EXHIBIT (e)(12)
[EXECUTION COPY)
TECHNICAL SERVICES AGREEMENT
between
GULF INDONESIA RESOURCES LIMITED
and
CONOCO INC.
THIS TECHNICAL SERVICES AGREEMENT (this "Agreement") is made and entered into
this 9th day of November 2001 (the "Effective Date") by and between:
1) GULF INDONESIA RESOURCES LIMITED, a corporation continued and existing
under the laws of New Brunswick, Canada and having its registered
office at Wisma 46 - Kota BNI XX. Xxxxxxxx Xxxxxxxx Xxx. X, Xxxxxxx,
00000 Xxxxxxxxx ("Gulf"); and
2) CONOCO INC., a Corporation organized and existing under the laws of
Delaware U.S.A. and having its office at 000 Xxxxx Xxxxx Xxxxxxx Xx.
Xxxxxxx Xxxxx, 00000 ("Conoco"):
Gulf and Conoco are referred to either Individually as "Party" or
collectively as "Parties" and shall include their respective
successors.
WHEREAS:
A) Gulf and Conoco are both primarily engaged in the oil and gas
business, including the acquisition, development, exploration and
production of oil and gas properties; and
B) Seventy-two percent (72%) of the shares of Gulf are indirectly owned or
controlled by Conoco Inc.; and
C) In order to maximum shareholder value and in an effort to better manage
the affairs of each Party in a more cost effective and efficient manner
the Parties wish to co-operate as to certain Technical Services as
contemplated herein, provided that said co-operation is not in conflict
with other existing arrangements that either Gulf or Conoco or any of
their Subsidiaries (as defined below) may as of the Effective Date have
with third parties.
NOW THEREFORE, the Parties hereby agree as follows:
1. PURPOSE
This Agreement shall provide a framework under which Gulf and Conoco
and their respective Subsidiaries shall co-operate with each other
concerning the Technical Services contemplated herein for the mutual
benefit of the Parties. For purposes of this Agreement, "Subsidiary"
with respect to a corporation (the "first corporation"), means a
corporation that is controlled (i) by the first corporation, (ii) by
the first Corporation and another corporation which is itself
controlled by the first corporation, (iii) by two or more corporations,
each, of which is controlled by the first corporation, or that is a
subsidiary of such a corporation.
Gulf and Conoco shall each appoint a representative who will act as the
main point of communication between each of them and their respective
Subsidiaries in order to facilitate the activities related to this
Agreement and the provision of Technical Services contemplated herein.
Each Party acknowledges that Perusahaan Pertambangan Minyak xxx Gas
Bumi Negara ("PERTAMINA") is currently the manager of oil and gas
assets in Indonesia, and that PERTAMINA has subcontracted through
production sharing contracts the management of such assets to
Subsidiaries of Gulf and to Subsidiaries of Conoco and that, as a
result, the
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actions of Gulf and Conoco (or their respective Subsidiaries or other
Affiliates) hereunder are subject to the same control by PERTAMINA as
would the actions of Gulf or Conoco in connection with such assets. For
purposes of this Agreement, (i) "PSC" means a production sharing
contract between either Gulf or Conoco, as the case may be, or any of
its Subsidiaries and PERTAMINA, and includes any technical assistance
contract, enhanced oil recovery contract, and any similar contractual
arrangement to which Gulf, Conoco or any of its Subsidiaries may be a
party or which it may enter into in the normal course of its business;
and (ii) "Affiliate" means, with respect to a person, any person that
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with, such person, and the
term "control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management,
activities or policies of any person or entity, whether through the
ownership of voting securities, by contract, employment or otherwise
but, for greater certainty, does not include any person deriving such
rights through a PSC.
2. AUTHORITY & RESPONSIBILITY OF CONOCO
2.1 Conoco shall have the responsibility to render the Technical Services
as contemplated herein in support of the business of Gulf (and its
Subsidiaries) as set forth herein. Conoco agrees to endeavor to ensure
timely delivery of deliverables in respect of any activities to be
carried out hereunder. Conoco shall perform all activities contemplated
hereunder in a prudent manner consistent with generally accepted
standards for the oil and gas business. Conoco's activities under this
Agreement shall be specifically subject to the terms hereof and the
general control, direction and supervision of Gulf.
