1. GENERAL
The rental and servicing of goods (“Equipment”) by ABOT CORP or Abot Geo-Technical Tools Private Limited or any of its subsidiaries or affiliates, collectively and individually known as “ABOT”, are subject to the following Standard Terms and Conditions of Rental & Servicing. The RENTER of the Equipment shall be hereinafter referred to as “RENTER “. Upon the date of ABOT receipt of RENTER ‘s written acceptance of ABOT’s offer, RENTER and ABOT shall be deemed on such date to have entered into a legally binding and enforceable agreement for the rental of the Equipment described therein and, together with these Standard Terms and Conditions of Rental, shall constitute the “Agreement”. In the event of early termination by RENTER, full term rental amount will be due. As to RENTER and ABOT, respectively, “Related Parties” shall mean such party, its affiliate entities and all of their respective officers, directors, employees, managers, agents, consultants, contractors, and designees. “Rental & Service Period” shall mean the period of time between when (i) risk of loss passes to the RENTER and (ii) when the Equipment is returned, and risk of loss passes back, to ABOT. “Claims” shall mean any and all losses, causes of action, liability, claims, demands, damages, judgements, fines, penalties, awards, costs or expenses (including legal fees and expenses on a solicitor-client basis).
NOTWITHSTANDING THE TERMS AND CONDITIONS CONTAINED IN ANY AGREEMENT, NO TERMS AND CONDITIONS CONTAINED IN ANY ORDER PLACED WITH ABOT, OTHER THAN THOSE STATED HEREIN, SHALL BE BINDING ON ABOT, UNLESS HEREAFTER MADE IN WRITING, SPECIFICALLY REFERRING TO THE MODIFIED TERMS AND CONDITIONS AND SIGNED BY AN AUTHORIZED OFFICER OF ABOT. IN ALL OTHER EVENTS THESE STANDARD TERMS AND CONDITIONS OF RENTAL SHALL GOVERN ANY RENTAL ORDER PLACED WITH ABOT. ANY ADDITIONAL, DIFFERENT, INCONSISTENT OR CONFLICTING TERMS OR CONDITIONS CONTAINED IN PURCHASER’S PURCHASE ORDER FORM SHALL NOT OPERATE AS A REJECTION OF THESE TERMS AND CONDITIONS OF RENTAL BUT SHALL CONSTITUTE A MATERIAL ALTERATION THAT ABOT HEREBY REJECTS, AND THESE TERMS AND CONDITIONS OF RENTAL SHALL BE DEEMED ACCEPTED WITHOUT SUCH ADDITIONAL, DIFFERENT, INCONSISTENT OR CONFLICTING TERMS OR CONDITIONS.
THESE STANDARD TERMS AND CONDITIONS OF RENTAL WILL SUPERSEDE AND GOVERN ALL AGREEMENTS BETWEEN THE PARTIES RELATIVE TO THIS TRANSACTION, AND THERE IS NO AGREEMENT COLLATERAL HERETO (WHETHER ENTERED INTO BEFORE OR AFTER THE ORDER IS PLACED WITH ABOT) OR ANY REPRESENTATION OR WARRANTY WHICH SHALL BE BINDING UPON ABOT UNLESS SIGNED BY AN AUTHORIZED OFFICER OF ABOT.
2. RENTER ACKNOWLEDGEMENT
ABOT reserves the right to require an authorized representative of the RENTER to provide to ABOT such acceptance of these Standard Terms and Conditions of Rental. Notwithstanding that no such written evidence is provided, these Standard Terms and Conditions of Rental shall constitute part of the Agreement.
3. VALIDITY
ABOT’s quoted prices for rental of Equipment are valid only for the time period stated in ABOT’s written quotation.
4. DELIVERY OF EQUIPMENT
Equipment shall be shipped in accordance with INCOTERMS 2010, and risk of loss shall pass accordingly. Title to, and ownership of, the Equipment shall remain at all times with ABOT. Delivery time will be subject to availability of Equipment at the date of the Agreement. Claims for any damage, shortage or loss in transit of Equipment supplied by ABOT must be made by RENTER to the carrier. RENTER shall give ABOT immediate notice in the event that any of the Equipment is levied upon or is about to become liable or is threatened with seizure, and RENTER shall indemnify, defend and hold harmless ABOT against all loss and damages caused by such action. ABOT is authorized to file Uniform Commercial Code financing statements (or equivalent) evidencing its ownership of the Equipment. It is the intention of the parties that the Equipment shall be deemed personal property and that it not be deemed a fixture, even though it may be attached in some manner to realty.
5. PAYMENT TERMS
Unless otherwise specified in the Agreement the following shall apply:
I. Unless otherwise agreed to by ABOT in the quote, all rental payments are due on the first (1st) of every month during the Rental Period and shall be made either by check or wire transfer to ABOT.
