AGREEMENT
BETWEEN
SHELL INTERNATIONAL EXPLORATION AND PRODUCTION B.V.
AND
XOX CORPORATION
PROVISION OF CONSULTANCY SERVICES
FOR THE DEVELOPMENT OF SHELL SPECIFIED MODULES
(CONTRACT NO. EP/MC/96680)
Contract no. EP/MC/96680
AGREEMENT
concerning the Provision of Consultancy Services
for the development of Shell Specified Modules
BETWEEN
XOX CORPORATION
(hereinafter referred to as the CONSULTANT)
AND
SHELL INTERNATIONAL EXPIRATION AND PRODUCTION B.V.
(hereinafter referred to as SIEP)
1. DEFINITIONS
1.1 "AFFILIATE OF SIEP" means:
(a) N.V. Koninklijke Nederlancsche Petroleum Maatschappij (a Netherlands
company), The "Shell" Transport and Trading Company, p.l.c. (an English
company) and any company other than SIEP which is for the time being
directly or indirectly affiliated with the two first-mentioned
companies or either of them.
For the purpose of this definition a particular company is:
(i) directly affiliated with another company or companies if the
latter hold/holds shares carrying fifty per cent (50%) or more
of votes exercisable at a general meeting (or its equivalent)
of the particular company, and
(ii) indirectly affiliated with a company or companies (`the parent
company or companies') if a series of companies can be
specified, beginning with the parent company or companies and
ending with the particular company, so related that each
company or companies, except the parent company or companies
is directly affiliated with one or more companies earlier in
the series.
(b) any company which is managed or operated by a company as defined in (a)
above and/or has a construction, operating or technical service
agreement with SIEP and/or a company as defined under (a) above.
1.2 "AGREEMENT" shall mean this Agreement for the Provision of Consultancy
Services numbered EP/MC/96680 and comprising,:
This six page AGREEMENT duly signed by both parties, and
APPENDIX A: PRO FORMA NON-DISCLOSURE UNDERTAKING, and
APPENDIX B: CONTRACT SPECIFIC ITEMS, comprising:
B.1: SCOPE OF SERVICES.
B.2: START DATE, END DATE, SCHEDULE AND MILESTONES.
B.3: SCHEDULE OF PAYMENTS
1.3 "FIRST AGREEMENT" shall mean the agreement reference EP/CSA/96196
between SIEP and CONSULTANT. In the event that any clarification is
required for this AGREEMENT, reference shall be made to the FIRST
AGREEMENT,
1.4 "SERVICES" shall mean all consultancy and associated services to be
rendered and work to be performed to complete the Scope described in
Appendix B.1 and fulfil all other obligations under this AGREEMENT.
2. SCOPE OF SERVICES
The CONSULTANT agrees to render SERVICES to SIEP according to the Contract and
as further detailed in of Appendix B.1: Scope of SERVICES.
3. TIME SCHEDULE
The CONSULTANT shall render the SERVICES during the period specified in Appendix
B.2: Start Date, End Date, Schedule and Milestones.
4. PERFORMANCE OF THE WORK
The SERVICES will be rendered at CONSULTANTS's premises.
The CONSULTANT undertakes to render the SERVICES with due diligence and care,
applying all relevant knowledge and expertise he has or has access to and taking
due notice of SIEP's requirements.
SIEP shall have the right, but not the obligation, at any time to examine the
SERVICES during its performance.
The CONSULTANT shall not be entitled to subcontract the performance of the whole
or any part of the SERVICES without the prior written consent of SIEP. The
CONSULTANT shall be responsible for the acts and omissions of any
subcontractors, their personnel and agents as fully as if they were acts or
omissions of the CONSULTANT.
The CONSULTANT shall observe all safety regulations and measures, as well as
rules of conduct and any other instructions, which are prescribed by SIEP for
the duration of the AGREEMENT period.
5. REPORTING
Upon completion of the SERVICES, the CONSULTANT shall submit a written report to
SIEP in the format specified in Appendix B.1: Scope of SERVICES, or in a form
acceptable to SIEP.
6. ACCEPTANCE
Within ten (10) working days from receipt of the deliverable and the
CONSULTANT's report referred to in Article 5 above, SIEP shall notify the
CONSULTANT in writing whether or not it accepts the deliverable as presented.
