Unless otherwise defined in this Agreement, the following terms shall have the following meanings wherever used and for all purposes of this Agreement:
- "Affiliate" means, in respect of any Party or other entity, any corporation, company, partnership, limited liability company, or other legal entity which directly or indirectly, including through one or more intermediaries, controls, is controlled by, or is under common control therewith, whether such affiliated entity is presently existing or hereafter formed. For the purpose of this definition "control" means the direct or indirect ownership of at least 50% of (a) the issued and outstanding equity shares or interests of whatever name entitled to vote at a general election of the directors, managers, or other controlling persons of an entity or (b) the voting interest in an entity if such entity does not have either equity shares or interests or directors, managers, or other controlling persons, or otherwise the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether by contract or otherwise. Each affiliated entity of a Party hereafter formed which satisfies the definition stated herein shall be deemed included in the term "Affiliate" as used in this Agreement, for all purposes and from the time of formation without further act or deed of any kind.
- “Agreement” means the agreement between Noble and Customer for the supply of Services as formed by Customer accepting the Proposal. The Proposal, together with these Terms and Conditions and all other attached documents or documents incorporated by reference constitute the entire terms of the Agreement.
- “Attendees” means the persons nominated by Customer who will attend the Course.
- “Business Day(s)” means a day on which the banks in Houston, Texas are customarily open for business.
- “Course” means any of the training course(s), classroom, meeting room or simulator rental(s), or relevant instructors to be supplied by Noble, its Affiliates or subcontractors under the Agreement.
- “Course Date” means the date scheduled by the Parties on which the Course shall begin.
- “Customer” means the company or legal entity to which Noble is providing the Services under the Agreement.
- “Noble” means Noble Drilling Services Inc. issuing the Proposal and providing the Services, and its successors and permitted assigns.
- “Proposal” means the written offer issued by Noble together with its attachments and any mutually agreed amendments or modifications thereto, to which these Terms and Conditions are attached.
- “Service(s)” means services provided by Noble, including without limitation, training courses, integrated exercises, classroom, meeting room or simulator rental(s) or relevant instructors.
- “Service Price” means the charges set out in the Proposal payable by Customer to Noble for the Services.
- “Terms and Conditions” means these terms and conditions, that form an integral part of the Agreement.
2. Noble Obligations
2.1 The Agreement shall be formed upon acceptance in writing by Customer of the relevant Proposal. The Agreement expressly limits acceptance to these Terms and Conditions without regard to any conflicting terms and conditions contained in Customer’s work order, purchase order or any other acknowledgment or documentation of Customer, even if the Proposal is referred to or attached to such documentation of Customer. Any terms set forth or contained in Customer’s work order, purchase order or any other acknowledgment or documentation of Customer which are additional to or different from those contained herein shall be of no force and effect and any additions or different terms proposed by Noble are rejected unless agreed to in writing by an authorized representative of Noble.
2.2 Noble agrees to provide the Services and/or Course(s) to Customer in accordance with all material respects of the Agreement. Unless otherwise provided for in the Agreement, the obligations of Noble shall be limited to the delivery of the Service and/or Course(s) at the agreed premises and time and the delivery of the relevant materials. All Services rendered or performed by Noble shall be performed in a good and workmanlike manner consistent with the professional standards in the industry, using skilled and experienced staff and supervisors. Noble shall be entitled to subcontract the whole or any part of its obligations under the Agreement to any third party which it may in its absolute discretion determine but any subcontract shall not relieve Noble of its obligations.
2.3 Unless otherwise agreed in writing, attendance alone shall not constitute the granting by Noble, or by any of its Affiliates, of any certification, authorization, or qualification.
2.4 All conditions and warranties not expressly set forth in the Agreement (whether expressed or implied) are excluded to the fullest extent permissible by law. Without limiting the generality of the foregoing, Noble shall not be liable for any reliance or practical use made by the Attendees, Customer or any agent or employee of Customer, of the information contained in the Course(s)or any related training material.
3. Attendees and Attendance
3.1 Customer shall confirm in writing to Noble its participation in any Course(s). Customer shall indicate the number of Attendees (subject to any limits thereto in the Proposal) and notify of any reasonable special requirements relating to any of the Attendees (i.e. disabilities, medical conditions or other special needs). Noble will endeavor to accommodate such special requirements if it is considered reasonable and practical to do so. The confirmation shall refer to, or include as an attachment, the Agreement, and the Customer’s confirmation shall be received by Noble at least thirty (30) Business Days prior to the relevant Course Date. Upon receipt of the above confirmation, Noble will proceed with the organization of the Course(s) and, if not yet agreed by the Parties, notify Customer of the Course Date with reasonable advance.
