EXCLUSIVE RESELLER AGREEMENT
Exhibit 10.1
This
Exclusive Reseller Agreement is entered into as of this 13th day of January,
2009 (“Effective Date”) between Schlumberger Technology Corporation, through its
Schlumberger Information Solutions Remote Connectivity North America division
(“SIS RCO NAM”), a Texas corporation having a place of business at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ (hereinafter referred to as “Schlumberger”) and
ERF Wireless, Inc., a Nevada corporation having a place of business at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
along with its Affiliates as “ERF”). Schlumberger and ERF are
sometimes hereafter collectively referred to as the “Parties”, and individually
as a “Party.”
RECITALS
WHEREAS, Schlumberger is an
oilfield services and technology company that has developed and continues to
develop technology relating to oilfield services, to the Oil and Gas Sector,
which includes well stimulation, wireline logging, measurement-while-drilling,
logging-while-drilling, directional drilling and well construction, perforating
systems, shaped charges, well completions, oilfield related tools and equipment,
and a full range of information systems and telecommunication services and
terrestrial infrastructure to the Oil and Gas Sector, while owning and operating
a global network of teleports and providing satellite bandwidth;
WHEREAS, ERF is a company that
applies wireless broadband technology to a select suite of enterprise,
commercial and retail communications needs and has recently utilized its
extensive wireless network coverage in oil and gas production regions of Texas,
New Mexico Louisiana, and Oklahoma through its Oil & Gas Services Division
which provides wireless high-speed broadband communications to drilling and
production operations;
WHEREAS, ERF and Schlumberger
have agreed to collaborate in the area of wireless broadband products and
services in the United States of America (the “ERF Services”);
WHEREAS, ERF grants to
Schlumberger the exclusive right to use and/or distribute, including but not
limited to license, sublicense, lease or otherwise commercialize the ERF
Services. The ERF Services and pricing are set forth in Schedule A with
Schlumberger’s minimum purchase commitments set forth in Schedule
B. Notwithstanding, ERF retains the right to resell its ERF Services
to those Oil and Gas Sector end users identified in Schedule C (“ERF Retained
Clients”). Products and services in development shall be declared in Schedule D
and updated during a monthly technical review with Schlumberger;
NOW THEREFORE, in
consideration of the mutual covenants hereinafter recited and other good and
valuable consideration (the receipt and sufficiency of which is mutually
acknowledged), Schlumberger and ERF do hereby agree as follows:
CONDITIONS
PRECEDENT
As a
condition precedent to the execution of this Agreement, the Parties have agreed
to provide the following:
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(i)
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Satisfactory
completion of due diligence and resolution of all issues that arise in the
course of the review;
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(ii)
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All
required approvals and authorizations from ERF management, and ERF Board
of Directors and/or shareholders, as necessary;
and
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(iii)
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All
required approvals and authorizations from Schlumberger management, as
necessary.
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AGREEMENT
1. DEFINITIONS
1.1 “Agreement”
means this Exclusive Reseller Agreement, including all exhibits and attachments
hereto.
1.2 “Affiliates”
means and includes: (i) any parent company (including all divisions
thereof) of a Party which now or hereafter owns or controls, directly or
indirectly through one or more intermediaries, at least fifty percent (50%) of
the stock having the right to vote for or appoint directors of the Party; and
(ii) any other company, regardless of where situated, at least fifty percent of
whose stock having the right to vote for or appoint directors is now or
hereafter owned or controlled, directly or indirectly through one or more
intermediaries, by the Party or a parent company of the Party.
1.3 “Confidential
Information” means: (a) any information relating to the Parties’ product plans,
designs, software design, source code, end users, costs, prices and clients
and/or product names, finances, marketing plans, business opportunities,
personnel, research, development or know-how; (b) to the extent not otherwise
covered in (a), any information that is designated by the disclosing Party as
confidential writing or, if disclosed orally, reduced in writing and designated
as confidential within thirty (30) days; and (c) the terms and conditions of
this Agreement; provided, however, that “Confidential Information” will not
include information that: (i) was generally available to the public at the time
of receipt from the disclosing Party, or thereafter becomes generally available
to the public other than through a breach of this Agreement by the recipient
Party or a breach of any other duty of confidentiality to the disclosing Party
of which the recipient Party is aware; (ii) is known to the recipient Party on a
non-confidential basis prior to its receipt from the disclosing Party; (iii) is
disclosed with the prior written consent of the disclosing Party; (iv) becomes
known to the recipient Party from a source other than the disclosing Party on a
non-confidential basis and without breach of this Agreement by the recipient
Party; (v) was required to be disclosed pursuant to law; or (vi) is developed
independently by personnel of the recipient Party who had no substantive
knowledge of the disclosing Party’s Confidential Information at the time of such
independent development.
1.4 “Documentation”
means the documents or other information pertaining to the ERF Services, as
specified in Schedule A.
1.5 “End
User” refers to any person or entity in the Oil and Gas Sector who licenses the
ERF Services from Schlumberger.
1.6 “Oil
and Gas Sector” means the sector of industry focused on exploration, data
acquisition, development, drilling, production, gathering, refining,
distribution and transportation of hydrocarbons and includes but is not limited
to major resource holders, national oil companies, multinational oil companies,
drilling contractors, services contractors, and other related
businesses.
1.7 “Intellectual
Property” means all discoveries, patentable or unpatentable, patents, mask
works, patent applications, copyrights (whether published or unpublished), trade
secrets, knowhow, designs, methods, processes, work-flow(s), inventions,
proprietary information, but as used herein excludes all trademarks or trade
names (whether common-law or registered).
1.8 “Schlumberger”
means Schlumberger Technology Corporation, through its Schlumberger Information
Solutions Remote Connectivity North America division.
1.9 “Territory”
means the United States of America.
1.10 “ERF”
means, collectively, ERF and all ERF Affiliates.
