KEYSTONE TEST FACILITY, LLC MASTER SERVICES …files.constantcontact.com/ec33c7de501/59dfb387-6f82-48d1-ac2b-f... · Wireline work,with rig-not drilling includes personnel $1,100/Hour

{00089482.DOCX / 5} Page 1 of 15

KEYSTONE TEST FACILITY, LLC

MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT (this “Master Agreement”), dated effective as of ___________________ ____, 20___ (“Effective Date”) is entered into by and between KEYSTONE TEST FACILITY, LLC, an Oklahoma limited liability company (“Keystone”) and _________________________________, a(n) entity registered under the laws of _________________________ (“Client”).

WHEREAS, Client desires to engage Keystone to provide certain services, and Keystone is willing to perform such

services, upon the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties

hereto agree as follows:

1. Master Services Agreement. This Master Agreement includes each Statement of Work attached hereto as Exhibit A (the “SOW”, as applicable), Policies and Procedures attached hereto as Exhibit B (the “Policies”), the Terms and Conditions of Services attached hereto as Exhibit C (the “Terms”), and all addenda, amendments or modifications to the foregoing that are executed by both parties hereto. The SOW, the Policies and the Terms are expressly incorporated herein by this reference and are made a part of this Master Agreement. All capitalized terms not otherwise defined herein shall have the meaning set forth in the Terms.

2. Statement of Work. The SOW shall contain all project-specific terms regarding all Services, tools, equipment and materials to be provided by either party must be specified in the SOW. Client shall further provide all other information requested by Keystone for the performance of Services. The SOW may be modified or amended only by a written instrument executed by both parties.

3. Terms and Conditions. Keystone’s agreement to perform any Services for Client is expressly limited to Client’s acceptance of the Terms, and does not include any additional or different terms or conditions proposed by Client or any attempt by Client to vary the Terms. Any additional or different terms or conditions proposed by Client are unacceptable to Keystone, are expressly rejected by Keystone, and will not become part of this Master Agreement.

4. Binding Agreement; Termination. By execution of this Master Agreement, Client and Keystone agree to the terms and conditions set forth in herein, including without limitation the SOW, the Policies and the Terms attached hereto. The term of this Master Agreement shall commence on the Effective Date and shall continue for the later of Two (2) years or until completion of and full payment for all Services other amounts owed in connection with any SOW in effect two (2) years hereafter, unless earlier terminated in accordance with the Terms.

IN WITNESS WHEREOF, the parties hereto have executed this Master Agreement as of the Effective Date.

CLIENT:

(Insert Client’s Legal Name)

By: Name: Title: Client’s Address for Notices: Attn: Phone: Fax: Email:

KEYSTONE:

Keystone Test Facility, LLC By: Name: Title: Keystone’s Address for Notices: Attn: Phone: Fax: Email:

EXHIBIT A SOW Number:

{00089482.DOCX / 5} MASTER SERVICES AGREEMENT Page 2 of 15 Keystone Test Facility, LLC


STATEMENT OF WORK This Statement of Work (“SOW”), dated __________________ ___, 20___ is executed pursuant to that certain Master Services Agreement (the “Master Agreement”) between KEYSTONE TEST FACILITY, LLC (“Keystone”) and the undersigned client (“Client”). This SOW expressly incorporates by reference the Policies and Procedures attached to the Master Agreement as Exhibit B and the Terms and Conditions of Services attached to the Master Agreement as Exhibit C. Capitalized terms used but not defined in this SOW shall have the meanings set out in the Master Agreement.

Client’s Information for Notices:

Address: Attn: Phone: Fax: Email:

Client’s Accounts Payable Information: Address: Attn: Phone: Fax: Email:

1. Facility Reservation Dates(Additional attached as Exhibit A1):

2. Summary of Tests and Services(Additional attached as Exhibit A1):

3. Materials to be Tested(Additional attached as Exhibit A1):

4. Keystone Tools and Equipment Requested(Additional summary attached as Exhibit A1):

5. Additional Information. Client agrees to provide such additional information as requested by Keystone regarding the Services and any personnel, tools, materials or equipment to be used in the performance of Services. Client shall further provide all information related to hazardous or dangerous materials in accordance with the Terms.

6. Pricing. Pricing for the Services is described on the attached Schedule 1. *

* (Schedule 1 is subject to change on each subsequent SOW executed under this Master Services Agreement.)

