Exbibit 10.15
INTERIM AGREEMENT FOR INFORMATION
---------------------------------
TECHNOLOGY SERVICES (US BUSINESS)
---------------------------------
THIS INTERIM AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES (US BUSINESS)
(this "Agreement"), dated as of November 1, 2000, is among Shell Chemical
Company ("SHELL"), a Delaware corporation for itself and as agent for Shell Oil
Company, Shell Services International Inc., a Delaware corporation ("SSI") (each
of SHELL and SSI are referred to individually as "SERVICE PROVIDER"), and SHELL
EPOXY RESINS LLC, a Delaware limited liability company ("SER") (each of SHELL,
SSI, and SER are referred to individually as a "Party" and collectively as the
"Parties").
WHEREAS, Shell Oil Company, Shell Epoxy Resins, Inc. and Resin Acquisition,
LLC have entered into a Master Sale Agreement dated July 10, 2000, whereby Shell
Oil Company and its Affiliates agreed to sell to Resin Acquisition LLC all of
their interests in certain chemical companies (as amended, the "Master Sale
Agreement"); and
WHEREAS, SER desires to secure certain information technology services from
SERVICE PROVIDER on an interim basis, and SERVICE PROVIDER is willing, under the
terms of this Agreement, to provide those services to SER in return for the
compensation to be paid by SER to SERVICE PROVIDER in accordance with this
Agreement.
NOW, THEREFORE, the Parties agree as follows:
1. Definitions and Procedural Conventions. Unless otherwise expressly
--------------------------------------
indicated, capitalized terms used and not defined in this Agreement will have
the meanings set forth in Schedule A to the Master Sale Agreement.
2. Scope of Services and Additional Services. SERVICE PROVIDER or its
-----------------------------------------
Affiliates will furnish to SER the services described in Exhibit A to this
---------
Agreement. The services described in Exhibit A, as it may be amended from time
---------
to time by the mutual written agreement of the Parties, will be referred to as
the "Services." Unless otherwise agreed in writing by the Parties, the Services
will only be provided with respect to software and hardware systems operated by
SERVICE PROVIDER in the United States and will only be provided in connection
with the Business.
3. General Provisions Regarding the Services.
-----------------------------------------
(a) To the extent any of the Services were provided by SERVICE PROVIDER or
its Affiliates to the Business prior to the Effective Date ("Pre-existing
Services"), SERVICE PROVIDER will perform the Services at substantially the same
level and with substantially the same degree of accuracy and responsiveness as
was provided to the Business prior to the Effective Date ("Effective Date
Level"). A detailed listing of Pre-existing Services and service performance
levels for such Pre-existing Services are identified on Exhibit A, Schedule 11
----------------------
attached hereto. To the extent any of the Services are not Pre-existing
Services, SERVICE PROVIDER will perform the Services at substantially the same
level and with substantially the same degree of accuracy and responsiveness as
the Services are performed for SHELL. If the level at which SERVICE PROVIDER
performs the Services for SHELL from time to time increases to a level above the
Effective Date Level, the level at which SERVICE PROVIDER performs the Services
for SER will
increase to an equivalent level; provided, however, that if such level of
Services performed for SHELL decreases from time to time, the level of Services
performed for SER shall decrease to an equivalent level. In no case will SERVICE
PROVIDER perform the Services at a level or with a degree of accuracy and
responsiveness that is lower in any material respect than the Effective Date
Level. In addition, SERVICE PROVIDER makes no assurance that any of the Services
will be error-free, but, in the case of errors, and as SER's sole remedy for
such errors, SERVICE PROVIDER will endeavor to fix or otherwise remedy such
errors in the same manner that SERVICE PROVIDER does so for SERVICE PROVIDER's
internal users of similar services.
Upon the second anniversary of the Effective Date, SHELL will, except as
provided below, discontinue performance of the Services, to the extent being
provided as of such date, and at SER's option SSI shall continue to provide such
Services to SER for the remainder of the Term (as hereinafter defined). SHELL
and SSI are each referred to in this Agreement as "SERVICE PROVIDER" and will
each have all rights and obligations of "SERVICE PROVIDER" with respect to all
periods during which each of them is performing any or all of the Services. If
SER designates SSI as the SERVICE PROVIDER for the last two (2) years of the
Term, (i) during the last two (2) years of the Term SSI will provide the
Services at the same price at which SSI provides the same or similar services to
SHELL or its Affiliates, provided that the combined costs for the Services under
this Agreement plus the cost of the Services under the Non-US IT Interim
Services Agreement will not exceed the Global Annual Support Cap defined in
Exhibit E attached hereto, and (ii) after the completion of the first two (2)
---------
years of the Term, SERVICE PROVIDER will have completed and implemented the
Transition Plan (as hereinafter defined) pursuant to Section 4(e) hereof. If
------------
SER does not designate SSI as the SERVICE PROVIDER for the last two (2) years of
the Term, then: (i) subject to SER's ability to terminate this Agreement
earlier, SHELL shall continue to be the SERVICE PROVIDER for a period of up to
nine (9) months after the second anniversary of the Effective Date, and (ii) SER
will have completed and implemented its Transition Plan no later than the end of
such nine (9) month period.
(b) SER acknowledges that SERVICE PROVIDER, on its own behalf, provides
services similar to the Services, and/or services which may involve the same
resources as those used to provide the Services, to SERVICE PROVIDER's own
internal organizations, Affiliates and Third Parties. SERVICE PROVIDER reserves
the right to modify the Services in connection with changes to those services
provided to SERVICE PROVIDER's own internal organizations and Affiliates in
SERVICE PROVIDER's ordinary course of business. However, no such modification
will materially diminish the Services, lower the level of Services to a level or
a degree of accuracy and responsiveness that is lower in any material respect
than the Effective Date Level, or increase the aggregate costs of the Services
under this Agreement and the Non-US IT Interim Services Agreement to a total
greater than the Global Annual Support Cap. Furthermore, SER understands and
agrees that upgrades and enhancements to the software and processes used by
SERVICE PROVIDER to provide the Services may require SER to modify its own
processes and procedures at SER's cost and expense, with SERVICE PROVIDER
incurring no costs or expenses relating to any such modifications that SER makes
to its own processes and procedures; provided, however, that the aggregate costs
and expenses for supporting such upgrades and enhancements and for the Services
under this Agreement and the Non-US IT Interim Services Agreement will not
exceed the Global Annual Support Cap. If SERVICE PROVIDER's upgrades and
enhancements to the software and processes used by SERVICE PROVIDER to provide
the Services causes a reduction in the costs of providing the Services, such
cost savings shall be passed through by a reduction in
-2-
price to SER; provided, however, that in the event that such upgrades and
enhancements require up front investment costs by SER or other recipients of the
Services, if SER makes no such up front investment the resulting savings in
Service costs will not be passed through to SER. If SER modifies or enhances its
software or systems in such a way that SERVICE PROVIDER must change the scope of
its work or systems in response to such modification or enhancement, then the
actual cost of those changes shall be borne solely by SER if such modification
or enhancement results in a cost increase for SERVICE PROVIDER. Furthermore, if
such modifications or enhancements by SER change SERVICE PROVIDER's cost
required to provide the Services, the costs described in the Exhibits attached
hereto, including the Global Annual Support Cap, may require amendment.
