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EXHIBIT 10.57
EAGLE GEOPHYSICAL, INC.
MASTER AGREEMENT FOR GEOPHYSICAL SERVICES
THIS AGREEMENT ("Agreement"), dated this 2nd day of January, 1997, is by
and between EAGLE GEOPHYSICAL, INC., a Delaware Corporation hereafter called
CONTRACTOR, and DDD ENERGY, INC a Delaware Corporation hereafter called CLIENT.
W I T N E S S E T H:
In consideration of the mutual promises and agreements set forth herein,
CONTRACTOR, and CLIENT agree as follows:
SECTION I - NATURE OF WORK
CONTRACTOR shall conduct geophysical surveys for the benefit of CLIENT in
those areas designated by CLIENT in accordance with the terms and conditions of
this Agreement and any Job Supplement (sometimes collectively referred to as
"the Contract"). These geophysical surveys shall be carried out by one or more
geophysical parties as may be agreed upon between CLIENT and CONTRACTOR in a
manner and subject to these terms and conditions and those contained in any Job
Supplement (defined herein), which shall define the scope of CONTRACTOR's work
(the "Work").
SECTION II - SUPPLEMENTARY AGREEMENTS
Whenever CLIENT requests and CONTRACTOR agrees to conduct a geophysical
survey, CLIENT and CONTRACTOR shall enter into a written supplementary
agreement (a "Job Supplement") which shall describe the specific area where the
Work is to be performed and specifies the equipment, services, and materials to
be furnished by CONTRACTOR and prices to be charged for the Work. Each Job
Supplement shall be incorporated herein by reference and all terms and
provisions of this Agreement shall apply to each Job Supplement unless any of
the terms and conditions of this Agreement are eliminated for purposes of a
particular Job Supplement. If any of the terms and conditions of this Agreement
and those of any Job Supplement conflict, the terms and conditions of the Job
Supplement shall control. Except as otherwise provided herein, all estimates of
time for commencement of operations pursuant to any Job Supplement are
estimates only, and are subject to change depending upon weather conditions,
availability of permits, environmental considerations, availability of
subcontractor crews and equipment, and any other condition beyond the sole
control of the CONTRACTOR. CONTRACTOR shall not be liable for any loss caused
by any variation in commencement or completion of the Work specified in any Job
Supplement.
SECTION III - TERM AND TERMINATION
This Agreement shall be effective as of the date first above written and
shall continue until terminated by written notice, postmarked at least ten (10)
days prior to the termination date, from one party to the other party setting
forth the termination date of this Agreement (the "Termination Date").
Contractor may not terminate the Agreement while a Job Supplement is in effect.
Subject to the foregoing, this Agreement shall terminate on the Termination
Date so specified. The termination of any Job Supplement shall not terminate
this Agreement or relieve the CLIENT of any obligation to pay CONTRACTOR all
amounts accrued in connection with the Work performed by CONTRACTOR through the
termination date, including project cancellation charges, if applicable.
SECTION IV - DELINEATION OF AUTHORITY
In the performance of the Work hereunder, (i) CONTRACTOR shall be an
independent contractor with sole authority to direct and control the Work, (ii)
CLIENT, or a representative designated by CLIENT shall observe all Work
performed by CONTRACTOR, but the detailed manner of accomplishing the Work
shall be under the sole control of
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CONTRACTOR, (iii) CLIENT will approve, in writing, all methods and techniques
to be employed by CONTRACTOR prior to commencement of the Work and CONTRACTOR
will inform CLIENT, in writing, of any and all changes in such approved methods
and techniques, during the performance of the Work, (iv) CLIENT will timely
provide all required information, assistance and support to CONTRACTOR to
ensure the integrity of the subsurface sampling objectives of the seismic
survey. CLIENT being interested only in the results obtained as a result of the
operations conducted by CONTRACTOR; CLIENT will work with CONTRACTOR so that
CLIENT can fully represent the soundness and integrity of the data recorded.
SECTION V - SECRECY OBLIGATION
CONTRACTOR shall use diligence in safeguarding (1) geophysical data
acquired from the Work hereunder, (2) information relating to the location of
the survey and type of Work performed and (3) information supplied by CLIENT
which is not in the public domain or otherwise already known by CONTRACTOR.
CONTRACTOR shall not divulge to anyone other than CLIENT or its designated
representative any such data or information unless authorized by CLIENT in
writing prior to such disclosure. CONTRACTOR shall use diligence to cause its
subcontractors, employees and agents to comply with this obligation of secrecy.
CONTRACTOR's obligation of secrecy shall be a continuing one and shall survive
the termination of this Agreement and shall continue not withstanding the
disclosure or transfer of data by CLIENT to a third party until any such
information becomes part of the public domain through no fault of CONTRACTOR.
Likewise, CLIENT shall observe the above secrecy obligation, insofar as it has
access to and knowledge of information that is confidential or proprietary to
CONTRACTOR, including, without limitation, information regarding CONTRACTOR's
equipment, instruments, programs, procedures, business practices and the
operation thereof.
SECTION VI - OPERATIONS
1. CONTRACTOR shall perform data acquisition activities in accordance with
the Data Acquisition Parameters, Survey Design Considerations, Field Design
Implementation Techniques, Quality Control Standards and Specifications
contained in the Job Supplement.
2. CONTRACTOR shall provide experienced personnel and supervisory staff
necessary to conduct the Work in accordance with the data acquisition
parameters and the quality control standards included in any Supplemental
Agreement.
3. CLIENT DESIGNATION OF LOCATION. CLIENT shall designate each area to be
surveyed, and shall furnish CONTRACTOR with adequate maps of suitable scale for
each project to be surveyed sufficiently in advance to permit orderly planning
of any Work. Such maps shall remain the property of CLIENT and shall be
returned upon completion of the Work, if requested by CLIENT.