3.2 Customer may request, in writing, to increase the number of Attendees in an ordered Course, provided that the relevant request is received at least fifteen (15) Business Days prior to the Course Date. Provided that classes should not exceed the maximum number of Attendees set forth in the Proposal, Noble reserves the right to (a) refuse all or part of the increase for reasonable practical reasons; and/or (b) increase the Service Price.
3.3 Customer may request, in writing, to substitute an Attendee(s) in an ordered Course, provided that the relevant request is received at least one (1) Business Day prior to the Course Date.
3.4 Customer shall be solely responsible for ensuring, through selection or otherwise, that each Attendee has the technical and language ability necessary to follow the relevant Course(s).
3.5 Attendees are required to: (a) use the materials and equipment made available for the Course(s) with the utmost care and diligence; (b) comply with the rules of conduct on the training premises, in particular Noble’s health, safety and accident prevention policies, and follow any reasonable instructions of the instructor(s); and (c) not make any video and/or audio recordings and/or take pictures on the training premises without the prior written consent of Noble.
3.6 Noble reserves the right to refuse to provide Services to any Attendee and to request that the Attendee be removed from its facilities at any time, if in the reasonable opinion of Noble, (a) the Attendee’s behavior is in any way dangerous, offensive or would otherwise cause to be a distraction during the Course(s) and/or (b) the Attendee does not comply with the health and safety policies on the training premises.
3.7 Noble may provide free wireless Internet access at its training premises. All users of Noble’s wireless network must abide by Noble’s Internet Acceptable Use Policy. Noble’s wireless network is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair. Internet access may be interrupted, refused, limited or curtailed. In offering Internet access, the Internet must be used for legal purposes only. Unacceptable purposes may include but are not limited to the following: (a) destruction or damage to the equipment, software, or data belonging to Noble; (b) unauthorized downloading or copying of copyright protected material; (c) violation of computer security; (d) violation of software license agreements; or (e) viewing of obscene, pornographic, or otherwise inappropriate material. Noble assumes no responsibility for the safety of equipment or for harm done to laptops, telephones, other computing devices, security configurations and/or data files resulting from connection to Noble’s wireless network. Virus and security protection is the responsibility of the wireless user. Noble may not provide technical assistance and no guarantee can be provided that a wireless user will be able to make a wireless connection.
4. Postponement or Cancellation of the Services
4.1 Customer may request, by giving Noble notice in writing in adequate advance, the postponement or cancellation of a confirmed or agreed Service and/or Course. If the postponement or cancellation request is received by Noble less than thirty (30) calendar days prior to the Course Date, Customer shall pay a rescheduling charge equal to fifty percent (50%) of the Service Price. If the postponement or cancellation request is received by Noble less than fourteen (14) calendar days prior to the Course Date, Customer is subject to a rescheduling/cancellation charge equal to one hundred percent (100%) of the Service Price.
4.2 If the Customer fails to request and complete the Course Date for one or more Courses included in the Agreement within one (1) year of the acceptance of the Proposal, such Course(s) shall be deemed cancelled and Section 4.1 above shall apply.
4.4 Failure by an Attendee to attend a Course as per the relevant confirmation shall not entitle Customer to any Service Price Reduction or any right to demand that the Course be re-performed for the benefit of the absentees.
4.5 Noble reserves the right to cancel a Service and/or Course or reschedule a Course Date at any time and for any reasons. Noble shall endeavor to inform Customer as soon as possible of the cancellation or rescheduling, and in case of rescheduling, to offer a new Course Date reasonably convenient for Customer. In case of cancellation, Noble shall refund any amount of the Service Price paid in advance by Customer. Such refund shall be Customer’s sole remedy in case of cancellation by Noble.
5.1 Noble reserves the right to make changes in the content, relocate the site of the Course(s) and change the instructor(s). In particular, Noble may further develop or update the content of the Course(s) without prior announcement.
5.2 Noble will endeavor to accommodate reasonable requests of changes relating to a Service and/or Course made by Customer after confirmation, if it is considered reasonable and practical to do so and subject to mutual agreement as to the compensation for the requested change.
6. Training Materials
6.1 Noble shall provide each Attendee with appropriate training materials to complete the Course(s). All training materials will be supplied in English unless specific language translations are set forth in the Proposal.
6.2 Customer acknowledges that the training materials provided by Noble are protected under copyright law and may not be disclosed to individuals other than the Attendees or used for any purposes other than for the training purposes agreed to under the terms of the Agreement. Under no circumstances may the whole or any part of the training materials be produced or copied in any form or translated into another language without the prior written consent of Noble.
