survivors, legal representatives, successors or assigns.
“Consequential Damages” shall mean and include (i) any indirect, incidental, special, punitive, exemplary or consequential damages or consequential losses of any nature whatsoever (whether or not foreseeable), and (ii) damages or losses, whether direct or indirect, for lost product or production, lost profit or revenue, loss of data, reservoir loss or damage, lost business, lost business opportunity or reputation, loss of or inability to use property and equipment, losses from business interruptions, losses resulting from failure to meet other contractual commitments or deadlines, or losses from downtime of facilities or vessels.
“Customer” means any Person for whom Blue Spark performs Services pursuant to Orders.
“Customer Group” means and includes, individually or in any combination, Customer and each of Customers Affiliates, clients (including any of its or their co- working, non-working, operating and any other interest owner), and their respective officers, directors, employees, contractors (except for members of Blue Spark Group), subcontractors, consultants, vendors, agents, representatives, invitees, licensees, successors and/or assigns.
“Dollars” or “$” means Canadian dollars with respect to Services performed (and indemnities associated therewith) in Canada and U.S. dollars with respect to Services performed (and indemnities associated therewith) in the U.S. or other jurisdictions unless otherwise stated in an Order.
“Force Majeure” means any act or event that renders it wholly or partially impossible for the affected Party to perform its obligations under any Order or delays such affected Party’s ability to do so, when such act or event (i) is beyond the reasonable control of the affected Party, (ii) is not due to the fault or negligence of the affected Party, and (iii) could not have been avoided by the affected Party by the exercise of reasonable diligence.
“Indemnify” or “Indemnification” means be liable for and, as a separate covenant, indemnify, defend and hold harmless.
“Intellectual Property” means all of a Party’s copyrights, patents, trade secrets, embedded or standalone software or firmware or other intellectual property rights associated with or incorporated in any ideas, concepts, know-how, techniques, processes, reports, or works of authorship owned, developed or created by the Party, and expressly includes, as to Blue Spark, any of the foregoing used or included in any Services or Blue Spark Tools.
“Order(s)” means the accepted transactions between Blue Spark and Customer for the performance of Services, which may be in any written form, including purchase orders, work orders, statements of work, quotations, emails or other written communication between the Parties, regardless of format, or orally.
“Person” means any legal or governmental entity, and any natural person.
“Products” means the Blue Spark Tools and any ancillary materials and consumables necessary to perform the Services.
“Service(s)” means the services to be furnished by Blue Spark to Customer pursuant to an Order with respect to the performance of wellsite activities by Blue Spark Energy using its proprietary technology (WASP®) that applies localized high power pressure pulses downhole in candidate wells, and shall include any Products and personnel to be provided by Blue Spark Energy as specified in an Order.
“Terms and Conditions” means these Terms and Conditions of Sale and Service.
“Third Party” means any Person other than Customer Group or Blue Spark Group. “Wild Well” means a well from which the escape of oil or gas is not intended and cannot be controlled by equipment used in normal drilling practice.
“Work Site” means the facility, site or location specified in an Order at which Blue Spark is to perform Services.
General Terms. As used in these Terms and Conditions, unless expressly stated otherwise, references to (a) “includes” or “including” means “including, without limitation” or “including, but not limited to”; (b) “and/or” means “either or both”; (c) “or” means “either” and (d) a “party” or “Party” mean Customer or Blue Spark and to the “parties” or “Parties” mean Customer and Blue Spark. Unless otherwise specified, all references in these Terms and Conditions to Articles or Sections are deemed references to the corresponding Articles or Sections in these Terms and Conditions.
1. ORDERS; CHANGE ORDERS; CREDIT; PAYMENT; TAXES
1.1 Orders. From time to time, at the request of Customer, Blue Spark shall perform Services for Customer as specified in Orders. Unless the Parties have entered into a separate, written, master services agreement, supply agreement or other contract which governs the Services, (a) each Order shall be subject to these Terms and Conditions, which shall control and govern all transactions between the Parties with respect to Services performed by Blue Spark, whether or not these Terms and Conditions are referred to in the Order; (b) no other, additional or different terms and conditions in any written or oral communication with respect to a transaction for Services (including the terms and conditions in any Customer request for proposal, request for quote, request for bid, purchase order, or similar document) shall vary or amend these Terms and Conditions; and (c) Orders submitted by Customer orally or via email shall be followed by a purchase order or other written confirmation of the Order within seven (7) days from the date of the oral or email order, failing which Blue Spark shall have no obligation to perform Services thereunder. In the event of a conflict between these Terms and Conditions and the terms in any Order, these Terms and Conditions shall control, unless the Order (i) makes specific reference to and identifies (by Section and/or subsection number) to the provision(s) of these Terms and Conditions to be modified, (ii) explicitly states the intention of the Parties to effect the modification thereof, and (iii) is executed on behalf of each Party by an authorized officer of the Party. Such modifications shall be effective for that Order only, and no agreement to modify these Terms and Conditions with respect to any particular Order shall have the effect of varying or amending those Terms and Conditions (or any others herein) with respect to any other or subsequent Order. Each Order shall constitute a separate agreement between the Parties. Only the Blue Spark legal entity performing Services under an Ordershall have any liability or responsibility with respect to such Services.