4. PLANNING THE WORK. CONTRACTOR shall be solely responsible for planning,
scheduling and implementing the sequence of the Work as outlined herein and
described in more detail on any and all Job Supplements that are entered into
pursuant to this Agreement. Any changes that are made in CONTRACTOR's original
operational plan and/or scheduling of the Work requested by CLIENT, which shall
result in loss or extra overhead and/or direct expense to CONTRACTOR, shall be
for CLIENT's account and payable to CONTRACTOR. Any changes in scheduling
and/or sequence of work influenced by weather conditions, availability of
subcontractor crews and equipment, or any other condition beyond the sole
control of CLIENT, which shall result in loss or extra overhead and/or direct
expense to CONTRACTOR will not be accountable to CLIENT.
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5. REPORTS. Subject to the terms and conditions of this Contract,
CONTRACTOR shall exercise reasonable care in its Work and shall keep CLIENT
informed of the progress of the Work. Within a reasonable time after completion
of Work in any area, CONTRACTOR shall furnish CLIENT with all basic data
belonging to CLIENT, and such basic data shall be the permanent property of
CLIENT. CONTRACTOR shall not be required to provide any information proprietary
to Contractor, including, but not limited to, information pertaining to its
materials, equipment, techniques, methodology or expertise.
SECTION VII - WARRANTIES
1. NO WARRANTY REGARDING DATA. Reports, information and data supplied to
CLIENT shall represent diligent efforts and opinion of CONTRACTOR; however, any
use made by CLIENT of said reports, information or data will be at CLIENT's
sole risk, and CONTRACTOR shall have no responsibility or liability whatsoever
for any use made thereof. CLIENT AGREES TO RELEASE, DEFEND AT ITS SOLE COST,
AND INDEMNIFY CONTRACTOR FROM ALL LOSSES AND DAMAGES RESULTING THEREFROM.
2. DISCLAIMER AND LIMITATION OF EXPRESS AND IMPLIED WARRANTIES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT AND ANY JOB SUPPLEMENT, CLIENT
ACKNOWLEDGES THAT CONTRACTOR HAS MADE NO OTHER EXPRESS WARRANTY OR
REPRESENTATION. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY,
CONTRACTOR DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THOSE REGARDING ITS EQUIPMENT, SUPPLIES, SERVICES AND THE
INFORMATION AND DATA SUPPLIED BY CONTRACTOR, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO
WARRANTY OF WORKMANLIKE PERFORMANCE IS GIVEN BY THE CONTRACTOR BY VIRTUE OF
THIS AGREEMENT FOR ANY PERFORMANCE COMPLETED AND WORK TURNED OVER TO CLIENT.
CLIENT'S SOLE REMEDY FOR NONPERFORMANCE BY CONTRACTOR SHALL BE ITS RIGHT TO
WITHHOLD ANY OR ALL PAYMENTS DUE TO CONTRACTOR.
3. DISCLAIMER AND INDEMNITY FROM THIRD PARTIES. This contract is not
intended to create, and shall not create any rights for any persons who are not
parties hereto. ACCORDINGLY, CONTRACTOR SHALL NOT BE LIABLE, DIRECTLY OR
INDIRECTLY, TO ANY THIRD PARTIES, AND CLIENT AGREES TO DEFEND, RELEASE AND
INDEMNIFY CONTRACTOR FROM ALL DIRECT, INDIRECT AND CONSEQUENTIAL DAMAGES AND
LOSSES SUSTAINED BY ANY PERSONS WHO ARE NOT PARTIES TO THIS CONTRACT
(INCLUDING, BUT NOT LIMITED TO, CLIENT'S ASSIGNEES, PARTNERS, AFFILIATES AND
WORKING INTEREST OWNERS) RESULTING FROM ANY ALLEGED BREACH OF CONTRACT,
WARRANTY, OR OTHER ALLEGED NONPERFORMANCE OF OBLIGATIONS UNDER THE CONTRACT BY
CONTRACTOR, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSSES ARISING FROM USE
OF INFORMATION OR DATA PROVIDED TO CLIENT. IN NO EVENT SHALL CONTRACTOR BE
LIABLE FOR, AND CLIENT AGREES TO RELEASE, DEFEND AT ITS SOLE COST, AND
INDEMNIFY CONTRACTOR FROM ALL CLAIMS FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY JOB
SUPPLEMENT(S) OR THE USE OF REPORTS, INFORMATION AND DATA SUPPLIED TO CLIENT,
INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST REVENUES, LOST PROFITS, LOSS
OF BUSINESS OPPORTUNITIES, LOSS OF LEASES, BUSINESS INTERRUPTIONS, LOST DATA,
COSTS OF OBTAINING
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SUBSTITUTE INFORMATION OR SERVICES, LOSS OR DELAY OF PRODUCTION, LOSS RESULTING
TO ANY EXISTING XXXXX OR RESERVOIR, LOSSES INCURRED BY CLIENT'S JOINT INTEREST
OWNERS AND ALL OTHER PARTIES ARISING OUT OF ANY DRILLING COMMITMENTS OR
OBLIGATIONS CONTAINED IN ANY LEASE, FARMOUT AGREEMENT OR OTHER AGREEMENT WHICH
MAY BE AFFECTED BY TERMINATION OR LACK OF PERFORMANCE HEREUNDER, AND ANY
SIMILAR OR DISSIMILAR LOSSES, COSTS OR DAMAGES, HOWEVER CAUSED, REGARDLESS OF
WHEN OR HOW SUCH DAMAGE OCCURS, EXCEPT IN THE CASE OF GROSS NEGLIGENCE, WILLFUL
MISCONDUCT OR BREACH OF THIS AGREEMENT BY CONTRACTOR.
