P1177
AN AGREEMENT FOR A
HELICOPTER-BORNE GEOPHYSICAL
SURVEY IN MEXICO
for:
California Gold Corporation
4515 Ocean View Blvd., Suite 305
La Cañada, CA 91011
USA
by:
MPX Geophysics Ltd.
25 Valleywood Drive, Unit # 14
Markham, ON, L3R 5L9, CANADA
Tel.: 905-947-1782
Fax.: 905-947-1784
E-mail: info@mpxgeophysics.com
November 4th, 2011
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ThisAIRBORNE GEOPHYSICAL SURVEY AGREEMENT(which, together with the Attachments hereto, is hereinafter collectively referred to as this “Agreement”) is made and entered into effective as of the 4th day of November, 2011 (the “Effective Date”), by and between:
California Gold Corporation
4515 Ocean View Blvd., Suite 305
La Cañada, CA 91011
USA
Hereinafter shall be called the“Client"
OF THE FIRST PART
- and -
MPX GEOPHYSICS LTD.
25 Valleywood Drive, Unit # 14
Markham, ON
Canada L3R 5L9
A company incorporated under the laws of Canada, hereinafter called"MPX"
OF THE SECOND PART
WHEREASMPX has equipment and personnel capable of performing aerial surveys over land which theClient wishes to have surveyed and known as theAuro Tellurio Project in the State of Sonora, Mexico.
AND WHEREAS theClient wishes to haveMPX perform aerial surveys over such land;
NOW THEREFORE WITNESSETH that in consideration of the mutual covenants the Parties hereto agree as follows:
| 1. | The term "Survey Area" means subject to paragraph 2 hereof those areas shown in Schedule B hereof. The definition shall be equally applicable to both singular and plural forms. |
| 2. | MPX hereby undertakes to use its best efforts to cause to be carried out at its expense an airborne geophysical survey (hereinafter referred to as the "Survey") over the Survey Areas, under the terms of this Agreement. Flying is to be carried out with flight lines being in the directions and at the spacing as indicated in Schedule B. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
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| 3. | The services to be provided byMPX in connection with the Survey shall include the following: |
| (a) | Mobilization of its equipment and personnel to the Survey Area |
| (b) | Data acquisition as specified in Schedule C. |
| (d) | Computer processing, as specified in Schedule D. |
| (e) | Preparation and delivery to theClient of the products specified in Schedule E. |
| 4. | MPX will not divulge any information with respect to the Survey to third parties. |
| 5. | TheClient agrees to payMPX the aggregate of the amounts defined in Schedule A. The payments made by theClient toMPX are not subject to abatement, and shall be made as follows: |
| (a) | For purposes of this Agreement, all invoices shall be due for payment upon their receipt by theClient. |
| (b) | The delivery of preliminary or final maps or reports to theClient is contingent on the full payment by theClient of allMPX invoices which are payable. |
| (c) | In the event that an amount billed is not paid within 30 days of the payable date,MPX at its option may in addition to any other remedy reschedule or cease all further work until payment is received and may delay the delivery of documents as a consequence of rescheduling its work flow. In the event that the said amounts together with all interest thereon are not paid within 60 days of the payable date, the amount due for work completed under this Agreement less any prepayments will be payable immediately andMPX will not be obligated to provide further deliveries under this Agreement until payment in full is received. |
| (d) | Until payment hereunder is received in full the information, documents and data pertaining to the Survey shall remain the property ofMPX. The ownership of the information, documents and data will pass toClient onMPX receiving payment in full. |
| 6. | TheClient shall not contest any or all patents relating to theMPX System nor be a Party, either directly or indirectly, to any proceeding disputing their validity. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
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| 7. | The following provisions shall apply with respect to the Survey: |
| (a) | The services to be provided byMPX shall be in their capacity as principals and not as agents or servants of theClient. |
| (b) | MPX hereby warrants that the Survey and the services to be provided in connection therewith will be carried out in a proper and workmanlike manner, in accordance with current, generally accepted standards of the geophysical survey industry. Notwithstanding anything to the contrary herein expressly contained or implied, neitherMPX nor its parent, subsidiary or associated companies shall be under any liability to theClient for any damages (including consequential damages) whether as the result of acts of omission, commission, negligence or otherwise byMPX or these companies, their officers or employees, suffered by theClient and arising out of the use by theClient or its assigns of any information or opinions furnished to theClient hereunder, outside of their obligations under the Professional Geoscientists Act (Ontario, 2000). |