1.2 Cancellation of Orders. Customer may cancel any Order, in whole or in part, prior to being notified by Blue Spark that the Services to be performed thereunder are complete by providing Blue Spark with a written notice of cancellation. With respect to the cancelation of an Order for Services, Customer shall pay or reimburse Blue Spark for (i) all Services performed prior to the date Blue Spark receives the notice of cancellation, (ii) all costs incurred by Blue Spark which would not have been incurred, but for the cancellation, including vendor or subcontractor termination fees or charges; and (iii) any mobilization and demobilization costs incurred by Blue Spark.
1.3 Change Orders. Any Customer request for changes in the scope and/or scheduling of the Services to be provided under an Order must be given in the form of a written change order (“Change Order”) whenever possible, but may be given orally to Blue Spark’s Work Site supervisor when Work Site or other conditions demand an immediate response (and Blue Spark may rely on the authority of any Customer representative who makes such oral requests). Upon Blue Spark’s receipt of a Change Order, the Parties shall negotiate in good faith the terms to be included therein. Each Change Order shall reference the original Order and shall specify (i) the changes in the scope or timing of the Services to be provided under the affected Order, and (ii) the adjustment (if any) to be made to the fees and other amounts due Blue Spark in connection therewith, and shall be executed on behalf of each Party by an authorized officer. Upon its receipt of an oral request from a Customer representative to change the scope and/or scheduling of Services under any Order, Blue Spark shall proceed with same (unless such changes would require Blue Spark to perform Ultra-hazardous Work) and the changes shall be documented in a mutually acceptable Change Order (as specified above) within seven (7) days of Blue Spark’s receipt of the oral request, failing which Blue Spark shall not be required to continue with any requested changes to the Work, and may suspend the Work unless and until an appropriate Change Order has been executed by the Parties. If the Parties are unable to agree upon or fail to timely execute a Change Order with respect to orally requested changes to the Work, Blue Spark shall be entitled to permanently suspend the Work and cancel the affected Order, and Customer shall pay Blue Spark for all Work performed prior to the date of cancellation, as well as any applicable mobilization or demobilization charges or other costs incurred by Blue Spark.
1.4 Access and Unexpected Conditions. The Customer will ensure that prior to commencement of the Services, Blue Spark Energy will have clear access to the well treatment zones and that the condition of each wellbore is suitable to receive the Services. The Customer will directly bear the costs of any workover activity required to provide Blue Spark Energy with access to the well treatment zones and to prepare the wells for the Services. The Customer will provide Blue Spark Energy with access to, and ensure the cooperation and support of, any Customer personnel whose participation is required or recommended for Blue Spark Energy to effectively perform the Services. The Customer will further provide Blue Spark Energy with certain technical information and data regarding the subject well(s) (in form and substance acceptable to Blue Spark both prior to the provision of the Services (as applicable) and following such Services. The Customer will also provide Blue Spark with on-going access to production data and regular posttreatment updates to facilitate the evaluation by the parties of the Services and the post-treatment performance of the treated Customer well(s). If after commencing the performance of Services at any Work Site Blue Spark (a) encounters unexpected or hazardous Work Site conditions, or (b) determines that data or information provided by Customer was inaccurate or insufficient for the safe and efficient performance of the Services, as a result of which Blue Spark’s cost of, or the time or equipment required for, performance of any part of the Services under the applicable Order will or might be increased (whether by the need for different or additional tools, materials or personnel), Blue Spark may suspend its performance of the Services, without liability to Customer Group, and propose an equitable adjustment in price and time of performance for the affected Services, and Blue Spark shall not be required to proceed with same unless and until the Order has been modified accordingly in a written Change Order.
1.5 Credit. Blue Spark’s acceptance of any Order is subject to Customer establishing and maintaining credit satisfactory to Blue Spark. Blue Spark reserves the right to approve or reject the credit of any Customer and to establish credit terms for each Customer. Blue Spark can terminate any Order or modify its credit terms at any time prior to the performance of Services without further liability if Blue Spark’s assessment of Customer’s financial condition or creditworthiness changes. Blue Spark reserves the right, prior to performing any Services, to require that Customer prepay or furnish security for the performance of its obligations under any Order. Blue Spark may suspend any Services, without penalty or liability to Customer, if Customer’s financial condition changes and Customer fails to provide, upon request, adequate assurances of its performance.
1.6 Invoicing and Payment. Unless Blue Spark’s Credit Department has established other terms of payment, Customer shall pay the price(s), rates and other amounts stated on each invoice submitted by Blue Spark for Services performed within thirty (30) days of its receipt of Blue Spark’s invoice. Customer will pay Blue Spark for the Services whether or not the desired results are achieved. Invoices not paid in a timely manner will bear interest at the lesser of (i) one percent (1%) per month, or (ii) the highest rate allowed by Applicable Law until paid in full. Unless otherwise specified in the Order, all payments shall be made in the Dollars applicable under these Terms and Conditions and delivered to the address specified on Blue Spark’s invoice. All currency exchange rate changes, duties, taxes, etc. shall be paid by Customer. If Customer disputes any invoice or part thereof, it may withhold payment of the disputed amount(s), but shall nonetheless timely pay all undisputed amounts and promptly notify Blue Spark of the disputed amounts or items, specifying the invoice date and number, the amount of the disputed items or charges, and the Services involved. The parties will work in good faith to promptly resolve disputed amounts. Invoices not disputed by Customer within thirty (30) days of the invoice date shall be deemed accurate and Customer shall not thereafter be entitled to dispute any amount(s) reflected thereon. If payment of undisputed amounts is not timely received, or Blue Spark determines, in its reasonable discretion, that Customer’s financial condition or creditworthiness has become impaired, Blue Spark shall be entitled, at its option, to (i) require payment in advance for Services yet to be performed under any Order, (ii) reduce Customer’s payment terms under any Order to net ten (10) days of the invoice date, (iii) revoke any discounts available with respect to Services performed or to be performed under any Order (including discounts granted with respect to Services covered by any outstanding invoice), (iv) require that Customer furnish security with respect to its obligations under any Order, and/or (v) immediately suspend its performance of Services under any Order, or terminate any Order, without penalty or liability, and Customer shall Indemnify Blue Spark Group from and against any and all Claims resulting from or arising out of such suspension or termination. Customer will pay all Blue Spark’s costs, including lawyer’s fees and court costs, incurred in connection with the collection of past due amounts.