SECTION VIII - FORCE MAJEURE AND CONDITIONS EXCUSING PERFORMANCE
The contracting parties acknowledge that conditions beyond the control of
either party, including, but limited to, Force Majeure, may prevent timely
performance of this Contract by CONTRACTOR. Such conditions may include, for
example, but are not limited to delay in issuance or continuance of permits,
weather conditions which interrupt the orderly and efficient conduct of
surveying operations, and conditions which may cause loss, malfunction of or
damage to CONTRACTOR's equipment or endanger its properties or crews or those
of its subcontractors. The parties agree that such conditions shall include any
set of circumstances where CONTRACTOR's performance under this Contract is
delayed, prevented, or substantially impaired, which conditions are beyond the
reasonable control of CONTRACTOR. Force Majeure events shall include riot,
strike, war, insurrection, rebellion, civil disturbance, legal restraints,
governmental action or inaction or like interference, fire, flood, freezing,
storm, hurricane, tornadoes, or other action of the elements, acts of God,
accidental damage to equipment or any cause outside the sole control of
CONTRACTOR. CONTRACTOR shall not be liable for any delay or failure of
performance caused by any or all of the foregoing conditions. If such
conditions result in an increase of personnel or costs to complete a project,
CONTRACTOR, at its option, in addition to other rights set forth herein, shall
have the right to charge for standby time or to negotiate with CLIENT for an
adjustment of the rate set forth in the Job Supplement, and should the parties
fail to agree on said adjustment within five (5) days, CONTRACTOR shall have
the option to terminate this Agreement and/or any Job Supplement by giving to
CLIENT five (5) days written notice of termination. CLIENT shall promptly pay
CONTRACTOR for all amounts earned in connection with the Work performed by
CONTRACTOR in addition to all reimbursable expenses incurred by CONTRACTOR
through the termination date.
SECTION IX - RESPONSIBILITY FOR LOSS OR DAMAGE, INDEMNITY,
RELEASE OF LIABILITY AND ALLOCATION OF RISK
1. INDEMNITY BY CONTRACTOR. EXCEPT AS HEREAFTER PROVIDED, CONTRACTOR
AGREES THAT IT WILL PROTECT, DEFEND AT ITS SOLE COST, RELEASE, INDEMNIFY, SAVE
AND HOLD HARMLESS THE CLIENT GROUP FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, LOSSES, DAMAGES, AND LIABILITIES OF EVERY KIND AND CHARACTER, CAUSES
OF ACTION, SUITS, (INCLUDING COSTS AND REASONABLE ATTORNEYS FEES) ARISING FROM
OR CONNECTED WITH THE OPERATIONS OF CONTRACTOR, RESULTING IN PERSONAL INJURY
TO, ILLNESS OR DEATH, OR DAMAGE TO CONTRACTOR'S SUBCONTRACTORS, CLIENT'S
SUBCONTRACTORS, OR ANY THIRD PARTIES PROPERTY, EXCEPT TO THE EXTENT CAUSED BY
THE SOLE, JOINT OR CONCURRENT NEGLIGENCE OF CLIENT GROUP. FOR PURPOSES OF THIS
CONTRACT, THE "CLIENT GROUP" SHALL MEAN ANY AND ALL OF THE CLIENT, ITS OWNERS,
OFFICERS, DIRECTORS, AFFILIATES, PARTNERS, JOINT VENTURERS AND
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SUBCONTRACTORS AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, AGENTS, REPRESENTATIVES, AND INVITEES.
2. INDEMNITY BY CLIENT. EXCEPT AS HEREAFTER PROVIDED, CLIENT AGREES THAT
IT WILL PROTECT, DEFEND AT ITS SOLE COST, RELEASE, INDEMNIFY, SAVE AND HOLD
HARMLESS THE CONTRACTOR GROUP FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
LOSSES, DAMAGES AND LIABILITIES OF EVERY KIND AND CHARACTER, CAUSES OF ACTION,
SUITS (INCLUDING COST AND REASONABLE ATTORNEY FEES) ARISING FROM OR CONNECTED
WITH THE OPERATIONS OF CLIENT, RESULTING IN PERSONAL INJURY TO, ILLNESS, OR
DEATH, OR DAMAGE TO CONTRACTOR'S SUBCONTRACTORS, CLIENT'S SUBCONTRACTORS, OR
ANY THIRD PARTIES PROPERTY, EXCEPT TO THE EXTENT CAUSED BY THE SOLE, JOINT OR
CURRENT NEGLIGENCE OF CONTRACTOR GROUP. FOR PURPOSES OF THIS CONTRACT, THE
"CONTRACTOR GROUP" SHALL MEAN ANY AND ALL OF CONTRACTOR, ITS OWNERS, OFFICERS,
DIRECTORS, AFFILIATES, PARTNERS, JOINT VENTURERS AND SUBCONTRACTORS, AND EACH
OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS,
REPRESENTATIVES, AND INVITEES.
3. INDEMNITY WITHOUT FAULT. EXCEPT AS OTHERWISE EXPRESSLY LIMITED HEREIN,
IT IS THE INTENT OF THE PARTIES HERETO THAT ALL INDEMNITY OBLIGATIONS AND
LIABILITIES ASSUMED BY THE PARTIES UNDER THIS AGREEMENT BE WITHOUT MONETARY
LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF (INCLUDING PREEXISTING
CONDITIONS), THE NEGLIGENCE OF ANY PARTY OR PARTIES (WHETHER THE NEGLIGENCE BE
SOLE, JOINT, OR CONCURRENT, ACTIVE OR PASSIVE), AND THE FAULT OR RESPONSIBILITY
OF ANY PARTY OR PARTIES UNDER ANY OTHER CONTRACT OR ANY STATUTE, RULE, OR
THEORY OF LAW. THIS CONTRACT SHALL CREATE NO RIGHT OF ACTION IN ANY PERSON NOT
A PARTY HEREUNDER OR NOT SPECIFICALLY IDENTIFIED AS AN INDEMNITY HERETO, AND
ALL INDEMNITY OBLIGATIONS CONTAINED HEREIN SHALL HAVE NO APPLICATION TO THEM.