SIEP will only reject the CONSULTANT's deliverable on the ground that the
CONSULTANT has not, or not properly, rendered the SERVICES, or any part thereof,
referred to in Article 2 above, and by the acceptance criteria detailed n
Appendix B.1: Scope of SERVICES, in which event SIEP will indicate the
shortcomings. If SIEP so rejects the deliverable, the CONSULTANT shall correct,
re-perform or make up for the deficient SERVICES as soon as possible and submit
a new report to SIEP which will be subject to the same procedure. If SIEP does
not issue the CONSULTANT with a notification within the ten (10) days period
mentioned above, the deliverable will be deemed to have been accepted by SIEP.
7. REMUNERATION AND PAYMENT
In full and final consideration of the rendering of the SERVICES and the grant
of rights by the CONSULTANT to SIEP under this AGREEMENT SIEP shall pay the
CONSULTANT in accordance with Appendix B.3: Schedule of Payments.
The above sum/rate is inclusive of all taxes and all expenses except only
BTW(VAT) incurred by the CONSULTANT in connection with the rendering of the
SERVICES. The CONSULTANT will be responsible for all taxes, levies,
contributions, social security and other charges and duties imposed by any state
or central or local governments or agencies thereof in connection with the
SERVICES.
In the event SIEP disputes and amount invoiced, SIEP shall notify the CONSULTANT
thereof within 20 days, specifying the reason thereof. SIEP shall pay the
undisputed amount without delay. Upon settlement of the dispute SIEP shall
promptly pay the CONSULTANT the amount agreed.
The amount(s) referred to above shall be invoiced by the CONSULTANT and the
CONSULTANT's invoices adequately documented and stating the Contract Number
shall be settled by SIEP in US Dollars paid into an account nominated and
described by the CONSULTANT within forty-five (45) days from their receipt and
acceptance by SIEP.
Each invoice shall be forwarded to: Shell International Exploration and
Production B.V., Dept: EPT-CS, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, and
not to any other individual or address within SIEP.
8. WARRANTY
8.1 The CONSULTANT warrants that the SERVICES will be in accordance with
the requirements of the AGREEMENT.
8.2 The CONSULTANT shall promptly upon SIEP's request to that effect and at
the CONSULTANT's own expense re-perform any item of the SERVICES to the
satisfaction of SIEP in the event it becomes apparent that the
condition warranted by the CONSULTANT in Article 8.1 has not been met.
8.3 The CONSULTANT undertakes that after the Warranty Period of 3 months,
the software deliverables from the SERVICES will be undertaken in
accordance with the FIRST AGREEMENT. A maintenance agreement covering
modules developed by CONSULTANT on top of XOX Shapes and used in
products released within SIEP is not included. In support of the
imminent internal release of SIEP software (ReconModel v1.1),
CONSULTANT agrees to maintain supplied software for US$25,000.
CONSULTANT and SIEP shall negotiate a full maintenance agreement by the
end of March 1998. The aforementioned maintenance fee of US$25,000 can
be applied towards whichever maintenance agreement is negotiated.
9. LIABILITY
The CONSULTANT's liability for direct loss or damage (including personal injury
or death) suffered by SIEP or AFFILIATES OF SIEP, or the personnel of SIEP or of
the AFFILIATES OF SIEP, and caused by the CONSULTANT in connection with the
rendering of SERVICES hereunder will be limited to an amount equal to the
aggregate amount in accordance with the time spent on the basis of what has been
stated in Article 7 above. This limit shall not apply if the loss or damage was
caused by the gross negligence or wilful misconduct of CONSULTANT or
CONSULTANT's personnel.
In no event will the CONSULTANT be liable to SIEP or the AFFILIATES OF SIEP for
any loss of profit, loss of use, loss of business, loss of income or any
indirect or consequential loss or damage suffered by SIEP or the AFFILIATES OF
SIEP in connection with the CONSULTANT's rendering of SERVICES hereunder.
SIEP or the AFFILIATES OF SIEP shall not be liable for any loss or damage
(including personal injury or death) suffered by the CONSULTANT or any third
party (other than the AFFILIATES OF SIEP or the personnel of SIEP or of the
AFFILIATES OF SIEP) in connection with the rendering of SERVICES hereunder save
when and insofar as it is proven that such loss or damage was caused by the
gross negligence or wilful misconduct of SIEP or the AFFILIATES OF SIEP or the
personnel of SIEP or of the AFFILIATES OF SIEP acting within the normal course
of its function.
The CONSULTANT undertakes to hold harmless and indemnify SIEP or the AFFILIATES
OF SIEP from and against any claim, demand, action or proceedings brought or
instituted against SIEP or the AFFILIATES OF SIEP by any third party (other ti
an the personnel of SIEP or of the AFFILIATES OF SIEP) and based on loss or
damage (including personal injury or death) caused or allegedly caused by the
CONSULTANT in connection with the rendering of SERVICES hereunder. If and to the
extent necessary to give effect to this AGREEMENT SIEP indemnities any third
party (including the AFFILIATES OF SIEP) in respect of any liability that is by
the terms of this AGREEMENT of first responsibility of the CONSULTANT and which
is incurred by them the amount of such indemnity shall constitute a debt payable
by the CONSULTANT to SIEP from the date of payment by SIEP.