1.7 Taxes. Blue Spark and Customer are responsible for all taxes legally imposed upon their respective businesses, including taxes imposed upon their respective income, personnel or property. Such taxes are for Blue Spark’s or Customer’s account, as applicable, and each Party shall Indemnify the other from any liability with respect thereto. Unless otherwise stated in the Order, prices and rates quoted by Blue Spark are exclusive of taxes and duties. If not included in the price or rates, such taxes and duties shall be shown as a separate line item on the invoices submitted by Blue Spark, are in addition to the Prices or rates, and shall be for Customer’s account. The term “taxes and duties” shall mean all fees or charges imposed, assessed or levied by any governmental department, agency, or taxing authority and shall include property taxes, sales and use taxes, value added taxes, goods and services taxes, excise taxes, well services taxes, and/or other charges of a similar nature, customs or other duties, customs agent fees and other such charges and fees.
2.1 Pricing. Unless otherwise specified in the Order applicable thereto, prices for Services shall be those stated in the applicable Order. When prices are quoted by Blue Spark, same shall be valid for thirty (30) days only, unless otherwise noted in the quotation.
3. WARRANTIES AND REMEDIES
3.1 Service Warranties. Blue Spark does not guarantee the results of the Services it performs or represent that those Services will achieve Customer’s intended objectives, but does warrant to Customer that all Services performed by Blue Spark (i) shall be performed in a good and workmanlike manner, with reasonable diligence, using competent workmen and supervisors; (ii) shall be performed in accordance with the specifications (if any) detailed in the Order therefore; and (iii) shall be performed in accordance with standard industry practices and the requirements of any Applicable Laws.
3.2 Remedies for Breach of Service Warranties. Blue Spark shall, at its sole cost and expense, reperform any Services (or portion thereof) not conforming to the Service warranties specified above; provided Customer has notified Blue Spark of the non-conformity before Blue Spark leaves the Work Site. If the Parties mutually determine that Blue Spark’s reperformance of the Nonconforming Services cannot or will not provide a commercially viable remedy, Blue Spark shall, at its option, either refund or credit in full the Price paid by Customer for the Nonconforming Services. The foregoing remedies of reperformance of Nonconforming Services, or the refund or credit of the Price paid therefore, shall be the sole and exclusive obligations and responsibilities of Blue Spark (and the sole and exclusive remedies of Customer) with respect to Nonconforming Services.
3.3 Analytical Services. If the Services performed by Blue Spark require or involve (a) predicting results to be obtained from the Services; (b) estimating the type(s) or amount(s) of Products or Services that will be required in connection with the Services; (c) the interpretation of test or other data (including data gathered or generated by Blue Spark’s tools and equipment); or (d) the expression of opinions or the making of recommendations, either written or oral, based upon data, samples or information provided by Customer Group or Third Parties, or upon inferences from measurements and empirical relationships and assumptions (collectively “Analytical Services”), Blue Spark will give Customer the benefit of Blue Spark’s best judgment based on its experience and will perform all such Analytical Services in accordance with standard industry practices. Blue Spark makes no other warranty with respect to the Analytical Services, hereby disclaiming any warranty as to the adequacy, sufficiency or completeness of any data, reports, estimates, analyses, interpretations, modeling, predictions, opinions or recommendations provided to Customer in connection with the Analytical Services, all of which shall be considered advisory only. Customer assumes all responsibility for any decision made by- Customer based on Blue Spark’s Analytical Services, including any drilling, well treatment, production or other financial decision, and shall Indemnify Blue Spark against any liability with respectthereto.
3.4 DISCLAIMER OF WARRANTIES. Except for the express limited warranties set forth in these Terms and Conditions, Blue Spark makes no representation or warranty, express, implied, statutory or other (including all warranties arising from course of dealing, usage or trade practice) as to the design, operation or quality of material or workmanship of any tool, device or other equipment used by Blue Spark in the performance of the Services, and Blue Spark specifically disclaims any warranty of merchantability, warranty of fitness for a particular purpose, even if Blue Spark has been informed of such purpose, implied conditions of contract, or warranty of effectiveness in connection with the provision of the Services. Without limiting the foregoing, Blue Spark makes no warranty of any kind that the Services technologies or materials (including any software or hardware), or any products or results of the use of any of them: (a) will meet Customer’s or other persons’ requirements; (b), operate without interruption; (c) achieve any intended result; (d) be compatible, work with or operate in combination with any other item, goods, services, technologies or materials; (e) will be error free; or (f) that provision of Services will be uninterrupted.