6.3 Customer acknowledges that the training materials provided by Noble do not constitute any user’s, operating or maintenance manual for any equipment, system or process, and that Noble has no obligation to provide to Customers and/or to Attendees any update to the training materials after the related Course(s) has been given.
6.4 All copyrights, design rights, patents, trademarks, trade secrets and other intellectual property rights ("IP Rights”) in and covering the training material, Course(s), Services or portions thereof prepared or developed by Noble hereunder, shall belong solely and exclusively to Noble or its licensors. Noble does not grant a license, by implication or otherwise, under any of its IP Rights in and covering the training material to Customer Group.
7.1 The following terms shall apply, if the Service and/or Course are held on Noble’s premises: (a) no logistic services will be provided to the Attendees other than those expressly set forth in the Proposal and/or the Agreement, if any; and (b) Customer shall be responsible for making all travel arrangements and for bearing the full costs of all travel, accommodation, meal and other expenses incurred by the Attendees in relation to the Course. Noble shall not be responsible for any of such non-refundable expenses in case of cancellation or rescheduling of the Course.
7.2 The following terms shall apply, if the Courses are held on Customer’s premises: (a) Customer shall provide adequate training room(s), facilities and other necessary resources, including, but not limited to, whiteboard, overhead projector, video-projector, flip charts, or any other resources reasonably requested by Noble; (b) Customer shall provide Noble, its subcontractors, consultants and employees, in a timely manner, with access to the training facilities; (c) Customer shall provide local co-ordination through a representative who shall be the official interface between the instructor and the Attendees; and (d) Noble will make all travel arrangements for its subcontractors, consultants and employees and all shipping arrangements for any equipment and material required for the Courses and Customer shall reimburse Noble for all reasonable travel expenses and shipping expenses related thereto.
8. Prices, Payments and Taxes
8.1 Except as otherwise provided in the Agreement, Customer shall pay Noble all invoiced amounts in United States Dollars and without any set-off whatsoever (including, without limitation, setoff under other contracts with Noble or its Affiliates). The Service Price does not include any tax, duty, fee, or charge, including but not limited to VAT, GST and other sales, turnover, consumption or service taxes, or corporate income tax levied by any governmental authority other than Noble's country of incorporation. Should any of such taxes be applied, they shall be for Customer’s account and such taxes shall be added to the Service Price.
8.2 Noble may invoice Customer for the Service at any time after completion of the Service or on a monthly basis for any Services rendered during the month. If the Service Price exceeds USD$100,000.00 for Services to be performed over a period of time, Noble shall be entitled to invoice on a milestone basis (i.e. quarterly). Customer shall pay Noble all invoiced amounts within thirty (30) calendar days of the date of the invoice except that if Customer disputes an item invoiced, Customer shall within twenty (20) calendar days after receipt of an invoice notify Noble of the amount disputed, specifying the reason therefor, and payment of the disputed amount may be withheld until settlement of the dispute, but payment shall be made of any undisputed portion. Any sums (including amounts ultimately paid with respect to a disputed invoice) not paid within thirty (30) calendar days after receipt of invoice shall bear interest at five percent (5%) per annum (or any fraction thereof) or the maximum amount permitted by applicable law on all amounts not timely paid in accordance with the Agreement from said due date until paid.
8.3 Noble shall be responsible for, and shall pay directly, any and all corporate income taxes and individual taxes imposed on Noble and its employees by the legislation of the country of incorporation of Noble and/or performance of the Service and related to the execution of the agreement (the “Noble Taxes”).
8.4 If Customer deducts or withholds Noble Taxes from the Service Price, for each deducted or withheld amount of Noble Taxes, Customer shall provide Noble, within thirty (30) calendar days from payment, with the official receipt issued by the appropriate governmental authority to which the Noble Taxes have been paid. If Customer does not return the official receipts timely as prescribed in this Section 8.4, Customer will indemnify Noble for an amount equal to that withheld.
8.5 Customer shall be responsible for, and shall pay directly when due and payable, any and all Customer Taxes, as defined below, and all payments due and payable by Customer to Noble under this Agreement shall be made in the full amount of the Service Price. "Customer Taxes" means all taxes, duties, fees, or other charges of any nature (including, but not limited to, ad valorem consumption, excise, franchise, gross receipts, license, property, sales, stamp, storage, transfer, turnover, use, or value-added taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto), imposed by any governmental authority of any country due to the execution of this Agreement other than Noble Taxes.