(c) If SER requests, or SERVICE PROVIDER proposes, to add new Services, or
to change, modify, enhance or eliminate the then-existing Services (including
Service levels), SERVICE PROVIDER and SER will discuss a change order to modify
this Agreement (a "Change Order"). Change Orders will be effective only upon
execution by both Parties. Each Change Order will include any additional terms,
conditions and warranties applicable thereto, SERVICE PROVIDER's charges
therefor, and any effect on SERVICE PROVIDER's charges for any other Services
(including any increase or decrease in the Global Annual Support Cap), as
mutually agreed upon by the Parties. SERVICE PROVIDER will provide any new or
additional Services (including Service levels) agreed to pursuant to a Change
Order at the same cost that such Services are provided to SHELL to the extent
that SERVICE PROVIDER is able to provide such new or additional Services as part
of SERVICE PROVIDER's ordinary course of business. If, at the request of SER,
SERVICE PROVIDER reduces the amount of Services provided to SER, any resulting
reduction in costs available to SERVICE PROVIDER shall be passed through to SER
accordingly. In the event of any reduction in costs for the Services provided
to SER pursuant to subsection (b) above or this subsection (c), SERVICE PROVIDER
and SER shall agree upon an appropriate reduction in the Global Annual Support
Cap. SERVICE PROVIDER recognizes, and will make reasonable business efforts to
allow for, SER's reasonable future potential need and ability for business
growth. In recognition thereof, to the extent possible and within the normal
scope of operations of SERVICE PROVIDER's IT operations systems, SERVICE
PROVIDER shall provide, at the same price afforded to SHELL, additional Services
necessary because of increased demand by SER in the chemical business, including
without limitation any additional Services necessary because of acquisitions
completed by SER; provided, however, that such increased demand may not be
attributable to SER's transfer of the Business to an industry competitor of
SHELL. Any such additional Services shall be accompanied by a Change Order
executed by SERVICE PROVIDER and SER.
In addition, SERVICE PROVIDER may from time to time give written notice to
SER that SERVICE PROVIDER plans to implement a change, modification, upgrade or
enhancement to the Services, or to the hardware, equipment, software, processes
and other resources used by SERVICE PROVIDER to provide the Services, in order
to enable SERVICE PROVIDER to change, modify, upgrade, enhance or maintain the
quality of service provided to SER and SERVICE PROVIDER's own internal
organizations and Affiliates. SERVICE PROVIDER will allocate the costs of such
changes, modifications, upgrades and enhancements equitably among all users of
the affected service, and SER will reimburse SERVICE PROVIDER for SER's share of
such costs upon receipt of SERVICE PROVIDER's invoice therefor; provided,
however, that the aggregate of such reimbursement costs and the costs of the
Services under this Agreement and the Services under the
-3-
Non-US IT Interim Services Agreement shall not exceed the Global Annual Support
Cap and the level of Services provided to SER will not fall below the Effective
Date Level.
(d) Subject to this Section 3(d) and Section 3(g) of this Agreement, all
------------ ------------
hardware, equipment, software, processes and other resources used by SERVICE
PROVIDER in connection with the Services, and any ideas, concepts, know-how,
techniques, inventions, and the like proposed, generated or developed by or for
SERVICE PROVIDER in connection with the Services, together with all intellectual
property rights appertaining thereto, shall be and remain the exclusive property
of SERVICE PROVIDER. A list of (i) hardware that SERVICE PROVIDER will transfer
to SER on the Closing Date, (ii) hardware to be retained by SERVICE PROVIDER on
the Closing Date and used in connection with the provision of Services, and
(iii) hardware that SERVICE PROVIDER will transfer to SER upon the expiration or
termination of any applicable portion of this Agreement is provided on Exhibit F
---------
attached hereto. A list of (1) third party software used to provide the
Services, (2) SERVICE PROVIDER's proprietary software used to provide the
Services, (3) third party software and SERVICE PROVIDER's proprietary software
that shall be licensed in perpetuity to SER (subject to the terms of the
applicable third party licenses; provided, however, that SERVICE PROVIDER will
obtain such third party licenses in perpetuity for the benefit of SER whenever
possible) and, to the extent permitted under the applicable license agreements,
its Affiliates or designees, and (4) software licenses to be obtained by SER and
licensed in SER's name on the Closing Date is set forth on Exhibit C attached
---------
hereto. SHELL has made good faith efforts to acquire for SER the license rights
and/or consents to assignment of the applicable licenses to SER necessary to
obtain for SER and/or the Companies the license rights set forth on Table II of
-----------
Exhibit C attached hereto (collectively the "US IT Licenses"), and, based on
---------
SHELL's relationships and/or discussions with the applicable licensors, and
SHELL's customary procedures for obtaining license rights and/or consents to
assignment in connection with acquisitions and divestitures of SHELL business
units, SHELL believes that the US IT Licenses will be forthcoming from the
applicable licensors in due course. The Parties agree that the fact that all or
any of the US IT Licenses may not have been obtained by SHELL as of the Closing
Date will not delay or interfere with the Closing or represent a breach of
SHELL's obligations under the Master Sale Agreement. Through and after the
Closing Date, SHELL shall, as soon as commercially practicable (but in any event
within 90 days after the Closing Date for any US IT Licenses where Microsoft is
the licensor and within 12 months after the Closing Date for any US IT Licenses
commonly referred to as the "SAP licenses"), obtain all US IT Licenses which
have not been previously obtained, and SER shall reasonably cooperate with
SHELL's efforts to obtain such US IT Licenses. Pursuant to Section 8.18 of the
Master Sale Agreement, SER has agreed to pay up to $3,000,000 of license and/or
assignment fees incurred to obtain the US IT Licenses and the Non-US IT Licenses
(as that term is defined in the Non-US IT Interim Services Agreement;
collectively, the "IT License Fees"), and SHELL has agreed to pay all amounts in
excess of $3,000,000 of the IT License Fees. In order to implement such payment
provisions, and subject to Section 8.18 of the Master Sale Agreement, the
Parties agree that (x) on the Closing Date, SER shall pay SHELL $1,064,000 for
the IT License Fees incurred by SHELL through the Effective Date, (y) after the
Closing Date, SHELL will invoice SER monthly for any additional IT License Fees
incurred by SHELL, and SER will pay such invoices within thirty (30) days after
the invoice date, and (z) with respect to payments due under both subsections
(x) and (y), SHELL shall submit to SER reasonable supporting documentation with
respect to the IT License Fees incurred by SHELL.