3.5 Data Security and Storage. Blue Spark does not encrypt its electronic communications or the data and information it collects, uses and generates in the performance of Services and does not warrant against the accidental or intentional interception by Third Parties of any data or information transmitted between the Parties by email or other electronic means or against the corruption thereof during transmission. Blue Spark makes no representation or warranty whatsoever as to the sufficiency of its cyber-security measures, standards, policies or procedures to preserve and protect from unauthorized access any electronic or digital data or information pertaining to the Services it performs. Unless otherwise specified in the Order, Blue Spark also does not warrant or guarantee the length of time of storage of any electronic or digital data or information pertaining to the Services.
3.6 Permits and Licenses. Unless expressly stated in the applicable Order to be the responsibility of Blue Spark, Customer shall obtain all permits, licenses, easements, rights of way and/or other authorizations (collectively “Authorizations”) as may be necessary in connection with the Services to be performed by Blue Spark under an Order, and shall advise Blue Spark as to any areas for which Authorizations have been obtained, and the pertinent conditions of such Authorizations and special conditions thereof, if any. Blue Spark shall not be required to perform Services in any area requiring Authorizations until Customer has notified Blue Spark that Customer has obtained such Authorizations as it deems necessary and that it is acceptable for Blue Spark to proceed with the Services. Customer shall Indemnify Blue Spark from and against any and all Claims relating to Customer’s failure to obtain any necessary Authorizations.
4. INDEMNITY; RELEASE; WAIVER
4.1 Blue Spark Release and Indemnities. Except as provided in Section 4.3 and Articles 5, Blue Spark agrees to Indemnify Customer Group from and against any and all Claims arising out of, resulting from, or relating to bodily injury or death or damage to or loss of property suffered by any Blue Spark Group member arising out of or in connection with the Services performed by Blue Spark under any Order, except where such damage or loss was caused by the gross negligence of Customer.
4.2 Customer Release and Indemnities. Customer agrees to Indemnify Blue Spark Group from and against any and all Claims arising out of, resulting from, or relating to bodily injury or death or damage to or loss of property suffered by any Customer Group member arising out of or in connection with the Services performed by Blue Spark under any Order, except where such damage or loss was caused by the gross negligence of Blue Spark.
4.3 Catastrophic Losses. Notwithstanding any provision of these Terms and Conditions to the contrary and irrespective of the sole or contributory negligence or breach of duty (contractual, statutory or otherwise) or any liability in tort, contract, statute or otherwise at law of Blue Spark, Customer shall Indemnify Blue Spark Group from and against any and all Claimsrelating to or arising from: (a) any Wild Well event, or any fire or explosion at the Work Site, and all costs associated with any of the foregoing events, including (i) the cost of regaining control of a Wild Well, (ii) damages caused to a rig, a platform, a vessel, a pipeline, any subsea structure, or any other oil and gas infrastructure item, (iii) any downtime or remediation/recovery time, (iv) any costs of clean up or remediation with respect to any contamination or pollution, and/or (v) the costs of removing debris or wreckage; (b) loss or damage to any reservoir, formation, or well bore, and any other subsurface and subsea loss or damage, and/or the cost of redrilling a well or fishing; and/or (c) any loss, damage, injury and/ or death suffered or sustained by any Third Party resulting from any of the events described in subsections (a) or (b) above, including loss of, or damage to, oil or gas production facilities, pipelines, flow lines, subsea structures, or any other Third Party property, installations, rigs, platforms orvessels.
4.4 Pollution. (a) Except as stated in Section 4.3 above, Blue Spark shall assume all responsibility for and shall Indemnify Customer Group from and against all Claims relating to pollution or contamination which originates from Blue Spark’s Tools above the surface of the earth or water while such Blue Spark Tools are in Blue Spark’s sole possession or control, including costs of clean up or remediation associated therewith, resulting from the gross negligence of Blue Spark. (b) Except as stated in Section 4.4(a) above, Customer shall assume all responsibility for and shall Indemnify Blue Spark Group from and against all other Claims relating to pollution or contamination, including pollution or contamination (i) from naturally occurring radioactive material; or (ii) which originates above or below the surface of the earth or water, including cost of cleanup or remediation associated therewith.
4.5 Third Party Claims. Subject only to the provisions of Sections 4.3(c) and 4.4(b) above, each Party shall, to the full extent of its liability therefore under Applicable Law, be and remain responsible for, and shall Indemnify the other Party and all members of its Group from and against, any and all Claims resulting from or with respect to (a) bodily injury or death suffered by any Third Party, or (b) damage to or loss of property suffered or sustained by any Third Party.
4.6 Consequential Damages Waiver. (a) Notwithstanding any provision of these Terms and Conditions to the contrary, neither Party shall be liable to the other Party (or any member of the other Party’s Group) for, and each Party hereby waives and releases the other Party from and against, any and all Claims for Consequential Damages. (b) Without negating the preceding general exclusion of Consequential Damages, the Parties expressly agree that Claims with respect to the following shall NOT be considered Consequential Damages and are recoverable between the Parties: (i) Blue Spark claims with respect to amounts due to it for Services or Customer’s cancellation of an Order; (ii) damages for breaches of a Party’s obligations with respect to the Confidential Information (as hereinafter defined) or Intellectual Property of the other Party, or (iii) Third Party Claims with respect to which a Party is entitled to indemnification under these Terms and Conditions.