8.6 If either contractual Party does not comply with the tax legislation of the country where the Course(s) are provided, the faulty party (“Faulty Party”) will indemnify the other (“Affected Party”) for any cost, risk and responsibility including, but not limited to, fees, taxes, duties, charges, penalties, legal expenses, and interest which the Affected Party might suffer as a result of Faulty Party’s breach in compliance.
8.7 If the law of the country of incorporation of Customer requires the Agreement to be subject to stamp duty, fee, or registration with any local authority, Customer will be responsible of the required formalities and bear the related costs. Customer shall return to Noble a copy of the registration certificate or a registered copy of the Agreement within (ten) 10 calendar days from the due date provided by the above-mentioned Laws to apply for the fee, duty or registration.
8.8 If Customer benefits from any tax, fee or duty exemption applicable to Noble and its Affiliates, Customer agrees to provide Noble, without charge, before the execution of the Agreement with documentation acceptable to the taxing authorities supporting the tax or fee exemption and with instructions for Noble and its Affiliates about the procedure to apply for the exemption. Customer shall provide documentation acceptable to the taxing authorities supporting the tax, fee or duty exemption before the execution of the Agreement and before any billing event. Should Noble be refused to have the right to apply for the tax or fee exemption, or should the Customer not send Noble such documentation, Noble shall invoice and the Customer shall pay unconditionally the applicable tax, fee or duty.
8.9 Customer will promptly inform Noble about the revocation, expiry or any other change to the mentioned exemption by means of written communication sent to Noble. If such communication is late or does not occur, the Customer will compensate Noble of any tax, duty, fee and fine, penalties, interest and Court costs arisen for Noble.
9.1 Customer shall keep confidential and shall not disclose without the prior consent in writing of Noble, any technical or commercial information which it has acquired during the Service and/or Course(s) or as a result of discussions, negotiations or other communications with Noble relating to the Agreement.
9.2 Customer shall not hold itself out or permit any person to hold it out as being authorized by Noble or any of its Affiliates to provide any kind of services, including services related to the subject matter of the Service and/or Course(s), and shall not do any act which might reasonably create the impression that it is so authorized.
10. Liability and Insurance
10.1 Noble shall be responsible for and shall save, indemnify, defend and hold harmless Customer, its Affiliates, its and all of their joint venturers, and the contractors, subcontractors, of any tier, and the officers, directors, managers, employees, consultants, agents, representatives, invitees, insurers, subrogees of each of the foregoing (“Customer Group”) from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of: (a) loss of or damage to property of Noble Group (hereinafter defined) whether owned, hired, leased or otherwise provided by the Noble Group; and (b) bodily injury including death or disease to any person of Noble Group, arising from or relating to the performance of the Agreement resulting from any cause or causes whatsoever, including, without limitation, the negligence (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE, PASSIVE OR GROSS), BREACH OF DUTY (WHETHER STATUTORY, CONTRACTUAL OR OTHERWISE), OTHER FAULT or strict liability of any of the CUSTOMER GROUP.
10.2 Except to the extent set out in 10.1 above, Customer shall be responsible for and shall save, indemnify, defend and hold harmless Noble, its Affiliates, its and all of their joint venturers, and the contractors, subcontractors, of any tier, and the officers, directors, managers, employees, consultants, agents, representatives, invitees, insurers, subrogees of each of the foregoing (“Noble Group”) from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities including, but not limited to: (a) loss of or damage to property of Customer Group (hereinafter defined) whether owned, hired, leased or otherwise provided by the Customer Group; (b) bodily injury including death or disease to any person of Customer Group; (c) any breach by Customer, its employees, agents or subcontractors or any of the Attendees of any provisions of the Agreement; (d) any negligence or other tortious conduct of Customer, its employees, agents or subcontractors or any of the Attendees; and (e) any claim made against Noble by a third party arising from or relating to the performance of the Agreement resulting from any cause or causes whatsoever, including, without limitation, the negligence (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE, PASSIVE OR GROSS), BREACH OF DUTY (WHETHER STATUTORY, CONTRACTUAL OR OTHERWISE), OTHER FAULT or strict liability of any of the NOBLE GROUP.
10.3 With the exception of Noble’s indemnity obligation in Section 10.1, but notwithstanding any other provisions herein to the contrary, Noble Group’s maximum aggregate liability for any and all claims of any kind, whether in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, arising out of or in connection with this Agreement shall not exceed the Service Price paid for the Service in respect of which the claim is made.