7. Effectiveness. By execution of this SOW, Client agrees to the pricing terms described on the attached Schedule 1 and all other terms and conditions of the Master Agreement. This SOW shall be effective as of the date first written above and shall continue until completion of and full payment for all Services requested hereunder. CLIENT: (Insert Client’s Legal Name)

By: Name: Title:

KEYSTONE:

Keystone Test Facility, LLC By: Name: Title:


EXHIBIT A1 SOW Number:


STATEMENT OF WORK

2. Facility Reservation Dates:

3. Summary of Tests and Services(Additional summary attached as Exhibit A1):

4. Materials to be Tested:

5. Keystone Tools and Equipment Requested:


SCHEDULE 1

PRICING INFORMATION

Price List Standard Rig rate $1,695/Hour *

Discounted Day Rate 16 Hr/Day $21,950/Day

Discounted Day Rate 24 Hr/Day $32,925/Day

Standby Rig Rate $1,100/Hour

Plug Hole Back = Minimum 8hrs. Rig Time + Cement $13,560 + **

Cuttings disposal, including transport=bit size (in) X $0.285/ft of hole drilled

Liquid mud disposal $25/bbl Use of Oil Base Mud or WBM >11.5ppg rig rate + 10% Wireline work,with rig-not drilling includes personnel $1,100/Hour Wireline work without rig $ 500/Hour

* Additional time - Min 12 hrs/day billed daily 1/2HR increments

** Minumum 8hrs. rig time + cement @ cost + 15% The minimum reserved test times available are:

3 – 16hr days 2 – 24hr days

Shorter test times are available on a standby basis.

Client is requested to provide at least 21 days advance notice of cancellation or postponement of scheduled tests; see contract. Failure to do so can result in a cancelation fee.

Available 24 hours a day, 7 days per week


SCHEDULE 1 CONT.

PRICING INFORMATION

Tools provided at NO additional cost:

5300 ft. of 4.0" XT-39 drill pipe 15 - 6-1/4” Collars 8 – 8.0” Collars Most XO's (if they are in stock) Additional Sizes: Cost+15% Options with drilling rig:

8 - 10 inch drill collars $ Cost+15%

Inspection fee of the pipe and subs $ Cost+15%

XO's we have in stock $ No Chg.

XO's we have to rent or make $ Cost+15%

Spiral or string stabilizers $ Cost+15%

4-3/4" NOV Drilling Jars; incl. Trans (3-1/2' IF) $ Cost+15%

6-5/8" NOV Drilling Jars; incl. trans (4-1/2" IF) $ Cost+15%

Redress Drilling Jars & Shock subs $ Cost+15%

Shock subs sizes from 4.75" - 7" $ Cost+15%

Motors; 4.75 - 5" $ Cost+15%

Motors: 6.25 - 7" $ Cost+15%

Redress Motors $ Cost+15%

Repair Fee $ Cost+15%

Pipe Maintenance Fee $ Cost+15%

Additional Charges:

Logging Services Provided $ Cost+15%

Vacuum Truck (per hour) (plus operator) $ Cost+15%

Forklift (per hour) (plus operator) $ Cost+15%.

Bobcat (per hour) (plus operator) $ Cost+15%

Frac Tank (approx 500 bbls) $ Cost+15%

Dump Truck $ Cost+15%

Centrifugal pump and motor $ Cost+15%

Centrifuge $ Cost+15%

Drilling Mud Per Client Specifications. $ Cost+15%

All other third-party charges for client test… $ Cost+15%

Mud Engineer services $ Cost+15%


EXHIBIT B


POLICIES AND PROCEDURES

1. Hours of Operation: 24hrs/day. Start 7:00AM

2. Scheduling Services: Scheduling to mutually agreed upon between Keystone and Client.

3. Cancellation Fees: Client to provide 21 days advance notice of cancellation or postponement of scheduled tests. Failure to provide cancellation notice will result in cancellation fees equal to $21,950/day for each day cancelled.

4. Downtime: Will be evaluated on a case by case basis. Downtime resulting from Keystone issues will be deducted from final invoice. Downtime resulting from Client issues or not resulting from Keystone issues will be charged to Client at standard price sheet rates shown on Schedule 1.

