EXHIBIT 10.9
Consulting Services Contract
between
Amoco Production Company
BP Exploration & Oil Inc.
and
CiDRA Corporation
Fiber Optic Technology Evaluation Project
Contract No. BPA-00-01905
Consulting Services Contract
between
Amoco Production Company and BP Exploration & Oil Inc.
and
CiDRA Corporation
Page No.
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1.01 Site............................................................. 1
2.01 Description of Services to be Performed.......................... 1
3.01 Exhibits......................................................... 1
4.01 Compensation..................................................... 1
5.01 Term, Termination, and Guarantee Period.......................... 1
6.01 Payments......................................................... 2
7.01 Audit............................................................ 2
8.01 Taxes............................................................ 2
9.01 Independent Contractor Relationship.............................. 2
10.01 Confidentiality.................................................. 2
11.01 Indemnity........................................................ 3
12.01 Insurance........................................................ 6
13.01 Resolution of Disputes........................................... 6
14.01 Assignments...................................................... 6
15.01 Successors and Assigns........................................... 7
16.01 Compliance with Laws............................................. 7
17.01 Conflict of Interest............................................. 7
18.01 General Provisions............................................... 7
19.01 Contacts/Notices................................................. 8
20.01 Entirety......................................................... 8
Exhibit "A" - Description of Services
Exhibit "B" - Compensation
Exhibit "C" - Substance Abuse Policy
Exhibit "D" - Provisions Regarding Equal Employment Opportunity
Exhibit "E" - Health, Safety, and Environmental Minimum Requirements
Exhibit "F" - Non-Harassment Policy
CONSULTING SERVICES CONTRACT
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This Contract is made this first day of August, 2000, by and between BP
EXPLORATION & OIL INC. and AMOCO PRODUCTION COMPANY on the one part (either is
hereinafter referred to as "Company", or "BP Amoco"), having an office at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and CiDRA Corporation, on the
other part (hereinafter referred to as "Contractor", or "CiDRA"), having an
office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The entity under
this Contract acting as Company shall be determined by the ownership interest in
the respective assets which are the subject of the services under this Contract
at any given time; provided, however, in the event that no services are in
progress, or other issues of Contract arise which do not pertain to one or the
other entity, then both entities of Company shall act as Company. In
consideration of the covenants and provisions hereinafter provided, the parties
agree as follows:
1.01 Site. Services will be performed at Work location(s) designated by Company
in Contractor's offices, and as otherwise required to perform the Services
under this Contract.
2.01 Description of Services to be Performed. Contractor shall provide
consulting services for the development and integration of fiber optic
technology into well systems, as more particularly described in Exhibit "A"
hereof (hereinafter, "Services".)
3.01 Exhibits. Exhibits set forth below are attached hereto and made a part of
this Contract. Contractor shall comply with all provisions set forth in
said Exhibits.
Exhibit "A" - Description of Services
Exhibit "B" - Compensation
Exhibit "C" - Substance Abuse Policy
Exhibit "D" - Provisions Regarding Equal Employment Opportunity
Exhibit "E" - Health, Safety, and Environmental Minimum Requirements
Exhibit "F" - Non-Harassment Policy
4.01 Compensation. For full payment for the performance of all Services,
Company shall pay Contractor in accordance with Exhibit "B" hereof.
5.01 Term and Termination.. This Contract shall commence on the Effective date,
August 1, 2000, and expire 2 years from the Effective Date, unless extended
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by mutual written agreement of the Parties. Either Party may terminate this
Contract prior to the expiration set forth above, effective immediately
upon written notice to the other Party. However, such termination shall
have no affect on any specific activities or development or deployment
agreements that may have been conducted or commenced by CiDRA at the
direction of BP AMOCO as a result of this Contract, and shall not release
Company from the compensation commitment for that year. Company will
evaluate Contractor's performance during the fourth quarter of the first
year, and elect to terminate this contract, or to proceed with second year
activities, prior to the first day of the second year.
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6.01 Payments. Contractor shall submit a documented and itemized invoice
quarterly to Company covering the total for reimbursable costs and other
Services performed during the preceding quarter, as confirmed by Company's
representative, all in accordance with Exhibit "B," Compensation hereof.