1.11 “ERF
Services” includes the wireless broadband products and services for the Oil and
Gas Industry contemplated under this Agreement, which includes supporting
equipment, hardware and software, including network edge and backhaul radio
based communications systems, fiber, cable-based and satellite communications
required in the routine distribution of ERF products and services. This also
includes base-band equipment and assets such as radio and telecommunications
towers, cabling, power supplies, and distribution as utilized in the provision
of ERF existing and future networks that are owned, leased, contracted for, or
otherwise utilized to provide services to Schlumberger.
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1.12 “ERF
Technology” means the current and future versions of all of ERF technology
related to wireless communications in the provision of ERF Services existing on
the Closing Date, including but not limited to the technology identified in
Schedule A, as well as any future products with the same or similar
functionality.
2. CONTRIBUTION
& EXCHANGE
2.1 Schlumberger’s
Contribution.
(a) Pricing. In exchange
for the exclusive distribution rights granted herein in the Territory for an
initial period of three (3) years plus any extensions as defined herein,
Schlumberger agrees to the pricing and the minimum revenue requirements as set
forth in Schedule B and agrees to pay ERF within fifty (50) days of receipt of
invoice from ERF. Schlumberger retains the right to determine the pricing
schedule at which the ERF Services and ERF Technology and derivate works are
distributed in the Oil and Gas Sector, exclusive of any previously negotiated
pricing that ERF may have negotiated with pre-existing customers as set forth in
Schedule C, which ERF shall be permitted to honor.
(b) Increases in Pricing.
For the hardware and bandwidth configurations defined in this Agreement, ERF may
not increase the prices set forth in Schedule A by more than ten percent (10%)
per year without the prior written consent of Schlumberger. Any price
increase of less than ten percent (10%) is effective only upon thirty (30) days
written notice to, and agreement by, Schlumberger.
(c) Exclusive
Provider.
Schlumberger agrees that it will consider ERF its exclusive provider of
the type of wireless broadband products and services included in the Services
throughout the Territory, provided that such collaboration is not prohibited by
operation of law.
The
exclusivity set forth in the previous paragraph is subject to ERF Wireless
offering its services at commercial quality acceptable to
Schlumberger.
Schlumberger
will notify ERF of regions to which Services should be provisioned (as defined
by Schlumberger business demographics analysis) within a minimum timeframe of
six months prior to the intended business inception date or the first day of the
Services commercial availability and ERF shall be offered a “Right of First
Refusal” to build, acquire, lease, or otherwise provide the infrastructure
required to provide the Services therein.
Should
ERF not be able to provide the Services or declare no intention to deploy such
service in a region of the Territory where Schlumberger has expressed
significant business interest, the region shall be declared exempt of this
agreement and defined in Schedule E.
Should
ERF elect to not provide the services in the Territory required by Schlumberger,
ERF will notify Schlumberger of that fact within sixty days of the original
request by Schlumberger that they will not exercise their Right of First
Refusal.
This
clause shall only apply to Schlumberger’s SIS RCO NAM business.
2.2 ERF
Contribution.
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(a)
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Exclusive
Reseller. Subject
to the terms and conditions of this Agreement, ERF hereby appoints
Schlumberger as the exclusive authorized reseller of ERF Services and ERF
Technology to the Oil and Gas Sector within the Territory, and
Schlumberger hereby accepts such
appointment.
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(b)
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For
avoidance of doubt, Schlumberger’s exclusivity rights hereunder preclude
ERF or any third party from commercializing the ERF Technology in the Oil
and Gas Sector within the Territory while this Agreement is in force and
effect, except for the ERF Retained Clients set forth in Schedule
C. The Parties acknowledge and agree that this license is
limited to the Oil and Gas Sector and that Schlumberger will not
sublicense the ERF Technology outside of the Oil and Gas
Sector. Schlumberger’s exclusivity shall be subject to minimum
purchase commitments set forth in Schedule B. To the extent,
Schlumberger does not achieve such minimum purchase commitments during any
given year, Schlumberger reserves the right to retain its exclusivity
rights through the payment of a supplemental cash amount to achieve the
required commitment levels.
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(c)
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Development
Rights. ERF grants to Schlumberger a limited, non-exclusive
royalty-free license and right to make derivative works of ERF Technology
in the Oil and Gas Sector for the Territory during the duration of the
Agreement. Schlumberger will retain all intellectual property
rights associated with any such derivative works. ERF retains
all intellectual property rights to ERF Technology. ERF grants
to Schlumberger perpetual rights to use, commercialize, distribute, or
modify ERF Technology to the extent that ERF Technology is incorporated
into the derivative works created by Schlumberger for the Oil and Gas
Section in the Territory. Schlumberger grants ERF the right to resell such
derivatives of the ERF Technology to any ERF Retained Client on such terms
and at such pricing as is subsequently
agreed.
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3.
INTELLECTUAL PROPERTY
3.1 ERF Ownership. Except
as may be otherwise expressly set forth herein, ERF retains all rights, title,
and interest to: (i) the ERF Technology; (ii) ERF service marks, trademarks
and/or trade names; (iii) all Intellectual Property or intangible rights
associated with the ERF Technology and related Documentation; and (iv) all
enhancements to the ERF Technology that are part of ERF development plan that
are not funded or developed by Schlumberger.
