INDEPENDENT CONSULTING AGREEMENT
Exhibit
10.3
This
Independent Consulting Agreement (this “Agreement”) is effective the
28th day of
September, 2007 (“Effective Date”), between Tidelands Oil & Gas Corporation,
a corporation formed under the laws of the State of
Nevada (“Consultant”), and Frontera Pipeline, LLC., a limited
liability company formed under the laws of the State of Delaware (the
“Company”).
WHEREAS,
the Company is engaged in the development and construction of an integrated
pipeline project traversing the United States of America and Mexico border
and
the construction of a related storage facility in Mexico (the
“Project”);
WHEREAS,
the Consultant has the experience to advise and assist the Company and its
Affiliates in the development and construction of the Project; and
WHEREAS, For
purposes of this Agreement, the term “Affiliate” shall mean with respect
to the Company any entity that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the
Company.
NOW,
THEREFORE, in consideration of the mutual covenants and obligations set forth
in
this Agreement, and of other good and valuable consideration, the receipt
of
which is hereby acknowledged, the parties hereto, intending legally to be
bound,
hereby agree as follows:
1. Performance
Obligations and Scope of Services.
1.1 Scope
of Services. Consultant agrees to provide the services below (the
“Services”) on an independent contractor basis. The Services shall
not be subcontracted or assigned out by Consultant without prior written
approval from the Company. Consultant shall comply with all
applicable federal state and local laws, codes and regulations in effect
and use
its best efforts in the performance of the Services. The
Services shall be as follows:
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(i)
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To
provide advice and counsel to the Company and its subsidiaries
pertaining
to local customs and business conditions which would affect the
Project.
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(ii)
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To
assist in the Company’s development, ownership and operation of the
Project.
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(iii)
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To
provide advice and counsel to the Company and its subsidiaries
with
respect to communications and relationships with all governmental
entities
(including regulatory bodies) having jurisdiction over any phase
of the
Project.
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(iv)
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Generally,
to perform all other services that are reasonably inferable from
the
services delineated in this Section
1.1
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1.2 Term. Subject
to the provisions of Section 2 hereof (including all sub-parts), the term
of
this Agreement shall be for the period September 28, 2007 through September
28,
2009 (the “Term”). Any extension of this Agreement shall be
subject to mutually acceptable terms and conditions between the parties,
and
shall be set forth in a written, separately signed document.
1.3 Designation
of Individuals To Perform the Services. During the Term,
Consultant agrees to offer employment and to make available Xxxxx Xxxxxxxxxxxx
on a full time basis, and Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxx, and any other
necessary personnel of Consultant on an as-needed basis, to provide the
Services; provided that Xxxxx Xxxxxxxxxxxx, Xxxxxx X. Xxxxxx and Xxxxx X.
Xxxxx
remain employees of the Consultant. Consultant agrees to enter into
and/or maintain agreements with such individuals containing covenants that
are
at least as protective to the Company as those set forth in Sections 9 and
11
hereto, and to enforce such agreements at its own expense to the fullest
extent
permitted by law. Consultant shall provide copies of all such
agreements to the Company upon its request. This Agreement is
expressly conditioned upon the continuing direct involvement and participation
of Xxxxx Xxxxxxxxxxxx, Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxx (collectively.
the
“Key Personnel”) in the rendering of the Services under this
Agreement. In the event of the unavailability, death or
incapacity of any one or two but not all three of Xxxxx Xxxxxxxxxxxx, Xxxxx
X.
Xxxxx and Xxxxxx X. Xxxxxx, then the Company shall have the right to modify
this
Agreement as set forth in Section 3.1 or in the event of the unavailability,
death or incapacity of all three Key Personnel, then the Company shall have
the
right to terminate this Agreement for Cause (as defined below).
1.4 Payment
for Services. Unless this Agreement is terminated by the Company
as provided herein, the Company agrees to pay Consultant for its provision
of
the Services at a rate equal to Twenty Five Thousand United States Dollars
(USD
$25,000) per month during the Term, prorated for any partial
months. Payment shall be made via wire transfer on the 3rd day
of each calendar month for the Services provided for the previous
month. Consultant will issue invoices to the Company for any expenses
reimbursable pursuant to Section 1.5, incurred in conjunction with the previous
month’s Services. Invoices are due to the Company on or before the
30th day of each month. The Company will pay Consultant for the prior
month’s reimbursable expenses within the first ten (10) business days of receipt
of the Consultant’s invoice.