-4-
(e) SER and its employees, contractors and agents will comply with SERVICE
PROVIDER's security policies and procedures as in effect from time to time with
respect to (i) the Services or (ii) any changes to any hardware or software
systems. SER and its employees, contractors and agents also will comply with
all applicable U.S. and other export control laws, rules and regulations. SER
will not export or re-export from the United States any software or hardware
provided by SERVICE PROVIDER as part of the Services except with SERVICE
PROVIDER's prior written consent and in compliance with all Applicable Laws.
SERVICE PROVIDER and its employees, contractors and agents will comply with
SER's security policies and procedures in effect from time to time with respect
to SER's facilities in connection with SERVICE PROVIDER's performance of the
Services. Any enhancement, modification, or change (including those requested
by SER pursuant to Section 4(b) hereof) to any systems (hardware, software or
------------
both) of SERVICE PROVIDER or SER that either (i) are shared between SER and
SERVICE PROVIDER, or (ii) with respect to any systems (hardware, software or
both) used by SERVICE PROVIDER in providing Services to SER, are shared between
SER and any Third Party, shall only be conducted and/or executed by SERVICE
PROVIDER. The Parties agree that any request by SER for any such enhancement,
modification or change shall be treated procedurally as a request to add new
Services and shall be governed by the Change Order procedures set forth in
Section 3(c).
------------
(f) Any use of the Services by any employee, contractor or other agent of
SER in violation of this Agreement, including Section 3(e), is an "Unauthorized
------------
Use." If SERVICE PROVIDER determines that an Unauthorized Use has occurred,
SERVICE PROVIDER may (i) withdraw or otherwise disable the ability of the
applicable SER employee, contractor or agent to continue using all or part of
the Services and/or the facilities used to provide the Services (for example,
and not by way of limitation, by revoking such person's authority to access
SERVICE PROVIDER's computer networks), (ii) notify SER that such Unauthorized
Use has occurred, in which case SER will promptly take steps to remedy such
Unauthorized Use and prevent its recurrence, (iii) exercise any other legal or
equitable remedies available to SERVICE PROVIDER under this Agreement or
otherwise, and (iv) in addition to the foregoing, if a material Unauthorized Use
occurs due to SER's gross negligence or willful misconduct, upon three (3)
Business Days written notice to SER and three (3) Business Days opportunity to
cure by SER, terminate this Agreement and the Services and, at SER's cost and
expense, withdraw or otherwise disable SER's ability to continue using all or
part of the Services and/or the facilities used to provide the Services.
Notwithstanding any failure by SERVICE PROVIDER to take the any of the actions
described in the preceding sentence with respect to an Unauthorized Use, SER
will be fully responsible and liable for any Unauthorized Use and any fines,
fees, costs or expenses incurred by either Party due to any Unauthorized Use.
(g) SERVICE PROVIDER will use SER's data solely to perform SERVICE
PROVIDER's obligations under this Agreement. SERVICE PROVIDER will not sell,
assign, lease, disseminate or otherwise dispose of any of SER's data. SERVICE
PROVIDER will not possess or assert any property interest in or any lien,
security interest or other right against or to any of SER's data, and SERVICE
PROVIDER shall afford to SER's data the same level of security that is afforded
to SERVICE PROVIDER's data. All data, work product, software and other
intellectual property performed or developed for SER under this Agreement shall
be owned by SER, and SERVICE PROVIDER agrees to transfer to SER all rights
therein. Nothing in this Agreement shall transfer from SER to SERVICE PROVIDER
any of SER's rights in ideas, concepts, know-how, techniques, inventions, and
the like proposed, generated, or developed by SER, or by SERVICE PROVIDER
-5-
on behalf of SER, or any intellectual property rights of SER therein.
Notwithstanding any other provision of this Agreement, each Party will be free
to use for itself and for others in any manner the general knowledge, skill or
experience acquired by that Party in the course of this Agreement, including
using that knowledge for any present or future customer or other business
partner.
(h) SER will not possess or assert any property interest in or lien,
security interest or other right against or to any of SERVICE PROVIDER's
hardware, equipment, software or other property that may be placed at SER's
facilities in order to facilitate the Services, except as provided under Section
-------
3(d) and Section 3(g) hereof.
---- ------------
(i) SERVICE PROVIDER will not provide to SER those services described on
Exhibit B. Additionally, in the case of software support, SERVICE PROVIDER will
---------
not provide to SER any extraordinary support beyond the normal licensed period
support provided by the vendor of the software unless otherwise agreed to by
SERVICE PROVIDER and SER in a separate written agreement.
4. SER's Other Obligations Regarding the Services.
----------------------------------------------
(a) SER will make available to SERVICE PROVIDER, on a timely basis,
management decisions, information, approvals and acceptances to enable SERVICE
PROVIDER to provide the Services. SER will be deemed to have consented to and
approved any such decision, information, approval or acceptance requested by
SERVICE PROVIDER if SERVICE PROVIDER provides notice to SER and SER fails to
respond to such request within (i) thirty-six (36) hours in the case of requests
for Services made by SER in the ordinary course of business, (ii) three (3)
Business Days in the case of Services, enhancements, modifications or changes to
SER's hardware or software systems originating from SERVICE PROVIDER or (iii)
such lesser period as is reasonably required by SERVICE PROVIDER in the case of
requests relating to urgent or emergency situations.
(b) SER will not modify or change in any respect any of the software or
hardware systems used by SERVICE PROVIDER to provide the Services without
SERVICE PROVIDER's prior written approval, which written approval shall not be
unreasonably withheld. If SER makes an unauthorized modification or
enhancement, (i) SERVICE PROVIDER will be excused from compliance with Section
-------
3(a) and Section 3(b) to the extent SERVICE PROVIDER's performance of the
---- ------------
Services is adversely affected by such modification or enhancement, and (ii) SER
will be fully responsible and liable for any fines, fees, costs or expenses
incurred by either Party due to such unauthorized modification or enhancement.
(c) Intentionally Omitted.
(d) Except as permitted under Section 3(d) of this Agreement, SER will not
------------
resell any of the Services, or sell or license any of the software or hardware
used by SERVICE PROVIDER to provide the Services, to or for the benefit of any
Third Party, whether in a service bureau environment or otherwise, or attempt to
do so.
(e) At least quarterly during the first twelve (12) months of the Term,
SER and SERVICE PROVIDER shall meet to discuss SER's intention regarding the
transition of the provision of the Services from SHELL to another party after
the second anniversary of the Effective Date. On or prior to the first
anniversary of the Effective Date, SER will inform SERVICE
-6-
PROVIDER in writing if SER intends to use SSI to provide the Services after the
second anniversary of the Effective Date.