II. ABOT may require non-refundable deposits, letters of credit or down payments at time of placement of order as specified in the Agreement. No interest or other amounts will be required to be accrued or paid by ABOT to RENTER in connection with such deposits. All deposits are considered nonrefundable.
III. RENTER agrees to pay all applicable taxes and other charges associate with the Equipment during the Rental Period.
IV. ABOT may, in its sole discretion, charge interest at the rate of 18% per annum on past due amounts, calculated and compounded monthly, not in advance, until paid in full.
6. REMEDY FOR FAILURE TO PAY RENT
If the payment is not received by ABOT within five (5) business days after any payment is due, ABOT may, in its sole discretion, charge interest at the rate of 18% per annum on unpaid amounts, calculated and compounded monthly, not in advance, until paid in full.
7. RENTER RESPONSIBLITIES
a. All risks incidental to the RENTER ‘s use and operation of the Equipment or any of its components will be and are RENTER ‘s responsibility. ABOT DOES NOT AND WILL NOT HAVE ANY OBLIGATION OR LIABILITY, OR BE RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE, LOSS OF USE, LOSS OF RIG USE, LOSS OF REVENUE OR PROFIT, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS WHATSOEVER, OR FOR ANY OTHER DAMAGES, whether arising from the rental, use or operation of the Equipment or while the Equipment is in the possession or control of RENTER. RENTER will use and operate the Equipment, and cause its employees, agents and contractors to use and operate the Equipment, in accordance with the manufacturer’s specifications, directives, operating guidelines and manuals, materially in accordance with industry standards for this type of equipment and in a safe and non-hazardous manner in accordance with RENTER ‘s ordinary course safety policies (which RENTER represents and warrants comply with or exceed industry standards).
b. DURING THE RENTAL PERIOD, RENTER SHALL BEAR THE ENTIRE RISK OF LOSS OF, THEFT, DAMAGE TO OR DESTRUCTION OF THE EQUIPMENT BY ANY PARTY, HOWEVER, WHENEVER AND WHEREVER CAUSED, and shall immediately notify ABOT upon any loss of, theft, damage to or destruction of any part of the Equipment. During the Rental Period, RENTER will, at its sole cost and expense:
(i) maintain and repair the Equipment in accordance with the ABOT’s directions and specifications, and industry standards for this type of equipment, ordinary wear and tear excepted; (ii) obtain any required replacement parts or service from the ABOT or a party approved by the ABOT; (iii) ensure that the Equipment retains its certification and take any necessary steps to re-certify the Equipment in a timely and diligent manner; (iv) allow ABOT and its Related Parties, at its and their sole risk and expense, to inspect the Equipment from time to time during normal business hours and after reasonable notice is given by ABOT to RENTER of an inspection request, provided that, at all times during any such inspection, ABOT and its employees and agents will adhere to RENTER ‘s safety policies and procedures; and (v) provide the location of the Equipment to ABOT as and when the Equipment is used or moved from one location to another location where such move involves more than 10 miles, in each case, after leaving ABOT’s premises.
c. RENTER shall not (i) move any portion of the Equipment from the place as noted on the order, (ii) alter any portion of the Equipment, or (iii) remove, alter, disfigure or cover up any numbering, lettering or insignia displayed upon the Equipment, in each case without ABOT’s prior written consent, which consent may be withheld at the sole discretion of ABOT.
d. RENTER shall not transfer, sell, sub-rent, assign, pledge, grant a security interest in, or otherwise permit any liens against or encumber the Equipment, without ABOT’s prior
written consent, which may be withheld without justification. In any event, no assignment or other transfer of this Agreement will release the RENTER from its obligations hereunder.
e. RENTER shall supply and pay all operators of the Equipment during the rental period. All operators shall be competent to use the Equipment. RENTER shall provide and pay for all worker’s compensation insurance and pay all payroll taxes required by law and applying to such operators and workmen.
8. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performance under the Agreement (other than for delay in the payment of any amount due and payable including accrued interest prior to the date of the Force Majeure, as hereafter defined, and other than indemnification obligations) to the extent such failure or delay is caused by reasons of force majeure beyond that party’s reasonable control (“Force Majeure”) including, but not limited to, the occurrence of natural disasters such as earthquakes, tornados, hurricanes and floods, the occurrence of war, riot, acts of terrorism or other major upheaval, pandemics, endemics, the imposition of trade sanctions or trade embargoes (including denied and sanctioned parties), labor disputes, material shortages, the failure of suppliers, subcontractors, and carriers, and/or other necessary parties to substantially meet that party’s performance obligations under the Agreement. As a condition precedent to the non-performing party’s claim of Force Majeure, the non-performing party must give written notice to the other party, within five (5) days after the Force Majeure, and provide complete details in respect of the occurrence of the cause relied upon to excuse performance. The dates by which performance obligations are scheduled to be met will be extended for that period of time which is equal to the time lost due to any delay caused by the Force Majeure.