1.5 Reimbursement
for Approved Expenses. During the Term, the Company or its
Affiliates shall reimburse Consultant for properly documented reasonable
expenses relating directly to the Project, including travel, lodging, meals,
facsimile, telephone, translating, administrative or other similar
expenses. Travel and other reimbursable expenses that individually
exceed $1,000 must be approved in writing in advance by an officer or other
person as the Company may designate. Such reimbursement shall be by
invoice submitted to the Company by the Consultant with all supporting documents
reasonably requested by the Company, and in the manner and format reasonably
requested by the Company. All other expenses (including,
without limitation, living, office, insurance and medical expenses for its
employees) shall be solely the responsibility of Consultant.
1.6 Right
to Audit. Consultant agrees that expense reimbursements, whether
as a result of specific prior Company approval or otherwise, are subject
to
audit by the Company. Without limitation, the Company may generally
audit the Consultant’s expenses and invoices not more than once per year upon
fifteen (15) days prior written notice, taking into consideration, without
limitation (i) the amount paid in relation to the total payments under this
Agreement; (ii) the nature of the expense; and (iii) the Consultant’s Services
rendered for the period. Consultant understands that all services and
expenditures must be described in detail; and, upon notice of audit, the
Consultant will make available to the Company all invoices, supportive receipts
and detailed substantiation, and original entry records for all charges invoiced
to the Company.
2. Termination
and Liquidated Damages.
2.1 Termination. In
the event Consultant terminates this Agreement without cause, or this Agreement
is terminated by the Company for Cause, Consultant shall immediately forfeit
all
of its Member Units in the Company.
2.2 Cause. For
purposes of this Agreement, “Cause” shall mean the Company has made a
good faith determination that Consultant, or any Key Personnel: (i) has been
convicted of a misdemeanor involving moral turpitude or any felony; (ii)
has
committed an act of fraud upon the Company; (iii) has misappropriated funds
or
property of the Company; (iv) has failed to comply in any material way with
written policies of the Company and such written policies have been provided
to
Consultant such that Consultant has received reasonable notice of such policies;
(v) has failed to use its commercially reasonable efforts in performing its
responsibilities under this Agreement; (vi) has materially breached this
Agreement; (vii) without limitation of the foregoing, engaged in any action
which would constitute a breach of Section 5 hereof; (viii) files a petition
in
bankruptcy, becomes insolvent, or ceases to do business for any reason or
(xi)
has sold all of its Member Units in the Company.
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3. Modification
of Payment for Services
3.1 In
the
event of (i) the death of, or unavailability or incapacity for more than
thirty(30) consecutive days during the Term, of one or two but not all three
of
Xxxxx Xxxxxxxxxxxx, Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxx, the monthly payment
for
services rate shall be reduced by Fifteen Thousand United States Dollars
(USD
$15,000) in the case of Xxxxx Xxxxxxxxxxxx, Five Thousand United States Dollars
(USD $5,000) in the case of Xxxxx X. Xxxxx and Five Thousand United States
Dollars (USD $5,000) in the case of Xxxxxx X. Xxxxxx. In the event of
the death of, or unavailability or incapacity of all three of the Key Personnel,
this Agreement shall terminate for Cause pursuant to the terms of Section
2.1.
4. Independent
Contractor.
4.1 Status
of Consultant. It is expressly understood and agreed that
Consultant is an independent contractor and is not an employee, agent, venturer,
or partner of the Company or any Affiliate. Unless expressly provided
herein or granted in a separate written instrument, Consultant shall not
have
the authority, nor act, represent or hold itself out as having authority,
to act
as an agent or partner of the Company or any Affiliate, or in any way bind
or
commit the Company or any Affiliate to any obligation, contract, agreement,
or
other legal commitment, or to pledge or extend credit in the name of the
Company
or any Affiliate. The rights, duties, obligations and liabilities of
the parties shall be several and not joint or collective, and nothing contained
in this Agreement shall be construed as creating a partnership, joint venture,
agency, trust or other association of any kind, each party being individually
responsible only for its obligations and actions as set forth in this
Agreement.
