The items specified in the attached work estimate will be provided to the CUSTOMER by Piston Well Services Inc. (Piston) on behalf of itself and its affiliates subject to and in accordance with the terms and conditions of the most current applicable master services, supply, rental or other agreement between the Company and CUSTOMER covering the work.
If no Master Agreement exists, and unless otherwise stated in a quote, proposal, bid or pricing document (the "estimate"), the following terms and conditions shall apply.
Responsibility for Site
CUSTOMER acknowledges and agrees that above surface and subsurface conditions in and about the well-site or work-site may be hazardous to persons and property, and that such subsurface and above surface conditions are within the exclusive knowledge of and under the exclusive control of CUSTOMER, and that Piston Well Services Inc, (herein "Piston") has not inspected, is not responsible for, has not created, and assumes no responsibility for such subsurface or above surface conditions in and about the well-site or work-site.
The CUSTOMER shall at all times assume all of the risk of, and be solely liable for:
Other than during a takeover by CUSTOMER, Piston shall assume all the risk of and be solely liable for all actions, claims, losses, costs, damages and expenses of every kind and character arising from all pollution or contamination that originates above the surface of the ground from spills of fuels, lubricants, motor oils, wire cuttings, water, paints, solvents and garbage wholly in the possession and control of and directly associated with Piston’s equipment and operations, expressly excluding slush pit breakage or seepage, regardless of the negligence or other fault of any member or members of CUSTOMER’s group howsoever arising and Piston shall defend and indemnify CUSTOMER from and against all such actions, claims, losses, costs, damages and expenses; provided that this shall not apply during a takeover by CUSTOMER to nor in respect of any fuel spill that occurs when such fuel is being hauled by a member or member of the CUSTOMER.
CUSTOMER shall assume all the risk of and be solely liable for all actions, claims, losses, costs, damage and expenses of every kind and character arising from all pollution or contamination not referred to in the above section that occurs during the performance of Piston services including, but not limited to, pollution or contamination that may result from slush pit breakage or seepage, fire, blowout, cratering, or any other uncontrolled flow of oil, gas, water or other substances, as well as from the use of disposition of oil emulsion, water or oil based chemically treated drilling fluids, cuttings or caving and lost circulation materials or fluids, disposal, storage o treatment of any waste associated with drilling and completion operations, or items of equipment wholly in the possession and control of CUSTOMER and directly associated with CUSTOMER’s equipment, regardless of the negligence or other fault of any member or members of Piston, or howsoever arising, and CUSTOMER shall defend and indemnify Piston from and against all such actions, claims, losses, costs, damages and expenses.
Custody and Control of Equipment
CUSTOMER upon receipt of property furnished, shall retain exclusive and sole control over the property furnished and all parties using such property until same is returned to Piston's yard.
CUSTOMER agrees to pay for the property furnished and services rendered at the rate described in Piston's Estimate or Quote in effect at the time such property and services were furnished to CUSTOMER. Unless otherwise stated in the Estimate or Quote, prices do not include sale taxes, withholding taxes, transportation charges, drayage, demurrage, import duties, transfer fees, or documentation charges, all of which shall be paid by CUSTOMER in addition to the price set out in the Estimate or Quote.
Transportation, unless otherwise provided, will be F.O.B shipping point. CUSTOMER acknowledges and agrees that different rates may apply on a case-by-case basis. CUSTOMER will pay different rates when, in the sole discretion of Piston, equipment and/or services are supplied in changing terms and/or conditions.
CUSTOMER acknowledges and agrees that equipment furnished by Piston is furnished in the reasonable expectation that it will be subject only to that degree of wear and tear which would occur under normal operating conditions unless otherwise agreed, in writing, prior to work commencing. CUSTOMER agrees that in the event Piston determines in its sole and exclusive opinion that equipment provided to CUSTOMER has been subject to operations which have resulted in deterioration of the equipment to a degree that renders such equipment unusable or unsuitable for rental to others, CUSTOMER shall reimburse Piston at replacement cost of such equipment within thirty (30) days of invoice. CUSTOMER acknowledges and agrees that in the absence of bad faith, Piston's determination of normal and customary usage or normal wear and tear shall be binding and conclusive.