9. LIMITED WARRANTY
a. Unless otherwise specified in writing in the Agreement, ABOT warrants its Equipment to be free from defects in materials and workmanship for a period of thirty (30) days from date risk of loss passes to RENTER. Should any part of such Equipment be found, under normal use and service during the warranty period to be defective, ABOT will repair or replace such Equipment at its factory location, provided such defective Equipment or part is returned to that location by the RENTER on a prepaid freight basis, that the ABOT return material authorization number, invoice number and RENTER ‘S order number are noted on the shipping container and that inspection of the original Equipment establishes the claim defect to the satisfaction of the ABOT in its sole discretion. The warranty shall not apply to Equipment upon which repairs or alterations have been made (unless authorized by ABOT in writing) or for Equipment misused, neglected and/or incorrectly installed, operated or maintained.
b. ABOT provides no warranty with respect to components manufactured by others which are subject to the warranties of their respective manufacturers that are used in ABOT’s Equipment or sold by ABOT. Should any such component, provided by ABOT, fail within the manufacturer’s warranty period, such component must be
returned to ABOT by the RENTER on a prepaid freight basis in accordance with Article 12 so it can be returned to the original component manufacturer’s facility for evaluation and disposition.
c. Any Equipment that is repaired by ABOT is warranted to be free from defects in materials and workmanship for a period of thirty (30) days from the date of completion of repair.
d. No warranty shall apply (i) to goods upon which repairs or alterations have been made (unless authorized by ABOT), (ii) for goods misused, neglected and/or incorrectly installed, stored or operated or (iii) to goods which have not been operated or maintained by demonstrably competent personnel.
e. On-site warranty service may be provided by ABOT upon request by RENTER, and subject to conditions contained in section 10 below, during the original warranty period for ABOT’s Equipment which cannot be returned by the RENTER to ABOT’S designated service location due to logistical or financial reasons acceptable to ABOT. RENTER will be responsible for all normal travel and living expenses incurred by ABOT’s technicians during any warranty service call and all costs associated with the transportation, taxes, duties and importation costs of all replacement components. RENTER will also be responsible for the transportation, importation and exportation expenses associated with any special tools required for this warranty work. RENTER will not be responsible for daily service charges associated with on-site repairs which are determined by ABOT to be a covered warranty defect. Daily service charges for repairs determined by ABOT to be the result of misuse, neglect, modification or incorrect installation or operation will be the responsibility of RENTER.
f. ABOT’s liability and RENTER ‘s sole remedy under this warranty is limited to such repair or replacement subject to the conditions stated herein, and ABOT shall make no allowance for repairs, replacements and/or alterations unless made with ABOT’s prior written approval. THE WARRANTIES CONTAINED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES, AND ABOT HEREBY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. ABOT DOES NOT WARRANT THAT ANY SOFTWARE, MEDIA, INTELLECTUAL PROPERTY OR RELATED DOCUMENTATION IS ERROR FREE, ANY ERRORS THEREIN WILL BE CORRECTED, IDENTIFIES ALL KNOWN VIRUSES, IS NON-INFRINGING, ADEQUATE TO PRODUCE ANY PARTICULAR RESULT, WILL MEET PURCHASER’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE COMPATIBLE WITH ANY HARDWARE SOFTWARE, SYSTEMS OR SERVICES, OR WILL BE SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE OR CHARACTERISTICS THAT MAY MAKE IT VULNERABLE TO CYBER- ATTACK OR DATA BREACH. ALL SOFTWARE, MEDIA, INTELLECTUAL PROPERTY AND RELATED
DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, AND ABOT SHALL NOT BE LIABLE FOR LOSS OR DAMAGE ARISING FROM THE USE THEREOF BY RENTER. IN NO EVENT SHALL ABOT BE LIABLE FOR ANY DECISION MADE OR ACTION TAKEN OR OMITTED BY RENTER IN RELIANCE ON ANY SOFTWARE, OR INFORMATION PROVIDED WITH OR BY THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE, AND ANY DECISION TO USE THE SOFTWARE OR ANY UPDATES, IS SOLELY WITH RENTER. ABOT DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, SOFTWARE, MEDIA INTELLECTUAL PROPERTY AND DOCUMENTATION.