If SER decides to use SSI to provide the Services, then (i) SERVICE
PROVIDER will develop for SER a transition and separation plan ("Transition
Plan") that will provide for the full transition of the provision of Services
from SHELL to SSI by no later than the second anniversary of the Effective Date,
(ii) such transition will be fully implemented and completed by SERVICE PROVIDER
at its cost no later than the second anniversary of the Effective Date, and
(iii) SER will pay SSI all costs and expenses to implement such transition;
provided that the aggregate amount payable by SER under this Agreement and the
Non-US IT Interim Services Agreement to implement such transition shall not
exceed $7,000,000 (plus applicable taxes, if any).
If SER decides not to use SSI to provide the Services or fails to inform
SERVICE PROVIDER of SER's decision with respect thereto on or prior to the first
anniversary of the Effective Date, then (i) SER will develop and implement a
Transition Plan that will provide for the full transition of the provision of
Services from SHELL to a Third Party by no later than two years and nine months
after the Effective Date, (ii) SERVICE PROVIDER will assist SER in developing
and implementing the Transition Plan, and (iii) SER will pay SERVICE PROVIDER
for SERVICE PROVIDER's charges for such development and implementation
assistance, which shall be, to the extent applicable, at the same cost that SSI
provides similar services to SHELL.
The capping of implementation costs for the transition to SSI at $7,000,000
is based upon the assumptions set forth below, and to the extent any of these
assumptions do not remain accurate with respect to SER and the Business
throughout the implementation of the Transition Plan, SER will pay SERVICE
PROVIDER for any additional costs or expenses in excess of $7,000,000 incurred
by SERVICE PROVIDER as a result.
(i) Process control computing is not within the scope of Services;
(ii) Exiting existing SUMF Agreements is not included in Services;
(iii) Marketing personnel will move to existing Business facilities
or will use the remote access service described in Exhibit A, Schedule 4
---------------------
attached hereto;
(iv) Business staff will remain at existing locations and physical
facilities, and personnel moves will be minimal and are not within scope;
(v) Fail over and backup requirements shall remain the same as of
the Effective Date;
(vi) Configuration and management of voice systems will remain the
same as in effect as of the Effective Date;
(vii) IT services under the SUMF Agreements will continue to be in
place;
(viii) Network security will be managed by SERVICE PROVIDER or its
subcontractors;
(ix) Data and applications backup will be managed by SERVICE
PROVIDER or its subcontractors;
-7-
(x) Data and applications support will be managed by SERVICE
PROVIDER or its subcontractors; and
(xi) The following will remain constant during the Term: number of
users; number of sites; number and location (within the same network path)
of domain printers; number and location of servers; application portfolio,
as it was provided and utilized in the way intended; transaction volumes;
technologies, platforms, and software versions deployed; provided, however,
that SER shall be allowed a differential of five percent (5%) with regard
to changes in the number of users.
(f) As part of the implementation cost for the Transition Plan, SER shall
receive the following from the SERVICE PROVIDER:
(i) Complete NT domain segregation in the United States;
(ii) Migration of applications and applications servers to Resins
network;
(iii) Cloning and segregation of remaining shadowed/shared
applications (including Rumba and SAPIT [SAP Industrial Transportation
Module]), including application servers, database servers, and application
migration;
(iv) Migration of APSAP (Asian Pacific SAP) to accounting packages
such as ACCPAC or ▇▇▇▇▇▇▇ ▇▇ to replace SAP R/3; and
(v) Segregation of Print Services for the United States.
(g) SER shall be solely responsible, and shall indemnify SERVICE PROVIDER,
for any and all of SERVICE PROVIDER's increased costs incurred in connection
with Services, systems changes, or other maintenance provided to SER required as
a result of a change in any laws or regulations implemented by any Governmental
Entity after the Effective Date.
5. Payment. SER will pay SERVICE PROVIDER for each Service in accordance
-------
with the fees and payment terms set forth in Exhibit D, subject to Section 3.
--------- ---------
Any monthly charges will be prorated for any partial calendar month. SERVICE
PROVIDER will prepare invoices for SER on a monthly basis for amounts due under
this Agreement. SERVICE PROVIDER's invoices will present a detailed account of
all charges. All invoices will be accompanied by appropriate supporting
documentation. All invoices will be due and payable within thirty (30) days
after the invoice date. Interest will accrue on all amounts past due under this
Agreement at the lesser of (i) a rate of interest equal to average LIBOR for the
previous calendar month plus one and one-half percent (1.50%) (ii) or the
maximum rate of interest allowed by applicable law. In addition to the fees set
forth on Exhibit D, SER will pay all current and future local, state and federal
---------
sales, services and ad valorem taxes and duties imposed upon this Agreement and
SER's use of the Services, excluding, however, all taxes on or measured by
SERVICE PROVIDER's net income.
-8-
6. Term and Termination.
--------------------
(a) The term of this Agreement (the "Term") will commence as of the
Effective Date and expire on the fourth anniversary of the Effective Date.
(b) SER may terminate any particular Service prior to the expiration of
the Term upon written notice to SERVICE PROVIDER at least thirty (30) days prior
to the termination date set forth in such notice, provided that SER may not give
any such notice less than three months after the Closing Date. SER will pay
SERVICE PROVIDER a termination fee upon termination of this Agreement before the
second anniversary of the Closing Date equal to the termination fees required by
the applicable Dell computer leases as of the time of such termination, unless
SER assumes all applicable Dell computer leases at the time of the termination.
(c) Either Party may terminate this Agreement prior to the expiration of
the Term for a material breach by the other Party of this Agreement (excluding
any breach of any payment obligation disputed in good faith), upon giving thirty
(30) days written notice to the breaching Party, provided that such breach is
not cured during such thirty (30) day period.
(d) Intentionally omitted.
(e) Sections 3(d), 3(g), 6(f), 9, 13, 15, 17, 19, 20, 21, 22, 26, 27, 28,
29 and 30 will survive the expiration or termination of this Agreement for any
reason.
(f) Upon the expiration or termination of this Agreement for any reason,
SER will discontinue all use of the Services, and discontinue using, and
destroy, erase or return to SERVICE PROVIDER, all copies of any documentation
for the Services and any of SERVICE PROVIDER's software or other proprietary
information in SER's possession or control, and SERVICE PROVIDER will destroy,
erase or return to SER, at SER's option, all copies of SER's data files compiled
or gathered by SERVICE PROVIDER during the Term.
7. Independent Contractor Status. The Parties acknowledge and agree that
-----------------------------
SERVICE PROVIDER is an independent contractor in the performance of each and
every part of this Agreement and nothing in this Agreement will be construed to
be inconsistent with this status. Subject to the terms of this Agreement,
SERVICE PROVIDER will have full authority to select the means, methods and
manner of performing the Services. No agent or employee of SERVICE PROVIDER
will be or will be deemed to be the agent or employee of SER and nothing in this
Agreement will be construed to make SER an employer, directly or indirectly, of
SERVICE PROVIDER's employees under any Applicable Law. None of the benefits
provided by SER to its employees, including workers' compensation insurance and
unemployment insurance, will be available to the employees or agents of SERVICE
PROVIDER. Nothing in this Agreement or in the performance of this Agreement is
intended to create a partnership, joint venture or other joint business
arrangement between the Parties or any of their Affiliates, or any fiduciary
duty owed by one Party to the other Party or any of its Affiliates.