| (c) | MPX shall be responsible for, and shall hold theClient free and harmless from, and hereby indemnifies theClient against any and all claims, demands, causes of action, loss, costs, damages and expenses (collectively the "Claims") in connection with injuries (including death) to any and all persons and damage to property sustained directly from the performance of the Survey byMPX, its agents, employees and subcontractors. TheClient shall take no steps, directly or indirectly, to encourage any third party to make a Claim against itself orMPX without the prior written consent ofMPX. In the event such consent is not obtained,MPX shall not be responsible to theClient nor shall it hold theClient free and harmless nor shall it be required to indemnify theClient from and against such Claims arising in connection therewith. |
| (d) | MPX shall promptly pay all costs and charges incurred by it in connection with the Survey, and shall not suffer nor permit any liens to attach to any property of theClient. |
| (e) | MPX shall obtain, pay for and keep in force during the performance of the Survey under this Agreement the following insurance or equivalent coverage with policy amounts to be not less than those shown below: |
| Type of Insurance | | Amount |
| | | |
| Workers' Compensation | | Statutory |
| | | |
| Employer's Liability and Comprehensive General Liability (including property damage, and automobile bodily injury and/or death) | | CAN$5,000,000.00 |
| (f) | The decision of the pilot of the survey helicopter not to fly specific flight lines or parts thereof for reasons of safety shall be conclusive and binding and the flight lines or parts thereof not flown as a result of such decision shall be deducted from the total to be flown. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
| -5- | P1177 Helicopter-borne Geophysical Survey, Mexico -October 2011 |
| (a) | Except for the payment of monies earned to the date of Force Majeure and the indemnification obligations arising hereunder, neither Party shall be liable for failure to perform any obligations arising under this contract, to the extent that any such failure to perform is caused by Force Majeure, which is defined below, and which cannot, despite best endeavours be remedied by the Party affected. |
| (b) | Said Party shall promptly give notice to the other Party of its inability to perform its obligations in full or in part under this contract pursuant to the foregoing causes and the obligations of the Party giving such notice, so far as they are affected by such Force Majeure, shall be suspended during the continuance of any inability so caused, but for no longer period, and the Parties shall thereupon use their best endeavours to overcome the effects of such Force Majeure situation in all good faith. |
| (c) | Force Majeure shall mean any human or natural event, beyond the control of the Parties, taking place after the execution of this contract, unforeseeable and if not so inevitable, including but not bounded to acts of God, bad weather and/or storms, geomagnetic disturbances (diurnal), fire and/or smoke haze, earthquakes, strikes, lockouts or differences with workers, acts of war and/or the public enemy, terrorist activity, insurrections, riots, or rules or regulations of any governmental authority asserting jurisdiction or control, USA government redirection of GPS satellites or laws, sunspot disturbances affecting GPS satellites, compliance of which makes continuance of operations impossible, breakdown or non-availability of the helicopter, which could prevent said Parties, either directly or indirectly, partially or totally, to comply with their obligations. |
| (d) | Barring agreement on an equitable financial arrangement, either Party may terminate this Agreement if the incident of Force Majeure exceeds five (5) days in duration, effective as of the end of the fifth day. |
| 9. | IfMPX defaults in the performance of any obligations on its part to be performed, theClient may, without prejudice to any other remedy it may have, immediately terminate this Agreement upon notice toMPX. |
| 10. | MPX agrees that theClient may identifyMPX as the survey contractor in any news releases by theClient, providing that the content of such news releases are first submitted toMPX for approval, which approval will not be unreasonably withheld. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
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| 11. | For the purpose of this Agreement, the addresses of the Parties hereto shall, unless and until they are changed by written notification, be as follows: |
MPX GEOPHYSICS LTD.