5. Restoration; Loss of Hole. The Client must pay to plug any new hole that is drilled during the course of their test. If drilling is not done during the course of their test, there is no plugging charge. P&A charges are outlined in Schedule 1. It is the responsibility of the Client to remove all of their tools and all of Keystone’s tools and pipe from the hole at the end of the test. If Keystone’s tools are “lost in the hole” and unable to be retrieved, the Client will be liable for the cost of replacing these tools and the loss of the hole. The value of a new, cased hole with no holes drilled out of that surface casing is $1,000,000.

6. Shipment and Delivery. See Exhibit B1

7. Emergency Procedures. See Exhibit B2

8. Renting or leasing third party equipment. On occasion it may be necessary to rent or lease third-party equipment, including pumps, tubulars, motors, jars and stabilizers. We recommend that the Client contract their own third-party services and equipment. Keystone personnel will arrange for rental equipment as needed by client if asked, and attempt to acquire, or help the Client acquire, the best equipment available for the price. Keystone will not be responsible for the condition or operation of any third-party equipment. Except as provided hereinabove, it is understood and agreed between Keystone and client that there shall be no representation or warranty, expressed or implied, as to the utility, condition, operation or the accuracy of the third-party rental equipment, or information and results provided to client as a result of the third-party rental equipment. Third-party equipment is made available to client on an "as-is" basis and without warranty of any kind from Keystone. The cost of renting, purchasing or leasing third-party equipment for use with the Client testing program will be, at the Client’s discretion, either billed directly to the Client from the source; or if billed to the client from Keystone a 15% handling fee will be assessed. (see Schedule 1 “Price List”).

9. Damaged Equipment. The client is responsible for replacing or repairing Keystone equipment damaged as a result of their efforts while operating at the Keystone test facility. The entire bottom-hole drill string is subject to inspection testing if used to drill any hole in excess of 40.0

degrees angle and/or dog-leg severities greater than 7.0 deg./100ft. The cost of testing and repair will be passed on to the client.


EXHIBIT B1


SHIPMENT AND DELIVERY

Materials handling and delivery to Keystone Test Facility.

1. Addresses and contacts: Also check online at https://keystonetestfacility.com/

Keystone Test Facility, LLC. physical location: (use for UPS, FedEx, deliveries etc.):

51360 E. Hwy 64, Cleveland, OK 74020 Office Phone: (918) 582-7882 Office Fax: (918) 592-0843

Keystone Test Facility, LLC. mailing address:

2111 South Atlanta Place Tulsa, OK 74114

Contact: Tool Pusher

Derrick Brown

Cell: (918) 633-8292

[email protected]

2. An MSDS sheet must be provided with all chemicals or hazardous materials that are shipped to the location. The

Client is responsible for removing all hazardous materials from the site within 2 business days of completion of the test. Employees that are responsible for the handling and shipping of hazardous materials must be properly trained. Certification is required.

3. All products must be clearly labeled, preferably with the manufacture's labels. All containers must be labeled as to their contents. Nothing can be marked or used for “waste oil”.

4. If drums containing liquid are brought on location, they MUST be placed on containment pallets. Drums containing liquid cannot be stored on the ground.

5. Prior permission must be granted from the facility manager if explosive or reactive material is shipped to the Keystone location.

6. The Facility Manager must be notified of any oil, diesel or saltwater spill greater than 15 gallons.

7. All drilled cuttings will be removed from the facility and transported to an approved landfill site. Keystone will handle the cuttings removal and charge back the cost to the operator.

8. Unless prior arrangements are made, the Client is responsible for organizing the shipping of their own tools from the Keystone Test Facility. Keystone will load the tools onto the truck free of charge. The Client must fill out all paperwork for the driver. Charges will incur if Keystone has to organize the shipping of Client’s equipment from Keystone.

9. If more than 500 feet are drilled, the Client must furnish Keystone with both an electronic copy and a hard copy of a directional survey (including inclination and deviation) of the recently drilled portion.

10. Unless otherwise agreed to by the Facility Manager, all excess material must be returned to the Company that supplied it and removed from the Keystone Test Facility within 10 days after the end of the testing program. Client must remove all radioactive materials, including Lithium Batteries from location within 2 days of finishing their test. Keystone personnel will not sign shipping documents of hazardous materials owned by Client.


EXHIBIT B2


EMERGENCY PROCEDURES

Fire, Police, and Ambulance Dial: (918) 358-3112 (Cleveland Fire Department)

Do Not Dial 911from a cell or satellite phone: No assurance it will be local.