8. Standards of Performance. SERVICE PROVIDER makes no express or implied
------------------------
warranties with respect to the Services except as expressly provided in this
Agreement. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WILL APPLY TO THE SERVICES, AND SERVICE PROVIDER HEREBY DISCLAIMS
-9-
ALL SUCH WARRANTIES. SER will, in order to assure that SERVICE PROVIDER may
adequately perform the Services, have at its facilities users and personnel who
interface with SERVICE PROVIDER and utilize the systems and software provided by
SERVICE PROVIDER and who are sufficiently competent to operate such systems and
software, including without limitation SERVICE PROVIDER's version of SAP R/3.
9. Indemnification and Limitation of Liability.
-------------------------------------------
(a) SER hereby releases and agrees to defend, indemnify, and hold
harmless SERVICE PROVIDER, its Affiliates, and their respective officers,
directors, shareholders, employees, representatives, agents or trustees
(collectively, the "Indemnified Parties"), from and against any and all Damages
(after giving effect to any recoveries by SERVICE PROVIDER against Third
Parties) caused by, arising out of, or in any way incidental to or in connection
with the performance of the Services, whether arising before or after completion
thereof, and in any manner directly or indirectly caused, occasioned or
contributed to, in whole or in part, or claimed to be caused, occasioned or
contributed to, in whole or in part, by the following:
(i) The sole negligence or fault, whether active or passive, of SER, its
contractors, subcontractors and/or vendors (or any of their
respective owners, directors, officers, employees or agents), or of
any Third Party;
(ii) The sole negligence or fault, whether active or passive, of any of
the Indemnified Parties, their respective contractors, subcontractors
and/or vendors (or any of their respective owners, directors,
officers, employees or agents);
(iii) The concurrent negligence or fault, whether active or passive, of any
combination of the Indemnified Parties, SER, their respective
contractors, subcontractors and/or vendors, or any Third Party (or
any of their respective owners, directors, officers, employees or
agents); or
(iv) Where liability with or without fault is imposed, or sought to be
imposed, on the basis of any theory of strict liability by operation
of law or any violation or failure to comply with any Applicable Law
or any order or requirement of any Governmental Entity.
(b) SERVICE PROVIDER agrees to indemnify, defend and hold harmless SER,
BUYER and the Companies from and against any and all losses, liabilities, and
damages, including all costs and expenses related thereto, arising from or
relating to the failure of the Companies to possess any US IT License during the
period commencing on the Closing Date and ending on the date such US IT License
is obtained, including but not limited to, any damages arising from or relating
to the operation of the Business without such US IT License from and after the
Closing Date.
(c) Each Party hereby indemnifies the other Party, its Affiliates, and
their respective officers, directors, shareholders, employees, representatives,
agents or trustees, from and against any and all Damages (after giving effect to
any recoveries by the other Party against Third Parties) caused by, arising out
of, or in any way incidental to or in connection with the performance of the
Services, whether arising before or after completion thereof, and in any manner
directly or indirectly
-10-
caused, occasioned or contributed to, in whole or in part, or claimed to be
caused, occasioned or contributed to, in whole or in part, by the indemnitor's
gross negligence.
(d) NEITHER SERVICE PROVIDER, ANY OTHER INDEMNIFIED PARTY OR SER WILL
HAVE ANY LIABILITY UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER LEGAL OR EQUITABLE CLAIM OR REMEDY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS. THE AGGREGATE LIABILITY OF
SHELL, SSI AND THE INDEMNIFIED PARTIES TO SER AND ITS AFFILIATES FOR ALL CLAIMS
ARISING FROM OR IN CONNECTION WITH SERVICE PROVIDER'S PERFORMANCE OR
NONPERFORMANCE OF SERVICE PROVIDER'S OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING
ALL CLAIMS BASED ON THE NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY OF
SERVICE PROVIDER OR ITS AFFILIATES, WILL NOT EXCEED $4,800,000. THE AGGREGATE
LIABILITY OF SER TO THE INDEMNIFIED PARTIES FOR ALL CLAIMS ARISING FROM OR IN
CONNECTION WITH SER'S PERFORMANCE OR NONPERFORMANCE OF SER'S OBLIGATIONS UNDER
THIS AGREEMENT, INCLUDING ALL CLAIMS BASED ON THE NEGLIGENCE, GROSS NEGLIGENCE
OR STRICT LIABILITY OF SER OR ITS AFFILIATES, WILL NOT EXCEED $4,800,000,
EXCLUDING ANY CLAIMS FOR NONPAYMENT FOR SERVICES RENDERED BY SERVICE PROVIDER.
(e) IT IS THE INTENTION OF THE PARTIES THAT THE EXCULPATION, DEFENSE AND
INDEMNITY OBLIGATIONS OF SER UNDER THIS SECTION 9 ARE WITHOUT REGARD TO WHETHER
---------
THE NEGLIGENCE, FAULT OR STRICT LIABILITY OF AN INDEMNIFIED PARTY IS A
CONTRIBUTORY FACTOR, AND SUCH OBLIGATIONS ARE INTENDED TO PROTECT AND INDEMNIFY
THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LIABILITY ARISING FROM THE
PERFORMANCE OF THIS AGREEMENT, INCLUDING LIABILITY BASED ON OR RESULTING FROM
THE SOLE OR CONCURRENT NEGLIGENCE, FAULT OR STRICT LIABILITY OF THE INDEMNIFIED
PARTIES.
10. Access to Facilities. In connection with the performance of the
--------------------
Services, SER will permit SERVICE PROVIDER and its agents, employees and
contractors reasonable right of ingress and egress to facilities owned or
operated by SER, subject only to the usual and customary safety and security
restrictions developed, observed and enforced in the ordinary course by SER at
such facilities. In connection with SER's ability to receive the benefits from
and comply with this Agreement, including without limitation reasonable
necessity in connection with the implementation of the Transition Plan, SERVICE
PROVIDER will permit SER and its agents, employees and contractors reasonable
right of ingress and egress to facilities owned or operated by SERVICE PROVIDER.
11. INTENTIONALLY OMITTED.
---------------------
12. Compliance with Laws. Each Party and its employees, contractors and
--------------------
agents will comply with all Applicable Laws in performing its obligations under
this Agreement.
-11-
13. Dispute Resolution. In the event of any IT Controversy (as defined in
------------------
Section 20 of this Agreement) between the Parties arising out of this Agreement,
----------
the Parties will use good faith efforts, for a period of thirty (30) days
following notice by a Party to the other Party that an IT Controversy exists, to
resolve the IT Controversy through negotiation and compromise. If such an IT
Controversy cannot be resolved through negotiation and compromise during the
period specified above, either Party may require that the IT Controversy be
finally resolved under the provisions of Section 20 of this Agreement. Pending
----------
the completion of any arbitration proceedings, payments not in dispute will
continue to be made, and obligations not in dispute performed, and in rendering
any Award the Arbitrators will make appropriate adjustments for any such
payments as may be consistent with the Award.