3.2 Rights in ERF Intellectual
Property. ERF grants to Schlumberger the right to make, have made and to
use derivative works based on the ERF Technology. Schlumberger will
own the Intellectual Property rights in any derivative works it creates of ERF
Technology and will be free to use, commercialize, distribute, sell or otherwise
make use of the derivative works without accounting to ERF for royalties or
other payments. In connection with Schlumberger’s rights to make
derivative works of the ERF Technology and to market and distribute the ERF
Technology and Documentation, ERF hereby grants to Schlumberger a limited,
non-exclusive, royalty-free license to ERF Technology solely for the purpose of,
and only to the extent required for, Schlumberger’s performance under this
Agreement. ERF further grants to Schlumberger the worldwide,
non-exclusive, irrevocable right during the term of Schlumberger’s rights of
distribution under this Agreement to use (1) all copyrighted materials contained
in the ERF Technology, Documentation, and any packaging or other materials
provided by ERF and (2) all trademarks associated with the ERF Technology for
the purpose of marketing, training and reselling the ERF Technology to End
Users.
3.3 Ownership of Derivative
Works. Schlumberger will own all right, title and interest to derivative
works of the ERF Technology developed by Schlumberger’s employees and/or
subcontractors, and will be free to modify, use, lease, sell or otherwise
distribute any such derivative works without restriction and in any
manner. Schlumberger agrees that, for the duration of the
exclusive distribution rights granted in this agreement, Schlumberger agrees not
to use, sell, license, sublicense, or otherwise commercialize or transfer the
derivative works for use outside the Oil and Gas Sector.
4.
SCHLUMBERGER’S RIGHTS AND
RESPONSIBILITIES
4.1 Purchasing
Obligation. Schlumberger’s exclusivity shall be subject to minimum purchase
commitments set forth in Schedule B. To the extent, Schlumberger does
not achieve such minimum purchase commitments during any given year,
Schlumberger reserves the right to retain its exclusivity rights through the
payment of a supplemental cash amount to achieve the required commitment
levels.
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4.2 Pricing of ERF
Technology. Schlumberger will be solely responsible for determining the
pricing schedule at which the ERF Technology are distributed in the Oil and Gas
Sector except for those ERF retained clients listed in Schedule C.
4.3 Maintenance
Contracts. To the extent any ERF Retained Clients are assigned
to Schlumberger, as additional consideration for the exclusive rights granted
herein, Schlumberger agrees to assume the maintenance obligations for such
clients (the “Maintenance Contracts”), following confirmation through due
diligence that the terms and conditions of the existing ERF contracts permit
assignment to Schlumberger. Following the assignment of any agreed
existing client agreements from ERF, Schlumberger shall be permitted to directly
invoice and retain all maintenance fees associated with the Maintenance
Contracts.
5.
ERF RIGHTS AND RESPONSIBILITIES
5.1 Schlumberger’s
Exclusivity. ERF represents that it has not granted the right to resell
the ERF Technology in the Oil and Gas Sector to any third party or executed any
other agreement with a third party that may infringe upon the rights granted to
Schlumberger herein and agrees that it will not use, sell, or otherwise
distribute, or authorize any third party to use, sell or otherwise distribute
within the Territory, the ERF Technology or any other existing products or
technology that ERF might possess upon the Effective Date in the Oil and Gas
Sector during the term of this Agreement.
5.3 Patent Application.
ERF represents that with respect to the ERF Technology, including any new
products, it will use its best efforts to file patent applications as soon as
reasonably practical.
5.4 Project Staffing. ERF
represents and warrants that it will retain, for the duration of this Agreement,
personnel of sufficient education and/or experience to meet its obligations
under this Agreement, including but not limited to providing commercially
reasonable updates and enhancements to the ERF Technology and to provide such
updates to Schlumberger, as well as to support Schlumberger’s continued
utilization and resale of the ERF Technology. Such staffing
requirements will be determined based on the monthly meeting with Schlumberger
to develop a reasonable support system for the planned expansion
areas.
5.5 Training and Knowledge
Transfer. ERF agrees to provide Schlumberger technical support,
marketing, and pre- and post- sales support, and one hundred (100) hours of
knowledge transfer at no additional cost to Schlumberger’s Houston office
located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. Schlumberger agrees to provide ERF with one
hundred (100) hours of knowledge transfer regarding safety and efficiency while
working in the Oil and gas Sector at no additional cost at Schlumberger’s
training facilities. The parties are individually responsible for the
respective travel and accommodation expenses associated with the
training.
5.6 Maintenance and
Support. ERF agrees to use its best efforts to correct any critical bugs
in the Services, upon Schlumberger’s request, at no additional
charges. A critical bug is one that prevents Schlumberger or its
client from using the ERF Services as intended. For avoidance of
doubt, ERF agrees to provide Schlumberger with enhancements to the technology
that are developed for other sectors, including the Public Sector, if
Schlumberger believes that the features are applicable to the Oil and Gas
Sector. Following the Closing Date, and for the initial three year
term of this Agreement and any renewals thereof, ERF will provide third-tier
maintenance support to Schlumberger’s customer support group at no additional
charge. ERF will not be required to provide support directly to
Schlumberger’s clients. This maintenance will entitle Schlumberger,
and its clients, access to any bug-fixes, patches, upgrades, and enhancements to
the ERF Technology at no additional cost.
5.7 Enhancements. ERF
will continue to enhance the functionality of ERF Technology and will provide to
Schlumberger no cost software and same-specification hardware upgrades.
Functional upgrades involving hardware modification shall be priced at
cost. If Schlumberger desires specific developments or enhancements
to ERF Technology that are not in current development plans, ERF agrees to
provide development services to Schlumberger at a rate not to exceed $200 per
hour. For avoidance of doubt, and to ascertain ownership of
intellectual property and applicable product development, ERF shall declare
specific products currently in development. Products and services in
development shall be declared in Schedule D and updated during a monthly
technical review with Schlumberger. Schlumberger-funded developments
will be considered works made for hire and all intellectual property rights
associated with such developments will vest in, and be retained by,
Schlumberger. None of the existing ERF Technology or intellectual
property shall be affected, impaired, or transferred as a result of the
development. Schlumberger hereby grants ERF a limited, non-exclusive,
royalty-free license to ERF to resell or otherwise distribute the
Schlumberger-funded developments outside of the Oil and Gas Sector.