Hospital: Cleveland Area Hospital (See directions and address below)

Hospital GPS Coordinates: Our location:

• Latitude N 36 28’ 33.01 N 36 16.287

• Longitude W 96 28’ 55.26 W76 26.043

Site Emergency Management Team Duties :

• Person In Charge Craig Brown (405) 213-5965

• Alternate Person In Charge Derrick Brown (918) 633-8292

• Alternate Person In Charge Richard Saenz (918) 671-0514

• Emergency Response Notification Harold Ford (903) 257-6702

Emergency Responders Escort Security & HSE Advisor: Harold Ford (903) 257-6702

Cleveland Area Hospital. 1401 West Pawnee Street. Cleveland, OK 74020. 918-358-2501 5 MIN | 3.204 MILES

Start out going west on E Highway 64/US-64 W toward Highway Dr. Continue to follow US-64 W. 1.95 miles

Turn left onto W Caddo St/US-64 W/OK-99. 0.83 miles

Turn right onto S Swan Dr. 0.30 miles

Turn left onto W Pawnee St. 0.13 miles


EXHIBIT C


TERMS AND CONDITIONS OF SERVICES

1. Applicability. These Terms and Conditions of Services (these “Terms”) govern the provision of all Services by Keystone Test Facility, LLC (“Keystone”) to Client (as defined below). These Terms are part of and incorporated by reference in the Master Agreement (as defined below) executed by Keystone and Client in connection herewith, which comprises the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Keystone’s agreement to perform any Services for Client is expressly limited to Client’s acceptance of these Terms, and does not include any additional or difference terms or conditions proposed by Client or any attempt by Client to vary these Terms. Any additional or different terms or conditions proposed by Client are unacceptable to Keystone, are expressly rejected by Keystone, and will not become part of the Master Agreement. These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Keystone’s provision of Services does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.

2. Definitions.

“Client” means the individual or entity identified as “Client” in the Master Agreement. In the absence of a separately executed Master Services Agreement, the term “Client” shall mean any individual or entity requesting Services to be performed by Keystone at the Facility.

“Equipment” means any equipment, systems or facilities used directly or indirectly in the provision of the Services.

“Facility” means Keystone’s testing facility located in Pawnee County, Oklahoma, including .

"Law(s)" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Master Agreement” means the Master Services Agreement executed by Keystone and Client in connection with the Services, specifically including these Terms, each SOW executed by both parties, all other exhibits and schedules attached thereto, and any amendments or modifications to any of the foregoing documents.

“Material” means all equipment, parts, goods, materials, samples, fluids or other items supplied by Client to Keystone for the performance of Services.

“Reports” means all data, reports, materials and information prepared by or on behalf of Client in the course of the performance of the Services.

“SOW” means the applicable Statement of Work delivered by Client to Keystone in connection with Services requested to be performed in accordance with these Terms.

“Services” means mean any professional or other services to be provided by Keystone to Client, pursuant to the Master Agreement or otherwise, including without limitation any test, evaluation, inspection, research or other service specified in the SOW or otherwise performed by or on behalf of Client at the Facility.

3. Services.

(a) Keystone shall perform, allow or cause to be performed the Services in the SOW in accordance with these Terms. All Services shall be performed using commercially reasonable equipment, methods and procedures, as determined by Keystone in its sole discretion. Except as otherwise mutually agreed in writing, all Services shall be performed by Keystone’s employees, agents or independent contractors. Client’s employees shall be permitted to assist and monitor the Services to the extent permitted by Keystone in its sole discretion. Client shall be responsible for restoration and repair of the Facility, both above and below the surface, including environmental remediation required by Law, to Keystone’s satisfaction upon completion of the Services or, if earlier, the termination of the Master Agreement.


(b) Client shall supply Keystone with as much information as requested about the Material and the Services. The parties may modify the scope of the Services only by a written amendment to the SOW executed by Keystone and Client. Any reference in the SOW is solely to incorporate the project-specific terms (e.g., description of the Services), but only to the extent such project-specific terms do not conflict with these Terms. Where information relating to the Material or the Services is incorrect and Keystone is involved in additional work, Keystone may invoice Client for such additional work.