4.2 Contracts
for the Benefit of the Company and Affiliates. Any contract
entered into by the Company or its Affiliates as a result of the Consultant’s
efforts shall be for the sole benefit of the Company or its Affiliates and
the
Consultant shall have no interest therein.
4.3 Performance
of the Services. Consultant shall act as an independent
contractor at all times. Subject only to the general needs and
requirements of the Company, Consultant shall determine Consultant’s
own days, hours, and places of work. Except as set forth in Section
1.5, Consultant shall be responsible for providing for Consultant’s own
expenses, overhead, transportation and other items or services required to
carry
out the Services. Consultant will, in Consultant’s discretion, and
subject only to the general needs and requirements of the Company, determine
the
means and manner by which Consultant performs the Services.
4.4 Insurance,
Taxes and Benefits. Consultant shall be fully and solely
responsible for all applicable insurance and taxes (including the filing
of all
applicable tax forms) in the United States, Mexico, or any other
country. As a result, the Company shall not withhold or pay any
payroll or employment taxes of any kind with respect to any payments made
to
Consultant hereunder during the time covered by this Agreement, and Consultant
shall indemnify and hold the Company and its Affiliates harmless
therefrom. Neither Consultant nor its employees are eligible for, nor
may they participate in, any employment benefits or benefit plans provided
to
Company employees. Consultant will not assert a claim of employment
against the Company nor claim any entitlement to participation in its employee
benefit programs. If, however, Consultant is deemed to be eligible
for participation in such benefits or plans, Consultant hereby waives and
releases any such rights, on behalf of itself and its employees.
5. Business
Conduct and Compliance With Law. In the conduct of the Services
contemplated under this Agreement, the Consultant agrees to comply fully
with
the letter and spirit of all applicable laws of any jurisdiction in which
the
Services are performed, including but not limited to, the U.S. Foreign Corrupt
Practices Act, and to conduct itself in keeping with the highest ethical
standards. In addition, the parties represent, acknowledge and agree
as follows:
5.1 The
Consultant represents that no part of its compensation will be used by the
Consultant for any purpose, nor has the Consultant taken, nor will the
Consultant take any action, which would constitute a violation of any law
of
Mexico, the United States or of any other jurisdiction in which it performs
the
Services hereunder. For its part, the Company represents that it does
not desire and will not request any service or action by the Consultant which
would or might constitute any such violation. Further, the Consultant
has not previously and agrees prospectively not to pay or promise to pay
or give
or promise to give anything of value, either directly or indirectly, to an
official of the Government of Mexico or of any other government for the purpose
of influencing an act or decision in his or her official capacity, inducing
him
or her to use his or her influence with a foreign government, assisting Company
in obtaining or retaining business for or with, or directing business to,
any
person or as a political contribution of any kind.
5.2 Should
the Consultant ever receive, directly or indirectly, from any Company or
Affiliate representative, a request which the Consultant believes will or
might
constitute a breach of this Section 4, the Consultant represents that it
will
immediately notify the Company’s General Counsel of the request.
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6. Disclosure. The
Consultant agrees that full disclosure of the existence and terms of this
Agreement, including the compensation provisions, may be made at any time
and
for any reason to whomever the Company’s General Counsel determines has a
legitimate need to know such terms, including, without limitation, the
government of any country where the Services are being performed and the
United
States Government. Without limiting any right or ability the
Company has regarding disclosure of this Agreement under applicable law,
Consultant further agrees that the Company or its Affiliates shall have the
right to fully disclose this Agreement and the identity of the Consultant’s
shareholders, directors, officers and/or owners if such disclosure is required
by legal authority or necessary to satisfy lender(s) information
requests.