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5.8 Points of Contact.
Each party has identified its primary contact, together with a list of its
representatives having responsibility for resolution of increasingly critical
issues related to this Agreement. In the event of any change in names
of these points of contact, such party will immediately notify the other party
of the replacement representative.
6. REPRESENTATIONS
AND WARRANTIES
6.1 Ownership. ERF
represents and warrants:
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(i)
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that
it is the owner of, or has obtained a license from the owner of, all
right, title and interest, including patents, copyright, and/or trade
secrets, if any, in the ERF Technology and documentation, or that the
preexisting information related to the ERF Technology and documentation
are within the public domain and not subject to the protections of
copyright law;
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(ii)
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that
it has obtained or will obtain prior to delivery under this Agreement, all
licenses, approvals, and releases required to enable Schlumberger to
exercise the license granted in this Agreement, including without
limitation, the release of each person or organization whose name, voice,
likeness, portrayal, impersonation or performance is included in any ERF
Technology or documentation, as well as rights in third-party intellectual
property for Schlumberger to the extent
necessary;
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(iii)
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that
it has not previously granted and will not grant any rights in any ERF
Technology to any third party in the Oil and Gas sector inconsistent with
the rights granted to Schlumberger
herein;
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(iv)
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that
the ERF Technology and documentation do not violate or infringe any
patent, copyright, trade secret or other proprietary right of any third
party and that ERF is not aware of any facts upon which such a claim for
infringement could be based.
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6.2 ERF Technology Warranty to
Schlumberger. ERF warrants that the ERF Technology will perform
substantially in accordance with its specifications and
requirements;
6.3 ERF Technology Warranty to
End Users. ERF will warrant the ERF Technology to End Users, which will
be passed through by Schlumberger. Section 5.6 sets forth the support
obligations of ERF.
7.
INDEMNIFICATION
7.1 ERF
Indemnities.
(a) ERF
agrees to defend, indemnify and hold harmless Schlumberger and its directors,
officers, employees, agents and contractors from any and all losses, damages,
liabilities, costs, expenses (including reasonable attorney’s fees), judgments
or settlement amounts arising out of or in connection with any claim that the
marketing, sale or use of the ERF Technology infringes any patent, copyright,
trademark, trade secret, privacy right, right of publicity or other proprietary
right of a third party.
(b) ERF
agrees to defend, indemnify and hold harmless Schlumberger and its directors,
officers, employees, agents and contractors, from and against any and all
losses, damages, liabilities, costs, expenses (including costs and reasonable
fees of attorneys and other professionals), judgments or settlement amounts
arising out of or in connection with bodily/personal injury, disease or death of
ERF employees, without regard to the cause or causes thereof or the sole or
concurrent negligence, fault or strict liability regardless of the fault of
Schlumberger.
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(c) ERF
agrees to defend, indemnify and hold harmless Schlumberger and its directors,
officers, employees, agents and contractors, from and against any and all
losses, damages, liabilities, costs, expenses (including costs and reasonable
fees of attorneys and other professionals), judgments or settlement amounts
arising out of or in connection with damage to or loss or destruction of ERF
property whether owned, hired, leased or otherwise, without regard to the cause
or causes thereof or the sole or concurrent negligence, fault or strict
liability regardless of the fault of Schlumberger.
(d) ERF
agrees to defend, indemnify and hold harmless Schlumberger and its directors,
officers, employees, agents and contractors, from and against any and all
losses, damages, liabilities, costs, expenses (including costs and reasonable
fees of attorneys and other professionals), judgments or settlement amounts
arising out of or in connection with a breach of ERF representations and/or
warranties as set forth in Sections 6.1 and 6.2 above.
7.2 Schlumberger
Indemnities.
(a) Schlumberger
agrees to defend, indemnify and hold harmless ERF and its directors, officers,
employees, agents and contractors, from and against any and all losses, damages,
liabilities, costs, expenses (including costs and reasonable fees of attorneys
and other professionals), judgments or settlement amounts arising out of or in
connection with bodily/personal injury, disease or death of Schlumberger’s or
its Affiliate’s employees, without regard to the cause or causes thereof or the
sole or concurrent negligence, fault or strict liability regardless of the fault
of ERF.
(b) Schlumberger
agrees to defend, indemnify and hold harmless ERF and its directors, officers,
employees, agents and contractors, from and against any and all losses, damages,
liabilities, costs, expenses (including costs and reasonable fees of attorneys
and other professionals), judgments or settlement amounts arising out of or in
connection with damage to or loss or destruction of Schlumberger’s or its
Affiliates property whether owned, hired, leased or otherwise, without regard to
the cause or causes thereof or the sole or concurrent negligence, fault or
strict liability regardless of the fault of ERF.
8. LIMITATION
OF LIABILITY
EXCEPT IN
CONNECTION WITH A CLAIM FOR BREACH UNDER THIS AGREEMENT’S CONFIDENTIALITY
PROVISIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO
BREACH OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH A THIRD
PARTY’S INTELLECTUAL PROPERTY CLAIM FOR INFRINGEMENT UNDER SECTION 7.1 OR CLAIM
FOR BREACH OF THE CONFIDENTIALITY PROVISIONS UNDER ARTICLE 9, NEITHER PARTY’S
TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL
IN NO EVENT EXCEED THE AMOUNT OF FEES PAID UNDER THIS AGREEMENT.
9. CONFIDENTIALITY
9.1 The
Parties acknowledge that, in the course of performance of their obligations
under this Agreement, each Party may disclose Confidential Information to the
other. The receiving Party will not use the Confidential Information
of the disclosing Party other than for the purpose of performing its obligations
under this Agreement or as expressly permitted under the terms of this Agreement
or by a separate written agreement. The receiving Party’s obligation
under this Article 9 shall be for a period of five (5) years after the date of
disclosure of the Confidential Information except for either Party’s source code
which shall be held confidential in perpetuity.
