The operations to be conducted, services to be rendered, and/or goods to be provided (collectively, “Work”) by Stratum Reservoir, LLC on behalf of itself, its subsidiaries and/or affiliates (individually or collectively, “Stratum”) at the request of customer (“Customer”) will only be provided in accordance with and subject to the following terms, conditions and risk allocations (“Terms”). BY REQUESTING AND/OR ACCEPTING SERVICES OR GOODS FROM STRATUM, CUSTOMER VOLUNTARILY ELECTS TO ENTER INTO THESE TERMS AND TO BE BOUND BY ALL OF THE TERMS HEREOF. Any proposal for additional or different terms or any attempt by the Customer to vary any of the Terms contained herein, either directly or by reference, is rejected unless otherwise agreed to in writing by the Stratum.
2. Payment Terms
Customer shall pay each invoice submitted by Stratum within thirty (30) days of the invoice date. All Stratum invoices shall include supporting documentation for any reimbursable costs. Invoices not paid in a timely manner will bear interest at the at the highest rate allowed by applicable law until paid in full.
If any part of the Work is not in compliance with the applicable proposal, Stratum shall, at Customer’s request, promptly re-perform the defective Work to comply with the Proposal on the conditions that Customer has notified Stratum of the defect within thirty (30) days of completion of the Work with respect to which the warranty claim is made, and (a) the material(s) or substance(s) furnished by Customer to Stratum upon which tests or analysis are to be conducted (hereinafter “Samples”) are still in Stratum’s possession and sufficient for further analysis or (b) a new Sample is furnished by Customer. In no event, however, shall Stratum assume any responsibility, liability or cost for resampling. If the Parties mutually determine that Stratum’s reperformance of the Work cannot or will not provide a commercially viable remedy, Stratum shall, at its option, either refund or credit in full the price paid by Customer for the Work in question. Reperformance of Work, or the refund or credit of the price paid, shall be the sole and exclusive obligations and responsibilities of Stratum (and the sole and exclusive remedies to Customer) with respect to defective Work. STRATUM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR THAT THE WORK PROVIDED BY STRATUM WILL BE FIT FOR ANY PARTICULAR PURPOSE.
Customer understands that any testing of Samples to be performed by Stratum may involve analytical methods and processes that are likely to be destructive in nature.Stratum does not guarantee or warrant under any circumstances that the Samples will be returned in the same condition as provided or that it will be possible to return the Samples at all. In the event such analytical methods and processes exhaust the Samples entirely, Stratum will not be liable under any circumstances for any loss or damage to the Samples. Samples and portions of Samples not consumed or altered during testing and analysis may be stored and maintained by Stratum for a fixed monthly fee based on the size, nature and conditions of storage (the “Sample Storage Charges”). Sample Storage Charges shall begin to accrue upon Contractor’s receipt of the Samples.
Any interpretation, recommendation, conclusion, report or opinion provided by Stratum with respect to the Work is based upon inferences, measurements, empirical relationships and assumptions that are not infallible, and on which professional engineers and analysts may differ. ACCORDINGLY, STRATUM CANNOT AND DOES NOT WARRANT THE ADEQUACY, SUFFICIENCY, OR COMPLETENESS OF ANY SUCH INTERPRETATION OR RECOMMENDATION OR THE REPORTS REFLECTING SAME, AND ITS REPORTS SHOULD NOT UNDER ANY CIRCUMSTANCES BE RELIED UPON BY CUSTOMER (OR ITS CLIENTS) AS THE SOLE OR PRIMARY BASIS FOR ANY ACTION, ACTIVITY OR BUSINESS DECISION TAKEN OR MADE BY CUSTOMER. Customer assumes all responsibility for any decision made by Customer (or its clients) based on Stratum’s Work, including any drilling, well treatment, production or other financial decision, and hereby waives and releases Stratum from any liability with respect to any such claims, liability or damages.
6. Limitation of Liability
NOTWITHSTANDING ANYTHING HEREIN OR IN ANY OTHER DOCUMENT TO THE CONTRARY, STRATUM’S MAXIMUM LIABILITY WITH RESPECT TO ALL CLAIMS ARISING OUT OF OR RELATED TO THE WORK SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID AND/OR PAYABLE TO STRATUM FOR THE WORK. Except as set forth in the following sentence, the limitation of liability contained in this Proposal will not apply with respect to (a) Stratum’s breach of the confidentiality obligations expressly set forth herein, or (b) claims to the extent caused by Stratum’s willful misconduct. Notwithstanding anything herein or in any other document to the contrary, under no event shall Stratum’s maximum liability for claims arising from or related to loss or damage to Samples in Stratum’s care, custody and control exceed the value of the Work performed on the Sample.
Stratum hereby advises Customer that Stratum cannot participate in transactions involving: (1) any entity or individual that is subject to asset-blocking sanctions or export control restrictions under U.S., EU, UK economic sanctions or export control laws or other applicable economic sanctions or export control laws (to the extent consistent with U.S. law); or (2) any jurisdiction that is or becomes subject to comprehensive U.S., EU, UK, or other applicable economic sanctions (to the extent consistent with U.S. law), including without limitation any entity organized under the laws of, resident in, or owned or controlled by the government of any such jurisdiction, or any individual ordinarily resident in any such jurisdiction. Stratum shall not take or be required to take or refrain from taking any action prohibited or penalized under the laws of any applicable domestic or foreign jurisdiction relating to international trade sanctions, international boycotts, anti-corruption, or commercial bribery.
8. Governing Law and Venue
This Proposal and all orders related thereto shall be governed, construed and interpreted in accordance with the laws of the State of Texas, which shall apply without regard to any choice of laws or conflict of laws provisions which would direct the application of the laws of another jurisdiction. Venue for any litigation filed with respect to this Proposal and all orders related thereto (or the Work performed thereunder) shall be exclusive in the courts, state or federal, sitting in Houston, Harris County, Texas. Each party consents to the personal jurisdiction of the state and federal courts of said county and waives any objection that such courts are an inconvenient forum. TO THE EXTENT ALLOWED BY THE GOVERNING LAW, EACH PARTY HEREBY WAIVES ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION INVOLVING THIS AGREEMENT OR ANY ORDER. Nothing herein shall prohibit a Party from availing itself of a court of competent jurisdiction for the purpose of injunctive relief.