4.7 Express Negligence. SUBJECT ONLY TO LIMITATIONS IMPOSED BY APPLICABLE LAW OR PUBLIC POLICY, THE INDEMNITIES SET FORTH IN THIS ARTICLE ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF, NOTWITHSTANDING ANY STATUTE, RULE, OR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE NEGLIGENCE OR OTHER FAULT OR STRICT LIABILITY OF ANY OF THE INDEMNIFIED PARTIES. THE INDEMINITIES SET FORTH IN THIS ARTICLE APPLY REGARDLESS OF WHETHER OR NOT THE CLAIM OR LOSS IS CAUSED BY THE SOLE, JOINT, CONTRIBUTORY OR CONCURRENT NEGLIGENCE (IN ANY AMOUNT), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, STRICT LIABILITY, PRODUCT LIABILITY, BREACH OF WARRANTY, BREACH OF CONTRACT, BREACH OF STATUTE OR OTHER FAULT OR FORM OF LIABILITY OF ANY MEMBER OF BLUE SPARK GROUP, CUSTOMER GROUP, OR A THIRD PARTY, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, OR ANY PRE-EXISTING CONDITION.
4.8 Liability Cap. Save and except for Blue Spark’s Indemnification obligations under Sections 4.1 and 4.5 above, which shall not be so limited, and subject to the provisions of Section 3.4 limiting Blue Spark’s responsibility for breach of warranty claims, Blue Spark’s maximum aggregate liability with respect to Claims arising out of, or in any way relating to its performance of Services under any Order, whether sounding in contract or tort (including negligence, gross negligence, willful misconduct, strict liability and breach of statutory duty), at law or in equity, shall be limited to the aggregate amounts paid to Blue Spark for all Services performed by Blue Spark with respect to the applicable Order under which the Claim arose and Customer shall Indemnify Blue Spark against any such liability in excess of the Liability Cap.
5. BLUE SPARK TOOLS
Notwithstanding the provisions of Section 4.1 above, Customer agrees to pay for, or to reimburse Blue Spark for, any loss of or damage (which includes damage beyond repair) to Blue Spark Tools (i) that occurs while the Blue Spark Tools are in the hole, or in the drill string below the level of the rotary table; (ii) that results from the flow or existence of any substance from or in the reservoir or well (including corrosion, erosion, embrittlement or abrasion caused by the nature of any well effluent); or (iii) that occurs while the Blue Spark Tools are otherwise in the care, custody and control of any member of Customer Group (e.g., while being transported on, or being loaded or unloaded to/from, a conveyance provided or arranged for by any member of Customer Group). Unless the Parties stipulate a replacement price for Blue Spark Tools in the applicable Order or have entered into a separate, written agreement waiving Customer’s responsibility for (or specifying the replacement values applicable to) the specific lost Blue Spark Tool(s), Customer shall pay or reimburse Blue Spark for the replacement price, new, of lost Blue Spark Tools, plus any applicable taxes, as well as the costs of shipping the replacement tools or equipment from the manufacturer thereof to the Blue Spark’s designated location. The replacement price shall be Blue Spark’s current market price, without discounts (if the lost Blue Spark Tools were manufactured by Blue Spark) or the list purchase price of replacement tools or equipment purchased from a Third Party. Save and except for damage occasioned by normal wear and tear, Customer shall reimburse Blue Spark for the cost of repairing damaged Blue Spark Tools, including the costs of inspection and of shipping the damaged Blue Spark Tools to and from the place of repair
6. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY; DISCOVERIES
6.1 Confidential Information. (a) Each Party receiving Confidential Information (the “Receiving Party”) warrants and agrees that for a period of five (5) years after its receipt thereof, it shall maintain and safeguard the confidentiality of all Confidential Information received by it from the other Party (the “Disclosing Party”), handling and treating it with at least the same degree of care (and affording it the same protections) the Receiving Party observes and provides for its own confidential, proprietary and trade secret information, and in all events with at least a reasonable standard of care. For purposes of these Terms and Conditions, the term “Confidential Information” shall mean and include only confidential, nonpublic information provided by the Disclosing Party that describes, pertains or relates to the Services or the performance thereof (including information with respect to the Work Site) or to the tools, equipment, processes or technologies employed in performing the Services. Confidential Information shall not include information which is independently developed by a Party, without reliance upon or reference to the Confidential Information of the other Party. (b) Nothing contained herein shall in any way restrict or impair a Receiving Party’s right to use, disclose, or otherwise deal with any Confidential Information of the Disclosing Party which (i) is or becomes generally available in the public domain through no wrongful act or unauthorized disclosure of the Receiving Party, (ii) was lawfully in the Receiving Party’s possession prior to being provided to the Receiving Party, or (iii) is independently made available to the Receiving Party as a matter of right by a Third Party without obligations of secrecy. If a Receiving Party receives a request or order to disclose all or any part of the Disclosing Party’s Confidential Information under the terms of a discovery request, subpoena, or other order issued by a court or governmental body pursuant to law or regulation (a “Disclosure Request”), the Parties each hereby agree (i) to promptly notify the other Party of the existence, terms and circumstances surrounding the Disclosure Request and (ii) to reasonably assist the other Party in seeking an appropriate protective order and/or taking other legally-available steps to resist or narrow the scope of the Disclosure Request, and (iii) if disclosure of the Confidential Information of the Disclosing Party is required to prevent the Receiving Party from being held in contempt or subject to other penalty, to furnish only such portion of the Confidential Information as it is, in the opinion of the Receiving Party’s counsel, legally compelled to disclose.