9.2 Each
Party will protect the other’s Confidential Information from unauthorized
dissemination and use with the same degree of care that each such Party uses to
protect and safeguard its own like information, but not less than the degree of
care that would be exercised by a prudent person given the sensitivity and
strategic value of such Confidential Information. Confidential Information will
be disclosed only to the employees of the recipient Party who have a “need to
know” and who have executed an internal nondisclosure agreement at least as
restrictive as the terms of this Agreement. Neither party will disclose
Confidential Information of the other to any third party without the other
party’s prior written consent to such disclosure, unless such disclosure is
compelled by a court of competent jurisdiction over the
Parties.
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9.3 Notification. Each
Party agrees to notify the other promptly on the event of any breach of security
under conditions in which it would appear that any confidential information was
prejudiced or exposed to loss. Each Party will, upon request of the
other, take all other reasonable steps necessary to recover any compromised
confidential information disclosed to or placed in the possession of each Party
by virtue of this Agreement. Each Party will individually bear the
cost of taking any such steps.
9.4 Neither
Party will issue any press release or make any public announcement(s) relating
in any way whatsoever to this Agreement or the relationship established by this
Agreement without the express prior written consent of the other Party, which
consent shall not be unreasonably withheld. However, the Parties acknowledge
that this Agreement, or portions thereof, may be required under applicable law
to be disclosed, as part of or an exhibit to a Party’s required public
disclosure documents. ERF will be required to make a public
announcement due to the Material Event nature of this agreement within 4
business days following the closing of the Proposed
Agreement. Schlumberger, through its SIS RCO NAM division, is invited
to make it a joint announcement. The Parties will jointly seek
confidential treatment of this Agreement to the maximum extent reasonably
possible, in documents approved by both Parties and filed with the applicable
governmental or regulatory authorities.
10.
TERM AND TERMINATION
10.1 Term and Right of First
Refusal. This Agreement will commence on the Effective Date, will
continue in full force and effect for three (3) years with two (2), one (1)-year
automatic extensions, unless terminated by either party with thirty (30)
days notice. ERF agrees to offer Schlumberger first rights of refusal
on any newly developed products, software, or services, other than to the ERF
Retained Clients set forth in Schedule C. The parties agree to
negotiate the terms for such exclusivity agreement in good faith. If
the parties are unable to reach an agreement on exclusivity, ERF agrees to then
offer Schlumberger the right to resell the new products or services in the Oil
and Gas Sector in the Territory on terms no less favorable to the Reseller
agreement than that in effect between the parties on the original Closing
Date.
10.2 Termination For
Schlumberger’s Convenience. Schlumberger will have the right to terminate
this Agreement for convenience after the full Initial Consideration obligation
is met upon thirty (30) days written notice. Any termination
under this provision will not result in any penalties or refunds of
consideration being due from ERF; however, the Parties agree to negotiate a new
agreement to allow Schlumberger to continue as a standard reseller, without
exclusivity.
10.3 Termination For
Cause. Except as otherwise provided in Section 10.3 (b) below, either
Party will have the right to terminate this Agreement immediately upon written
notice at any time if:
(a) The
other Party is in material breach of any term, condition or covenant of this
Agreement and fails to cure that breach within ninety (90) days after written
notice of such breach.
(i) With
respect to ERF obligations, “material breach” will include (but not be limited
to): (1) an act, inaction or occurrence resulting in Schlumberger’s inability to
offer the ERF Technology to the Oil and Gas Sector on an exclusive basis; (2) an
act, inaction or occurrence resulting in Schlumberger’s inability to offer the
ERF Technology to the Oil and Gas Sector arising from an impediment to ERF
rights as licensor or to Schlumberger’s license rights (including but not
limited to foreclosure of liens, ERF bankruptcy preventing Schlumberger’s
continued license rights, or similar occurrence); (3) ERF failure to provide
personnel of sufficient education and/or experience to meet its obligations
under this Agreement as set forth in Section 5.3; (4) if ERF becomes bankrupt;
has a receiver or administrator appointed to it; compounds with its creditors or
where proceedings are commenced for it to be wound up or to carry on its
business; or (5) ERF failure to provide support under Section 5.4 after notice
from Schlumberger and ninety (90) day opportunity to cure such
failure.
Page 8 of
11
(ii) With
respect to Schlumberger’s obligations, “material breach” will include (but not
limited to): (1) failure to pay amounts due; (2) breach of the license rights
and other restrictions imposed by this Agreement; (3) Schlumberger’s failure to
make reasonable efforts to sell the ERF Technology in the Oil and Gas Sector; or
(4) Schlumberger becomes bankrupt; has a receiver or administrator appointed to
it; compounds with its creditors or where proceedings are commenced for it to be
wound up or to carry on its business. The Parties agree that ERF will have the
right to terminate the Agreement under Sections 10.3(a)(ii)(1) and (2) by giving
notice and a ninety (90) day opportunity to cure any breach. The
Parties agree that ERF will have the right to terminate the Agreement under
Section 10.3.(a)(ii)(3) on the fourth (4th) anniversary of the Effective
Date.
(b) ERF
breaches the representation contained in Section 5.1 or fails or refuses to take
appropriate and reasonable steps to seek to enforce its rights pursuant to the
referenced non-compete provisions arising from an employee’s post-employment
activities, which will be grounds for immediate termination of this Agreement
(“Terminable Breach”). Schlumberger will have the right to seek all
damages to which it is entitled.
10.4 Termination
or expiration of this Agreement will not affect any End User agreement and will
continue for the duration of the then current term. For the avoidance
of doubt, ERF will continue to provide third tier support to Schlumberger for
their End Users during the remainder of such term. Schlumberger will
take all actions required to ensure that such End User agreements terminate as
of the end of such term.