10. FIELD SERVICE SUPPORT
a. ABOT may provide qualified technicians to provide field service support for final installation, commissioning, training and required service regardless of whether such work is determined by ABOT to be warranty work. ABOT reserves the right to decline to provide field service support upon request if qualified technicians are unavailable or if logistical issues and/or if geopolitical situations may, in ABOT’s discretion, jeopardize the personal safety of ABOT’s personnel. When technicians are dispatched to provide field service support, RENTER agrees to provide a purchase order for the amount of the estimated service costs, paid within thirty (30) days from invoice, in respect of all ABOT’s charges, including the prevailing daily service charges, mileage charges, normal travel and living expenses from the time that ABOT’s technician leaves ABOT’s designated point of origin until the time that the technicians return to the point of origin. All such charges which exceed RENTER ‘s approved available credit limit at the time of any field service call, must be prepaid to ABOT by RENTER before mobilization. ABOT shall have no obligation to supply such technician until such charges are paid, unless alternative terms or credit limits determined by ABOT are established. Any parts which are deemed by ABOT’s technicians to be defective in material or workmanship will be provided free of charge to RENTER during the warranty term as stated above; however, RENTER will be responsible for all transportation and importation costs associated with these components. Reimbursement to RENTER by ABOT for any excess prepaid costs, or for costs of parts replaced under warranty, will be made to RENTER within thirty
(30) days from the date of ABOT’s technician return to ABOT’s designated point of origin or the date of receipt of the defective parts in the ABOT’s designated location, whichever is later.
b. When ABOT provides field services support for final installation, commissioning and training RENTER ‘S personnel for certain Equipment (including bucking units), RENTER will be responsible for providing utilities, materials and labor to prepare the site for installation and pre-install goods in accordance with ABOT’s written requirements. Failure of RENTER to complete these responsibilities prior to the arrival of ABOT’s service personnel will result in additional charges and/or delays in completion of final installation and commissioning. If required, RENTER is to provide a technical translator familiar with the English language and in particular, familiar with oilfield industrial or transportation terminology to facilitate this process. Should the stay of ABOT’s service personnel be extended as a result of causes beyond the control of ABOT or ABOT’s personnel, RENTER agrees to reimburse ABOT for those documented expenses in excess of the pre-paid estimated or approved available credit limit amount within fourteen (14) days from invoice. ABOT may, in its sole
discretion, charge interest at the rate of 18% per annum on unpaid amounts, calculated and compounded monthly, not in advance until paid in full. RENTER also agrees to pay all reasonable legal expenses and agency commissions sustained by ABOT in pursuit of any payment which is past due, on a full indemnity basis.
11. ACCEPTANCE
a. RENTER shall be deemed to take possession of the Equipment at the location designated by ABOT and is responsible for and bears the expense of transporting the Equipment from such location or other designated site. RENTER will provide written acceptance of the Equipment to ABOT no later than five (5) business days after taking possession (deemed or actual) of the Equipment (the “Acceptance Deadline Date”).
b. Upon RENTER accepting the Equipment in writing on or before the Acceptance Deadline Date, then RENTER will be deemed to have acknowledged that the Equipment is in good working order and good repair for the use that RENTER intends, is properly certified, and the Equipment meets or exceeds any required specifications or requirements including any required certifications, for its operation or use.
12. PORTAL TERMS OF SERVICE
12. 1. ACCESS
In consideration of payment of the applicable fees, ABOT hereby grants to CUSTOMER a nonexclusive, non- sublicensable, non-assignable, and nontransferable right to access and use the Services as permitted by the purchase order approved by ABOT or invoice issued by ABOT. Access is granted only to CUSTOMER and not to any Related Parties, unless specified in the purchase order approved by ABOT or invoice issued by ABOT. The CUSTOMER must conform with any user account authorization, logins or access credentialing required by ABOT.
12.2. DATA, USE RESTRICTIONS AND PRIVACY
(a) As part of the use of the Services, CUSTOMER may create, access and download Customer Data. Customer may export or download the Customer Data at any time. CUSTOMER is responsible to maintain an archive or backup of its Customer Data. ABOT does not provide disaster-recovery, data backup or archive services as part of the Services.
(b) Some or all of the elements of the Customer Data may be based on information collected from data acquisition systems, some of which may be wholly or partially based on third-party information and/or user defined settings. While ABOT will use reasonable diligence to ensure such information is complete and accurate, ABOT’s personnel do not monitor information acquisition systems for completeness or accuracy.
(c) As a further part of the Services, ABOT may provide CUSTOMER with interpretations of information collected through the Services or other data-collection systems. CUSTOMER understands and acknowledges that Customer Data (including any such interpretations, whether provided by ABOT personnel from time to time or generated automatically through software algorithms) is for CUSTOMER to assess and verify prior to use. CUSTOMER may choose to rely upon Customer Data, or the accuracy of any such interpretations or information, all at CUSTOMER’s own risk. ABOT makes no warranty whatsoever
with respect to the accuracy or completeness of the Customer Data, or related interpretations or information, and shall not be responsible for CUSTOMER’s or Related Party’s use of said Customer Data by CUSTOMER.
(d) CUSTOMER agrees that it does not obtain rights to make unauthorized copies of the Services, or any part thereof, or to modify, duplicate or reverse-engineer such items. CUSTOMER shall not translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Services supplied under this Agreement, or adapt the Services in any way to create a derivative work, during the term of this Agreement or thereafter. CUSTOMER shall not distribute, sell, lease, transfer, assign, trade, rent, lease or lend the Services or publish, license, sublicense or cross-license the same or frame or distribute screen shots to others.