10. OWNERSHIP
The title to, the ownership of, the copyright in, and all other intellectual and
industrial property rights in all drawings, specifications, reports, computer
programs and all other documents and materials prepared by the CONSULTANT under
this AGREEMENT shall vest exclusively in the CONSULTANT, except for E&P usage
specifications, ownership of which shall vest exclusively in SIEP. The
CONSULTANT agrees that the software developed specifically under this contract
as well as the IJKSnapper module developed outside this contract shall be
automatically licensed to SIEP on the same perpetual terms as apply to the FIRST
AGREEMENT.
The CONSULTANT undertakes to indemnify SIEP and the AFFILIATES OF SIEP against
any claim, demand, action or proceedings, brought or instituted against SIEP or
any AFFILIATE OF SIEP arising out of or relating to any (alleged) infringement
of any copyright, patent or any other industrial or intellectual property right
of any third party resulting from or connected with the carrying out of the
SERVICES by the CONSULTANT, and in accordance with the FIRST AGREEMENT.
11. CONFIDENTIALITY
In respect of all knowledge and information disclosed to the CONSULTANT by or on
behalf of SIEP or acquired in any other way by the CONSULTANT from SIEP
hereunder (hereinafter collectively referred to as "Information"), the
CONSULTANT undertakes that he will at all times:
a) preserve the secrecy of any Information and not disclose any
information or conclusion derived from the analysis and study of said
Information to any third party;
b) not use any Information for any purpose other than the rendering of
SERVICES hereunder;
c) not copy any Information in material form except with the prior written
consent of SIEP; and
d) forthwith return all Information in material, readable or visible form
to SIEP upon SIEP's request and in any event upon the completion of the
SERVICES.
The confidentiality undertakings set forth in this Article 11 shall not
extend or shall cease to extend, as the case may be, to Information
which:
i) can be shown to have been in possession of the CONSULTANT
without binder of secrecy or to have formed part of public
knowledge or literature at the time of the CONSULTANT's
receipt thereof from SIEP;
ii) has been received by the CONSULTANT without binder of secrecy
from a third party who was free to disclose the Information
and who did not disclose the Information on behalf of SIEP; or
iii) has become part of public knowledge or literature since the
CONSULTANT's receipt thereof from SIEP without breach of
confidence by the CONSULTANT.
All personnel of the CONSULTANT shall execute a separate Non-Disclosure
Undertaking prior to performing SERVICES or receiving any information
proprietary to SIEP identical to the pro forma Non-Disclosure Undertaking
attached hereto as Appendix A. Except with the prior written consent of SIEP,
the CONSULTANT shall not refer in any of its publicity to the SERVICES rendered
hereunder or the relationship between the CONSULTANT and SIEP or allow others to
do so.
The CONSULTANT shall not copy any SIEP or third party software programs in use
in SIEP except with the prior written consent of SIEP. The requirements of this
Article 11 will survive termination of the AGREEMENT.
SIEP will be free to make copies of the software shipped under this contract for
its internal research purposes. In addition, SIEP will be free to make copies of
the software that has been developed specifically under this contact, as well as
the IJKSnapper module developed outside this contract, for SIEP's internal
business purposes, and in accordance with the FIRST AGREEMENT.
12. TERMINATION
SIEP may at any time, at its sole discretion, require the CONSULTANT to
terminate the rendering of SERVICES hereunder by giving the CONSULTANT thirty
(30) days written notice to that effect. Upon such termination the parties shall
consult to determine in good faith which part of the SERVICES had been rendered
in accordance with this AGREEMENT prior to such termination and to agree the
corresponding part of the fee referred to in Article 7 above which is due by
SIEP in respect thereof.
13. INDEPENDENT CONTRACTOR
The CONSULTANT renders the SERVICES under the AGREEMENT as an independent party
and is not authorized to act as the agent or representative of SIEP or to
represent that he is entitled so to act.
14. FORCE MAJEURE
Neither party shall be liable for any failure to fulfil any provision of the
AGREEMENT if and to the extent fulfilment has been interfered with, hindered,
delayed or prevented by any circumstances beyond the control of the party
concerned and which are not for his risk.