4. RISK OF LOSS OF FIELD TAPES. CLIENT SHALL ASSUME SOLE RESPONSIBILITY
FOR, AND AGREES TO RELEASE AND INDEMNIFY CONTRACTOR GROUP FOR ALL DAMAGE TO,
LOSS OR THEFT OF ORIGINAL FIELD TAPES AND THE INFORMATION RECORDED THEREON
AFTER CONTRACTOR TURNS SUCH FIELD TAPES OVER TO A REPUTABLE COMMON CARRIER WITH
APPROPRIATE SHIPPING INSTRUCTIONS OR WHEN CONTRACTOR DELIVERS SUCH INFORMATION
TO THE CLIENT REPRESENTATIVE DESIGNATED IN THE APPROPRIATE JOB SUPPLEMENT.
5. MINERAL INTERESTS AND TRESPASS. CLIENT SHALL ASSUME SOLE RESPONSIBILITY
FOR AND DEFEND AT ITS SOLE COST, RELEASE AND INDEMNIFY CONTRACTOR FOR ANY CLAIM
BY THE OWNER OR PURPORTED OWNER OF LAND OR OF A MINERAL INTEREST IN LAND, BASED
UPON THE THEORY THAT THE OPERATIONS HEREUNDER OF CONTRACTOR HAVE DIMINISHED THE
MINERAL VALUE OF SUCH LAND; provided, however, that CLIENT shall not be
responsible for any such claim in any case where such operations are conducted
upon land not designated therefor by CLIENT or its said representative, or in
any case where CLIENT shall have requested CONTRACTOR to obtain a permit to
conduct such operations, and where CONTRACTOR shall fail either to obtain such
permit, or to do everything reasonably or prudently necessary to assure the
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validity and sufficiency of such permit if obtained by it, or in any case where
CONTRACTOR shall fail to observe any condition or restrictions, of which it has
knowledge, imposed with respect to such permit obtained by it or CLIENT, and
without limiting the generality of the foregoing, it is further agreed that
CLIENT shall not be responsible for any damage or claim, resulting from an
entry on land, or arising from CONTRACTOR's operations on land, after
CONTRACTOR or its employees have been warned to keep off such land by the owner
or lessee thereof, or by any person having authority or apparent authority to
eject CONTRACTOR or its employees. If CONTRACTOR is unable through reasonable
efforts to timely obtain such permits, CONTRACTOR will notify CLIENT and
CONTRACTOR will not enter non-permitted land unless so instructed in writing by
an officer of the CLIENT. NOTWITHSTANDING THE FOREGOING, WHEN THE
ABOVE-MENTIONED PERMITS ARE NOT TIMELY OBTAINED EITHER BY CLIENT OR CONTRACTOR
PRIOR TO CREW ENTRY AND CLIENT INSTRUCTS CONTRACTOR TO PROCEED WITHOUT PERMITS,
CLIENT ASSUMES ALL RESPONSIBILITY FOR, AND AGREES TO RELEASE, DEFEND AT ITS
SOLE COST AND INDEMNIFY CONTRACTOR FOR ALL DAMAGES, COSTS AND ATTORNEYS FEES
ACCRUING OR ASSERTED TO ACCRUE FROM SUCH ENTRY.
6. INDEMNITY FOR DAMAGES CAUSED BY THE DATA ACQUISITION PROCESS. ATTACHED
AS EXHIBIT "A" IS THE SAFE OPERATING DISTANCE CHART DISTRIBUTED BY THE IAGC,
COMMONLY USED AND ACCEPTED BY THE GEOPHYSICAL INDUSTRY WHICH THE PARTIES DEEM
REFLECTS THE SAFE DISTANCE FOR THE CONDUCT OF THE WORK. CONTRACTOR AGREES TO
ADHERE TO THE REQUIREMENTS OF SAID CHART IN PERFORMING THE CONTRACT. IF, (i)
CLIENT REQUESTS OR INSTRUCTS CONTRACTOR TO DISCHARGE EXPLOSIVES AT CLOSER
DISTANCES THAN THOSE PRESCRIBED, OR TO DISCHARGE EXPLOSIVES LARGER THAN THE
AMOUNTS PRESCRIBED FOR THE DISTANCES PRESCRIBED, OR TO CAUSE THE DISTANCES
PRESCRIBED FOR SURFACE ENERGY SOURCES TO BE LESS THAN THOSE SET FORTH IN
EXHIBIT "A", OR (ii) SUCH CHARGES ARE SET OR USED BY CONTRACTOR IN COMPLIANCE
WITH THE SPECIFICATIONS SET FORTH IN EXHIBIT "A", THEN CLIENT SHALL ASSUME SOLE
RESPONSIBILITY FOR, DEFEND AT ITS SOLE COST, RELEASE, INDEMNIFY AND HOLD
CONTRACTOR GROUP HARMLESS FROM AND AGAINST ALL CLAIMS FOR DAMAGE TO OR LOSS OF
PROPERTY OR INJURIES TO PERSONS OR DEATH RESULTING FROM THE DISCHARGE OF ANY
ENERGY SOURCE IN THE COURSE OF THE DATA ACQUISITION PROCESS OPERATIONS
HEREUNDER. WHENEVER SUCH ENERGY SOURCES ARE SET OR USED BY CONTRACTOR IN
COMPLIANCE WITH THE SPECIFICATIONS SET FORTH IN EXHIBIT "A", THEN THE PARTIES
AGREE THAT SUCH PERFORMANCE SHALL BE DEEMED REASONABLE AND PRUDENT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF CONTRACTOR OR ONE OF ITS
SUBCONTRACTORS, AGENTS OR EMPLOYEES CAUSES ANY ENERGY SOURCE POINT TO BE PLACED
CLOSER THAN THE DISTANCES PRESCRIBED IN EXHIBIT "A", AND LOSSES OR CLAIMS FOR
DAMAGES TO INJURY OR DEATH RESULT FROM THE DISCHARGE OF SUCH ENERGY SOURCE,
THEN CONTRACTOR SHALL ASSUME SOLE RESPONSIBILITY FOR DEFEND AT ITS SOLE COST,
RELEASE, INDEMNIFY AND HOLD CLIENT GROUP HARMLESS FROM AND AGAINST ALL SUCH
LOSSES AND CLAIMS.