(e) If CUSTOMER provides personal information to ABOT, CUSTOMER agrees to obtain all necessary consents in relation to personal information and ABOT agrees to comply with applicable privacy and data protection laws. Any personal information handling practices are subject to ABOT’s Privacy Policy.
(f) Notwithstanding anything to the contrary in this Section 3, ABOT may collect, aggregate and anonymize information or data input or collected through the Services, for the purpose of purpose of statistical analysis, data analytics, research, product improvement, benchmarking, and for other business purposes, subject to the following:
(i) All aggregated data will be stripped of identifiers (such as specific users, corporate or business names or serial numbers) that would identify specifics about individual users;
(ii) Aggregated data will not be traceable back to any specific users; and
(iii) ABOT shall have rights hereunder to use, dispose of and own such anonymized and aggregated data at its discretion whether during or after the term of this Agreement.
12.3. TECHNICAL MATTERS AND SUPPORT
CUSTOMER grants permission to ABOT and its authorized service providers to access Customer Data and any personal information supplied by CUSTOMER’s users for the purpose of providing technical support. For optimal use, CUSTOMER must use the appropriate software and hardware system capabilities according to system requirements, technical standards and specifications stipulated by ABOT from time to time. CUSTOMER will be responsible for its own laptops, computers, internet access charges and mobile devices to enable certain functionality of the Services. ABOT shall bear no liability or otherwise be responsible for delays in the provision of the Services occasioned by CUSTOMER’s failure to meet those technical requirements. If technical support, onboarding services, training or other required services are provided, ABOT’s responsibility for support is explicitly limited to the Services and does not include support, troubleshooting or maintenance for the hardware or software of third parties, platform vendors or others. Any such additional services will be subject to ABOT’s support terms
13. REMOVAL AND RETURN
a. The removal of the Equipment and its components (e.g., from the rig and from storage), and all disconnects and removal of the modules and control station, will be at RENTER ‘s expense. If RENTER does not accept the Equipment in writing on or before the Acceptance Deadline Date, then the Equipment will be returned to ABOT in the same or better condition as it exists on the date hereof.
b. At the end of the Rental Period, RENTER shall return the Equipment to ABOT and such Equipment shall be in good repair, condition and working order, normal wear and tear excepted. RENTER shall pay all costs association or related to restoring the Equipment to its original condition, as of the date this Agreement commenced, normal wear and tear excepted.
14. CONFIDENTIAL INFORMATION, TECHNOLOGY AND PROPRIETARY RIGHTS
a. The parties acknowledge that certain confidential information may be exchanged in the course of executing this Agreement and that all aspects of all discussions and materials exchanged will be treated as confidential and will not be disclosed to any third parties, except as permitted herein. Both parties agree to protect the other parties’ confidential information by not discussing, disclosing, copying and/or distributing this information to any employee who is not actively involved in the project. Furthermore, the terms of employment for employees involved in this project must include an agreement to protect the confidentiality of both parties’ confidential information. Examples of confidential information include, but are not limited to, bids or proposals, methods of manufacturing, engineering or manufacturing drawings, specifications and tolerances, operating procedures and processes, test reports, test methods, control systems, computer programs and instructions and similar information which is not available (or should not be made available) to competitors. Both parties agree to specifically label all confidential information as such. No written information shall be regarded as confidential information if it is not labeled or if it can be shown that such information: 1) is already in the public domain; 2) is already known to the other party; 3) is independently developed by the other party; 4) is disclosed by a third party through no fault of either party; and 5) is required by either party to be disclosed under applicable law or by a court of competent jurisdiction.
b. Any confidentiality obligation imposed by this Agreement may be waived by written agreement of the parties. The parties acknowledge that their respective obligations hereunder will survive termination for a period of five (5) years after the effective date of termination of this Agreement. Within thirty
(30) days after the effective date of termination of this Agreement, all written confidential information belonging to the other party will be returned or destroyed.
To the extent necessary to obtain subcontractor bids, to present design proposals to qualified customers, or to obtain governmental or regulatory body assessment/approval, ABOT is permitted to supply select portions of the confidential information to such third parties. Any such disclosure shall be reviewed and approved in writing by RENTER. Submissions of confidential information to third parties must be made under a signed confidentiality agreement prohibiting unauthorized disclosure, reproduction in any form, distribution or use of such information. Third parties are required to agree to return all confidential information upon request.
c. Both parties agree that the other party currently possesses certain core technology and proprietary rights to ideas, goods and processes related to their own area of expertise and business. Technology includes, but is not limited to, confidential and proprietary information developed by either party concerning their own existing or proposed goods and services, trade secrets and technical data. Proprietary rights include, but are not limited to, existing and proposed goods or methods
which are covered by issued patents, pending patents or which are under review or development. The Agreement does not transfer the rights to one party’s technology or proprietary rights to the other party or permit use of such rights except as expressly permitted by the Agreement. All documents, drawings, specifications, procedures, processes, methods and systems, which are developed by one party and supplied to the other party will remain the property of the originating party. Both parties agree not to design or build identical or similar goods either in part or in whole for any third party or for their own use using the other party’s technology or proprietary rights.