15. ASSIGNMENT AND SUBCONTRACTING
The CONSULTANT shall neither assign any of its rights or obligations under this
contract nor subcontract the rendering of any of the SERVICES to any third party
except with the prior written consent of SIEP. SIEP may make such consent
subject to the CONSULTANT's acceptance of terms and conditions additional to
those set forth in this AGREEMENT.
16. APPLICABLE LAW AND DISPUTES
Any dispute in contract or at law arising in connection with the AGREEMENT and
the SERVICES performed thereunder shall be finally and exclusively settled by
arbitration in Rotterdam. The Netherlands, under the rules of The Netherlands
Arbitration Institute (`Nederlands Arbitrage Instituut') by a single arbitrator
appointed in accordance with the said rules. The arbitral proceedings shall be
conducted in the English language.
17. COMMUNICATIONS
All notices and other communications to be sent by either party to the other
party hereunder shall be sent to that party at its address as stated herebelow
and either party may at any time designate different addresses to which notices,
other communications and/or copies thereof are thenceforth to be sent.
SIEP CONSULTANT
---- ----------
Shell International Exploration and Production B.V. XOX Corporation
▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2280 AB Rijswijk USA
The Netherlands
F. a. o. EPT/SG
Signed in duplicate originals, each being an original:
FOR SHELL INTERNATIONAL EXPLORATION AND FOR XOX CORPORATION
PRODUCTION B.V.
------------------------------------------ ---------------------
Authorized Signature: Authorized Signature:
------------------------------------------ ---------------------
Name (print) Name (print)
------------------------------------------ ---------------------
Title: Title:
------------------------------------------ ---------------------
Place and Date: Place and Date:
Appendix A
PRO FORMA NON-DISCLOSURE UNDERTAKING
The undersigned, .......................................... (hereinafter
referred to as the "DECLARANT") an employee of
............................................................ a company
incorporated under .......................... law, having its registered offices
at .............................................................,(hereinafter
referred to as the "CONSULTANT") hereby declares vis-a-vis SHELL INTERNATIONAL
EXPLORATION AND PRODUCTION B.V., a company incorporated under Netherlands law,
having its registered office at 30, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ The Hague,
the Netherlands (hereinafter referred to as "SIEP") that the DECLARANT
undertakes to preserve the secrecy of certain information ("CONFIDENTIAL
INFORMATION" as defined below), acquired by the DECLARANT as a result of the
CONSULTANT's rendering of services to SIEP pursuant to the Agreement for the
............................................................. Project, contract
no.: ....................................., between the CONSULTANT and SIEP,
effective date ........................................ in accordance with the
provisions set forth below.
1. For the purpose of this secrecy declaration "CONFIDENTIAL INFORMATION'
means any knowledge, data and information at any time disclosed as and/or
labeled as "CONFIDENTIAL INFORMATION" to the DECLARANT by or on behalf of
SIEP or any AFFILIATE OF SIEP (as defined below) in writing, in drawings,
in computer programs or in any other way, or at any time acquired by the
DECLARANT directly or indirectly from SIEP or any AFFILIATE OF SIEP, as
well as all knowledge, data and information derived therefrom, to the
extent that such knowledge, data and information at the time of such
disclosure or acquisition is not:
(a) in the lawful and unrestricted possession of the DECLARANT, or
(a) part of public knowledge or literature.
2. The DECLARANT undertakes that at all times he/she shall:
(a) preserve the secrecy of any CONFIDENTIAL INFORMATION;
(a) not disclose to any third party any CONFIDENTIAL INFORMATION except,
in each case, with SIEP's prior ,written consent in which event the
DECLARANT shall require from such third party that they shall abide
by stipulations on non-disclosure equivalent to those contained in
this secrecy declaration;
(a) not use any CONFIDENTIAL INFORMATION for any purpose other than the
rendering of the services referred to above.
3. The undertakings under paragraph 2 above shall continue in so far and for
so long as the CONFIDENTIAL INFORMATION in question has not:
(a) become part of public knowledge of literature without breach of
confidence on the part of the DECLARANT;
(a) been disclosed to the DECLARANT (without any obligation to maintain
its secrecy) by a third party (other than a AFFILIATE of SIEP or a
party disclosing on behalf of SIEP or an AFFILIATE of SIEP) who
could lawfully do so and who did not derive such CONFIDENTIAL
INFORMATION from SIEP or any AFFILIATE of SIEP.
4. The title to, ownership of and copyright in any document or other material
containing CONFIDENTIAL INFORMATION obtained by the DECLARANT from SIEP in
connection with the services referred to above shall remain vested in SIEP
and the DECLARANT undertakes to return all such documents and other
materials to SIEP upon completion of the said services without retaining
any copies thereof.