4. Testing Reports. Client shall be entitled to all Reports and other testing information obtained from the Services. Keystone-prepared Reports are based on information known to Keystone at the time that the Services are performed. Neither Keystone nor any of its employees, representatives or other agents makes any representation or warranty, express or implied, as to the accuracy or completeness of the Reports nor shall any of them be liable to Client or any other party relating to the use of any Report or other information obtained from the performance of Services, or any errors therein or omissions therefrom.

5. Materials and Equipment.

(a) Unless otherwise agreed by Keystone in writing, Client shall be responsible for providing all Material needed for the performance of the Services. No Material or Client equipment shall be delivered to the Facility prior to both parties’ execution of the Master Agreement. All transportation, shipment, packaging, loading, unloading, delivery, handling and disposal of Material shall be in accordance with Keystone’s customary policies and procedures, and in compliance with applicable Law. All Material furnished by Client shall remain Client’s property (title shall not transfer to Keystone) and shall be used by Keystone only for performance of the Services. Material shall remain for the account and at the sole risk of Client during transportation to and from the Facility, during loading and unloading, and while located at the Facility. Keystone shall not be liable for loss or damage to the Material while at the Facility caused by theft, vandalism, or acts of nature, including fire, earthquake, tornado, explosion or water. Keystone has no responsibility for insuring any Material.

(b) Client shall be responsible for the repair or replacement of all Keystone-owned equipment, tools and material damaged by Client or its agents at the Facility. Client shall inform Keystone in writing prior to Keystone’s receipt or use of Material that is of a hazardous, dangerous or unstable nature, and Client shall provide instruction on the safe handling of such Material in accordance with applicable Laws. If any Material is of a hazardous, dangerous or unstable nature, Keystone may elect not to carry out the Services and to terminate the Master Agreement without liability therefor.

(c) In the event Keystone agrees to assist Client in procuring certain materials or equipment from third parties, Client agrees that such materials and equipment shall be provided solely on an “as is” basis. KEYSTONE MAKES NO WARRANTY WHATSOEVER REGARDING ANY THIRD PARTY EQUIPMENT OR MATERIALS. Third party equipment and materials invoiced by Keystone is subject to an administrative fee of up to 15% of the invoice price.

6. Client’s Obligations. Client shall: (i) promptly pay the amounts owed to Keystone in accordance with the Master Agreement; (ii) cooperate with Keystone in all matters relating to the Services and provide such access to the Facility, and such office accommodation and other facilities as may reasonably be requested by Keystone, for the purposes of performing the Services; (iii) respond promptly to any Keystone request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Keystone to perform Services; (iv) provide such Client materials or information as Keystone may reasonably request to carry out the Services, and to restore the Facility after completion of the Services, in a timely manner, and ensure that such Client materials or information are complete and accurate in all material respects; (v) promptly repair or replace any damage to Keystone’s equipment or the Facility caused by or resulting from the acts or omissions of Client, its employees, agents and independent contractors; (vi) obtain and maintain all necessary licenses and consents (except those solely relating to Keystone’s business) in relation to the Services, and comply with all applicable Law in connection with the Master Agreement; and (vii) promptly remove all Material, tools and equipment used in the performance of the Services, and be responsible for the repair or replacement cost of such items that are damaged or lost. Before vacating the location, the Client agrees to provide Keystone with all the necessary information as to the condition of the hole, depth, size, direction, angle and caliper data (if available), as well as information of any tools, pipe or equipment left in the hole.

7. Pricing and Payment Terms.

(a) In consideration of the provision of the Services by the Keystone and the rights granted to Client under the Master Agreement, Client shall pay the fees set forth in the SOW and such other amounts owed under these Terms. Where the Services are provided on a time and materials basis, the fees payable shall be calculated in accordance with the fee rates for Keystone’s equipment, materials, Services and the Facility set forth in the SOW. Client shall be invoiced for all tools, equipment, materials and Services performed by Keystone, its employees and independent contractors in the preparation and performance of the Services, including without limitation the restoration of the Facility after completion of the Services. If


any tools, equipment or other material is lost in any subsurface hole used for the Services, Client shall be charged the replacement cost thereof and an additional fee for the loss of any such subsurface hole (see Exhibit B section 5).

(b) Client shall be additionally responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder. Client shall pay all invoiced amounts due to Keystone within thirty (30) days from the date of Keystone’s invoice. Client shall make all payments hereunder in US dollars by wire transfer, check or such other method as reasonably requested by Keystone.