7. Restriction
on Drug Use and Possession of Weapons on Company Business. The
Consultant agrees to advise its employees, subcontractors and agents that
it is
the policy of the Company that (i) the use, possession and/or distribution
of
illegal or unauthorized drugs, drug related paraphernalia or weapons on the
Company’s or its Affiliates’ premises is prohibited and the use or possession of
alcoholic beverages, except where authorized by the Company’s or its Affiliates’
management, is also prohibited; (ii) entry onto or presence on the Company’s or
its Affiliates’ premises by any person, including the Consultant’s employees,
subcontractors, subcontractor’s employees, contract personnel, temporary
employees and visitors, constitutes consent to the Company or an Affiliate
to
conduct searches, whether announced or unannounced, on the Company’s or its
Affiliates’ premises of the person and his or her personal effects for such
prohibited items; and (iii) any person who violates this provision or who
refuses to permit a search may be removed and barred from the Company’s or its
Affiliates’ premises at the sole discretion of the Company or an
Affiliate.
8. Noninterference
with Third-Party Rights. The Company is retaining Consultant with
the understanding that (i) Consultant is free to provide services to the
Company
and (ii) only the Company is entitled to the benefit of Consultant’s
work. The Company has no interest in using any other person’s
patents, copyrights, trade secrets, or other intellectual property rights
in an
unlawful manner. Consultant shall not misapply proprietary rights of
others that the Company has no right to use.
9. Ownership
of Consultant Developments.
9.1 Existing
Proprietary Rights. Consultant agrees that neither Consultant nor
its employees own any pre-existing intellectual property rights related to
the
Project.
9.2 Ownership
of Work Product.
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(a)
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The
Company shall own all Work Product (as defined below). All Work
Product shall be considered work made for hire by Consultant
and owned by
the Company in accordance with applicable law (including Article
83 of the
Mexican Ley Federal del Derecho de Autor if the Work Product is
information prepared or developed in Mexico or otherwise protected
under
such law).
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(b)
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If
any of the Work Product may not, by operation of law, be considered
work
made for hire by Consultant for the Company (or if ownership of
all right,
title and interest of the intellectual property rights therein
shall not
otherwise vest exclusively in the Company), Consultant agrees to
assign,
and upon creation thereof automatically assigns, without further
consideration, the ownership of all Trade Secrets (as defined below),
U.S.
and international copyrights, patentable inventions, and other
intellectual property rights therein to the Company, its successors
and
assigns.
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(c)
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The
Company and its successors and assigns shall have the right to
obtain and
hold in its or their own name copyrights, registrations, patents,
and any
other protection available in the
foregoing.
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(d)
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Consultant
agrees to perform, upon the reasonable request of the Company,
during or
after Consultant’s provision of the Services for the Company, such further
acts as may be necessary or desirable to transfer, perfect and
defend the
Company’s ownership of the Work Product. When requested,
Consultant shall:
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(i)
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Execute,
acknowledge and deliver any requested affidavits and documents
of
assignment and conveyance;
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(ii)
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Obtain
and aid in the enforcement of copyrights (and, if applicable, patents)
with respect to the Work Product in any
countries;
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(iii)
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Provide
testimony in connection with any proceeding affecting the right,
title or
interest of the Company in any Work Product;
and
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(iv)
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Perform
any other acts deemed necessary or desirable to carry out the purposes
of
this Agreement.
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The
Company shall reimburse all
reasonable out-of-pocket expenses incurred by Consultant at the Company’s
request in connection with the foregoing, including (unless Consultant is
otherwise being compensated at the time) a reasonable per diem or hourly
fee for
services rendered if Consultant is no longer providing the Services to the
Company.
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(e)
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For
purposes hereof, “Work Product” shall mean all intellectual property
rights, including, without limitation, all U.S. and international
copyrights, patentable inventions, Trade Secrets (as defined herein),
discoveries and improvements, and other intellectual property rights,
in
any programming, documentation, technology, strategic plans, information,
ideas, concepts or other work product that relates to the business
and
interests of the Company and that Consultant creates, invents,
conceives
or develops as a result of its performance of the Services during
the Term
of this Agreement. Consultant hereby irrevocably relinquishes
and waives for the benefit of the Company and its assigns any economic
and
moral rights and any other rights or claims in the Work Product
recognized
by applicable law. To the extent any of Consultant’s moral
rights in the Work Product are not assignable or waivable, Consultant
hereby grants the Company a perpetual, irrevocable, exclusive license
to
use and exercise such rights in any manner whatsoever and/or to
the extent
the Work Product is protected by the Mexican Ley Federal del Derecho
de Autor, agrees to exercise such non-assignable rights consistently
with the Company’s business and
interests.