10.5 Schlumberger’s
exclusivity shall remain in force and effect regardless of whether ERF is
acquired or merged with any third party, including but not limited to any third
party operating in the Oil & Gas Sector. Such change in ownership or control
shall not be grounds for termination by ERF; however, Schlumberger will have the
right to terminate the Agreement based on the acquisition of ERF by a
Schlumberger competitor. Schlumberger shall be advised of any firm
offer to purchase ERF once it is made publicly available and before a
recommendation of acceptance of the offer by the ERF Board of
Directors. Schlumberger shall be given fair and reasonable time (60
Days) to prepare a counter offer before the board accepts such an
offer.
11. GENERAL
TERMS
11.1 Headings and
Captions. Headings and captions are for convenience of reference only and
do not alter the meaning or interpretation of this Agreement.
11.2
Relationship of the
Parties. The Agreement shall not be construed as creating a
joint-venture, partnership or the like. Neither Party shall act or be deemed to
act on behalf of the other Party, or have the right to bind the other Party.
Each Party shall remain an independent entity, and act as an independent
contractor. Each Party shall at all times during the performance of the
Agreement be responsible for the payment of wages and benefits to, and as
applicable, tax withholding from, its own employees. Without limiting the
generality of the foregoing, the employees and subcontractors engaged by ERF for
the performance of the Agreement, or an Order or Statement pursuant to the
Agreement, shall be the direct employees and subcontractors of ERF, and ERF
shall remain solely responsible for all matters related to compliance with all
relevant federal, state and local employment laws. This includes, but
is not limited to the right to work and all visa and immigration laws that
pertain to the employees and subcontractors of ERF.
11.3
No Assignment.
Neither Party will assign any of its rights or delegate any of its obligations
under this Agreement without the prior written consent of the other Party,
provided that such consent will not be unreasonably withheld, except that
either Party may assign this Agreement to its respective Affiliate without prior
consent of the other Party. The provisions of this Agreement will be
binding upon and inure to the benefit of the Parties, their successors, and
permitted assigns.
11.4
Notices. Every
notice between the Parties relating to the performance or administration of this
Agreement will be made in writing and if to Schlumberger, to Schlumberger’s
authorized representative or, if to ERF, to ERF authorized
representative. All notices required or permitted under this
Agreement will be deemed received when delivered either: (i) two (2) calendar
days after mailing by certified mail, return receipt requested and postage
prepaid; or (ii) one (1) working day after deposit for next day delivery with a
commercial overnight carrier provided the carrier obtains a written verification
of receipt from the receiving Party
Page 9 of
11
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If
to ERF:
|
If
to Schlumberger:
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇
▇▇▇▇▇
|
Schlumberger
Information Solutions
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇
▇▇▇▇
|
|
With
a copy of legal notices to:
|
|
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ERF
Wireless Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇
▇▇▇▇▇▇
|
Schlumberger
Information Solutions
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇
▇▇▇▇
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11.5 Governing Law & Dispute
Resolution. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, excluding any conflict of laws
principle that would refer to the laws of another jurisdiction. The
parties agree that the Schlumberger primary contact and the ERF primary contact
identified in Section 5.8 will attempt in good faith to resolve all disputes
(other than those arising out of a breach of a party’s obligations under Article
8). In the event that the Schlumberger senior corporate executive and the ERF
senior corporate executive are unable to resolve the dispute within thirty (30)
days, the dispute will be resolved through mediation. If mediation is
unsuccessful, the dispute will be settled by arbitration to be held in the
English language at a mutually agreeable location in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. Any
arbitration award may include costs against either party, but under no
circumstances are the arbitrator(s) authorized or empowered to award special,
punitive or multiple damages against either party. Any judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
therein.
11.6 Severability. In
the event that any of the provisions of this Agreement will be held by a court
or other tribunal of competent jurisdiction to be invalid or unenforceable, the
remaining portions of this Agreement will remain in full force and effect and
will be construed so as to best effectuate the intention of the Parties in
executing it. The Parties agree to renegotiate in good faith any
provision of the agreement that is held to be unenforceable or
invalid.
11.7 No Waiver. Failure by
either Party to enforce any provision of this Agreement will not be deemed a
waiver of the right to thereafter enforce that or any other provision of this
Agreement.
11.8 Survival. Any
obligations which either expressly or by their nature are to continue after the
termination or expiration of this Agreement, including without limitation the
provisions of Section 2.4 and Articles 3, 6, 7, 8, 9 and 10, will survive and
remain in effect.
11.9 Modification. Any
modifications of this Agreement must be in writing and signed by both Parties
hereto.
11.10
Force Majeure.
Neither Party will be liable for any failure or delay in the performance of an
obligation hereunder on account of strikes, riots, fires, explosions, acts of
God, war, governmental action, or any other cause which is beyond the reasonable
control of such Party.
11.11
Compliance of
Laws. Each Party warrants that no applicable laws or regulations shall be
violated in the manufacture or sale of the Products contemplated hereunder, and
shall comply with, and adhere to, all applicable laws and regulations which may
apply to ERF in connection with this Agreement, or an Order or Statement
pursuant to the Agreement.
Page 10
of 11
Each
Party hereby agrees to comply with all applicable U.S. and non-U.S. export
control and economic sanctions laws, regulations, and orders, including without
limitation those regulations maintained by the U.S. Treasury Department’s Office
of Foreign Assets Control (“OFAC”), the U.S. Commerce Department’s Bureau of
Industry and Security (“BIS”), and the U.S. State Department’s Directorate of
Defense Trade Controls (“DDTC”). Specifically, ERF covenants that it shall not
-- directly or indirectly -- sell, provide, export, reexport, transfer, divert,
loan, lease, consign, or otherwise release or dispose of any equipment, product,
commodities, services, software, source code, or technology (including the
“Direct Product” of such technology) (collectively “the Products”) received
under this Agreement to or via any individual, entity, or destination, or for
any use prohibited by the laws or regulations of the United States or any other
applicable jurisdiction, including without limitation, OFAC-promulgated
regulations, the U.S. Export Administration Regulations, and the U.S.