14. Force Majeure. Each of SERVICE PROVIDER and SER will be excused from
-------------
the obligations set forth in this Agreement to the extent that performance is
delayed or prevented by any circumstance (except financial) reasonably beyond
its control or by fire, explosion, mechanical breakdown, strikes or other labor
trouble, equipment shutdown, failures or fluctuations in power, heat, light or
air conditioning or telecommunications equipment, compliance with any law,
regulation order, recommendation or request of any governmental authority or
Third Party nonperformance, including failures or fluctuations in power, heat,
light or air conditioning or telecommunications equipment. In addition, SERVICE
PROVIDER will be so excused in the event it is unable to acquire from its usual
sources and on terms it deems to be reasonable, any resources necessary for
providing the Services. If, because of any such circumstances, there should be
a shortage of the resources necessary for providing the Services from any of
SERVICE PROVIDER's usual and customary sources, SERVICE PROVIDER will not be
obligated to purchase additional resources in order to provide the Services, and
SERVICE PROVIDER may apportion its available resources among all its customers
and its own internal organization and Affiliates in such manner as SERVICE
PROVIDER finds fair and reasonable.
15. Non-solicitation. During the Term and for one (1) year thereafter,
----------------
neither Party will knowingly solicit or hire away from the other Party any
employee who was engaged in the performance of this Agreement, unless that
solicitation or hiring is agreed to in writing by the other Party. The
following will not be a violation of this Section: (i) either Party's general
solicitation of employees (through, for example, advertisements in newspapers,
magazines or trade journals); (ii) either Party's hiring of an employee of the
other Party who responds to such a general solicitation; or (iii) either Party's
hiring of an employee of the other Party who submits himself or herself for
consideration for employment without having been solicited for employment by the
other Party.
16. Subcontracting and Assignment. SERVICE PROVIDER may (i) assign its
-----------------------------
rights or obligations under this Agreement to any of its Affiliates and/or (ii)
subcontract any of its obligations under this Agreement (including, without
limitation, any support provided under the Services); provided, however, that
SER shall have the right to approve any subcontractors hired specifically for
Services to be provided directly to and primarily for the benefit of SER, which
approval shall not be unreasonably withheld by SER. With respect to any
obligations of SERVICE PROVIDER under this Agreement performed by
subcontractors, Affiliates or assignees, SERVICE PROVIDER will remain
responsible for those obligations to the same extent SERVICE PROVIDER would be
responsible hereunder. A list of material subcontractors used by SERVICE
PROVIDER as of the Closing Date is provided on Exhibit G attached hereto. SER
---------
shall be entitled to assign this
-12-
Agreement to any Affiliate or to a lender or lenders for security purposes so
long as such lender is a bona fide financial institution with a business which
includes lending money and with a net worth in excess of One Hundred Million
Dollars, without the prior written consent thereto of SERVICE PROVIDER (and such
lender or lenders shall have the right without such prior written consent to
further assign this Agreement in connection with the exercise of their rights
and remedies pursuant to such security agreements). Any assignment of the
Agreement by SER to a Third Party shall require the prior written consent of
SERVICE PROVIDER, such consent not to be unreasonably withheld or delayed.
17. Confidentiality.
---------------
(a) The Parties acknowledge that, pursuant to the provision by SERVICE
PROVIDER of the Services, each Party will possess or have access to information
that belongs to the other Party, has commercial value in that Party's business
and is not in the public domain, including information relating to its
customers, suppliers, finances, operations, facilities and markets
("Confidential Information"). Neither Party will disclose, use, sell, assign,
lease or otherwise dispose of the other Party's Confidential Information, except
as otherwise expressly permitted by this Agreement or the other Transaction
Documents. In particular, but not by way of limitation, SER will not, and will
ensure that SER's employees, contractors and other agents do not, use the
Services to access any of SERVICE PROVIDER's Confidential Information relating
to SERVICE PROVIDER's other businesses or operations or to any businesses or
operations which SERVICE PROVIDER may have sold to Third Parties but for which
SERVICE PROVIDER provides services similar to the Services, unless SER is
expressly authorized to access such Confidential Information pursuant to the
other Transaction Documents, and SERVICE PROVIDER will not, and will ensure that
SERVICE PROVIDER's employees, contractors and other agents do not, use the
Services to access any of SER's Confidential Information relating to SER's other
businesses or operations, unless SERVICE PROVIDER is expressly authorized to
access such Confidential Information pursuant to the other Transaction
Documents. (In connection with this provision, SERVICE PROVIDER has attached as
Exhibit H hereto a list of data cloned for the Business prior to the Closing
---------
Date.) Each Party will use commercially reasonable efforts to establish and
maintain safeguards against the destruction, loss or alteration of the other
Party's Confidential Information in its possession or control, similar to the
safeguards that Party uses for its own Confidential Information. Nothing in
this Section 17 will be construed as obligating either Party to disclose its
----------
Confidential Information to the other Party, or as granting to or conferring on
the other Party, expressly or by implication, any rights or license to its
Confidential Information, provided that SER acknowledges that, in order to
perform the Services, SERVICE PROVIDER will have custody of certain of SER's
Confidential Information, and SER hereby grants SERVICE PROVIDER the right to do
so in accordance with this Agreement. Each Party will be entitled to all
remedies available at law or in equity to enforce or seek relief in connection
with this Section 17. Each Party will cause its employees, contractors and
----------
other agents who have access to the Confidential Information of the other Party
in connection with this Agreement to comply with this Section 17. The
----------
provisions of this Section 17 will survive the termination or expiration of this
----------
Agreement for any reason.
(b) This Agreement is Confidential Information of each Party.
-13-
(c) Notwithstanding subsection (a) above, information is not Confidential
Information: (i) to the extent that the information is or becomes publicly
available through no fault of the Party which received the information from the
other Party; (ii) to the extent that the same information is rightfully in the
possession of a Party prior to receipt of that information from the other Party,
provided, however, that SER's information or data that is in SERVICE PROVIDER's
possession prior to the Closing Date or that is collected by SERVICE PROVIDER in
connection with the provision of the Services shall be confidential; (iii) to
the extent that the same information is independently developed (without the use
of the other Party's Confidential Information) by the Party which received that
information from the other Party; or (iv) to the extent that the same
information becomes available to a Party on a non-confidential basis from a
source other than the other Party, which source, to the knowledge of the
disclosing Party, is not prohibited from disclosing that information by a legal,
contractual or fiduciary obligation to the other Party.