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10. Confidentiality.
10.1 Consequences
of Entrustment with Sensitive Information. Consultant should
recognizes that Consultant’s relationship with the Company requires considerable
responsibility and trust. The Company agrees to and expects to entrust
Consultant with highly sensitive confidential, restricted, and proprietary
information involving Trade Secrets and Confidential Information (as defined
herein). Consultant acknowledges and agrees that Consultant is
legally and ethically responsible for protecting and preserving the Company’s
proprietary rights for use only for the Company’s benefit, and these
responsibilities may impose unavoidable limitations on Consultant’s ability to
pursue some kinds of business opportunities that might interest Consultant
during or after Consultant’s relationship with the Company.
10.2 Definition
of “Trade Secret.” For purposes of this Agreement, a “Trade
Secret” is any information, including, but not limited to, technical or
non-technical data, a formula, a pattern, a compilation, a program, a device,
a
method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which
qualifies as a trade secret under applicable law (including Article
82 of the
Mexican Ley de la Propiedad Industrial in case of information developed
in Mexico or otherwise subject or protected by such law). A “Trade
Secret” generally: (i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use;
and
(ii) is the subject of efforts that are reasonable under the circumstances
to
maintain its secrecy.
10.3 Restrictions
on Use and Disclosure of Trade Secrets. Consultant agrees not to
use or disclose any Trade Secrets of the Company for so long as Consultant
provides the Services to the Company and for so long afterwards as the pertinent
item or information remains a Trade Secret, whether or not the Trade Secret
is
in written or tangible form, except as required to perform Consultant’s duties
for the Company. This prohibition is in addition to any rights of the
Company existing under common law or applicable statutes for the protection
of
Trade Secrets and/or Confidential Information.
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10.4 Confidential
Information. In addition, and without any intention of limiting
Consultant’s other obligations under this Agreement in any way, (including any
confidentiality obligations with respect to Trade Secrets) Consultant agrees,
for so long as Consultant provides the Services to the Company and for a
period
of three (3) years following the cessation of the Services for any reason
(with
or without cause), not to disclose or reveal any Confidential Information
concerning the Company. As used herein, “Confidential Information”
shall include all data or information, whether or not marked "confidential"
(other than Trade Secrets, as defined herein), that is valuable to the Company
(or, if owned by someone else, is valuable to that third party) and not
generally known to the public or to competitors in the industry, whether
(i)
disclosed by the Company or developed by Consultant as part of Consultant’s
duties hereunder, or (ii) disclosed to the Company or to Consultant as part
of
Consultant’s duties hereunder, by third parties subject to obligations of
confidentiality. Confidential Information shall include, but is not
limited to, the Company’s business, markets, strategic plans, or any information
pertaining to the technologies and proprietary products, services the Work
Product and processes of the Company (particularly technology under current
development or improvement) or any confidential information received from
a
customer or business partner of the Company, unless Consultant has obtained
express approval to use or disclose such information from the Company in
advance. In that connection, Consultant shall submit to the Company for review
any proposed articles and the text of any public speeches relating to work
done
for the Company before they are released or delivered. The Company
has the right to disapprove and prohibit, or delete any parts of, such articles
or speeches that might disclose the Company’s Trade Secrets or Confidential
Information or otherwise be contrary to the Company’s business
interests. Notwithstanding the foregoing, the term “Confidential
Information” shall not include information which is shown by clear and
convincing evidence to be (i) publicly available without breach by Consultant
of
its obligations to the Company under this Agreement; (ii) disclosed by the
Company to a third party free of any duty of confidentiality on the third
party;
(iii) disclosed under operation of law provided Consultant gives the Company
reasonable notice prior to such disclosure and cooperates with the Company
in
its efforts to keep the Confidential Information confidential; or (iv) disclosed
by Consultant with the prior written approval of the Company.