2.2 Conoco shall use all reasonable efforts to ensure full compliance by
itself and its agents with all applicable laws, ordinances, regulations
and orders relative to the provision of the Technical Services
contemplated herein in each country which may have jurisdiction over
the provision of such Technical Services.
3. PROVISION OF TECHNICAL SERVICES
3.1 At the request of Gulf from time to time, Conoco shall provide
Technical Services to Gulf (or one of its Subsidiaries), subject to the
general direction and supervision of Gulf.
For purposes of this Agreement, "Technical Services" shall mean the
following:
(a) engineering, supervisory and related services,
including field services;
(b) geological, geophysical and related services;
(c) legal, financial, and other services related to
project financing and other commercial agreements;
(d) on-the-job training in the United States or other
mutually acceptable locations for engineering,
operations, geological, geophysical, accounting,
financial, legal, human resources and other personnel
required to conduct the business of Gulf and its
Subsidiaries; and
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(e) such other services of a similar nature to those set
forth above as a requesting Party may request of
another Party from time to time;
3.2 (a) Conoco agrees to make its personnel available on an "on-call
basis" to assist Gulf, if requested pursuant to this
Agreement, on matters or tasks as may be agreed between the
Parties.
(b) In addition to on-call Technical Services, Conoco agrees to
provide experienced experts to Gulf, if requested to do so
pursuant to this Agreement, on a long basis through secondment
of its employees for an indefinite period as may be agreed
between the Parties. While on secondment, such experts shall
at all times be under the full control of Gulf and shall at
all times serve the interests of Gulf in the same manner as
would Gulf's own personnel. Gulf and Conoco shall consult with
respect to any employees of Conoco (or its other Affiliates)
which Conoco proposes to assign or second to Gulf. Seconded
employees will remain employees of Conoco for salary and
benefit purposes and be compensated in accordance with the
policies of Conoco and Conoco shall charge Gulf for the actual
costs of any seconded employees, including but not limited to
salary benefits allowances and other compensation which is
paid to or on behalf of the seconded employee, as well as any
costs or fees described herein.
(c) All Conoco employees assisting Gulf in any capacity pursuant
to this Agreement shall work under the supervision and
direction of Gulf and serve at the pleasure of Gulf. Gulf
shall have the right to require that Conoco recall any of its
assigned or seconded employees by giving sixty (60) days prior
written notice.
3.3 Any request to Conoco for Technical Services shall specify in reasonable
written detail the Technical Services being requested the date or dates on which
the requesting Party desires such Technical Services to be supplied or completed
and such other information as may be reasonably necessary or relevant. Conoco
may request clarification as to any matter contained in such request, in a
timely manner. Upon receiving a request for Technical Services, Conoco shall
reply by submitting a project sheet that describes the work to be performed,
timing, and estimated costs associated with the performance of the Technical
Services. If Conoco is unable so provide Gulf with the requested Technical
Services in a timely fashion within a mutually agreed fee structure, then Gulf
shall be free to obtain such services from third parties. If the project sheet
is agreed between the Parties, then it shall be signed by authorized
representatives of both Gulf and Conoco, and be administered pursuant to the
terms of this Agreement. The Parties intend that the Fees for the provision of
Technical Services hereunder shall be limited to the actual total costs, direct
and indirect (including, but not limited to, overhead and administrative costs,
out-of-pocket expenses of the Party providing the Technical Services and its
employees, agents and consultants incurred in connection with the provision of
Technical Services hereunder, amounts paid by a Party to third parties
calculated by reference to the Fees and Indonesian levies and taxes) to the
Party providing such Technical Services, provided that such Fees shall not
exceed those which the requesting Party would pay to an arms' length third party
for services of comparable quality, quantity and location. It is the intent of
the Parties that Conoco, and its Affiliates and Subsidiaries, should neither
gain a profit nor suffer a loss as a result of performing the Technical Services
pursuant to this Agreement.
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Gulf may at all times and in any event in its discretion conduct Technical
Services separately and/or in-house. Notwithstanding anything to the contrary
set forth herein, Gulf may use third party service providers to the extent
required by Indonesia law, regulations or custom, or to effect cost recovery,
free of any restriction contained herein.