15. INDEMNIFICATION FOR PATENT INFRINGEMENT
RENTER agrees to indemnify ABOT, in respect of all losses, causes of action, liability, claims, demands, damages, judgements, awards, costs or expenses, including legal expenses on a full indemnity basis, arising out of patent infringement claims arising from modifications made by RENTER to ABOT’s goods unless such modification was approved in advance by ABOT in writing.
16. INSURANCE
a. The RENTER shall, at its own expense, place and maintain, during the rental period, with insurers acceptable to the ABOT: (i) comprehensive all risks insurance on the Equipment for its full replacement value, such insurance to include a loss payable clause in favor of the ABOT as first loss payee; (ii) general public liability and property damage insurance with limits of liability equal to at least Five Million ($5,000,000.00) U.S. Dollars or equivalent Indian Rupees(INR) per occurrence (or such greater amount as the ABOT may require from time to time), and such insurance shall: (1) extend to all liabilities of the RENTER arising out of its use or possession of Equipment, and (2) include a cross- liability which insures each person insured thereunder in the same manner and to the same extent as if a separate policy had been issued to each.
b. All insurance policies shall contain endorsements providing that: (i) thirty (30) days’ written notice shall be provided to the ABOT before a policy lapses or is materially altered or cancelled; (ii) coverage shall be primary and not contributory; (iii) ABOT and its Related Parties shall be named additional insureds and the ABOT’s and its Related Parties’ interest as additional insureds shall not be invalidated or otherwise affected by any act or omission, deliberate, negligent or otherwise of the RENTER or its agents, servants or employees (such as a “standard mortgagee clause”); (iv) the ABOT shall not be responsible for payment of any premium; and (v) the ABOT may elect to have all proceeds of insurance payable only to itself. The RENTER shall, on request, supply the ABOT with certified copies of all insurance policies or other evidence satisfactory to the ABOT of satisfaction of these insurance covenants. Proceeds of insurance may be applied at ABOT’s option towards replacement, restoration or repair of the Equipment and/or satisfaction of any liability to third parties, or toward payment of RENTER ‘s obligations hereunder.
c. If the RENTER fails to fulfill its insurance obligations hereunder, then, without prejudice to the ABOT’s other rights and remedies, the ABOT shall have the right, but not the obligation, to procure insurance covering the ABOT’s interests (but not the RENTER ‘s interest) in the Equipment, in such form and amount and with such insurers (including an insurer affiliated with the ABOT) as the ABOT shall
determine from time to time, all at the RENTER ‘s expense. Such expense (the “Insurance Expense”) shall include the cost of acquiring such insurance and any charges or fees for services associated with the placement, maintenance or service of such insurance, plus interest accruing on such expense at the interest rate provided herein for overdue amounts until such expense is reimbursed by the RENTER to the ABOT. The RENTER shall pay the Insurance Expense to the ABOT in equal installments at the same time and in the same manner as the remaining rental payments. The RENTER shall co-operate with the ABOT’s insurance agent in connection with the placement of such insurance and the processing of any claims. Nothing herein shall be deemed to obligate or entitle the ABOT to act as an insurer hereunder or to arrange any insurance for the benefit of the RENTER. Nothing herein shall require the ABOT to secure, maintain in force or renew any insurance, in any amounts or upon any specific terms and conditions. The ABOT reserves the right to terminate any insurance coverage which the ABOT may arrange, or allow same to lapse, without incurring any liability to the RENTER.
17. COMPLIANCE WITH ANTI-CORRUPTION LAWS
RENTER represents and warrants, in connection with the transactions contemplated by this Agreement, and any other agreement contemplated by or entered into pursuant to this Agreement, that it shall take no action, directly or indirectly, that would constitute a violation of the United States Foreign Corrupt Practices Act, Canadian Corruption of Foreign Public Officials Act, UK Bribery Act or any other applicable anti-bribery or anti-corruption law, convention or regulation (collectively, “anti-corruption laws”). RENTER acknowledges and confirms that it and its Related Parties are familiar with the provisions of the anti-corruption laws. RENTER hereby agrees to indemnify, defend and hold harmless ABOT and its Related Parties from and against any and all claims, demands, damages, costs, penalties and fines arising in connection with any alleged breach by RENTER or any of its Related Parties of this Article. ABOT reserves the right to immediately terminate this Agreement in its entirety, without liability to RENTER, if ABOT has a good faith basis for believing RENTER or any of its Related Parties has violated or intends to violate any country’s anti-corruption laws.