3rd Party Billing
Unless otherwise stated in Piston’s Estimate or Quote, where the Customer requires Piston to source, supply, transport, operate or maintain third party equipment, supplies or services to conduct the work, all associated third-party billing shall be invoiced to the Customer at cost plus fifteen percent (15%). Prices are subject to change without notice.
Discounts do not apply to 3rd party charges such as transportation and fuel costs, repairs and inspections, consumables, or equipment not owned by, or considered proprietary to, Piston.
Invoices are payable NET 30 days after the invoice date and are payable at Piston's principal place of business as indicated herein or such other places as Piston may designate in writing. Invoices not paid within thirty (30) days of the date of such invoice shall bear interest at the highest rate allowed by law or 1.5% per month at Piston's option. Should CUSTOMER fail to remit payment of invoices within ninety (90) days of the invoice date, CUSTOMER acknowledges and agrees that it shall pay to Piston, in addition to the face amount of the invoice, a sum which is equal to the difference between the applicable rates for such equipment and services according to Piston's pricing and any discounts or remissions offered to CUSTOMER at the time such equipment or services were requested. Such amount shall become due and payable immediately and shall be subject to all other terms and conditions contained herein. CUSTOMER acknowledges and agrees that invoices create an independent payment obligation and are not subject to any set of, defense, demands, or claims CUSTOMER may have against Piston or any third party. If it is necessary or convenient for Piston to furnish services or equipment by subcontracting it from third parties at a rate higher than the rate set out in Piston's price, the published rate of such third party will be charged and due and owing by CUSTOMER to Piston.
Post Job Inspections & Recertification
Upon completion of the work, the CUSTOMER is responsible for all required OEM and supplier maintenance costs. Tubulars shall be inspected to API RP5C1 specifications and a magnetic particle inspection of the tool joints as a minimum.
All inspection, repair and replacement costs of rental and third-party equipment conducted by Piston will be invoiced to the CUSTOMER at cost plus fifteen percent (15%).
Damaged or Lost Property
In the event any property is lost, misplaced, damaged beyond repair, stuck in the wellbore, or for any other reason is not returned to Piston, price rates shall continue to accrue daily on such property until the date Piston receives written notice from CUSTOMER of such event. Thereafter, and in such event, CUSTOMER shall pay to Piston the replacement cost for like new equipment and all damaged property which must be repaired will be repaired at CUSTOMER's cost, for which Piston will invoice CUSTOMER. Accrued charges shall not be applied to reduce the purchase price or cost of repairs of damaged or lost property. CUSTOMER shall pay Piston for the cost of repair of any damaged rental equipment which is not damaged beyond repair.
Exercise of Reasonable Judgment
Because of the uncertainty and variable well conditions and the necessity of relying on facts and supporting services furnished by others, Piston is unable to guarantee the effectiveness of the products, supplies, or materials provided or the actual result of any treatment or service, the accuracy of any chart interpretation, research analysis, job recommendation or other data furnished by or to Piston. Piston personnel will use reasonable efforts in gathering such information and exercise reasonable judgement in interpretation of data provided by others but CUSTOMER agrees that Piston shall not be liable for and CUSTOMER shall indemnify and hold Piston harmless of and from any loss, costs or damages including, without limitation, court costs or attorney's fees arising from the use of such information or such interpretation. Furthermore, well conditions which prevent satisfactory operation of equipment shall not relieve CUSTOMER of responsibility for charges for services or property furnished or the purchase price thereof or rental due thereon.