International Traffic in Arms Regulations, without having obtained prior
authorization from the competent governmental authorities as required by all
such laws and regulations. Notwithstanding any other provision of this
Agreement, neither ERF nor Schlumberger shall take or be required to take or
refrain from taking any action prohibited or penalized under the laws of the
United States or any applicable foreign jurisdiction, including without
limitation U.S. anti-boycott laws administered by BIS and the U.S. Treasury
Department’s Internal Revenue Service.
Each
Party also warrants that it shall comply with all federal, state and local laws,
ordinances, statues, rules and regulations governing the employment of its
workers, including but not limited to the Immigration Laws. This
shall include, without limitation, the Immigration Reform and Control
Act of 1986, as amended, the Immigration and Nationality Act, as amended, and
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as
amended, and any successor statutes, laws, rules and regulations
thereto.
Breach of
this provision shall constitute cause for immediate termination of this
Agreement. Each Party shall defend, indemnify, and hold the other Party harmless
against any Claims in respect thereof.
11.12 Interpretation. This
Agreement has been negotiated in good faith and at arms-length between Parties
who are experienced and knowledgeable in the matter contained herein, and the
Parties hereby agree that any statute, law or common law principles or other
authority that would require interpretation of any ambiguities in this Agreement
against the Party who has drafted it is not applicable and is hereby
waived.
11.13 Counterparts. This
Agreement may be signed in one or more counterparts (including faxed copies),
each of which will be deemed one and the same original. Reproductions of this
executed original (with reproduced signatures) will be deemed to be original
counterparts of this Agreement.
11.14 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties with respect
to the subject matter hereof, and any and all written or oral Agreements
heretofore existing between the Parties are expressly canceled. ERF
acknowledges that it is not entering this Agreement on the basis of any
representations not expressly contained herein.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
duly authorized representatives.
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Schlumberger
Technology Corporation
Signed /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name ▇▇▇▇▇
▇▇▇▇▇▇
Title Vice President NAM
SIS
Dated January 14,
2009
|
Signed /s/ H. ▇▇▇▇
▇▇▇▇▇▇
Name H. ▇▇▇▇
▇▇▇▇▇▇
Title CEO
Dated January 15,
2009
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Page 11
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Schedule
A – Services
Services
shall include the delivery of communications for the transport of data packets
transported utilizing IP protocol to the Internet cloud or other point of
termination within the ERF Existing Market Territory (EMT) or any Expanded EMT
added thereto. All fees will be calculated on a 30-day use
period.
|
TYPE
|
End-Point
|
Contract
Term
|
Billing
Term
|
Price
per Unit (1.5 Mb/s)
|
|
Static
|
Field
Office
|
365
Days within 450
|
Monthly
|
$xxxxxxx**
|
|
Nomadic
|
Rig
Site
|
365
Days within 450
|
Monthly
|
$xxxxxxx
|
|
Nomadic
|
Rig
Site
|
540
Days within 675
|
Monthly
|
$xxxxxxx
|
|
Nomadic
|
Rig
Site
|
730
Days within 900
|
Monthly
|
$xxxxxxx
|
|
Nomadic
|
Rig
Site
|
1095
Days within 1350
|
Monthly
|
$xxxxxxx
|
|
*Mobile
|
Vehicle
|
365
Days within 450
|
Monthly
|
$xxxxxxx
|
|
*Mobile
|
Vehicle
Retro-fit
|
NA
|
NA
|
$xxxxxxx/Hour
|
*Based on
an assumption of 750 Mobile Vehicles being retrofit with telescoping towers and
multiple electronics (CPE) compatible with the different frequency bands of the
ERF network. Pricing of both retrofit and monthly service is based on 1077 units
over no more than 36 months time. Pricing of the Retro-Fit service
may be adjusted assuming the timing and size of the vehicle retrofit project.
The projected revenue numbers were based on an average capital expenditure of
$xxxxxxx
per Retro-Fit.
**Assumes
extended contract terms (greater than 2 years), line of site in existing
footprint, fixed location, for Schlumberger offices and any O&G related
customer other than those listed specifically in Schedule C.
These
terms are based on a standard equipped MBT with a 50 foot telescoping tower,
volume sales of xxxxxxx
MTBS by July 09 and a default service of 1.5Mbps. Any additions or
modifications to the standard MBT will vary the “Price per Unit/Month” and will
be reviewed at the monthly general meeting.
Installation and
De-Installation These fees include the transport, set-up, alignment and
tear-down of apparatus that is required to deliver the Services as prescribed by
this agreement. The following fees are inclusive of travel time, wait
time and work time. $xxxxxxx
per hour with a 3 hour minimum and 6 hour maximum.
SCHEDULE
B - Minimum Purchase Commitments to Maintain Exclusivity
As of
start of contract & mechanism for adjustment
1. 1.
Initial Minimum Rental / Purchase - Hardware
2. 2.
Initial Minimum Rental / Purchase - Circuits
|
Deployment
Type
|
Total
Market
|
July
09
|
Yr.
2
|
Yr.
3
|
|
Static
|
xxxxxxx
|
xxxxxxx
|
See
Note 2
|
See
Note 2
|
|
Nomadic
|
1490
|
xxxxxxx
|
See
Note 2
|
See
Note 2
|
|
Mobile
|
See
Note 1
|
See
Note 1
|
See
Note 2
|
See
Note 2
|
|
Circuit
Type
|
July
09
|
Yr.
2
|
Yr.