4. FINANCIAL ADMINISTRATION
When requested to do so in writing by Gulf and supplied with all necessary
information including a scope of work upon which to base its budget projection,
Conoco will provide Gulf with necessary information to prepare its operating
budgets in a timely manner and in any event no later than six (6) months prior
to the beginning of a fiscal year of Gulf. Prior to the end of each fiscal year
of Gulf during the term of this Agreement, Gulf shall, to the extent possible,
prepare and submit to Conoco, a budget (the "Budget") for Technical Services for
the ensuing year. Conoco and Gulf shall jointly employ reasonable efforts to
ensure that the annual costs of providing Technical Services hereunder shall not
exceed the approved Budget either in total or in any one accounting category in
connection with any matters set forth in such Budget.
5. CONSULTANTS
The provisions of this Agreement are not exclusive in favor of either Party,
and each Party acknowledges and agrees that Gulf may use third party consultants
to perform certain of the activities outlined in this Agreement, and Conoco may
provide comparable technical services to itself or other subsidiaries as
requested. The Parties may mutually agree upon retaining a specific third party
consultant not currently retained by either Party for certain Technical Services
in order to avoid needless cost or duplication.
6. FEES
Fees in connection with Technical Services provided pursuant to this Agreement
("Fees") shall be billed monthly by the Party performing such Technical Services
to the requesting Party, with an invoice representing all actual and allocated
costs for the previous month to be delivered to the requesting Party no later
than the 20th of each month. The requesting Party shall pay invoices within
thirty (30) days from the receipt thereof.
7. COST RECOVERY
A Party providing Technical Services hereunder shall use all reasonable efforts
to ensure that all Technical Services provided hereunder in respect of which it
or any of its Subsidiaries are or could be entitled to cost recovery under the
PSC shall be provided for in such a manner as to facilitate the successful cost
recovery of such expenses. In particular and without limitation, each Party
acknowledges and agrees that the approval of PERTAMINA shall be required for all
Fees which may be charged as "Technical Services from abroad" and should to the
extent practicable be included in the annual AFE for Technical Services Abroad
that is submitted to PERTAMINA. All amounts in respect of which a Party or
any of its Subsidiaries may be entitled to cost recovery shall be invoiced in
such a manner as to be readily identifiable as such.
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8. AUDIT REPORT
Gulf and Conoco shall have the right at any time to cause its auditors to
prepare a report to it confirming that the computation of the Fee by a
Party was accurate, and the other Party(s) shall provide all reasonable
cooperation and access to such auditors in the preparation of such report.
At the request of a Party, the other Party(s) shall also provide all
reasonable cooperation and access to PERTAMINA or any government official
in the event that PERTAMINA or such government official shall request or
undertake an audit of any Fees paid hereunder. In the event that any audit
conducted by a Party hereto determines that the Fees were not properly
calculated, the Party against which such determination is made shall have
the right to cause another independent audit to be prepared. In the event
of disagreement between any two such audits, the matter shall be
determined between the Parties hereto pursuant to arbitration in
accordance with the provisions hereof. Upon any ultimate determination,
Gulf or Conoco, as the case may be, shall refund or pay any Fees
improperly paid, or not charged, to the other.
9. TERM AND TERMINATION OF AGREEMENT
9.1 The initial term of this Agreement shall be for a ten (10) year
period beginning on the Effective Date. Thereafter, this Agreement
shall automatically renew for successive five (5) year periods until
terminated in accordance with the terms of this Article 9.
9.2 This Agreement shall be terminated at the earliest of the following
occurrences:
(a) at such time as Gulf and Conoco shall mutually agree in
writing, this Agreement may be terminated on the terms
and dates stipulated in such writing.
(b) at the expiration of the Initial Term or any Renewal
Term, should either Gulf or Conoco elect, with or
without cause, to terminate this Agreement by giving the
other party at least twelve (12) months' advance written
notice of its intent to terminate. In such event, after
proper notice, this Agreement shall terminate on the
expiry of the Initial Term or the Renewal Term, as the
case may be.