6.2 Intellectual Property Rights. (a) Unless the Parties have otherwise agreed in writing, a Party’s Intellectual Property (and any development, enhancement, improvement, new application or derivative thereof, regardless of inventorship) shall be and remain the property of that Party. To the extent any Intellectual Property of a Party (and/or any enhancement, improvement, new application or derivative thereof) is incorporated into or necessary for the performance of any Services provided to Customer, that Party grants the other Party only a non-exclusive, non-transferrable, non-sub-licensable, revocable, royalty-free, right and license to use such Intellectual Property incorporated into the Services solely for the purpose of performing or using such Services, as applicable. Except as expressly stated herein, neither Blue Spark nor Customer shall have any right or license to use, whether directly or indirectly, any of the other’s Intellectual Property. The foregoing does not, however, grant or extend to Customer any ownership interest in or license to use (or right to sublicense) any computer programs, software or firmware used or employed by Blue Spark in performing Services or made available to Customer in connection therewith. (b) If Blue Spark and Customer or their respective employees jointly develop any Intellectual Property which is not an enhancement, improvement, new application or derivation of either Party’s Intellectual Property (“Joint IP”), the Joint IP shall be owned by Blue Spark. Blue Spark hereby grants Customer, a revocable, non-exclusive, non-sub-licensable, nontransferrable, royalty free, right and license to use the Joint IP incorporated into the Services solely for the purpose of using such Services.
6.3 Reverse Engineering Prohibited. Customer shall not (and shall not direct or permit any Third Party to) disassemble any Product(s), or decompile, analyze or otherwise seek to reverse engineer any Blue Spark Product(s) (or any component part thereof) in an effort to discover its design, structure, construction, or formulation, or the firmware used or embeddedtherein.
6.4 Injunctive Relief. Because money damages would not be a sufficient remedy for any breach or threatened breach by Customer of this Article 6, Blue Spark shall be entitled to specific performance, injunctive or other equitable relief to enforce the provisions of this Article 6, without the necessity of proving irreparable harm, without the necessity of posting bond, and without waiving any other remedies available to it, at law or in equity. In the event of such an action, Blue Spark shall be entitled to recover its reasonable lawyers’ fees and costs of litigation.
7.1 Insurance in Support of Indemnities. To the extent appropriate to cover its activities with respect to this Agreement and in support of its indemnity obligations under these Terms and Conditions, and not as an obligation separate or independent therefrom, Customer shall obtain and maintain, at its sole cost and expense, all mandatory insurance required by Applicable Law in the Territory. Aside from the mandatory insurance coverage, Customer must obtain and maintain policies of insurance of the following types (with coverage amounts not less than the minimum limitsspecified) (the “Insurance Policies”): (a) Comprehensive or Commercial General Liability Insurance (specifically including Customer’s contractual liability for the Party’s obligations to Indemnify the other Party), on an occurrence basis, to cover all damages caused to Third Parties. (b) an “All Risks” (Broad Form) Property / Contractors Equipment insurance policy, insuring against all risks including, without limitation, total loss, fire, theft, damage or destruction to Blue Spark’s Tools, on a replacement cost and/or agreed value basis. (c) Excess Liability Insurance over that required in Paragraph (a), (b) and (c) above, with minimum limits of $4,000,000.00 per occurrence and in the aggregate,specifically including Customer’s contractual Liability. (d) If the Services to be provided by Blue Spark involves well(s) that Customer operates, Customer shall procure and maintain, at its sole expense, a Control of Well Policy that covers the cost of regaining control of a wild well, pollution, stuck drillstem, and evacuation expense.
7.2 Blue Spark shall be named as an “Additional Insured” under the General Liability policy and “Loss Payee, as their interest may appear” under the All Risk (Broad Form) Property / Contractors Equipment policy, and such insurance policies shall: (a) be issued by reputable, financially sound and well-rated companies, duly authorized to operate in the Territory; (b) contain a cross liability/severability-of-interest or separation-of-theinsureds provision, affording defense and coverage for an insured in the event of a claim brought by another insured; (c) be primary and non-contributory and contain a waiver of subrogation in favor of Blue Spark or Blue Spark’s designee (assuming such designee is reasonably acceptable to the insurers). Customer shall give Blue Spark a Certificate of Insurance as proof of such insurance; and (d) provide 30 days prior written notice of cancellation.
7.3 Customer gives Blue Spark the right to receive the proceeds of all insurance at any time covering the Blue Spark Tools and Services. Loss, or destruction of, or damage to Blue Spark’s Tools will not excuse Customer from making payments under these Terms and Conditions, unless the insurance proceeds paid to Blue Spark pay all amounts owing under these Terms and Conditions. Salvage shall be disposed of as the insurer and/or Blue Spark may elect.
7.4 Such insurance policies shall be in such amounts and subject to such deductibles as the Parties may agree based upon standards prevailing in the industry at the time, but at least Five Million U.S. Dollars ($5,000,000) per occurrence and Ten Million U.S. Dollars ($10,000,000) annually in the aggregate.
7.5 The insurance policies required herein shall be maintained during the term of any Order. The General Liability insurance policy shall be issued on an “occurrence based” basis, for a period of at least two (2) years thereafter. Customer shall be solely responsible for the payment of insurance premiums and any deductible under any such policies.