7. INDEMNITY AND DEFENSE RIGHTS EXTEND TO AFFILIATES AND OFFICERS. ALL
INDEMNITIES, RELEASES AND ASSUMPTIONS OF LIABILITY EXTENDED BY THE PARTIES
HERETO SHALL
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INURE TO THE BENEFIT OF THE PARTIES, THEIR PARENT HOLDING AND AFFILIATED
COMPANIES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,
AGENTS, SERVANTS AND EMPLOYEES, ALTHOUGH THEY SHALL NOT EXTEND TO, AND SHALL
HAVE NO APPLICATION TO CLAIMS OR CAUSES OF ACTION ASSERTED AGAINST CONTRACTOR
OR CLIENT BY REASON OF ANY AGREEMENT OF INDEMNITY WITH A PERSON OR ENTITY NOT A
PARTY HERETO.
8. CLAIMS NOTIFICATION AND DEFENSE ASSUMPTION. If either party hereto
learns of any claim, liability, demand, cause of action or judgment relating to
this Agreement or the performance hereunder, said party agrees to give written
notice as promptly as possible to the other party. Failure by one party to
provide such notification to the other party shall not relieve such other party
from any obligation or liability which it may have on account of this Agreement
or otherwise, except to the extent such other party shall have been materially
prejudiced by such failure. The duty to defend shall be based solely upon the
allegations or claims made, regardless of whether such claims or allegations
are groundless, false or untrue and provided further that if any claim as
asserted would or could fall within the obligation to indemnify, then the
responsible party must assume the defense of the indemnitee for all allegations
made against it. If the duty to defend is required by any of the terms of this
Agreement, the party who agreed to defend shall defend the other one in the
suit or claim to final resolution, or settle same. If it is determined that
assumption of liability or indemnity is required under this agreement, then the
responsible party shall pay all settlements, judgments, costs, including
reasonable attorneys' fees, and other reasonable expenses incident thereto.
Each party, if requested, agrees to cooperate with the other in any defense,
and the responsible party shall reimburse the other on an ongoing basis for all
reasonable expenses incurred in connection therewith.
SECTION X - INSURANCE
Prior to commencement of any Work pursuant hereto and in compliance with
Section VI above, CONTRACTOR shall secure and maintain in force and effect at
all times during the term of this Agreement, the insurance as provided below
with coverage limits not less than the amount specified, insuring the
liabilities specifically assumed by the indemnitor in this contract, but not
otherwise, with insurers licensed to do business in all states where Work
arises from the Agreement. SUBJECT TO POLICY EXCLUSIONS WITH RESPECT TO ANY
INSURED CLAIM THAT ARISES FROM THE WORK DONE BY CONTRACTOR, OR ITS
SUBCONTRACTORS, THIS INSURANCE SHALL BE PRIMARY TO ANY INSURANCE WHICH CLIENT
MAY HAVE OR MAY BE APPLICABLE AT THE TIME. CONTRACTOR shall include CLIENT as
additional insured under CONTRACTOR'S policies only for those risks and losses
for which CONTRACTOR is liable under this Agreement. However CLIENT assumes the
obligation to ensure that its defense and indemnity obligations assumed
hereunder are fully covered by insurance. The Parties will cause each policy to
be endorsed to provide waiver of subrogation rights against each other.
CONTRACTOR shall supply CLIENT with a valid certificate or certificates of
insurance evidencing such coverage's in their entirety and containing a
provision for a 30-day notice of cancellation or material change to the
Additional Insured. If it is judicially determined that the insurance required
hereunder, or the indemnities voluntarily or mutually assumed in this Agreement
(which shall be supported either by available liability insurance, under which
the insurer has no right of subrogation against the indemnitees, or voluntarily
self-insured in part or whole), exceed the maximum limits permissible under
applicable law, it is agreed that said insurance requirements or indemnities
shall automatically be amended to conform to the maximum limits permitted under
such law.
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INSURANCE COVERAGE
COVERAGE MINIMUM LIMITS
1 Workers Compensation/ Statutory requirements in State in which work hereunder is to
Employers Liability be performed; the CONTRACTOR is domiciled; and in State in
which the CONTRACTOR's employee(s) reside. Employer's
liability limit of $1,000,000.
2 Comprehensive General Liability including Broad $1,000,000 CSL $2,000,000 aggregate
Form Contractual Coverage per policy terms and
conditions.
3 Automobile Liability Insurance on all owned, non- $1,000,000 CSL
owned and hired vehicles
4 Umbrella Liability (endorsed to follow form) $10,000,000 per occurrence $10,000,000 aggregate
5 Property damage insurance in full insurable value to cover loss or damage of CONTRACTOR property.
6 Non-owned aircraft liability $2,000,000 per occurrence $2,000,000 aggregate
7 Maritime insurance as follows, when applicable:
a) Liability insurance with a minimum limit of $2,000,000, including Vessel Liability and/or Protection and
Indemnity insurance for any vessels involved.
b) Marine Trip Cargo and Loading and Unloading Insurance coverage in the amount equal to the value of the
equipment involved.
c) Maritime Employer's Liability with limits of not less than $1,000,000, and US Longshoremen's and
harborworkers' Act coverage.
d) Insurance to protect against liability of employer to provide transportation, wages, maintenance and cure to
maritime employees.
e) Coverage providing that a claim "in rem" shall be treated as a claim against the employer.
f) Insurance providing Gulf of Mexico territorial extension.