(c) Client shall not have the right to deduct or set off amounts owed to Keystone for any claims against Keystone. If Client disputes the accuracy or applicability of a charge on any invoice in a timely manner, Client agrees to pay the undisputed portion of the invoice in accordance with this Section 7, and will notify Keystone of such disputed amount within ten (10) days of the receipt of the invoice at issue. In the event payments are not received by Keystone within thirty (30) days after becoming due, Keystone may: (i) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable Law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.

8. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other Confidential Information (as defined in Section 9), trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Services performed by Keystone hereunder, or the Reports prepared by or on behalf of the Keystone in the course of performing the Services (collectively, the “Deliverables”) except for the Materials and any prior confidential or proprietary information of Client, shall be owned by Keystone. Contingent upon payment in full of all amounts owed under the Master Agreement, Keystone hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. Client shall indemnify, defend and hold harmless Keystone against all Losses to which Keystone may incur arising out of or related to any claim that the use of any data, equipment, Material or other property supplied by Client for the performance of the Services involves the infringement or misappropriation of any Intellectual Property Rights of any third party.

9. Confidential Information.

(a) As used herein, “Confidential Information” means all non-public, confidential or proprietary information disclosed by one party (“Discloser”) to the other party (“Recipient”), whether disclosed orally or in written or electronic form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation, these Terms, the Services, pricing, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Client at the time of disclosure; or (iii) rightfully obtained by Client on a non-confidential basis from a third party.

(b) Recipient agrees: (i) to hold all Confidential Information in strict confidence; (ii) not to disclose the Confidential Information to any person or entity without Discloser’s prior written consent, except for employees with a legitimate need to know under the Agreement; and (iii) not to use the Confidential Information in any manner other than as necessary to provide and receive the Services. Recipient agrees to protect the confidentiality of Discloser’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care. If Recipient is compelled by Law to disclose Confidential Information of Discloser, it shall provide Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure.

(c) Recipient may retain one copy of the Confidential Information for archival purposes to: (i) respond to future government, accounting, audits or inquiries; (ii) have evidence of compliance with contracts or agreements between the parties; (iii) be able to pursue or respond to warranty claims; or (iv) assist in the prosecution or defense of legal proceedings involving the parties hereto; provided however, Recipient agrees to continue to comply with the covenants of confidentiality and use restrictions contained herein for so long as Recipient maintains possession of the archived documents even if such possession continues beyond the natural expiration or termination of the Master Agreement.

(d) The rights and obligations of the parties under this Section 9 shall continue for three (3) years after termination of the Master Agreement, or for so long as Recipient maintains possession of any Confidential Information for archival purposes as permitted hereunder. If Recipient discloses or uses (or threatens to disclose or use) any Confidential Information


of Discloser in breach of this Section 9, Discloser shall have the right, in addition to any other available remedies, to seek injunctive relief to enjoin such acts, it being specifically acknowledged that any other available remedies are inadequate.

10. Limited Warranty.

(a) Keystone warrants to Client that it shall perform Services in accordance with generally recognized industry standards for similar services. If Keystone’s performance of its obligations under the Master Agreement is prevented or delayed by any act or omission of Client or its employees, agents, independent contractors, or consultants, Keystone shall not be deemed in breach of this limited warranty, its obligations under the Master Agreement or otherwise liable for any costs, charges or Losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay. Keystone shall not be liable for a breach of the foregoing warranty unless Client gives written notice of the defective Services, reasonably described, to Keystone within three (3) days of the date of performance of the applicable Services. Upon receipt of a valid and timely warranty claim, Keystone shall, in its sole discretion, either: (i) re-perform such Services; or (ii) credit or refund the price of such Services at the pro rata contract rate.

(b) THE REMEDIES SET FORTH IN THIS SECTION 10 SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND KEYSTONE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 10. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 10, KEYSTONE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; OR (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Keystone expressly disclaims any representation or warranty regarding existing subsurface holes at the Facility. Client bears full risk and responsibility for determining the existing subsurface holes, if any, to be used during the Services. Keystone shall not be liable for any Losses incurred by Client related to the use of existing subsurface holes.

11. Limitation of Liability.

(a) IN NO EVENT SHALL KEYSTONE BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT KEYSTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL KEYSTONE BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSSES ARISING OUT OF OR RELATED TO: (I) CLIENT’S OR ANY THIRD PARTY’S USE OF THE REPORTS, DELIVERABLES OR SERVICES; (II) CLIENT’S OR ANY THIRD PARTY’S FAILURE TO COMPLY WITH ALL APPLICABLE LAWS; OR (III) THE USE, STORAGE AND DISPOSAL OF ANY MATERIAL.