(c) Subject to events of force majeure (as provided in
Section 14.5 hereof), in the event either Party shall
fail to discharge any of its material obligations
hereunder, including, without limitation, the obligation
to render Technical Services under the terms of this
Agreement or the "Administrative Services" or the
"Information Services" under the Administrative &
Information Services Agreement between the parties in a
timely and prudent manner, or shall commit a material
breach of this Agreement or the Administrative &
Information Services Agreement and such failure, default
or breach shall continue for period of thirty (30) days
after the other Party has served written notice of such
default, this Agreement and the Administrative &
Information Services Agreement may then be terminated at
the option of the non-breaching Party by written notice
therefore to the breaching Party specifying a proposed
date of termination at least thirty (30) days after the
date of such notice, it being understood that such
termination right is in addition to any other remedies
that may be available to the aggrieved Party.
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(d) Upon the dissolution or termination of the corporate existence
of either Party or cessation on the part of either Party to
continue to conduct its oil and gas business;
(e) if there is instituted by or against either Party any
proceeding under any applicable bankruptcy law, or under any
other law for the relief of debtors now or hereafter existing,
or a receiver is appointed for all or substantially all of the
assets of the Party and such proceeding is not dismissed or
such receiver is not discharged, as the case may be, within
thirty (30) days thereafter;
(g) if either Party shall (i) become insolvent, (ii) generally
fail to, or admit in writing its inability to, pay debts as
they become due, (iii) make a general assignment for the
benefit of creditors, (iv) apply for, consent to or acquiesce
in the appointment of a trustee, receiver or other custodian.
(h) if a substantial portion of the assets or properties of either
Party shall be seized or taken by order of a governmental
agency or body, or any other writ shall be issued against such
Party or any of its assets, or if any other lawful creditor's
remedy shall be asserted or exercised with respect thereof,
provided that in any such case such Party has not contested
such action in good faith within thirty (30) days thereof.
(i) either Party shall have the right to terminate this Agreement
during the twelve (12) months following the occurrence of a
Change of Control in the other Party. For purposes of this
Agreement, "Change of Control" means the acquisition by any
person or group of persons of beneficial ownership (as such
term is defined under Section 13(d) of the U.S. Securities
Exchange Act of 1934 as amended) of more than 50% of the
outstanding ordinary shares on an undiluted basis, or all or
substantially all of the assets or business of such Party not
seeking to invoke this right of termination under this clause
Unless otherwise provided in this Section 9.2, either Party may
exercise its right to terminate this Agreement by giving the other
Party written notice specifying a proposed date of termination no
more than twelve (12) months nor less than thirty (30) days after
the date of such notice, in which case this Agreement shall
terminate on the date specified in such notice.
9.3 The termination of this Agreement in accordance with the provisions
of this Article 9 shall have the following effects:
(a) Except for the mutual indemnities set forth in
Article 12 and the covenants and the other
provisions herein that by their terms
expressly extend beyond the Term of Agreement,
the Parties' obligations hereunder are limited
to the Term of Agreement.
(b) In the event this Agreement is terminated for
any reason, the Party providing Technical
Services shall immediately deliver possession
to the requesting Party of all assets, books
and records of the requesting Party in the
other Party's possession
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and shall provide the requesting Party with copies of all
assets, books and records (including electronic copies in the
format requested by the requesting Party and reasonably within
the other Party's capability) relating to his Technical
Services that are in the other Party's possession, at the cost
of the requesting Party.
(c) Upon termination of this Agreement (for whatever cause, other
than a material breach by a Party of this Agreement), Gulf
shall pay to Conoco the amount of any and all costs and
expenses accrued to the date of such termination which are
payable in accordance with the provisions hereof, together
with any costs actually incurred which result from the
termination of this Agreement.
9.4 Notwithstanding termination of this Agreement, each Party shall
remain bound by the provisions of Article 10.2.
10. ACCESS TO BOOKS AND RECORDS; CONFIDENTIALITY; CONFLICTS OF INTEREST
10.1 Except as otherwise provided under the Confidentiality Agreement
between the parties dated 15 October 2001, Conoco and its duly
authorized representatives shall have complete access to Gulf's
offices, facilities and records wherever located, as necessary in
order to discharge Conoco's responsibilities hereunder. All records
and materials furnished to Conoco by Gulf in performance of this
Agreement shall at all times during the term of this Agreement
remain the property of Gulf. Gulf and its duly authorized
representatives shall have complete access to records and other
information concerning Gulf (and its Subsidiaries) used by Conoco in
performance of its duties hereunder.