11. Return
of Materials.
Upon
the request of the Company and, in
any event, upon the cessation of the Services, Consultant must return to
the
Company and leave at its disposal all memoranda, notes, records, drawings,
manuals, computer programs, documentation, diskettes, computer tapes, and
other
documents or media pertaining to the business of the Company or Consultant’s
specific duties for the Company (including all copies of such
materials). Consultant must also return to the Company and leave at
its disposal all materials involving any Trade Secrets and Confidential
Information of the Company. This Section 11 is intended to apply to
all materials made or compiled by Consultant, as well as to all materials
furnished to Consultant relating to the provision of the Services.
12. Partial
Restraint on Post-Termination Competition.
12.1 Factual
Background. Consultant acknowledges that (i) the Company’s
customer and/or client contacts and relations are established and maintained
at
great expense and that Consultant, by virtue of Consultant’s relationship with
the Company, has had (or will have in the future) unique and extensive exposure
to and personal contact with the Company’s customers and/or clients such that
Consultant has been (or will be) able to establish a unique relationship
with
those customers and/or clients; and/or (ii) during the course of Consultant’s
provision of the Services for the Company, the Company has agreed to provide
Consultant with access to Confidential Information and Trade Secrets of the
Company, which Consultant agrees would be inevitably used or disclosed if
Consultant establishes a competing business or is employed with a competitor
of
the Company.
12.2 Covenant
Not to Compete. Accordingly, in order to protect the Company from
unfair competition, Consultant covenants and agrees that Consultant will
not,
for so long as Consultant provides the Services to the Company and for 36
months
following the cessation of the Services for any reason (with or without Cause)
(the “Noncompetition Period”), directly or indirectly (whether as owner,
partner, stockholder, investor, officer, director, agent, independent
contractor, associate, employee, consultant or licensor), within the United
States of America and/or the metropolitan region of Central Mexico comprised
by
the State of Mexico, Mexico City, Morelos, Puebla, and Queretaro, and
Northeastern Mexico comprised by the State of Tamaulipas and Nuevo Xxxx,
on
behalf of any corporation, partnership, venture or other business entity
which
competes with the Company: (i) direct, advise, counsel or otherwise assist
any
customer or supplier of the Company which, in any manner, would have, or
is
likely to have, an adverse effect upon the Project; (ii) consult, advise,
counsel or otherwise assist any government agency on any matter or in a
proceeding which, in any manner, would have, or is likely to have, an adverse
effect upon the Project; and/or (iii) consult, advise, counsel or otherwise
assist any third party relating to the Project. Notwithstanding the
foregoing, should Consultant elect to exercise its call right pursuant to
Section 4.8 of that certain Limited Liability Company Agreement of the Company
dated as of September 26, 2007, the provisions of this Section 12.2 shall
not
apply.
12.3 Nonsolicitation
of Employees and Independent Consultants. Consultant acknowledges
the substantial amount of time, money, and effort that the Company has spent
and
will spend in recruitment of competent employees and independent contractors,
and agrees that Consultant will not, for so long as Consultant provides the
Services to the Company and for a period of twelve (12) months after
the cessation of the Services for any reason (with or without cause), solicit
for employment, attempt to employ or actively assist any other entity in
employing or soliciting for employment any employee, agent or independent
contractor of the Company or its Affiliates, with whom Consultant had regular
contact in the course of providing the Services during the eighteen (18)
months
(or less) prior to the cessation of the Services.
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12.4 Specific
Performance and Consent to Injunctive Relief. Consultant agrees
that the Company will suffer irreparable harm if Consultant breaches any
covenant in this Agreement, and that damages would be very difficult to
ascertain if Consultant breached any covenant in this Agreement. The
faithful observance of all covenants in this Agreement is an essential condition
to Consultant’s continuing relationship with the Company, and the Company is
depending upon material compliance. This Agreement is intended to
protect the proprietary rights of the Company in many important
ways. Even the threat of any misuse of the Trade Secrets or
Confidential Information of the Company would be extremely harmful, since
they
are essential to the business of the Company. Consultant agrees that
any court of competent jurisdiction should immediately enjoin any breach
of this
Agreement upon the request of the Company, and Consultant specifically releases
the Company from the requirement of posting any bond in connection with
temporary or interlocutory injunctive relief, to the extent permitted by
law.