8 Such other insurance as may be required by law.
9 Contractual indemnity insurance in a sufficient amount to cover all indemnity and defense obligations assumed under this
Agreement and any Job Supplements.
SECTION XI - GOVERNMENTAL LAWS AND TAXES
1. CONTRACTOR shall perform all Work hereunder in compliance with all
applicable governmental laws, rules and regulations.
2. CONTRACTOR shall be solely liable for the payment of all taxes and
contributions for unemployment insurance and for pensions, benefits and
annuities, now or hereafter imposed by the United States, or any state, which
are measured by the wages, salaries or other remuneration paid to or due any
person employed by CONTRACTOR in the performance of this Agreement.
SECTION XII - SAFETY AND HEALTH STANDARDS
CONTRACTOR shall observe and comply with all applicable federal, state and
local safety and health standards as well as those contained in the Eagle
Geophysical, Inc. Safety and Health Manual for Geophysical Operations,
including the Eagle Geophysical, Inc. Drug and Alcohol Policy, which are
attached hereto, by reference, as Exhibits "B". Such safety and health
standards shall apply to all subcontractors of CONTRACTOR and their employees
as well as to CONTRACTOR and its employees.
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SECTION XIII - ENVIRONMENTAL LAWS AND REQUIREMENTS
CONTRACTOR shall use reasonable efforts to comply with all applicable
laws, rules and regulations concerning environmental protection and
preservation.
SECTION XIV - PERMITS AND PROPERTY DAMAGE
CLIENT shall designate each area to be surveyed. CONTRACTOR shall attempt
to secure any permits necessary for CONTRACTOR to enter upon such area for the
purpose herein contemplated, at CLIENT's expense. CONTRACTOR shall not be
liable for any delays or cancellation of any Job Supplement due to its
inability to obtain any such permits. CONTRACTOR shall use its best efforts to
obtain written permission from the person who purports to be the owner or
lessee of the land on which operations are to be conducted or from a third
person who purports to have authority from the owner or lessee to grant such
permit. CONTRACTOR shall use a bonafide good faith effort to determine if the
person is the owner or lessee of the land or that the person has the authority
to grant the permit. If, however, CONTRACTOR has any reason to question the
authority of any person to grant a valid permit, it shall fully report the
facts to CLIENT and shall proceed no further with respect to the lands in
question until authorized by CLIENT. CLIENT agrees to use its best efforts to
assist CONTRACTOR in obtaining permits if requested to do so. CONTRACTOR shall
not enter upon any lands or proceed with any surveying or other seismic
operations until permits have been obtained. Should CONTRACTOR be denied free
access to the local work area for any reason not within CONTRACTOR's sole
control, then any time lost by reason of such denial shall be chargeable as
standby time. CONTRACTOR SHALL INDEMNIFY AND SAVE CLIENT HARMLESS FROM ANY
CLAIMS, ACTIONS, JUDGMENTS OR ANY COSTS WHATSOEVER ARISING OUT OF ANY INSTANCE
WHERE CONTRACTOR HAS ENTERED UPON LANDS OR CONDUCTED OPERATIONS WITHOUT FIRST
HAVING SATISFIED ITS OBLIGATIONS HEREUNDER, UNLESS SPECIFICALLY INSTRUCTED TO
PROCEED WITHOUT PERMITS BY CLIENT.
SECTION XV - PATENT INFRINGEMENT
CONTRACTOR shall be excused from its performance under this Agreement
insofar as such discontinuance is the result of any claim of patent
infringement by CONTRACTOR, whether or not suit is filed, and CLIENT shall be
relieved, in proportion to the extent of CONTRACTOR's discontinuance of
operations, from CLIENT's obligations to make payment hereunder from the
initial date of and during the period of such discontinuance; provided,
however, that CLIENT's other obligations to CONTRACTOR shall continue as
provided in this AGREEMENT or in any Job Supplement in effect. CONTRACTOR shall
indemnify and hold CLIENT harmless from and against any claims, liabilities,
demands, causes of action or judgments based on any such infringement claim;
provided that the foregoing indemnity shall not apply (1) if the claim for
infringement is made against CLIENT unless CLIENT notifies CONTRACTOR promptly
in writing of such claim and gives CONTRACTOR written authority, information
and assistance (at CLIENT's expense) for the defense thereof or (2) if the
claim for infringement is based on (i) equipment, materials or methods which
CLIENT owns and directs CONTRACTOR to use or (ii) infringement of any patent
owned by any person where specific use of such patent is approved and directed
in writing by the CLIENT. CONTRACTOR shall have the right to control all
litigation for which it must indemnify CLIENT under this Section.
SECTION XVI - SPECIFIC AGREEMENT
1. JOB SUPPLEMENT TERM. Services hereunder will commence as soon as
reasonably practical and prudent following the execution of a job supplement
and shall continue until CONTRACTOR has completed the seismic
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program described in the Job Supplement, unless the Job Supplement is first
terminated earlier by other provisions of the Contract.
2. CONTRACTOR'S PERFORMANCE. CONTRACTOR shall acquire seismic data for
CLIENT in certain designated areas as specified and described and utilizing
equipment as detailed in each Job Supplement. CONTRACTOR shall employ recording
instruments and support equipment that meet or exceed all instrument
manufacturer's performance criteria for such equipment, and shall maintain such
equipment in good working order for the duration of the Work. CONTRACTOR shall
furnish competent personnel to operate said equipment in such a manner as to
obtain seismic reflection data in accordance with CLIENT'S performance
requirements as outlined in each Job Supplement. The seismic data obtained
shall be the property of CLIENT. Upon completion of the Work, CONTRACTOR shall
deliver to CLIENT all originals and copies of all seismic recordings, their
support data, and all survey data relating to the Work. CONTRACTOR shall not
retain any seismic data acquired, produced or derived from the Work for CLIENT.