(d) Notwithstanding subsection (a) above, a Party will not have violated
the terms of this Section 17 for disclosing Confidential Information:
----------
(i) to that Party's Affiliates (including that Party's Affiliates'
employees and agents), lenders, counsel or accountants which agree to
comply with the requirements of this Section 17;
----------
(ii) to Third Parties performing services required under this
Agreement where use of that Confidential Information by that Third Party
is: (A) authorized under this Agreement; or (B) that disclosure is
necessary or typically occurs in the natural course of the Third Party's
duties; provided in each case the Third Party has executed a written
confidentiality agreement under which the Third Party is obligated to
maintain the confidentiality of the Confidential Information in a manner
equivalent to this Agreement; or
(iii) in order to comply with any applicable law, order, regulation or
stock exchange rule, provided that as soon as is practicable and legally
permitted, the Party will notify the other Party of the disclosure or
possible disclosure under this subsection.
18. Date-Related Issues. SERVICE PROVIDER assumes no responsibility or
-------------------
obligation to cause any products, deliverables or Services provided by SERVICE
PROVIDER to accurately exchange date data with any other products, systems,
hardware, equipment, software, processes or other resources (including any
products, systems, hardware, equipment, software, processes or other resources
of SERVICE PROVIDER, SERVICE PROVIDER's affiliates, or third parties ("Other
Resources")) or to cause any Other Resources to accurately exchange date data
with products, deliverables or Services provided by SERVICE PROVIDER or SERVICE
PROVIDER's affiliates. Any work by SERVICE PROVIDER related to the items
described in this Section 18 would be required to be covered by a Change Order
----------
pursuant to the terms of this Agreement. SERVICE PROVIDER shall be relieved of
its obligations under this Agreement (including the provision of Services) to
the extent any Other Resources are unable to correctly process or properly
exchange accurate date data.
19. Procedure. The obligations and liabilities of the Parties with
---------
respect to all items indemnified against under this Agreement that are initiated
by a Third Party ( the "Third Party Claims"), shall be subject to the following
terms and conditions.
-14-
(a) Upon notice of a Third Party Claim asserted against, resulting to,
imposed upon or incurred by any Person to be indemnified pursuant to this
Agreement (the "Indemnified Party"), or upon the Indemnified Party becoming
aware of a matter for which it may be entitled to indemnification with respect
to a Third Party, from a Party pursuant to this Agreement, the Indemnified Party
shall promptly give written notice to the other Party (the "Indemnifying Party")
of the Third Party Claim or other indemnifiable matter; provided, however, that
-------- -------
no failure or delay on the part of the Indemnified Party in notifying any
Indemnifying Persons shall relieve the Indemnifying Party from any liability or
obligation hereunder unless (and then solely to the extent) the Indemnifying
Party thereby is prejudiced by the delay. Promptly upon receiving a written
notice of an indemnified Third Party Claim, the Indemnifying Party shall
undertake the defense thereof by counsel of its own choosing, which counsel
shall be reasonably satisfactory to the Indemnified Party; provided, however,
-------- -------
that if, in the Indemnified Party's and the Indemnifying Party's reasonable
judgment, a conflict of interest may exist between the Indemnified Party and the
Indemnifying Party with respect to such Third Party Claim, or if the
Indemnifying Party does not promptly defend after notification of such Third
Party Claim, such Indemnified Party shall undertake the defense and to
compromise or settle such Third Party Claim on behalf of and for the account and
at the risk of the Indemnifying Party to the extent that the Indemnifying Party
is determined to be obligated to indemnify the Indemnified Party under this
Agreement with respect to such Third Party Claim. The written notice of the
Third Party Claim by the Indemnified Party shall contain all material
information known to the Indemnified Party with respect to the Third Party Claim
and shall include copies of materials submitted to the Indemnified Party by the
relevant Third Party with respect to the Third Party Claim. So long as the
Indemnifying Party is conducting the defense of a Third Party Claim in
accordance with this Section 19, the Indemnified Party may retain separate co-
----------
counsel at its sole cost and expense and participate in the defense of the Third
Party Claim.
(b) If the Indemnifying Party elects to undertake and diligently pursue
the defense of a Third Party Claim hereunder, and acknowledges in writing its
duty to provide full indemnification to the Indemnified Party regarding such
Third Party Claim, the Indemnifying Party shall control all aspects of the
defense and settlement of such Third Party Claim and may settle, compromise or
enter into a judgment with respect to such Third Party Claim; provided, however,
-------- -------
that the Indemnifying Party shall not enter into any such settlement, compromise
or judgment without the prior written consent of the Indemnified Party (which
shall not be unreasonably withheld) if it would result in the imposition of any
non-monetary liability or obligation on the Indemnified Party. If the
Indemnified Party undertakes the defense of a Third Party Claim hereunder, it
shall not settle, compromise or enter into any judgment with respect to a Third
Party Claim for which it is seeking or shall seek indemnification hereunder
without the prior written consent of the Indemnifying Party, which shall not be
unreasonably withheld.
(c) The Indemnified Party shall provide the Indemnifying Party with access
to all reasonably requested records and documents of the Indemnified Party
relating to any Third Party Claim, other than documents for which the
Indemnified Party has claimed or shall validly claim a legal privilege.
(d) EXCEPT AS PROVIDED IN THIS AGREEMENT, THE OBLIGATIONS OF THE
INDEMNIFYING PARTY TO INDEMNIFY THE INDEMNIFIED PARTY
-15-
UNDER THIS AGREEMENT SHALL NOT BE TERMINATED, MODIFIED OR ABATED IF THE CAUSE OR
ALLEGED CAUSE (IN WHOLE OR IN PART) OF THE DAMAGES FOR WHICH A CLAIM IS MADE
HEREUNDER IS THE SOLE OR CONCURRENT, ACTIVE OR PASSIVE, IMPUTED, TECHNICAL OR
OTHER NEGLIGENCE, GROSS NEGLIGENCE, FAULT OR STRICT LIABILITY OF THE INDEMNIFIED
PARTY.
20. Arbitration.
-----------
(a) Except as expressly provided in this Agreement, any dispute,
controversy or claim arising out of or relating to this Agreement, whether based
on contract, tort, statute or other legal or equitable theory (including any
claim of fraud, misrepresentation or fraudulent inducement or any question of
validity or effect of this Agreement including this clause) or the breach or
termination thereof ("IT Controversy"), shall be settled by binding arbitration
in accordance with this Section 20.
----------
(i) Any such arbitration shall be conducted in accordance with the ICC
Rules in effect at the time of such proceeding, except as modified
herein.
(ii) The appointing authority shall be the International Chamber of
Commerce.
(iii) The number of arbitrators shall be one.
(iv) The costs of any such arbitration shall be borne as the arbitrator
shall direct and, in the absence of such direction, shall be borne
equally by the Parties hereto (provided, however, that for these
-------- -------
purposes, SHELL and its Affiliates shall collectively constitute one
"party", and SER and its Affiliates shall collectively constitute one
"party"); provided, however, that if court proceedings to stay
-------- -------
litigation or compel arbitration are necessary, the party who
unsuccessfully opposes such proceedings shall pay all reasonable
associated costs, expenses, attorney's fees in connection with such
court proceeding. With respect to any IT Controversy submitted to
arbitration pursuant to this Section 20, the arbitrator shall direct
----------
that the enforcement costs of the prevailing party or parties be
borne by the parties to the arbitration proceeding based on their
respective relative liabilities as determined by the arbitrator.