If CUSTOMER fails to comply with any of the terms and conditions of this Agreement, or if CUSTOMER becomes insolvent, bankrupt, fails to pay its debts as they mature, or if the equipment or any part thereof is abused, illegally used, or misused, or if Piston deems the accrued or un billed rent insecure, Piston shall have the right without legal proceedings and without waiving any other legal or equitable remedy to enter the premises where the Property is located and take possession thereof without being liable to any party therefore. Upon Piston's retaking of the rented Property, Piston's obligations shall be terminated, but the charges therefore, shall remain due and payable. Costs of retaking the equipment shall be the sole cost of CUSTOMER. CUSTOMER acknowledges and agrees that in the event its account is placed in the hands of an attorney for collection, or suit is fled to collect the account, or any part thereof, CUSTOMER agrees to pay Piston's reasonable and necessary collection costs including attorney's fees. CUSTOMER acknowledges and agrees that any interest charged or collected which may exceed the amount permitted by applicable law, shall automatically be applied to the reduction of principle, and not interest, and that there is no intent of any party hereto to exceed the amount of interest permitted by law. CUSTOMER agrees that in the event litigation occurs, the laws of the Alberta, Canada shall apply. Venue of any dispute arising hereunder shall be, at the option of Piston, in any court of competent jurisdiction in the Province of Alberta.
Warranty and Disclaimer
Piston warrants that the property it furnished shall conform to the quality and specifications represented. Piston’s sole liability, and CUSTOMER’s exclusive remedy, for breach such warranty is limited to a replacement of the property furnished. Piston makes no other warranty, expressed or implied, with respect to the property furnished, and specifically disclaims any warranty of merchantability or fitness for any particular purpose with respect such property furnished. Piston makes no warranty, expressed or implied, with respect to services furnished and in no event shall Piston be liable for special, incidental, and punitive or consequential damages.
Exclusion of Liability; Indemnity and Waiver
Because of the nature of the services to be performed, CUSTOMER agrees that Piston's liability is limited to bad faith or gross negligence, and neither Piston nor its officers, directors, agents, servants, contractors or employees shall have any liability to CUSTOMER, or any operator, non-operator, mineral or royalty owner, mineral lessee, mineral lessor, surface owner, adjoining surface owner, their agents, servants, employees, invitees, contractors, subcontractors, or any other party, for any claim, liability, or cause of action arising directly or indirectly out of the property or services furnished or agreed to the be furnished hereunder, or arising directly out of the rental, sale, repair, maintenance, transportation, operation, or storage of any such property, and CUSTOMER agrees to indemnify and hold harmless Piston from all such claims, liabilities, and cause of action, including, without limitation, court costs and attorney’s fees incurred by Piston and agreed to defend same at CUSTOMER’s cost. This indemnity includes but is not limited to indemnity against claims and causes of action based in whole or in part upon the sole or concurrent negligence, act, or omission or CUSTOMER or Piston, or their agents, servants or employees. This indemnity includes without limitation indemnity against claims for personal injury, property damage, death, special damage, consequential damage, reservoir damage, subsurface damage, surface damage, pollution, contamination, contribution and indemnity against claims based in whole or in part on negligence, products liability, defective design, failure to warn, subsurface trespass, breach of express or implied warranty, breach of contract, and violation of any municipal, provincial of federal statute, ordinance, act, rule or regulation.
Examination and Inspection
Piston shall have access to the furnished equipment at all times for the purpose of examination and inspection. CUSTOMER agrees to provide immediate and unfettered access to Piston, its agents, officers and employees for this purpose.
Piston shall not be liable to CUSTOMER for delays caused by any matter or event beyond the reasonable control of Piston including without limitation, strikes, fire, accident, unavailability of materials or equipment, economic or financial conditions, foods, civil unrest, acts of God, or any rule, regulation, statue, or ordinance of any federal, province, county, city, or any other governmental authority or agency.
In addition to any statutory lien which may be available to secure any sums due hereunder, CUSTOMER grants an express lien upon CUSTOMER's interest in the hydrocarbons, and the proceeds from the sale of such hydrocarbons, which may be produced from the well or wells to which Piston furnished services or property pursuant to this Agreement, to secure sums due hereunder. That portion of any insurance proceeds payable to CUSTOMER which reimburses CUSTOMER for the loss, damage, or destruction of property furnished by CUSTOMER are assigned to Piston. CUSTOMER waives any right of subrogation that it may have with respect to any insurance policy.
In the event that there is a conflict between the provisions of this Agreement and any other agreement between the Parties hereto, this Agreement shall prevail. If any provisions hereto are deemed void and unenforceable, it is the intention of the parties that the remaining provisions be deemed severable, valid, and enforceable.