10.2 During the term of this Agreement and for a period of three (3)
years thereafter, any information and data acquired, interpreted,
developed or disclosed in connection with the Technical Services
provided under this Agreement shall be treated by the receiving
Party as confidential and shall not be disclosed by the receiving
Party except to its directors, officers, employees and to the
directors, officers, employees of its Affiliates, and to its
consultants, without the prior written consent of the disclosing
Party. Both Parties shall ensure that the person to whom
confidential information is provided is aware of the confidentiality
obligations under this Agreement and shall ensure that such persons
comply with the confidentiality provisions of this Agreement.
10.3 Conoco undertakes that it shall avoid any conflict of interest
between the interests of its other Subsidiaries and other Affiliates
and the interests of Gulf and its Subsidiaries in dealing with
suppliers, customers and all other persons doing or seeking to do
business with Gulf in connection with the Technical Services
contemplated under this Agreement.
10.4 The provisions contained in Section 10.2 shall survive the
termination of this Agreement.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of New York.
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11.2 Any dispute, controversy, or claim arising under this Agreement,
including any disputes as to the construction, performance,
interpretation, breach, termination, enforceability or invalidity of
this Agreement, that cannot be settled amicably by the Parties
within thirty (30) days of receipt by the Parties of a notice of
such dispute, shall be finally settled by a three (3) person
arbitration panel under the UNCITRAL arbitration rules as in force
on the date of this Agreement and in accordance with the following
provisions:
(a) The Parties by mutual agreement shall select the three (3)
person panel within thirty (30) days of the notice of the
dispute described above. If the Parties have not selected the
three person panel within such thirty (30) day period, then
the entire panel shall be selected by the Secretary-General of
the Permanent Court of Arbitration at the Hague (provided that
the requirements set forth in clause (b) below are satisfied);
(b) Each arbitrator shall be fluent in English and shall be
experienced in the oil and gas industry;
(c) The site of the arbitration shall be in London. The language
of the arbitration shall be English;
(d) The Parties agree that the award made by the panel shall be
final and conclusive and binding upon the Parties;
(e) Any expenses incurred in connection with the appointment of
the arbitrator(s) and the performance of the arbitration shall
be shared equally by the Parties. Each Party shall pay its own
expenses incurred in connection with the arbitration;
(f) The Parties agree that no Party shall have any right to
commence or maintain any suit or legal proceeding until the
dispute has been determined in accordance with these
arbitration procedures and then only for enforcement of the
award made in such arbitration. In the case of a lawsuit or
any other legal proceeding being commenced against any Party
to enforce any arbitration award or for any other purpose
related to this Agreement, the Parties agree that they are
subject to the non-exclusive jurisdiction of, and hereby
irrevocably elect permanent domicile at, the District Court of
Central Jakarta, Indonesia. The Parties expressly agree to
waive any provisions of any applicable law or regulation of
Indonesia or any competent authority that provide the
possibility to appeal the decision of the arbitrators so that
there shall be no appeal to any court from the decision of
the arbitrators; and
(g) Each of the Parties hereby expressly waives any Indonesian
laws and regulations, decrees or policies having the force of
law that would otherwise give a right to appeal the decision
of the panel and the Parties agree that, in accordance with
Article 60 of the Indonesian Arbitration Law, neither Party
shall appeal to any court from the award or decision contained
therein, so that on the decision taken by the panel there
shall be no other Indonesian authority or panel. Each of the
Parties waive the applicability of Articles 48.1 and 73(B) of
the Indonesian Arbitration Law; however, the Parties do
acknowledge among themselves that it is
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their intent that an arbitration under this Agreement be
completed within one hundred eighty (180) days from the
selection of the three person panel.