10.4 In no event shall the Noble Group be liable for any special, indirect or consequential losses or damages of Customer or for the respective loss of profits or revenue, loss or delay of production, business interruptions or delays, loss of or delay in drilling or operating rights, cost of or loss of use of property, equipment materials and/or services, loss of reputation, or punitive damages, whether the same be deemed direct or indirect (“Consequential Losses”) arising under or in connection with the performance of Services pursuant to the Agreement. Accordingly, Customer shall at all times be responsible for and hold harmless, indemnify and release Noble Group from and against all Consequential Losses of Customer Group arising from or relating to the performance of the Agreement resulting from any cause or causes whatsoever, including, without limitation, the negligence (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE, PASSIVE OR GROSS), BREACH OF DUTY (WHETHER STATUTORY, CONTRACTUAL OR OTHERWISE), OTHER FAULT or strict liability of any of the NOBLE GROUP.
10.5 Each Party agrees to promptly notify the other Party after receipt of any claim for which it may seek indemnification. Each party hereto agrees to procure and maintain insurance to support its obligations under this Agreement, including without limitation, contractual liability coverage. To the extent of the risks and liabilities assumed by Customer under this Agreement, Customer shall cause its insurers to waive rights of subrogation against the Noble Group. To the extent of the risks and liabilities assumed by Noble under this Agreement, Noble shall cause its insurers to waive rights of subrogation against the Customer Group.
11. Force Majeure
11.1 Noble shall not be liable or be considered to be in breach or default of its obligations under the Agreement to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, (i) acts of God, acts (or omissions) of governmental authorities, fires, severe weather conditions, earthquakes, strikes or other labor disturbances, floods, risk of kidnapping, war (declared or undeclared), armed conflict, acts or threats of terrorism, epidemics, civil unrest, riot, delays in transportation, or car shortages; or (ii) acts (or omissions) of Customer or Customer’s suppliers or agents. Noble shall notify Customer in the event of any such delay. The Course Date shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of such delay. The Parties shall, as soon as practicable, establish a revised Course Date.
12. Governing Law and Dispute Resolution
12.1 This Agreement shall be governed, construed, interpreted, enforced and litigated and the relations between the Parties determined in accordance with the laws of the State of Texas, not including, however, any of its conflicts of law rules which would direct or refer to the laws of another jurisdiction. Any and all disputes between the Parties arising out of this Agreement shall be resolved in the state or federal courts located in Houston, Texas, USA and the Parties hereby irrevocably submit to the exclusive jurisdiction of such courts.
13. General Provisions
13.1 Customer shall not shall directly solicit, entice or hire any of Noble’s employees or contractors without prior written agreement until not less than twelve (12) months has elapsed from the receipt of the final invoice for the Services.
13.2 Customer shall promptly notify Noble in writing upon discovery of any occurrence or event which results in a breach or suspected breach of this Agreement.
13.3 This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. Noble may assign or novate its rights and obligations in respect of the Agreement, in part or in whole, either to one of its Affiliates or subcontractors without Customer’s consent and upon written notice to Customer setting forth the effective date of such assignment or novation. Customer agrees to execute such documents as may be necessary to effect the assignment or novation. Noble shall remain liable for the performance of its subsidiaries and third parties after the assignment or novation takes effect. The delegation or assignment by Customer of any or all of its duties or rights under the Agreement without Noble’s prior written consent shall be void. Noble shall have the right at all times to assign to third parties any and all credits under the Agreement subject to prior notification in writing to Customer.
13.4 Any failure of either Party to strictly enforce any provision of this Agreement shall not be deemed a waiver of such Party’s right to enforce such provision or any other provision hereof at any time.
13.5 The Agreement represents the entire agreement between the Parties and no modification, amendment, rescission, waiver or other change shall be binding on either Party unless assented to in writing by the Parties’ authorized representatives. Any oral or written representation, warranty, course of dealing or trade usage not contained or reference herein shall not be binding on either Party. Each Party agrees that it has not relied on, or been induced by, any representations of the other Party not contained in the Agreement. Any modifications or variations to the Agreement must be in writing and signed by an authorized representative of each Party. In the event of any inconsistency between the Proposal and these Terms and Conditions, the Proposal will prevail.
13.6 Any provision of this Agreement that is prohibited, unenforceable or contrary to any applicable law, rule or regulation shall be deemed to be modified to the extent necessary to render such provision valid and enforceable, and if such provision cannot be rendered valid and enforceable by limitation it shall be ineffective therein. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity of the remainder of the Agreement.
13.7 In the event of termination or expiration of the Agreement, the provisions pertaining to Article 6 (Training Materials), Article 8 (Prices, Payments and Taxes); Article 9 (Confidentiality); Article 10 (Liability); Article 12 (Governing Law and Dispute Resolution); and Article 13 (General Provisions) or terms which, by their nature, are intended to survive termination or expiration of the Agreement, shall remain in full force and effect.