25 Valleywood Drive, Unit # 14
Markham, ON, L3R 5L9
Tel: 905-947-1782
Fax.: 905-947-1784
California Gold Corporation
4515 Ocean View Blvd., Suite 305
La Cañada, CA 91011
USA
| 12. | This Agreement shall be deemed to be a contract made under the laws of the Province of Ontario, Canada and for all purposes shall be construed in accordance with the laws of the said Province. |
| 13. | (a) | This Agreement shall be effective as and from the date first mentioned above although actually executed and delivered after the aforesaid date, subject however to the provisions of paragraph 14(b). |
| (b) | It is recognized that scheduling of the work to be performed byMPX under this Agreement requires that this Agreement be executed by theClient and delivered toMPXno later than11th November 2011. If the Agreement and amount payable on contract execution are not delivered by this date, then the commencement date and prices referred to in later paragraphs may not be maintained and this Agreement shall become null and void at the option ofMPX. |
| 14. | (a) | Any notice or communication required or permitted hereunder shall be in writing and shall be transmitted to the other Party by Fax, with the original of the transmitted notice or communication deposited in the mail, postage prepaid, and addressed to the other Party as provided herein. Alternatively, an established courier service may be used. |
| (b) | Both theClient andMPX agree that the reproduction of signatures by way of a telecopying device will be treated as though such reproductions were executed originals, and each of theClient andMPX undertakes to provide each other with a copy bearing original signatures within a reasonable time. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
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| 15. | General Performance Obligations: |
| (a) | MPX shall carry out the Work hereunder with due diligence and in a safe, workmanlike manner, according to good international industry practice, and wherever possible in accordance with its own HSE manual, a copy of which has previously been provided toClient. |
| (b) | MPX agrees that if for any reason it is unable to undertake the mobilization of the Equipment and Personnel as obligated under this Agreement, it will refund the mobilization and any other payments received prior to mobilization, under Schedule A2, in full to theClient, with documents to explain its inability to undertake the mobilization. |
| (c) | Client, or its representative, may make inspections ofMPX’s operations to verify that it is correctly fulfilling its obligations under this contract. |
| (d) | Health, Safety and Environment:MPX has delivered to theClient a copy of its H.S.E. (Health Safety and Environment) manual. Regarding Environmental policy,MPX shall fulfill all existing security, hygiene and environmental protection rules, either national, provincial, municipal orClient related, where applicable. |
| (a) | Other than as required by court or government order, all survey data and other information obtained byMPX in the conduct of the Work, which would be considered trade secrets not otherwise available to other persons, shall be held in strict confidence and shall not be divulged byMPX to any third party either during the term of this Agreement, or thereafter, without written permission of theClient. |
| (b) | The geophysical systems, the formulae and software (including source codes and object codes) required to reduce the data to profiles and maps, etc., and all other technical data relating to same (collectively the “Information”), are the proprietary property ofMPX and are confidential information and may not be disclosed byClient to any third party or used byClient for any other purpose, either during the term of this Agreement or thereafter without the written permission ofMPX, which permission will not be unreasonably withheld. The term “Information” does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure byClient or anyone to whomClient transmits the Information, (ii) was known toClient or inClient’s possession prior to the date it was disclosed toClient, or (iii) is or becomes available toClient on a non-confidential basis from a source other thanMPX or its affiliates, employees, agents, representatives or advisors, provided that such source is not known toClient to be bound by a confidentiality agreement with or other obligation of secrecy to theMPX or its affiliates, employees, agents, representatives or advisors or another party. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
| -8- | P1177 Helicopter-borne Geophysical Survey, Mexico -October 2011 |
| 17. | Client’sRepresentatives: |
| (a) | TheClient may designate, in writing, one or more Representatives who shall, at all times, have complete access to the Work site for the purpose of observing and inspecting the Work performed byMPX. Such Representative(s) shall be empowered to act on behalf of theClient in all matters relating toMPX's performance of the Work and shall, at all times, have complete access toMPX's facility in Markham, Canada, for the purpose of observing and inspecting the Work performed byMPX. Such Representative or Representatives shall be empowered to act on behalf of theClient in all matters relating toMPX's performance of the Work. Such Representative shall also have the right to designate additional flight lines to be flown during the performance of the survey, by giving written instructions toMPX's onsite Project Manager. Any such modifications will be given toMPX in a timely manner so as to facilitate the efficient collection of data. |