12. INDEMNITIES
12.1 Indemnification by Conoco
Conoco shall protect, indemnify, defend and hold harmless Gulf and
its officers, directors, employees, agents, other representatives
and Subsidiaries (together the "Gulf Indemnitees") from any and all
threatened or actual claims, demands, causes of action, suits,
proceedings (formal or informal), losses, damages, fines, penalties,
liabilities, costs and expenses of any nature, including attorney's
fees and court costs, sustained or incurred by or asserted against a
Gulf Indemnitee by any person by reason of or arising out of: (i)
any breach or alleged breach of this Agreement by Conoco, its
Affiliates (other than a Gulf Indemnitee), agents, or employees; or
(ii) any act or alleged act of fraud, willful misconduct or gross
negligence of Conoco or its Affiliates (other than a Gulf
Indemnitee) or any of their respective employees, officers,
directors or agents, or (iii) acts outside, or omissions in, the
scope of Conoco's or its Subsidiary's authorized duties and
responsibilities contained herein. In case any action or proceeding
shall be brought against a Gulf Indemnitee in respect of which
indemnification may be sought against Conoco pursuant to this
Section 11.1, then Conoco, upon receipt of notice from Gulf, shall
defend such action or proceeding by counsel reasonably satisfactory
to Gulf and Conoco, and Conoco shall pay for all expenses therefore
unless such action or proceeding is resisted and defended by counsel
for any carrier of public liability insurance that benefits Gulf or
Conoco. Gulf shall promptly give written notice to Conoco when a
claim is made against a Gulf Indemnitee for which indemnity is owed
pursuant to this Section 12.1. Conoco shall participate at its own
expense on defense of such claims, but Gulf shall have the right to
employ its own separate counsel. Gulf shall assist Conoco in the
defense of any claim for which Conoco owes indemnification hereunder
and is undertaking to provide a defense, by making available to
Conoco such records and personnel as may be reasonably required in
the defense of such claim.
12.2 Indemnification by Gulf
Gulf shall protect, indemnify, defend and hold harmless Conoco and
its officers, directors, employees, agents, other representatives
and Subsidiaries (together the "Conoco Indemnitees") from any and
all threatened or actual claims, demands, causes of action, suits,
proceedings (formal or informal), losses, damages, fines, penalties,
liabilities, costs and expenses of any nature, including attorney's
fees and court costs, sustained or incurred by or asserted against a
Conoco Indemnitee by any person by reason of or arising out of: (i)
any breach or alleged breach of this Agreement by Gulf, its
Affiliates (other than a Conoco Indemnitee), agents, or employees;
or (ii) any act or alleged act of fraud, willful misconduct or gross
negligence of Gulf or its Affiliates (other than a Conoco
Indemnitee) or any of their respective employees, officers,
directors or agents, or (iii) acts outside, or omissions in, the
scope of Gulf's or its Subsidiary's authorized duties and
responsibilities contained herein. In case any action or proceeding
shall be brought against a Conoco Indemnitee in respect of which
indemnification may be sought against Gulf pursuant to this Section
12.2, then Gulf, upon receipt of notice from Conoco, shall defend
such action
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or proceeding by counsel reasonably satisfactory to Conoco and Gulf,
and Gulf shall pay for all expenses therefore unless such action or
proceeding is resisted and defended by counsel for any carrier of
public liability insurance that benefits Conoco or Gulf. Conoco
shall promptly give written notice to Gulf when a claim is made
against a Conoco Indemnitee for which indemnity is owed pursuant to
this Section 12.2. Gulf shall participate at its own expense on
defense of such claims, but Conoco shall have the right to employ
its own separate counsel. Conoco shall assist Gulf in the defense of
any claim for which Gulf owes indemnification hereunder and is
undertaking to provide a defense, by making available to Gulf such
records and personnel as may be reasonably required in the defense
of such claim.
13. NOTICES
13.1 Except as otherwise specifically provided herein, all notices and
communications under this Agreement shall be deemed to have been
properly given when received if sent to Parties by email
transmission to the appointed representative for each Party from
time to time pursuant to Section 1 hereof, by telex, by telefax, or
by acknowledged hand delivery:
if to Gulf or one of its Subsidiaries that is a Party hereto
as follows:
GULF INDONESIA RESOURCES LIMITED
Xxxxx 00, Xxxx XXX,
Xxxxx 00
Xx. Jend. Sudirman Kav. I
Jakarta. 00000
Xxxxxxxxx.
Attention: Vice President, Finance
Telefax: 62 - 21 5730737
if to Conoco or one of its Subsidiaries that is a Party hereto
as follows:
CONOCO INC.
000 Xxxxx Xxxxx Xxxxxxx Xx.
Xxxxxxx Xxxxx, 00000
Attention: Assistant to the President--Exploration
Production AAME
Telefax: 0-000-000-0000
13.2 Gulf and Conoco may by giving notice thereof to the other change of
its address for notice at any time.