(v) The place of the arbitration shall be Vancouver, British Columbia.
(vi) The language to be used in the arbitral proceedings shall be English.
(vii) It is expressly agreed that notwithstanding any other provision in
this Section 20 to the contrary, the arbitrator shall have absolutely
----------
no authority to award (i) damages resulting from loss in value of
assets or shares, or (ii) special, indirect and consequential damages
or damages resulting from lost profits or exemplary, treble, remote,
speculative or punitive damages of either SER or SERVICE PROVIDER,
under any circumstances regardless of whether such damages may be
available under the law of the State of New York, the law of any
other State, or federal law, or under
-16-
the ICC Rules; provided, however, that the exclusions contained in
-------- -------
clauses (i) and (ii) above shall not apply to any such damages
resulting from a liability to a Third Party.
(viii) The arbitrator's decision shall be in writing and shall be as brief
as possible and will include the basis for the arbitrator's
decision. A record of the arbitration proceeding shall be kept.
(ix) If permitted by the arbitrator, taking into account the Parties'
desire that any arbitration proceeding hereunder be reasonably
expedited and efficient, and subject to the arbitrator and the
parties to the arbitration entering into a mutually acceptable
confidentiality agreement, the Parties shall have the right to
conduct discovery; provided, that the scope of any such discovery
shall be no greater than that allowed by the United States Federal
Rules of Civil Procedure.
(b) The Parties recognize that certain IT Controversies to be submitted
to arbitration under this Section 20 may raise issues that relate to, or are
----------
substantially the same as or connected with issues raised in certain disputes
that may arise under the Non-US IT Interim Services Agreement. The Parties
further recognize that consolidation of such disputes into a single arbitral
proceeding may be desirable to avoid conflicting determinations. Accordingly,
any party may request that any arbitrator appointed under this Agreement or the
Non-US IT Interim Services Agreement consolidate the IT Controversies arising
under this Agreement in a single arbitral proceeding in accordance with this
Section 20 with disputes arising under the Non-US IT Interim Services Agreement
----------
(each such consolidated proceeding, a "Multi-Party Proceeding"); provided, that
the arbitrator determines that (i) the disputes under this Agreement and the
Non-US IT Interim Services Agreement present significant common issues of law or
fact, (ii) no party to such consolidated arbitration would be unduly prejudiced
by such consolidation, and (iii) consolidation would not result in undue delay.
In the event disputes under this Agreement and the Non-US IT Interim
Services Agreement are consolidated into a Multi-Party Proceeding, SERVICE
PROVIDER and SER shall terminate any arbitration either such party may have
initiated under this Section 20, the subject of which has been consolidated into
----------
such Multi-Party Proceeding. Any order of consolidation issued by an arbitral
tribunal hereunder shall be final and binding upon the parties, and each party
waives any right it may have to appeal or to seek interpretation, revision, or
annulment of such order under the ICC Rules as at presently in force, other
applicable rules of arbitration, or in any court. The arbitrator may adopt such
rules of procedure as are necessary or appropriate to conduct a Multi-Party
Proceeding in the most expeditious and efficient manner. Unless otherwise
agreed by the parties, the governing law specified in this Agreement and in the
Non-US IT Interim Services Agreement, respectively, shall continue to apply to
any dispute arising hereunder or thereunder notwithstanding that such dispute
has been consolidated into a Multi-Party Proceeding.
(c) Subject to Section 6(e) of this Agreement, any IT Controversy shall be
------------
time-barred if the asserting party commences arbitration with respect to such
Claim later than four years after the cause of action accrues. All statutes of
limitations and defenses based upon passage of time
-17-
applicable to any IT Controversy of a defending party (including any
counterclaim or setoff) shall be tolled as to such IT Controversy while the
arbitration is pending.
(d) All of the parties agree that the award of the arbitrator shall be
final and binding upon the Parties, and judgment for execution and enforcement
of any award may be entered by any court having jurisdiction over the party
against whom enforcement is sought.
21. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
OF THE CONFLICT OF LAW RULES THEREOF.
22. Notices. All notices, requests, demands and other communications that
-------
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed given when delivered by hand or mailed by registered
mail, postage prepaid, return receipt requested, or transmitted by telecopy with
verification of receipt as follows:
If to SER:
Shell Epoxy Resins LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
and Chief Information Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to SHELL or SSI:
Shell Oil Company
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: 713/241-5362
or to such other address as any Party hereto shall have designated by
notice in writing to the other Parties hereto.
-18-
23. Execution in Counterparts. This Agreement may be executed in two or
-------------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
24. Waivers. The Parties to this Agreement may extend the time for the
-------
performance of any of the obligations or other acts of the other Parties hereto
and (b) waive compliance with any of the agreements contained herein. Any
agreement on the part of a Party to any such extension or waiver shall be valid
only if set forth in a written instrument signed on behalf of all of the
Parties.
25. Amendment. This Agreement may be modified, supplemented or amended
---------
only by a written instrument executed by all Parties hereto.
26. Entire Agreement. This Agreement (together with the exhibits and
----------------
schedules) constitutes the entire agreement of the Parties hereto with respect
to their subject matter, and supersede all prior agreements and understandings
of the Parties hereto, oral and written, with respect to their subject matter.
27. Headings. The headings contained in this Agreement are for the sole
--------
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
28. Successors/Assigns. Except as set forth in this Agreement, no Party
------------------
hereto may transfer or assign, directly or indirectly, by operation of law or
otherwise, any of its rights or obligations under this Agreement without the
prior written consent of the other Parties hereto, and any purported transfer or
assignment that does not comply with this Section 28 shall be null and void ab
----------
initio. Each Party to this Agreement agrees to cause its successors and
permitted assigns to agree in writing to be bound by the terms of this
Agreement, provided, that nothing contained herein shall relieve any Party from
--------
its obligations under this Agreement.
29. No Third-Party Beneficiaries. This Agreement shall not confer any
----------------------------
rights or remedies upon any Person other than the Parties hereto and their
respective successors and permitted assigns.
30. Interpretation. In construing this Agreement, no consideration shall
--------------
be given to the fact or presumption that any Party had a greater or lesser hand
in drafting this Agreement.
-19-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
written above.
SHELL OIL COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------
Title: Attorney-In-Fact
---------------------------
SHELL EPOXY RESINS LLC
By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------
Title: Attorney-In-Fact
---------------------------
SHELL SERVICES INTERNATIONAL INC.
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Executive Vice President
---------------------------
[Signature Page to Interim Agreement For Information Technology Services (Us
Business)]