13. Indemnification
and Limitation of Liability. To the maximum extent allowed by
law, Consultant shall defend, indemnify, and hold harmless the Company and
its directors, officers, employees, independent contractors, and
agents, from and against any and all claims, losses, damages, suits, fees,
judgments, costs and expenses (including attorneys’ fees) which the Company may
suffer or incur arising out of or in connection with (a) the Services performed
hereunder; (b) this Agreement; (c) the presence of the Consultant or its
employees, contractors or agents on the Company’s premises; or (d) the act or
omission of the Consultant or the Consultant’s employees, contractors or
agents.
14. Limitation
of Liability. Neither party will be liable to the other party for
any indirect, incidental, delay, special, punitive, or consequential damages,
including damages for lost opportunities, lost profits, loss of use, cost
of
capital, from this Agreement or any other transaction, or lost savings, whether
arising in contract, tort or otherwise, even if such damages were foreseeable
or
result from a breach of this Agreement. In no event will the
aggregate liability of the Company to Consultant exceed the amount of the
fees
and reimbursable expenses paid or owed by the Company to Consultant during
the
12 month period immediately preceding the date the relevant claim first
arose. The parties specifically acknowledge that the pricing
provisions of this Agreement reflect such allocation of risk and limitation
of
liabilities.
15. Warranties. Consultant
warrants that: (i) Consultant is financially solvent and has the financial
ability to perform Consultant’s obligations hereunder; (ii) Consultant has not
and will not enter into any other agreements that conflict with this Agreement;
and (iii) Consultant shall perform all services under this Agreement on a
commercially reasonable basis in a workmanlike and expeditious
manner.
16. Insurance. Prior
to commencing Services for the Company, the Consultant shall procure and
shall
maintain while completing the Services, at the Consultant’s sole expense,
insurance coverage with limits not less than One Million Dollars ($1,000,000)
general liability insurance and One Million Dollars ($1,000,000) automobile
insurance. The Consultant shall procure and maintain such other
insurance coverage as the Company or its Affiliate reasonably requires from
time
to time. Simultaneously with the execution of this Agreement, the
Consultant shall furnish to the Company evidence that all of the foregoing
policies have been obtained in accordance with the terms hereof. The
Consultant shall furthermore require its insurance carrier(s) to give the
Company thirty (30) days’ written notice prior to the cancellation of any
policies required hereunder. Finally, all policies shall contain
provisions whereby underwriters agree to name the Company as an additional
insured and waive their rights of subrogation against the Company and any
of the
Company’s parent, subsidiaries, Affiliates and related
companies.
17. Use
of
Name and Publicity. Consultant agrees that Consultant shall not,
without prior written consent of the Company in each instance: (i) use in
advertising, publicity or otherwise the name of the Company or any partner,
independent contractor or employee of the Company, nor any trade name,
trademark, trade device or simulation thereof owned by the Company; or (ii)
represent, directly or indirectly, that any product or any service provided
by
Consultant has been approved or endorsed by the Company.
18. Use
of
Courts. Any claim or controversy in connection with this
Agreement shall be submitted to the exclusive jurisdiction of the State and
Federal courts sitting in Houston, Texas county of Xxxxxx.
19. Registration
of Agreement. The Consultant shall be responsible for proper
registration of this Agreement with any governmental agency with which
registration is required. The Company agrees to pay any registration
fees and the Consultant will provide the Company with documentation of the
registration.
7
20. Implementation.
20.1 Severability. Each
of the provisions included in this Agreement is separate, distinct and severable
from the other and remaining provisions of this Agreement, and the invalidity
or
unenforceability of any provision shall not affect the validity or
enforceability of any other provision or provisions. Further, if any
provision is ruled invalid or unenforceable by a court of competent jurisdiction
because of a conflict between such provision and any applicable law or public
policy, such provision shall be redrawn to be valid and enforceable to the
extent required for such provision to be consistent with such law or public
policy.