| 18. | Care ofClient'sMaterial and Information: |
| (a) | If theClient provides material and/or information toMPX: |
| · | MPX agrees to perform a visual inspection of allClient’s material delivered intoMPX’s possession, if any, and shall notifyClient’s Representative of any apparent defects.MPX shall not be liable for any loss or damage resulting as a direct consequence from latent defects, duly notified as per the above phrase, inClient’s material used byMPX. |
| · | MPX shall exercise reasonable and prudent care in the use of material furnished. |
| · | Upon the expiration or termination of this Agreement,MPX shall return all material and information received byMPX from theClient. |
| 19. | Independent Relationship: |
| (a) | This agreement is not intended to create, nor shall it be construed to create, between theClient andMPXor any ofMPX’ssubcontractors, if any, any relationship of employer-employee, master servant agency, partnership or joint venture. |
| (b) | In the performance of this work,MPX is an independent contractor, and shall control the performance of the details of the work, and shall be responsible for the results. TheClient shall have the right, however, to supplement by written notice, the work objectives, as specified herein, andClient reserves the rights of observation and inspection to secure satisfactory completion of the work. The observation byClient’s representatives at the work site shall not relieveMPX fromMPX’s obligations and responsibilities hereunder. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
| -9- | P1177 Helicopter-borne Geophysical Survey, Mexico -October 2011 |
| 20. | TheClient shall not assign this Agreement without the consent ofMPX except to a parent, subsidiary or related corporation, and no assignment shall be made until the assignee shall have agreed in form satisfactory toMPX to be bound by the terms and provisions of this Agreement. Subject to the foregoing limitations as to assignment, this Agreement shall be binding upon and shall enure to the benefit of the Parties hereto and their respective successors. |
| 21. | Waivers: It is fully understood and agreed that none of the terms of this Agreement shall be considered as waived by either Party unless the same is done in writing by the Party waiving such right. Further, failure by either Party to enforce any rights shall not waive those, or other rights. |
| 22. | Entire Agreement: This Agreement contains the entire Agreement between the Parties and supersedes and replaces any oral or written communications heretofore made between the Parties relating to the Work. |
| 23. | Severability: If any of the terms or conditions of this agreement are found to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this agreement shall stay in full force and effect. |
| 24. | Successors and Assigns. This Agreement shall enure to the benefit of, and shall bind the permitted successors and assigns of the Parties. |
| a. | The laws of the Province of Ontario, Canada shall govern the validity, construction, interpretation, and effect of this Agreement, excluding any choice of the law rules that would otherwise require the application of laws of any other jurisdiction. |
| b. | All disputes arising from or in connection with this Agreement shall be finally settled under the Commercial Arbitration Rules (the “Rules”) of the Canadian Arbitration Association by three arbitrators appointed in accordance with the said Rules. The place of arbitration shall be the City of Toronto, Ontario. In the event of an arbitration proceeding taking place, the Parties agree to abide by any decisions and /or obligations imposed by the Arbitration Court. |
| 26. | Clerical: All headings herein are intended for convenience only and do not affect the meaning or interpretation of this Agreement. |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
| -10- | P1177 Helicopter-borne Geophysical Survey, Mexico -October 2011 |
| 27. | Acceptance: In entering into this contract, the Parties agree to all of the above terms as well as those given on the Attachments and Appendices to this Agreement, and in witness of this Agreement, the Parties have caused two (2) copies of this contract to be signed by their authorized signing officer, one (1) copy to be retained by theClient and one (1) copy to be retained byMPX. |
| California Gold Corp. | | MPX Geophysics Ltd. |
| | | |
| Per: | | Per: |
| | | |
| | | |
| | | |
| Name: | | Daniel McKinnon |
| Title: | | President |
| | | |
| Dated: | | |
{00132056.1 / 0899-001}
25 Valleywood, Unit 14, Markham, Ontario, Canada, L3R 5L9
Tel: (905) 947-1782 Fax: (905) 947- 1784 E-Mail: info@mpxgeophysics.com Web: www.mpxgeophysics.com |