Contractor shall identify each invoice with the Contract Number (BPA-00-
01905), and Paykey Number (zuiy10nanc). Company will pay each undisputed
invoice within thirty (30) days after receipt. Contractor shall mail the
invoice to the following:
Amoco Production Company
Attn: Scanning
P.O. Box 22024
Tulsa, OK 74121
7.01 Audit. Contractor shall maintain complete records pertaining to the
Services. Company shall have the right to inspect and audit relevant
records relating to the Services and payment within a period of two (2)
years after the Completion of Services, provided that Contractor shall have
the right to exclude any proprietary matters, trade secrets, formulas, or
processes, profit, and composition of percentage overhead, fixed fees, or
lump sums, from such inspection and audit. If the results reveal
overpayments or underpayments, appropriate adjustments will be made.
8.01 Taxes. Contractor shall be responsible for, and shall hold Company
harmless from the reporting, filing and payment of any taxes (wherever and
whenever arising), duties, charges or fees (and any related fines,
penalties, or interest) imposed (except as provided in Section 8.02 herein)
directly or indirectly on Contractor or its subcontractors, shareholder(s),
employees, agents or servants as a result of Contractor's performance under
this Contract in all jurisdictions. Company may withhold from sums
otherwise due Contractor under this Contract any taxes or amounts required
by applicable law to be withheld and paid to the appropriate taxing
authorities and, Company shall provide Contractor with all receipts
evidencing the payment to such authorities of the taxes or amounts so
withheld.
8.02 The payments provided for in Exhibit "B" are exclusive of any value
added taxes or sales/service taxes which may be imposed on such payments by
the taxing authorities having jurisdiction. Subject to Company's right to
verify that such taxes apply to the payments made hereunder, and subject to
Company's right to verify Contractor's payment of such taxes to the
appropriate taxing authorities, Company shall pay Contractor the amount of
such taxes upon receipt of invoice, including the amount of such taxes,
which invoice is issued in compliance with the applicable tax laws.
Contractor shall use its best efforts to avail itself of any and all
exemptions from and/or reductions of such taxes.
9.01 Independent Contractor Relationship. Contractor will be acting as an
independent contractor in performing Services under this Contract, and not
as an agent, servant, employee or representative of Company. Accordingly,
Contractor and Contractor's employees, agents, representatives or
subcontractors will have no right to any Company employee benefits.
10.01 Confidentiality and Intellectual Property
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Confidential Information. Any confidential or proprietary information
exchanged between the Parties under this Contract shall be treated as
"Confidential Information" in accordance with a separate Confidentiality
Agreement between CiDRA and BP AMOCO, dated October 27, 1999.
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Intellectual Property. Each Party shall own all Intellectual Property
developed solely by its employees during the term of this Contract. It is
not the intention of the Parties to jointly create Intellectual Property in
the performance of work under this Contract. However, if the employees of
the Parties jointly develop Intellectual Property, such Intellectual
Property shall be owned by CiDRA. For the purposes of this Contract,
Intellectual Property shall mean patents, copyrights (including software),
trademarks, Confidential Information, and any other intellectual property
rights.
11.01 Indemnity.
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When used in this article or elsewhere in this Contract, the following
terms shall have the following meanings:
11.01.01 "Affiliate" of a company means a person or entity directly or
indirectly controlling, controlled by, or under common control
with such company. "Control" for this purpose shall, in the case
of a corporation with outstanding voting stock, require the
direct or indirect ownership of or power to vote with respect to
outstanding shares of a corporation's capital stock constituting
50% or more of the votes of any class of such corporation's
outstanding voting stock;
11.01.02 "Company Group" means the following entities and persons
individually and collectively: Company and its Affiliates, its
co-venturers, co-lessees, co-working interest owners and their
Affiliates, and the officers, directors, employees, agents, and
representatives of all of those entities;
11.01.03 "Contractor Group" means the following entities and persons
individually and collectively: Contractor and its Affiliates, its
subcontractors and their Affiliates, and the officers, directors,
employees, agents, and representatives of all of those entities;
11.01.04 "Third Parties" means all persons and entities which are not
included in Company Group or Contractor Group.