7.6 If Customer fails to acquire or maintain the insurance, then Customer shall be liable to Blue Spark for amounts that would have been payable by the underwriter had such a policy been place. Failure on the part of Blue Spark to request proof of insurance from Customer shall not constitute a waiver of any requirement of Customer to obtain or maintain such insurance.
7.7 The insurance coverages specified in Section 7 represents minimum requirements and are not to be construed to void or limit Customer’s indemnity obligations under this Agreement.
7.8 Indemnity not Limited by Insurance Coverage. The insurance coverages specified in Section 7.1 represent minimum requirements and are not to be construed to void or limit Customer’s indemnity obligations under these Terms and Conditions.
8. LAWS AND REGULATIONS
8.1 Trade Compliance. (a) The Parties each represent, covenant and agree that all activities undertaken by it in furtherance of these Terms and Conditions or any Order contemplated hereunder, including any action undertaken by a Group member on behalf of it, will be carried out in strict compliance with all Applicable Laws. (b) Either Party shall have the right, in its sole discretion, to immediately suspend performance or to terminate any Order if (i) applicable comprehensive sanctions are imposed, or (ii) the other Party is designated as or determined to be a denied or restricted party under Applicable Law. (c) Notwithstanding anything to the contrary in these Terms and Conditions, neither Party shall be required to take any action prohibited or penalized by, or to refrain from taking any action required under Applicable Laws relating to international boycotts.
8.2 Ethics and Anticorruption. Blue Spark complies with, and requires that each member of Customer Group comply with, the Corruption of Foreign Public Officials Act (Canada), the U.S. Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, and/or any Applicable Laws enacted in any other relevant jurisdiction to regulate conduct based on substantially similar public policy aims and objectives related to anti-corruption, anti-kickbacks, and anti-money laundering with regards to the Services. Customer shall make no facilitating payments, or grease payments, with regards to theServices.
8.3 Termination and Indemnification. If Blue Spark is required by Customer to engage in any act that violates this Article 8, Blue Spark may immediately terminate any Order(s) and will not be in breach or default as a result thereof. Customer agrees to Indemnify Blue Spark Group for all Claims arising from Customer’s violation of this Article.
9. ASSIGNMENT AND SUBCONTRACTING
Blue Spark may assign any Order (or any rights and interests thereunder) to an Affiliate or subcontract the Services (or any portion thereof) to be performed under any Order, but shall not assign any Order to any Third Party without the prior written consent of Customer, which consent shall not be unreasonably withheld, conditioned, or delayed. Customer may not assign any Order (or any rights and interests thereunder) without the prior written consent of Blue Spark. Subject to the foregoing, each Order shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assignees.
10. FORCE MAJEURE
Neither Party shall be considered in breach of any Order or the requirements of these Terms and Conditions (excluding the obligation of Customer to pay Blue Spark for the Services) if prevented from performing due to an event of Force Majeure. If any period of Force Majeure preventing performance of Services continues for more than thirty (30) days, either Party may terminate the effected Order by giving five (5) days written notice to the other Party. Blue Spark shall be paid for all Services provided and/or performed to the date of termination and any other reasonable costs incurred as a result of such termination (including Blue Spark’s standard personnel and equipment standby charges and demobilization costs). In allocating the risk of delay or failure of performance of their respective obligations under any Order by reason of an event of Force Majeure, the Parties have not taken into account the possible occurrence of any particular acts or events beyond their control, irrespective of whether such acts or events were foreseeable as of the effective date of theOrder.
11. GOVERNING LAW; VENUE; JURY WAIVER; LAWYERS’ FEES
11.1 Governing Law and Venue. (a) With respect to Services performed in Canada, all Orders and all Services performed by Blue Spark thereunder shall be governed, construed and interpreted in accordance with the laws of the Province of Alberta, which shall apply without regard to any choice of laws or conflict of laws provisions which would direct the application of the laws of another jurisdiction. Venue for any litigation filed with respect to any Order (or the Services performed thereunder) shall be exclusive in the courts, provincial or federal, sitting in Calgary, Alberta. (b) With respect to Services performed in the U.S., all Orders and all Services performed by Blue Spark thereunder shall be governed, construed and interpreted in accordance with the laws of the State of Texas, which shall apply without regard to any choice of laws or conflict of laws provisions which would direct the application of the laws of another jurisdiction. Venue for any litigation filed with respect to any Order (or the Services performed thereunder) shall be exclusive in the courts, state or federal, sitting in Houston, Harris County, Texas.
11.2 Jury Waiver. TO THE EXTENT ALLOWED BY THE GOVERNING LAW, EACH PARTY WAIVES ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION INVOLVING ANY ORDER OR THE SERVICES PERFORMED THEREUNDER. Nothing in these Terms and Conditions shall prohibit a Party from availing itself of a court of competent jurisdiction for the purpose of injunctive relief.