(c) IN NO EVENT SHALL KEYSTONE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO KEYSTONE PURSUANT TO THE APPLICABLE SOW GIVING RISE TO THE CLAIM. CLIENT AGREES THAT ALL PRICING GIVEN TO CLIENT BY KEYSTONE IS BASED ON THE LIABILITY LIMITS CONTAINED IN THESE TERMS.

12. Indemnification. Client shall indemnify, defend and hold harmless Keystone, its affiliates and their respective officers, directors, employees, agents, successors and permitted assigns (collectively, “Indemnitee”) against any and all Losses, including reasonable attorneys’ fees, incurred by Indemnitee arising out of or related to the negligence, willful misconduct, or breach of the Master Agreement by Client or its officers, employees, personnel, agents or independent contractors, notwithstanding Indemnitee’s negligence. Client shall not enter into any settlement without Keystone’s prior written consent.

13. Termination.

(a) The term of the Master Agreement shall commence on the effective date thereof and shall continue for the later of Two (2) years thereafter or until completion of and full payment for all Services other amounts owed in connection with any SOW in effect One (1) year thereafter, unless earlier terminated in accordance with this Section 13. The expiration or termination of the Master Agreement, for any reason, shall not release either party from any obligation or liability to the other party, including any payment obligation, that: (i) has already accrued hereunder; (ii) comes into effect due to the expiration or


termination of the Master Agreement; or (iii) otherwise survives the expiration or termination of the Master Agreement. Without limiting the generality of the foregoing sentence, Sections 1, 4-9, 11-13, 15 and 17 of these Terms shall survive and remain in full force after the expiration or termination of the Master Agreement.

(b) In addition to any remedies that may be provided under the Master Agreement, Keystone may terminate the Master Agreement with immediate effect upon written notice to Client, if Client: (i) fails to pay any amount when due under the Master Agreement; (ii) has not otherwise performed or complied with any of the terms of the Master Agreement, in whole or in part; or (iii) becomes insolvent, unable to pay its debts, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Client shall not terminate the Master Agreement without the written consent of Keystone which may be subject to such terms, as in Keystone’s absolute discretion, recompense Keystone for all Losses it may suffer as a result of termination.

(c) Upon expiration or termination of the Master Agreement for any reason: (i) Keystone shall deliver to Client all Reports for which Client has paid; (ii) Client shall promptly remove all Material located at the Facility; (iii) Client shall promptly pay all amounts due to Keystone under the Master Agreement; and (iv) except as expressly permitted under Section 9, each party shall return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information, provided that Client may retain copies of any Confidential Information of Keystone incorporated in the Reports, and, if requested by the other party, certify in writing to the other party that it has complied with the requirements of this paragraph. In no event shall Keystone be liable for any termination costs regarding Client’s employees or independent contractors arising from the expiration or termination of the Master Agreement.

14. Insurance. During the term of the Master Agreement, Client or Client’s representative shall, at its own expense, procure, maintain and carry insurance, with financially sound and reputable insurers, in full force and effect which includes, at a minimum, the following types of coverages: (i) Commercial General Liability with limits no less than $3,000,000 per occurrence, including bodily injury and property damage, which policy must include contractual liability coverage insuring the activities of Client under the Master Agreement; (ii) Worker’s Compensation with limits no less than the greater of $1,000,000 or the minimum amount required by applicable Law; (iii) Commercial Automobile Liability with limits no less than $1,000,000, combined single limit; and (iv) Errors and Omissions/Professional Liability with limits no less than $1,000,000 per occurrence and pollution coverage of $1,000,000, with an additional $3,000,000 umbrella. All insurance policies required hereunder shall: (1) provide that such insurance carriers give Keystone at least 30 days’ prior written notice of cancellation or non-renewal of policy coverage; (2) waive any right of subrogation of the insurers against Keystone or any of its insureds; (3) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Keystone shall be excess and non-contributory; and (4) name Keystone as an additional insured. Upon Keystone’s request, Client shall provide Keystone with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these Terms.