11.02 Subject to the other provisions of this Article 11, contractor shall
defend, indemnify, release, and hold Company Group harmless from and
against all claims, liabilities, damages, and expenses (including without
limitation attorneys' fees and other costs of defense), irrespective of
insurance coverages, for the following, when arising out of or incidental
to this Contract:
11.02.01 (i) all injuries to, deaths, or illnesses of persons in
Contractor Group; and
(ii) all damages to or losses of Contractor Group property;
whether or not occasioned by or the result in whole or in part of
the negligence or fault, whether sole, concurrent, joint, active, or
passive, of Company Group or any other entity or person or the
unseaworthiness of any vessel or unairworthiness of any aircraft;
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11.02.02 (i) all injuries to, deaths, or illnesses of Third Parties; and
(ii) all damages to or losses of Third Parties' property;
when caused by or resulting from the negligence or fault of
Contractor Group, provided that, in the event of joint or concurrent
negligence or fault of Contractor Group and Company Group,
Contractor's indemnification obligation hereunder shall be limited
to its allocable share of such joint or concurrent negligence or
fault;
11.02.03 it being the parties' intention that the indemnities provided
for in this Section 11.02 are to apply;
11.02.03.1 without regard to any conflicting rules of liability
under any applicable law or regulation, and
11.02.03.2 without regard to any successful limitation or
exoneration of liability proceeding filed by or on
behalf of Contractor Group pursuant to the laws of any
state or country or the provisions of any
international convention, and
11.02.03.3 whether or not the claim, liability, damage, or
expense in question is;
11.02.03.3.1 predicated on negligence, strict liability,
statutory duty, or contractual indemnity, or
11.02.03.3.2 sought directly or indirectly by way of
recovery, indemnification, or contribution by
any person or entity against Company Group.
11.03 Subject to the other provisions of this Article 11, Company shall defend,
indemnify, release, and hold Contractor Group harmless from and against
all claims, liabilities, damages, and expenses (including without
limitation attorneys' fees and other costs of defense), irrespective of
insurance coverages, for the following, when arising out of or incidental
to this Contract:
11.03.01 (i) all injuries to, deaths, or illnesses of persons in Company
Group;
(ii) all damages to or losses of Company Group property;
whether or not occasioned by or the result in whole or in part of
the negligence or fault, whether sole, concurrent, joint, active, or
passive, of Contractor Group or any other entity or person or the
unseaworthiness of any vessel or unairworthiness of any aircraft;
11.03.02 (i) all injuries to, deaths, or illnesses of Third Parties; and
(ii) all damages to or losses of Third Parties' property;
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when caused by or resulting from the negligence or fault of Company
Group, provided that, in the event of joint or concurrent negligence
or fault of Company Group and Contractor Group, Company's
indemnification obligation hereunder shall be limited to its
allocable share of such joint or concurrent negligence or fault;
11.03.03 it being the parties' intention that the indemnities provided for
in this Section 11.03 are to apply;
11.03.03.1 without regard to any conflicting rules of liability
under any applicable law or regulation, and
11.03.03.2 without regard to any successful limitation or
exoneration of liability proceeding filed by or on
behalf of Company Group pursuant to the laws of any
state or country or the provisions of any
international convention, and
11.03.03.3 whether or not the claim, liability, damage, or
expense in question is;
11.03.03.3.1 predicated on negligence, strict liability,
statutory duty, or contractual indemnity, or
11.03.03.3.2 Sought directly or indirectly by way of
recovery, indemnification, or contribution by
any person or entity against Contractor
group.
11.04 Contractor or Company as the case may be shall promptly give to the other
party notice in writing of any claim made or proceedings commenced for
which Contractor or Company claims to be entitled to indemnification
under this Contract. Such notice shall state with as much detail as is
reasonably practicable the facts and circumstances giving rise to the
claim and shall be given as soon as possible after the party seeking
indemnity hereunder (referred to in this Section 11.04 as the
"Indemnitee") becomes aware of such claim or proceeding. The party
against whom such indemnity is sought (referred to in this Section 11.04
as the "Indemnitor") shall confer with the Indemnitee concerning the
defense of any such claim or proceedings but, subject to the remainder of
this Section 11.04, the Indemnitor or its insurer shall retain control of
the conduct of such defense, including but not limited to the selection
and management of counsel. Notwithstanding the foregoing, however,
neither party shall effect settlement of or compromise any such claim or
proceedings without having obtained the prior written consent of the
other party, but if Indemnitee does not consent to a settlement which the
Indemnitor is willing to accept, then Indemnitor's liability shall be
limited to the amount for which the lawsuit could have been settled. The
Indemnitee may, upon written notice to the Indemnitor and at the
Indemnitee's sole cost and expense, select its own counsel to participate
in and be present for the defense of any such claim or proceeding,
provided such counsel shall not take any action in the course of such
claim or proceeding to prejudice the defense of such claim or proceeding.