3
|
|
Static
|
xxxxxxx
|
See
Note 2
|
See
Note 2
|
|
Nomadic
|
xxxxxxx
|
See
Note 2
|
See
Note 2
|
|
Mobile
|
See
Note 1
|
See
Note 2
|
See
Note 2
|
Note 1: Mobile
refers to the following deployment types:
|
|
A:
|
Vehicular
Based Deployments, whereby the SS (Subscriber Station) or CPE (Client
Premise Equipment) is directly mounted on or deployed with a vehicle.
Individual vehicles deployed in this manner shall be determined to
constitute one hardware deployment and shall consist of one circuit.
(Example: Frac Truck with telescoping tower mounted to
vehicle).
|
|
|
B:
|
Rapid
Deploy Infrastructures, whereby a base-station utilizing either licensed
or license exempt communications methodologies is deployed in a customer
focused and targeted location. (Example: Drilling Rig with Mobile
Bandwidth Tower – MBT).
|
|
|
i)
|
The
primary backhaul will utilize the Schlumberger Global VSAT network with
secondary provision for connection into ERF provisioned terrestrial
communications where available.
|
|
|
ii)
|
Schlumberger
shall identify and contract O&G customers for connection to the
infrastructure. Schlumberger shall be responsible for the cost, deployment
and maintenance of its VSAT technologies and ERF shall assume
responsibility for the deployment of the associated wireless mediums as
described throughout this document.
|
Schlumberger
and ERF shall collaborate on the design of the deployment techniques described
in Note 1, items A and B. Both ERF and Schlumberger shall be responsible for the
completion of the design and costing of such deployments along with completion
of associated pilot phases by a date no later than 31 March 2009. On
this date, Schedule B shall be updated to include addressable market and minimum
rental / purchase figures for both MBT, hardware and circuit provision in Year
1.
Note 2: Business
Expansion and Regional Coverage:
Through
demographic analysis Schlumberger has determined that xxxxxxx
of 1490 active drilling rigs are within range of ERF assets as of 14 November
2008. Under the exclusivity agreement Schlumberger shall be
responsible for maintaining a monthly update on rig and static locations
throughout The United States of America.
Schlumberger
demographic data shall be provisioned to ERF on a monthly basis and shall
contain data consisting of static and drilling rig locations by State, County
with associated latitude and longitude coordinates. This data shall
be provisioned to ERF at no cost in both .csv and .kmz format. This
agreement mandates that ERF shall treat Schlumberger data as
confidential.
Schlumberger
and ERF Wireless representatives shall hold a monthly strategy meeting in which
customer uptake, market penetration, technical development, rig locations,
customer demographics and new ERF coverage locations will be discussed to
specifically address the O&G industries regional potential market and
technical requirements.
Schlumberger
agrees that they will modify Schedule B in the Contract to guarantee a minimum
of 50% circuit rental to the active drilling rig locations in the new ERF
coverage areas and 15 % of the static locations within ninety days (90) of being
notified by ERF that it now owns, has leased, contracted for, or otherwise
obtained the rights to the new wireless coverage needed to provide the Services
specific to Schlumberger defined regions.
Where ERF
has reasonable quantification of an addressable O&G customer base within The
United States of America, a joint business justification shall be undertaken in
which ERF will take all reasonable measures to specifically map the regions
which can be covered by the technology. Schlumberger shall make all reasonable
efforts to identify the applicable customer base within the coverage region
(those pre-existing customers detailed in Schedule C shall be declared valid ERF
customers but exempt from inclusion in Schedule B) and present a complete
addressable business demographic analysis.
Where
both parties agree the addressable business justifies such deployments, ERF
wireless shall declare an applicable Service Inception Date and Schedule B shall
be adjusted to reflect the minimum addressable business figures
accordingly. Schlumberger shall ensure that 50% of the identified
addressable business for the newly deployed region is captured for active
drilling locations and 15% of static locations within ninety (90) days of the
service inception date.
Schlumberger
shall in no way, inhibit ERF wireless coverage expansion. For regions
where services are deployed for non O&G specific service Schlumberger shall
complete a demographics analysis, declare the addressable business under the new
coverage area and adjust Schedule B accordingly. For non O&G
specific regions, Schlumberger shall guarantee a minimum of 25% uptake of its
identified customer base in the applicable region within ninety (90)
days.
Where ERF
and Schlumberger are unable to reach an agreement on the justification of new
deployment regions that are designated by either party as capable of
specifically addressing an O&G customer base, Schlumberger must produce
documented evidence to indicate reasonable doubt in its justification. Such
regions shall be declared non O&G specific and subject to the caveats
therein.
On 30
June 2009, Schlumberger and ERF Wireless shall hold a formal business review in
which upon Schedule B shall be set with adjusted minimum Rental and Purchase
figures for both MBT’s, Hardware and Circuit sales for Year 1 through Year
3. ERF and Schlumberger agree to update the minimum Rental and
Purchase figures every six months following June of 2009 based on new coverage
areas owned, leased, contracted for, or otherwise obtained by ERF with the
rights to provide Services to Schlumberger.
SCHEDULE
C – ERF Pre-Existing Customers in the Oil and Gas ▇▇▇▇▇▇
▇. xxxxxxxxxxxxx
2. xxxxxxxxxxxxx
3. xxxxxxxxxxxxx
4. xxxxxxxxxxxxx
5. xxxxxxxxxxxxx
6. xxxxxxxxxxxxx
7. xxxxxxxxxxxxx
8. xxxxxxxxxxxxx
9. xxxxxxxxxxxxx
10. xxxxxxxxxxxx
11. xxxxxxxxxxxx
Schedule
D – ERF Declared O&G Related Intellectual Property
1. 1.
Telescoping Tower & trailer used for Radio backhaul and access
points
2. 2.
CryptoVue
3. 3.
CryptoVue Lite
4. 4. High
Power Paging Transmitters
Schedule
E – Legally Exempt Regions