3. SCHEDULING CHANGES. CLIENT acknowledges it has been reasonably informed
of scheduling demands regarding availability of the crews and equipment
necessary to enable CONTRACTOR to timely commence, and to efficiently continue
and complete the Work and that CONTRACTOR has reasonably relied upon CLIENT's
representations concerning the availability of permits. If for any reason
beyond the sole control of the CONTRACTOR commencement or continuation of the
Work is unreasonably delayed, then CONTRACTOR may, at its election, either (1)
terminate this contract; (2) reschedule the Work, taking into consideration
interference with prior, interim and subsequent commitments undertaken by
CONTRACTOR; and/or (3) charge a standby fee, specified in the Job Supplement,
for each day or portion of a day that the Work is not commenced or the Work
cannot be continued in the reasonable judgment of CONTRACTOR. In the event of
early termination, CLIENT nevertheless agrees to pay CONTRACTOR for all
services, expenses and other charges reasonably incurred or earned through the
date of termination, and any applicable reasonable contract cancellation charge
specified in the Job Supplement.
SECTION XVII - AUDIT
CONTRACTOR shall maintain full and complete records concerning invoices
which are based on services performed and costs which relate to reimbursable
xxxxxxxx in such manner and detail as to permit verification of all such
charges made to CLIENT. For a period of one (1) year from the date such costs
were incurred, CLIENT shall have the right to audit CONTRACTOR's accounting
records related directly to reimbursable billing on the Work at any reasonable
time during normal business hours after the expiration of five (5) days
following written notice received by CONTRACTOR.
SECTION XVIII - NOTICES
All notices permitted or required to be given under the terms of this
Contract shall be in writing and shall be deemed effective upon receipt if sent
by facsimile or first-class or certified mail with return receipt requested,
postage prepaid. Receipt shall be deemed to have occurred as to facsimile
notices on the date the sending party receives telefax confirmation that the
receiving party has received the telefaxed notice or, for first class or
certified mailings, the date of actual receipt or three days after the date
which notice is sent by first class or certified mail, postage prepaid,
whichever occurs earlier, provided that mailed notices are properly addressed
to the respective parties hereto as follows, or at such other address as shall
be designated by written notice to the other party in accordance with this
provision:
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CONTRACTOR: CLIENT:
EAGLE GEOPHYSICAL, INC. DDD ENERGY, INC.
ATTENTION: Xxx Xxxxxxxxx, President ATTENTION: Xxxxxx Xxxxxxx, President
00 Xxxxx Xxxxxx, 0xx Xxxxx Xxxx 50 Briar Hollow, 7th Floor West
Houston, Texas 77027 Xxxxxxx, Xxxxx 00000
Telephone (000) 000-0000 Telephone (000) 000-0000
Facsimile (000) 000-0000 Facsimile (000) 000-0000
SECTION XIX - PAYMENT
1. PAYMENTS. In consideration of services performed and to be performed,
and the personnel, equipment, materials and supplies furnished hereunder,
CLIENT shall timely pay to CONTRACTOR all amounts provided for in each Job
Supplement, and, in addition thereto, all reimbursable expenses, standby time,
cancellation charges, if applicable, and such other charges as agreed to or as
set forth in any Job Supplement, at CONTRACTOR's address as follows:
EAGLE GEOPHYSICAL, INC. (TAX ID #00-0000000)
Attention: Accounts Receivable
00 Xxxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
2. REIMBURSABLE EXPENSES. Reimbursables shall include the cost and expense
of those items purchased, used or incorporated into the performance of the Work
as set forth in each Job Supplement.
3. INVOICES. CONTRACTOR may invoice for charges incurred hereunder at
least on a monthly basis and invoices shall be mailed as soon as practical
after the end of each invoice period. CLIENT shall pay all amounts invoiced by
CONTRACTOR under this Contract at the address shown in Subsection 1 above (or
at the address shown on the invoice, if different) within thirty (30) days
after the invoice date of each invoice by CONTRACTOR. All amounts not paid by
CLIENT to CONTRACTOR within thirty (30) days after the date of invoice shall
bear interest thereafter at the lesser of (i) the rate of one and one-half
percent (1.5%) per month or (ii) the maximum rate allowed by applicable law. It
is the intention of CLIENT and CONTRACTOR to comply with all applicable usury
laws; accordingly, it is agreed notwithstanding any provision of the Contract
or any invoices related thereto, no provision shall require the payment of or
permit collection of interest in excess of the maximum rate of applicable law
governing this Contract. If any alleged excess interest is provided for, then
in such event the provisions of this paragraph shall govern and control, and
CLIENT shall not be obligated to pay any amount of interest in excess of the
maximum rate allowed by applicable law governing this Contract. Any such excess
shall be applied as a credit to the principal balance owed, or refunded.
4. CONTRACTOR'S RIGHTS IN EVENT OF NONPAYMENT. CLIENT shall promptly pay
to CONTRACTOR all costs and expenses incurred by CONTRACTOR, including, without
limitation, reasonable costs, expenses and attorneys' fees, in connection with
the preservation and enforcement of CONTRACTOR's rights under this Contract. In
addition to the collection of interest pursuant to the foregoing and in
addition to all other rights that CONTRACTOR may have at law or in equity,
CONTRACTOR shall have the right to suspend or terminate its performance under
this Contract upon failure by CLIENT to make timely payments of all sums due
under the Contract. Payment of CONTRACTOR's invoices shall not prejudice the
right of CLIENT to protest or question the correctness
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thereof; however all invoices rendered shall conclusively be presumed to have
been reasonable, fully earned, and the amounts charged therein necessary and
proper after two years following payment, unless within such period CLIENT
takes written exception thereto and makes a written claim on CONTRACTOR for
adjustment.