11.05 Neither party shall be responsible or held liable to the other for
indirect, special, incidental or consequential damages, loss of profits
or loss of use except to the extent such consequential or
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special damages, loss of profits, loss of production, or loss of use are
part of a Third Party claim for which a party is seeking contribution or
indemnification pursuant to this contract. Each party shall be granted an
extension of time for performance of its obligations under this Contract
if its performance is delayed due to causes beyond its reasonable
control.
12.01 Insurance. Contractor shall at all times during the term of this
Contract maintain, at its sole cost, the following insurance coverage:
12.01.01 Workers' Compensation Insurance which complies with all
applicable laws wherever the Services are performed (including
Longshoremen's and Harbor Workers' Compensation act coverage if
applicable) and wherever Contractor's contracts of employment are
entered into;
12.01.02 Employer's Liability Insurance, or its equivalent, with limits
of not less than US$1,000,000;
12.01.03 Comprehensive General Liability Insurance, including contractual
liability coverage, with minimum limits of US$2,000,000 per
occurrence;
12.01.04 Automobile Liability Insurance covering all vehicles used in the
Services with a minimum combined single limit of not less than
US$1,000,000 per occurrence for bodily injury and property
damage.
12.02 Except for Workers' Compensation Insurance set forth in Section 12.01.01,
all policies shall name the Company Group as additional insureds. In
addition, all of the policies listed above, without exception, shall be
endorsed to waive subrogation against the Company Group by use of the
following language: "The insurers hereby waive their rights of
subrogation against Amoco Production Company, and BP Exploration & Oil
Inc. ("Company"), and the other entities and persons of the Company Group
under that certain Contract No. BPA-00-01905 between Company and CiDRA
Corporation ("Contractor"), and against any individuals, firms, or
corporations for whom or with whom Company may be acting." Additionally,
if Contractor shall perform any Services hereunder on navigable waters
then each of the policies listed in 12.01.02 and 12.01.03 above shall be
endorsed to cover marine operations.
13.01 RESOLUTION OF DISPUTES. THE LAWS OF TEXAS, U.S.A., SHALL GOVERN THE
VALIDITY, CONSTRUCTION, INTERPRETATION, AND EFFECT OF THIS CONTRACT,
EXCLUDING ANY CHOICE OF THE LAW RULES WHICH WOULD OTHERWISE REQUIRE THE
APPLICATION OF LAWS OF ANY OTHER JURISDICTION. ANY DISPUTE ARISING IN
CONNECTION WITH THIS CONTRACT SHALL BE FINALLY SETTLED BY ARBITRATION.
THE RULES OF ARBITRATION TO BE EMPLOYED AND THE PLACE OF ARBITRATION ARE,
RESPECTIVELY, AMERICAN ARBITRATION ASSOCIATION, TEXAS, U.S.A.
14.01 Assignments. Contractor may not assign, transfer, or subcontract any part
of this Contract to a third party without the prior written approval of
Company. If Contractor shall cause any part of the Services hereunder to
be performed by a subcontractor, Contractor shall remain liable for all
of its obligations hereunder, and in addition shall require in its
subcontracts that, with respect to the Services to be performed, the
subcontractor agrees to extend to Company all rights and privileges which
are given by Contractor to Company in this Contract.
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Company may assign this Contract to any of its Affiliates, co-lessees, or
co-working interest owners without Contractor's consent.
15.01 Successors and Assigns. This Contract shall inure to the benefit of and
be binding upon the successors and permitted assigns of the parties.