14. MISCELLANEOUS
14.1 It is not the intention of the Parties to create, nor shall this
Agreement be deemed or construed to create a partnership, joint
venture, association, trust or fiduciary relationship, or to
authorize any Party to act as an agent, servant, or employee for any
other Party.
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14.2 This Agreement is not intended to and shall not be deemed to impose
any obligations upon the Parties to enter into any further
transactions or impose any other obligation on either Party hereto
with respect to areas of Technical Services hereunder. Without
limiting the foregoing, this Agreement shall not be interpreted as
creating any form of exclusive arrangement between the Parties, nor
shall it place any restrictions on either Party in the conduct
of their normal business.
14.3 Any modification, variation or alteration to the terms of this
Agreement shall be effective and valid if confirmed in writing by
the Parties.
14.4 No assignment of this Agreement or any of the rights or obligations
set forth herein by a Party shall be valid without the specific
written consent of both Gulf and Conoco, which will not be
unreasonably withheld. Notwithstanding the foregoing, Gulf and
Conoco and any of their permitted assignees shall have the right to
assign this Agreement to an Affiliate without the consent of the
other Parties hereto, provided that (i) such Affiliate is controlled
by Gulf, or by Conoco, (ii) the ability of Gulf (or its
Subsidiaries) or Conoco (or its other Affiliates) to obtain cost
recovery under a relevant PSC is not thereby lost, and (iii) Gulf or
Conoco, as the case may be, shall remain liable for such assignee's
obligations and liabilities under this Agreement.
14.5 The waiver by a Party of a breach or violation of any provision of
this Agreement shall not operate as, or be construed to be, a waiver
of any subsequent breach of the same or any other provisions hereof.
14.6 In the event either Party shall resort to legal action to enforce
the terms and provisions of this Agreement, the prevailing Party may
recover from the other Party the costs of such action including,
without limitation, reasonable attorneys' fees.
14.7 Upon the request of a Party, the other Parties shall execute such
additional instruments and take such additional actions as shall be
necessary to effectuate this Agreement.
14.8 No Party shall be liable nor deemed to be in default for any delay
or failure of performance under this Agreement resulting directly or
indirectly from acts of God, civil or military authority, acts of
public enemy, war accidents, fires, explosions, earthquakes, floods,
failure of transportation, strikes, interruptions by a Party's
employees or any similar or dissimilar cause beyond the reasonable
control of the Party claiming the force majeure.
14.9 If any provision of this Agreement or any application thereof shall
be declared or held to be invalid, illegal or unenforceable in whole
or in part whether generally or in any particular jurisdiction, such
provision shall be deemed to be amended to the extent necessary to
cure such invalidity, illegality or unenforceability, and the
validity, legality or enforceability of the remaining provision of
this Agreement, both generally and in every other jurisdiction,
shall not in any way be affected or impaired thereby.
14.10 No Party shall be liable to the other under this Agreement for
direct, indirect or consequential damages including but not limited
to economic losses, loss of profit or business interruption, loss of
contract or business opportunity.
14.11 The Parties hereto agree that as of the Effective Date hereof, it is
in the best interest of the Parties that this Agreement shall
supercede all terms and conditions of the Technical
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Services Agreement dated as of 1 October 1997 between Gulf and Gulf
Canada Resources Limited (presently known as Conoco Canada Inc. and
presently an indirectly wholly-owned subsidiary of Conoco Inc.) as
well as all other previous oral or written discussions, offers,
proposals, or positions between the Parties.
14.12 The Parties hereto acknowledge and agree that additional
Subsidiaries of Gulf may come into existence and/or may become
parties to a PSC at any time and from time to time, and in such
event, Gulf shall ensure that each Subsidiary which is the operator
of or party to a PSC becomes a party hereto. A Subsidiary shall
become a party hereto by executing a counterpart hereof and
delivering a copy thereof to each of Gulf and Conoco, at which time
of delivery such Subsidiary shall be deemed to be a Party hereunder
without further formality.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives on the day and year first above written.
For and on behalf of: For and on behalf of:
GULF INDONESIA RESOURCES CONOCO INC.
LIMITED
/s/ XXXX X. XXXXXXX /s/ XXXXX X. XxXXXXXX
-------------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxx X. XxXxxxxx
Title: President and CEO Title: President-Exploration Production
AAME
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