SECTION XX - MISCELLANEOUS
1. WAIVER. The rights herein given to either party hereto may be exercised
from time to time, singularly or in combination, and the waiver of one or more
of such rights shall not be deemed to be a waiver of such right in the future,
or of any one or more of the other rights which the exercising party may have.
No waiver of any breach of a term, provision or condition of this Agreement by
one party shall be deemed to have been made by the other party hereto, unless
such waiver is expressed in writing and signed by an authorized representative
of such party, and the failure of either party to insist upon the strict
performance of any term, provision or condition of this Agreement, or to
exercise any option herein given, shall not be construed as a waiver or
relinquishment in the future of the same or any other term, provision,
condition or option.
2. ASSIGNMENT. This Agreement shall be binding upon and shall inure to the
benefit of the Parties hereto, their successors and assigns. Notwithstanding
the foregoing, neither party to this Agreement shall assign any of its rights
or obligations hereunder without prior written consent of the other party;
provided, however, that CONTRACTOR shall be entitled to subcontract to third
parties those portions of the Work which are routinely subcontracted by
contractors in the geophysical contracting industry. Nothing in this section
shall limit, restrict, or prohibit CLIENT's use, transfer or disclosure of the
seismic data or materials to third parties.
3. ENTIRE AGREEMENT AND MODIFICATION. This Agreement, as written, together
with any Job Supplement(s), embodies the entire agreement and Contract by and
between CLIENT and CONTRACTOR with respect to the transactions contemplated
hereby and shall supersede all previous communications, representations or
agreements, both oral and written, with respect to the subject matter hereof.
The Contract shall not and cannot be amended or modified except by written
instrument duly executed by all of the parties hereto.
4. HEADINGS. The Section Headings contained herein are for convenience
only, and shall not in any way affect the meaning or interpretation of the
provisions hereof.
5. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of Texas,
without giving effect to any conflict of law rules or provisions. Each party
hereto agrees that any suit, action or other proceeding arising out of this
Agreement shall be brought and litigated only in the State or Federal courts
located in Xxxxxx County, Texas, and each party hereto hereby irrevocably
consents to personal jurisdiction and venue in any such court and hereby waives
any claim it may have that such court is an inconvenient or improper forum for
the purposes of any such suit, action or other proceeding. Each party hereto
hereby irrevocable consents to the service of process of any of the
aforementioned courts in any such suit, action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such party
at the address of such party set forth in or designated pursuant to Section
XVII.
6. SEVERABILITY. If any one or more of the provisions of this Agreement
shall for any reason be held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect the remaining provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforecable provision had never been a part hereof.
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7. COUNTERPARTS. This Agreement and any Job Supplement may be executed in
any number of counterparts and any party hereto may execute any such
counterpart, each of which when executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall constitute but one
and the same instrument. Telefaxed signatures on any counterpart shall likewise
be deemed originals. This Agreement and any Job Supplement shall become binding
when one or more counterparts taken together shall have been executed and
delivered by the parties. It shall not be necessary in proving this Agreement
or any counterpart hereof to produce or account for any of the other
counterparts.
8. ARBITRATION. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE ALLEGED BREACH THEREOF, WHICH CANNOT BE RESOLVED BETWEEN
THE PARTIES HERETO SHALL BE SETTLED BY ARBITRATION WHICH SHALL PROCEED IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (BUT NOT NECESSARILY BY THE AMERICAN ARBITRATION ASSOCIATION). ANY
ARBITRATION PROCEEDINGS HEREUNDER SHALL BE HELD IN HOUSTON, TEXAS, OR SUCH
OTHER LOCATION IN THE UNITED STATES ON WHICH THE CLIENT AND CONTRACTOR MAY
MUTUALLY AGREE. THIS DISPUTE SHALL BE RESOLVED BY ONE ARBITRATOR. CONTRACTOR
AND CLIENT SHALL APPOINT ONE ARBITRATOR. IF CONTRACTOR AND CLIENT CANNOT
PROMPTLY AGREE ON THE APPOINTMENT OF THE ARBITRATOR, CONTRACTOR OR CLIENT MAY
APPLY TO THE SENIOR JUDGE OF THE SOUTHERN DISTRICT OF TEXAS, WHO SHALL APPOINT
SUCH ARBITRATOR. THE AWARD RENDERED BY SUCH ARBITRATOR SHALL BE FINAL AND
BINDING UPON CONTRACTOR AND CLIENT. CLIENT AND CONTRACTOR HEREBY SUBMIT TO THE
JURISDICTION OF THE COURTS (FEDERAL AND STATE) OF XXXXXX COUNTY, TEXAS, FOR
PURPOSES OF ENFORCEMENT OF THE FINDINGS OF SUCH ARBITRATOR. CLIENT AND
CONTRACTOR AGREE THAT NEITHER PARTY SHALL HAVE ANY RIGHT TO COMMENCE OR
MAINTAIN ANY SUIT OR LEGAL PROCEEDING CONCERNING ANY DISPUTE HEREUNDER, OTHER
THAN A SUIT FOR ENFORCEMENT OF THE ARBITRATION PROVISIONS CONTAINED IN THIS
SECTION XX, UNTIL THE DISPUTE HAS BEEN DETERMINED IN ACCORDANCE WITH THE
ARBITRATION PROCEDURE PROVIDED FOR HEREIN AND THEN ONLY FOR ENFORCEMENT OF THE
AWARD RENDERED UNDER SUCH ARBITRATION.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers effective as of the day and year
first written above.
EAGLE GEOPHYSICAL, INC. DDD ENERGY, INC.
BY: /s/ XXX X. XXXXXXXXX BY: /s/ XXXX X. PRZWARA
-------------------------------- ------------------------------
Printed Name: Xxx X. Xxxxxxxxx Printed Name: Xxxx X. Przwara
---------------------- ---------------------
Title: President Title: Vice President
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