15. Nonsolicitation. Unless otherwise mutually agreed by the parties in writing, during the term of the Master Agreement and for a period of two (2) consecutive years thereafter: (i) Client shall not solicit, directly or indirectly, actively or inactively, the employees or independent contractors of Keystone to become employees or independent contractors of another individual or entity; and (ii) Client shall not, directly or indirectly, in any manner solicit, induce, or attempt to induce any past or current clients of Keystone to cease doing business in whole or in part with Keystone, or to do business with any other individual or entity which performs services materially similar to or competitive with those provided by Keystone.

16. Force Majeure. Keystone shall not be liable or responsible to Client, nor be deemed to have defaulted or breached the Master Agreement, for any failure or delay in fulfilling or performing any term of the Master Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Keystone, including without limitation failures or delays related to: (i) acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, telecommunication breakdown or power outage, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce); (ii) tools, equipment, or materials not owned by Keystone; and (iii) the actions or omissions of Client, its officers, employees, agents or independent contractors.

17. Miscellaneous Provisions.

(a) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth in the Master Agreement or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Master Agreement, a notice is effective


only: (i) upon receipt of the receiving party; and (ii) if the party giving the notice has complied with the requirements of this paragraph.

(b) No Waiver; Severability. No waiver by Keystone of any of the provisions of the Master Agreement is effective unless explicitly set forth in writing and signed by Keystone. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Master Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any term or provision of the Master Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Master Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(c) Assignment; Binding Effect. Client shall not assign any of its rights or delegate any of its obligations under the Master Agreement without the prior written consent of Keystone. Any purported assignment or delegation in violation of this Section 17 is null and void. No assignment or delegation relieves Client of any of its obligations under the Master Agreement. The Master Agreement is for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other individual or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Master Agreement.

(d) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Master Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

(e) Governing Law; Jurisdiction; Attorney Fees. All matters arising out of or relating to the Master Agreement are governed by and construed in accordance with the internal laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule (whether of the State of Oklahoma or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Oklahoma. Any legal suit, action or proceeding arising out of or relating to the Master Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Oklahoma in each case located in the City of Tulsa, Oklahoma, and County of Tulsa, Oklahoma, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding, and agree that to the fullest extent allowed by Law, only such courts to the exclusion of all others shall have jurisdiction over any such proceeding, and each Party irrevocably waives to the fullest extent allowed by Law any objection such Party may have to the laying of venue of any such proceeding brought in any such state or federal court based upon a contention that such court is inconvenient or otherwise an objectionable forum. [All disputes, controversies, or claims arising out of or related

to the Master Agreement (including tort claims) shall be settled by arbitration in the City of Tulsa, Oklahoma under

the Commercial Arbitration Rules of the American Arbitration Association; provided, however, that if Keystone

commences an action to collect an unpaid invoice and Client contends that Keystone did not perform Services as

agreed, then Keystone’s commencement of the judicial proceeding shall not be deemed a waiver of its right of

arbitration and any action shall be stayed to permit arbitration of such disputes, controversies or claims. Judgment on

the award by the arbitrator may be entered in any court having jurisdiction. In the event that a party requires

interim relief, this arbitration provision shall not apply to the extent a party needs to seek such interim relief from the

appropriate court under this provision.] If any action at Law or in equity, through arbitration or otherwise, is necessary to enforce the provisions of the Master Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which such prevailing party may be entitled.

(f) Injunctive Relief. Each party acknowledges that a breach by a party of Section 8 (Intellectual Property), Section 9 (Confidential Information) or Section 15 (Nonsolicitation) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at Law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at Law or in equity, subject to any express exclusions or limitations in these Terms to the contrary.

(g) Entire Agreement. The Master Agreement constitutes the sole and entire agreement of the parties to the Master Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. The Master Agreement may only be amended or modified in writing which specifically states that it amends the Master Agreement and is signed by an authorized representative of each party. Provisions of these Terms, which by their nature should apply beyond their terms, shall remain in force after any termination or expiration of the Master Agreement including without limitation, Sections 1, 4-13, 15, 17.


(h) Counterparts. The Master Agreement and any SOW may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of the Master Agreement or any SOW delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy thereof.

[END OF TERMS AND CONDITIONS OF SERVICES]

Documents

KEYSTONE TEST FACILITY, LLC MASTER SERVICES …files.constantcontact.com/ec33c7de501/59dfb387-6f82-48d1-ac2b-f... · Wireline work,with rig-not drilling includes personnel $1,100/Hour