11.3 Arbitration. Any dispute with respect to Services performed off-shore or in a jurisdiction other than Canada or the U.S. shall be resolved via binding arbitration conducted in accordance with the National Arbitration Rules of the ADR Institute of Canada. The seat of arbitration shall be in Calgary, Alberta, Canada, and the proceedings shall be conducted and concluded as soon as reasonably practicable, based upon the schedule established by the tribunal. For any arbitration conducted under the foregoing provisions, the arbitration shall (i) be final and binding, each Party expressly consenting to arbitration and waiving any right of appeal to any court from an arbitral award, (ii) be conducted in the English language, (iii) be treated as confidential (including any information concerning the fact of any request for arbitration, as well as all matters discussed, discovered, or divulged (voluntarily or by compulsion) during the course of such arbitration proceeding, including evidentiary information), subject to each Party’s right to cooperate fully with governmental authorities, including taxing jurisdictions. No arbitrator shall be appointed who does not comply with the standards of the authority under whose auspices the arbitration is being conducted (the “Administrative Body”). The arbitral tribunal (“Tribunal”) shall be composed of one (1) neutral arbitrator if the dispute involves a maximum exposure of CAD$1,000,000 or less (excluding interest, costs, and lawyers’ fees). If the Parties are unable to agree on a neutral arbitrator who complies with the standards of the Administrative Body, one will be appointed pursuant to the applicable rules. If the dispute involves a maximum exposure exceeding CAD$1,000,000, the Tribunal shall consist of three (3) arbitrators, all of whom must comply with the standards of the Administrative Body, with each Party appointing one arbitrator, and the two chosen arbitrators appointing the third arbitrator, who shall act as Chair. The Tribunal shall render its Award in the form of a written, reasoned decision, and such written Award shall be final and binding on the parties to the arbitration proceeding, and confirmation and enforcement of the awards so rendered may be obtained and entered in any court having jurisdiction thereof. The Tribunal shall have no power or authority to make awards or issue orders of any kind except as expressly permitted by this Agreement and the Applicable Law, and in no event shall the Tribunal have the authority to make any award that provides for Consequential Damages except as provided for under this Agreement. The Tribunal may, in its discretion, award any or all of (1) the reasonable Lawyers’ fees (including reasonable costs) incurred by the prevailing Party, (2) the fees and expenses of the arbitrators, (3) the administrative expenses fixed by the Administrative Body, and (4) the fees and expenses of any expert(s) employed by the prevailing Party or appointed by the Tribunal. All statutes of limitation under Applicable Law shall apply to the arbitration proceeding. Any attorney-client privilege and other protection against disclosure of privileged or confidential information under Applicable Law (including any protection afforded attorney work-product) shall be available to, and claimed by, any Party in any arbitration proceeding.
11.4 Lawyers’ Fees and Injunctive Relief. The prevailing Party in any litigation or arbitral proceedings shall be entitled to recover, in addition to any damages or other relief awarded to it, reasonable lawyer’s fees, fees and expenses of the arbitrator, court costs, fees of testifying experts or consultants, and other expenses related thereto. Nothing herein shall prohibit a Party from availing itself of a court of competent jurisdiction for the purpose of injunctive relief.
12. WAIVER OF SOVEREIGN IMMUNITY IF CUSTOMER IS OWNED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, BY ANY COUNTRY OR SOVEREIGN, OR IS AN AUTHORITY OR AGENCY OF ANY COUNTRY OR SOVEREIGN, THEN CUSTOMER HEREBY WAIVES ANY AND ALL RIGHTS AND IMMUNITIES, INCLUDING WITHOUT LIMITATION, ANY IMMUNITIES FROM LAWSUITS, CLAIMS, PREJUDGMENT SEIZURE, ARREST OR ATTACHMENT IT MAY HAVE UNDER ANY STATUTE, LAW, RULE OR REGULATION OF ANY COUNTRY OR SOVEREIGN.
If any of the provisions in these Terms and Conditions are found to be inconsistent with or contrary to any Applicable Law, same shall be deemed to be modified to the extent required to comply with Applicable Law (it being the intention of both Parties to enforce to the fullest extent all of these Terms and Conditions), and as so modified, these Terms and Conditions shall continue in full force and effect. In the event such provisions cannot be deemed or modified automatically, the Parties agree to meet to attempt to reach agreement on a conforming modification to such provision. In the event any provision cannot be modified to comply with Applicable Law, then that term or provision shall be deemed to be deleted from these Terms and Conditions and the remaining provisions shall remain in full force and effect.
14. WAIVER OF TERMS
No waiver by Blue Spark of any of the terms, provisions, or conditions of these Terms and Conditions shall be effective unless expressly stated in a writing signed by an authorized officer of Blue Spark. Blue Spark’s failure to enforce any term, provision or condition of these Terms and Conditions shall in no manner affect its right to enforce the same at a later time, and the waiver by Blue Spark of any breach of any term, provision or condition of these Terms and Conditions shall not be construed to be a waiver by Blue Spark of any subsequent or succeeding breach of such term, provision or condition or of any other term, provision or condition hereof.
15. INDEPENDENT CONTRACTOR
Blue Spark Energy will be an independent contractor with respect to all matters hereunder and neither Blue Spark nor its affiliates, officers, directors, employees or agents will be deemed for any purpose to be an employee, agent or representative of the Customer in the performance of the Services.
16. ACKNOWLEDGEMENT AND ACCEPTANCE
Customer acknowledges that Blue Spark may revise and post updates to these Terms and Conditions from time-to-time, and that any future Orders will be subject to the most recently posted version of the Terms and Conditions. In accepting Services from Blue Spark, Customer shall be deemed to have accepted these Terms and Conditions, unless Blue Spark and Customer have entered into a separate, written, master services agreement, supply agreement or other contract which governs the Services.