18. COMPLIANCE WITH EXPORT RESTRICTIONS
a. Equipment may be subject to the export control laws of the United States, Canada or other countries where its products are sold. RENTER acknowledges that it will comply with all such laws and regulations, and obtain all licenses to export, re-export or import Equipment as may be required. RENTER will not, without first obtaining any necessary licenses, export or re-export any Equipment, related proprietary information or technical data: (i) for any prohibited end uses; (ii) to any prohibited destinations; or
(iii) to any individuals or entities that are presently on any denied party lists. Diversion contrary to U.S. law is strictly prohibited.
b. ABOT shall not be liable to RENTER for any failure to provide Equipment or technical data as a result of any of
the following governmental actions: (I) refusal to grant export or re-export licenses; or (2) cancellation of export or re- export licenses. RENTER hereby agrees to indemnify, defend and hold harmless ABOT and its employees from and against any and all claims, demands, damages, costs, penalties and fines arising in connection with any alleged breach by RENTER or any of its Related Parties of this Article.
19. CONSEQUENTIAL DAMAGES WAIVER
Notwithstanding anything contained in this Agreement to the contrary, ABOT shall not, in any event, be liable for any special, incidental, consequential or indirect damages, loss of profits or revenues, loss of data, or for any claims, damages, costs or expenses (including legal expenses) or delay caused by defective material or workmanship (collectively “Consequential Damages”) and RENTER hereby releases ABOT and its Related Parties from all such Consequential Damages, regardless of how such Consequential Damages are caused, INCLUDING WITHOUT LIMITATION THE NEGLIGENCE OR STRICT LIABILITY OF, BREACH OF CONTRACT, WARRANTY OR DUTY ABOT OR ITS RELATED PARTIES.
20. INDEMNITY
a. RENTER shall release, indemnify, defend and hold harmless ABOT and its Related Parties from and against all Claims for (i) damage to, or destruction of, property or injury (including death) to any person whatsoever, including without limitation to RENTER , its Related Parties, any of its or their customers, contractors or suppliers, arising from or related to the rental or use or operation of ABOT’s goods or services, REGARDLESS OF THE CAUSE INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY ABOT OR ITS RELATED PARTIES; and (ii) for any breach of any of the terms and conditions of this Agreement by PURCHASER.
b. Furthermore, notwithstanding anything contained in the Agreement to the contrary, to the maximum extent permitted under law, RENTER shall release, indemnify, defend and
hold harmless ABOT and its Related Parties from and against any and all Claims, asserted by, derived from or in favor of any person, party or entity, in respect of or resulting from: (i) loss of or damage to any well or hole (including the cost of re drill); (ii) blowout, fire, explosion, cratering or any uncontrolled well condition (including the costs to control a wild well and the removal of debris); (iii) damage to any reservoir, geological formation or underground strata or the loss of oil or gas therefrom; and/or (iv) pollution or contamination of any kind (other than surface spillage of fuels, lubricants, rig sewage or garbage, to the extent attributable to the negligence of ABOT) including but not limited to the cost of control, removal and clean- up, REGARDLESS OF THE CAUSE INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY ABOT OR ITS RELATED PARTIES.
21. WAIVER
The failure of either party to enforce any provision hereof will not constitute a waiver or preclude subsequent enforcement thereof. Waiver by a party of any breach of these provisions shall not be construed as waiver of any other breach.
22. SEVERABILITY
The fact that a provision contained herein is held invalid, illegal or unenforceable by a court of competent jurisdiction will not affect the other provision hereof which shall remain in full force and effect.
23. GOVERNING LAW
This Agreement shall be governed by and construed strictly in accordance with the laws of India, without applying conflict of law principles. Each party expressly submits to the exclusive jurisdiction of the competent courts at Hyderabad, Telangana, India, for any action, suit, or proceeding arising out of or relating to this Agreement. Each party agrees not to bring any such claim in any other court and waives any defines of inconvenient forum or requirement of bond, surety, or security with respect to such proceedings.
24. ARBITRATION
The parties shall attempt in good faith to resolve any dispute. Each party will designate an officer with the responsibility and the authority to resolve the dispute. These officers shall meet within fifteen (15) days after the request to identify the scope of the dispute and the information needed to discuss and attempt to resolve such dispute. These officers shall then gather relevant information regarding the dispute and shall meet to discuss the issues and to negotiate in good faith to resolve the issue. In the event that the parties are unable to resolve the dispute within thirty
(30) days after the specific meeting of the designated officers as specified above (or such longer time as the parties agree), then the dispute shall be resolved by binding arbitration under the terms of this section 24. Such arbitration shall be conducted in (jurisdiction of choosing), in accordance with the rules then in effect of the Arbitration & Mediation Institute of Ontario by three (3) arbitrators appointed in accordance with such rules. The award rendered by the arbitrators shall be final and binding, and the judgment may be entered upon it in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgement of the powers of the arbitrators.