16.01 Compliance with Laws. Contractor shall conduct its operations in
accordance with the relevant laws, regulations, decrees, and/or official
government orders of the country having jurisdiction over the location
where Work is performed, including without limitation, those pertaining
to health, safety, and environmental protection, provided that nothing in
this Contract is intended or should be construed to require Contractor to
act or fail to act if such action or inaction would be inconsistent with
or penalized by the laws and regulations of the United States of America.
Contractor shall not do business with any company or person knowing the
results thereof might benefit an officer, director, employee, agent, or
representative of Company or any of its Affiliates. Contractor shall not
engage in any activities which might reasonably be considered to be
contrary or detrimental to the interests of Company or any of its
Affiliates.
Contractor shall not pay any fee, commission, rebate, or other value to
or for the benefit of any official or functionary of the government
having jurisdiction over the location where Work is performed if such
payment would be inconsistent with or penalized by the laws and
regulations of the United States.
For purposes hereof, Contractor shall include all entities and persons of
the Contractor Group.
17.01 Conflict of Interest. Contractor warrants that neither it nor any other
entity or person in the Contractor Group has given any commissions,
payments, gifts of substantial value, kickbacks, lavish or extensive
entertainment, or other things of value to any officer, director,
employee, agent, or representative of Company, or any family member
thereof, or received same from any vendor, supplier, or contractor in
connection with this Contract, and acknowledges that the giving or
receiving of any such payments, gifts, kickbacks, extensive
entertainment, or other things of value is strictly in violation of
Company's corporate policy and may result in the cancellation of this
Contract and other contracts. Contractor shall notify Company's security
department of any such solicitation by any of such parties of Company as
aforesaid. Contractor's compliance with the provisions of this Section
17.01 is subject to audit by Company under the provisions of Section 7.01
hereof.
18.01 General Provisions.
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A. Non-exclusive Dealings. BP ▇▇▇▇▇'s relationship with CiDRA under this
Contract shall be non-exclusive and BP AMOCO is free to pursue other
arrangements, discussions, activities, or agreements of any kind with
other parties during the term of this Contract. BP AMOCO intends (1) to
work with CiDRA on development and enhancement of fiber optic technology
and integration of fiber optic technology into well systems, and (2) to
integrate all of its well sensor fiber optic technology development
within the scope of this contract. . CiDRA's relationship with BP AMOCO
is non-exclusive and CiDRA is free to pursue other arrangements,
discussions, activities, or agreements of any kind with other parties
during the term of this Contract.
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B. No License. Neither Party grants nor shall be deemed to have granted
the other any licenses under any Intellectual Property of the other
hereunder.
C. Publicity. Neither Party shall make any public statement about this
Contract or the activities performed hereunder without the other Party's
prior review and written approval of such statement, such approval shall
not be unreasonably withheld.
19.01 Contacts/Notices. To facilitate communications and performance by the
Parties under this Contract, the Parties have identified representatives
shown below. The Parties shall address all notices and other
communications required under this Contract to the address shown below.
Notices shall be deemed to have been sufficiently given when made in
writing and delivered in person, by facsimile, certified mail, or courier
to the address of the respective Party provided herein. A Party may
change its representative or address at any time by written notice to the
other Party.
For Company:
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Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
Houston, TX 77079-2696
Contacts: Business Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. WL1, Rm. 22.144
Legal/Contracts Contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, WL1, Rm 17.180
For CiDRA:
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Address: CiDRA Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contacts: Business Contact: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇; ph: ▇▇▇-▇▇▇-▇▇▇▇;
fax: ▇▇▇-▇▇▇-▇▇▇▇
Legal Contact: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; ph: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇;
fax: ▇▇▇-▇▇▇-▇▇▇▇
20.01 Entirety. This Contract together with the Exhibits attached hereto
contains the entire agreement between the parties and supersedes any oral
or written communications heretofore made between the parties relating to
this Contract. In the event of a conflict between a provision contained
in the body of this Contract, Articles 1 through 20, and any provision
contained in the Exhibits attached hereto, the provision set out in the
body hereof shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the day
and year first above written in Section 5.01.
AMOCO PRODUCTION COMPANY BP EXPLORATION & OIL INC.
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COMPANY COMPANY
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Contracts Specialist Contract Specialist
CiDRA CORPORATION
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CONTRACTOR
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Snr. V.P. and General Manager
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