20.2 Assignment. Neither
this Agreement nor any interest of the Consultant herein (including any interest
in moneys belonging to or which may accrue to the Consultant) may be assigned,
subcontracted, pledged, transferred, or hypothecated without the prior written
consent of the Company. Any attempted assignment in violation hereof
shall be null and void. The Company may assign this Agreement to any Affiliate
without the consent of the Consultant. This Agreement shall bind, and
shall inure to the benefit of, the parties and their respective successors
and
assigns.
20.3 Waiver. The
waiver by the Company of any breach of this Agreement by Consultant shall
not be
effective unless in writing, signed by an authorized official and referencing
the specific breach, and no such waiver shall operate or be construed as
a
waiver of the same or another breach on a subsequent occasion.
20.4 Entire
Agreement. This document supersedes any previous written or oral
agreements relating to this subject which Consultant may have made with the
Company. It may not be changed orally, but only in a separate written
agreement signed by parties that references this Agreement and the specific
section being changed. Notwithstanding the foregoing, this Agreement
is not intended to modify or impair the effectiveness of the general rules
and
policies the Company may announce from time to time.
20.5 Controlling
Law, Jurisdiction and Venue. This Agreement is deemed to be
entered into, finally accepted and performed in the State of Texas, United
States of America. Consultant agrees that the laws of the State of
Texas shall be applicable to the contract, its construction, interpretation,
effect, performance and non–performance and consequences thereof, but not
regarding conflict of laws.
20.6 Survival
of Consultant’s Obligations. Notwithstanding the termination of
this Agreement, the cessation of the Services, or the termination of
Consultant’s relationship with the Company for any reason (with or without
cause), the obligations of Consultant set forth in Sections 8-13, 16, 18
and 19
of this Agreement, including all sub-parts, and any other provision of this
Agreement which in accordance with its terms is intended to survive the
termination of this Agreement, shall survive shall survive and remain in
full
force and effect.
20.7 Section
Headings. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation thereof.
8
20.8 Notices. All
notices or other communications required or permitted to be given hereunder
shall be (as elected by the party giving such notice) (a) personally delivered
with written confirmation of receipt, (b) transmitted by postage prepaid
registered mail (airmail if international), or (c) by first class U.S. mail
delivery within written confirmation of receipt to the parties as
follows:
If
to
Company: Frontera
Pipeline, LLC
c/o.
its Managing Member
000
Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention: Chief
Financial
Officer
Facsimile:
713-325-6000
with
a
copy (which shall not itself constitute notice) to:
King
& Spalding LLP
0000
Xxxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxx Xxxxxxxxx, Esquire
Facsimile: 713-751-3290
If
to
Consultant:
Tidelands
Oil & Gas Corporation.
0000
X
Xxxxxxx Xxxx 0
Xxx
Xxxxxxx, Xxxxx 00000
Attention:
Xxxxx X. Xxxxx
with
a
copy (which shall not itself constitute notice) to:
Xxxxxxxxxxx
& Price, LLP
000
Xxxxxxx Xx., Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000
Attention:
Xxxxx X. Xxxxxxx, Esquire
Facsimile:
210.258.2716
Except
as otherwise specified herein,
all notices and other communications shall be deemed to have been given on
the
date of the receipt if delivered personally or by mail. Any party
hereto may change its address for purposes hereof by written notice to the
other
party(s) in accordance with this Section.
20.9 Related
Parties. This Agreement shall inure to the benefit of, and be
binding upon, (i) the Company, together with its successors and assigns;
and
(ii) Consultant, together with Consultant’s successors, executors,
administrators, personal representatives, heirs, and legatees. This
Agreement is not intended to provide third-party beneficiary status to any
other
party (including as to individuals identified in Section 1.3 hereof), except
as
specifically provided in this Section 20.9.
IN
WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above written.
Company: FRONTERA
PIPELINE, LLC
By:
Name:
Title:
Consultant:
TIDELANDS OIL & GAS CORPORATION
By:
Name:
Title:
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