25. LEGAL EXPENSES
In the event it is necessary for any party to enforce any provision of the Agreement, then in that event, the prevailing party shall be entitled to recover reasonable legal expenses on a full indemnity basis. Also, the RENTER agrees to pay all reasonable legal expenses sustained by ABOT in pursuit of any payment which is past due, on a full indemnity basis.
26. NOTICES
All notices required or permitted to be given hereunder must be in writing and shall be deemed effectively given when received or, if not received, when deposited with the post office as certified mail, return receipt requested, to the address of the party as contained in the Agreement, or as otherwise provided by either party upon notice to the other party.
27. SCOPE OF EQUIPMENT
a. ABOT will provide to RENTER the Equipment as described in and subject to the terms and conditions of this Agreement which may be amended or modified by supplementary change orders agreed to by both parties in such event, the Equipment to be provided shall be deemed to include the Equipment described in such supplementary change orders. ABOT will provide such resources and utilize such employees and/or third-party consultants as it deems necessary to provide the Equipment.
b. RENTER agrees to provide ABOT with such information, materials, and technology owned or controlled by RENTER as ABOT reasonably requires to provide the Equipment. RENTER hereby grants ABOT a royalty-free, non- exclusive, world-wide license to use RENTER ‘s technology, and all RENTER intellectual property rights covering such RENTER ‘s technology solely in order for ABOT to provide the goods and services during the term of and in accordance with the Agreement. RENTER agrees to obtain for ABOT the right to use, for the purpose of providing the Equipment and services, such third-party information, materials and technology, and any intellectual property rights therein, as ABOT reasonably requires in order to provide the Equipment and services.
c. RENTER and ABOT agree to cooperate in good faith to permit ABOT to provide the Equipment in a timely and professional manner. RENTER understands and agrees that ABOT’s provision of the Equipment may depend on the completion of certain RENTER tasks or adherence to RENTER schedules within RENTER ‘s control; consequently, the schedule for provision of the Equipment or any portion thereof may require adjustments or changes in the event such RENTER tasks or schedules change or are modified or are not completed as anticipated. ABOT shall bear no liability or otherwise be responsible for delays in the provision of Equipment or any portion thereof occasioned by RENTER ‘s failure to complete in a timely manner a RENTER task or adhere to a RENTER schedule.
28. ASSIGNMENT; SOURCE OFPRODUCTION
a. RENTER shall not assign its rights or obligations hereunder without the prior written consent of ABOT, which consent shall not be unreasonably withheld or delayed. Any attempted assignment in contravention of the foregoing shall be void and of no force or effect.
b. Subject to compliance with RENTER ‘s applicable product quality, specifications and delivery requirements specified in the Agreement, ABOT reserves the right to source production of the Equipment supplied hereunder from any facilities which are owned by any entity controlling, controlled by or under common control with ABOT. ABOT shall have no responsibility for meeting RENTER ‘s country-of-origin product content requirements (if any) unless ABOT agrees in writing of such requirements at the time RENTER places its order with ABOT.
29. CONSTRUCTION
No provision of this Agreement may be construed against ABOT as the drafting party. The term “including” means “Including without limitation.” The term “days” means calendar days unless otherwise expressly stated.
30. DEFAULT; REMEDIES
a. RENTER is in default (each, a “Default”) under this Agreement if: (i) RENTER fails to pay any amount due under this Agreement when due and such default persists for a period of more than five (5) business days after ABOT delivers notice of such default to RENTER; (ii) RENTER fails to comply with any other provision of this Agreement;
(iii) RENTER defaults under any other provision of this Agreement or other contract between RENTER and ABOT and such default persists for a period of more than five (5) business days after ABOT delivers notice of such default to RENTER , or RENTER knew or should have known of such default; (iv) the Equipment is lost, stolen, damaged or destroyed and such loss, damage or destruction is not covered by insurance; (v) RENTER makes any assignment for the benefit of its creditors, becomes insolvent, commits an act of bankruptcy, initiates any bankruptcy or insolvency proceeding, ceases or threatens to cease to do business as a going concern or seeks any arrangement or composition with its creditors; or (vi) any proceeding in bankruptcy, receivership, liquidation, or insolvency is commenced against RENTER or its property and such proceeding is not stayed or dismissed within thirty (30) days.
b. Upon the occurrence of an event of Default, ABOT shall provide written notice of such Default (to the extent practical), and RENTER shall cure within the grace period so described above, or if no grace period provided, as soon as reasonably practical. If the Default is not cured within the applicable time period, then, in addition to all rights and remedies at law and equity, ABOT may (i) accelerate all remaining rental payments and such payments shall be immediately due and payable, (ii) without notice and without resort to legal process, enter the premises where the Equipment is located and take immediate possession of the Equipment without incurring any liability to RENTER , and (iii) terminate this Agreement and pursue any and all remedies available to ABOT at law and in equity, by statute or otherwise.