5. "AFFILIATE OF SIEP" as used in this secrecy declaration shall mean:
(a) N.V. Koninklijke Nederlandsche Petroleum Maatschappij (a Netherlands
company), The "Shell" Transport and Trading Company, p.l.c. (an
English company) and any company other than SIEP which is for the
time being directly or indirectly affiliated with the two
first-mentioned companies or either of them.
For the purpose of this definition a particular company is:
(i) directly affiliated with another company or companies if the
latter hold/holds shares carrying fifty per cent (50%) or more
of votes exercisable at a general meeting (or its equivalent)
of the particular company, and
(ii) indirectly affiliated with a company or companies (`the parent
company or companies') if a series of companies can be
specified, beginning with the parent company or companies and
ending with the particular company, so related that each
company or companies, except the parent company or companies,
is directly affiliated with one or more companies earlier in
the series.
(b) any company which is managed or operated by a company as defined in
(a) above and/or has a construction, operating or technical service
agreement with SIEP and/or a company as defined under (a) above.
6. This secrecy declaration shall be exclusively governed by and interpreted
in accordance with Netherlands law.
Signed by the DECLARANT in duplicate as follows:
this .................... day of ......................................., 199
(signature):
(name in block capitals):
Appendix B
CONTRACT SPECIFIC ITEMS
B.1 SCOPE OF SERVICES
CONSULTANT will deliver five software modules and associated documentation. The
software modules are:
A. Viewer Module
B. 3D/4D Microtopology and Slicing Module
C. 3D Gridder Module
D. Web Surface Smoother Module
E. POSC Spatial Object Module
It is understood that these modules are of prototype quality for research
purposes and their initial specification as detailed below is expected to
undergo revisions before production grade versions are realized. The first such
revision may follow delivery of the first prototypes (see schedule in B.2). A
revision will be specified as 1) an addendum to this contract or 2) under a new
contract, depending on whether the remaining time and amounts due 1) allow
CONSULTANT to honour the new SIEP requirements or 2) not.
Acceptance of the software modules will be based on demonstration of
functionality on suitable sample data sets defined by either CONSULTANT or SIEP
(as described below) and approved by SIEP.
The software modules (executables and libraries) will be delivered for the
following machines:
* SGI/UNIX : IRIX 6.2 32 bits (old 32 bits ABI)
* IBM RS/6000: AIX4.1
* PC Windows/NT4 (for dmonstration of the Viewer executable only; no libraries)
The modules are described in the following sections.
B.1.A VIEWER MODULE
This module allows a user to view the geometry, topology, and properties of
geological bodies that are represented in different ways. This version of the
viewer will demonstrate this by supporting two different data types: the Shapes
Geom Object and the mathematical field. For both data types, the viewer should:
[*]
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission.
The operations on the Shapes Geom that will be supported are:
[*]
B.1.B 3D/4D MICROTOPOLOGY AND SLICING MODULE
3D and 4D web geometries representing geological models in space and space-time
respectively are intersected with planes that result in 2D and 3D web
geometries.
In the case of 3D models:.
[*]
In the case of 4D models:
[*]
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission.
B.I.C 3D GRIDDER MODULE
The 3D gridder project is aimed at gathering information and capturing it in a
specification document what constitutes a desirable mesh for Basin Modeling and
Reservoir Simulation. Amongst other issues, decisions will be made on:
[*]
Note: [*]
B.1.D WEB SURFACE SMOOTHER MODULE
The web-smoother module will be used in smoothing web surfaces created by SIEP
applications and smoothing along the edges of such surfaces.
Basic functionality provided in the smoother will include smoothing out an area
of a webmap based on the following kinds of constraints placed at vertices:
[*]
B.1.E POSC SPATIAL OBJECT MODULE
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission.
[*]
The [*] effort involves:
1. [*]
2. [*]
2.1. [*]
2.2. [*]
2.3. [*]
B.2 START DATE, END DATE, SCHEDULE, MILESTONES
Work on all modules is [*]. Following milestones will be realized in the course
of this project:
Initial Prototype release: Modules released individually between [*], at least
[*] of which will be released [*] to allow sufficient SIEP evaluation time. This
release of modules will show work in progress.
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission.
Release: All modules by [*]. This release will demonstrate functionality on
acceptance data-sets evolved between SIEP and CONSULTANT.
B.3 SCHEDULE OF PAYMENTS
Payment for individual modules will be based on the following schedule, assuming
a conversion rate of [*].
----------------------------- -------------------------------- ---------------------------------
Module Name On Delivery of [*] On [*] Delivery and [*]
----------------------------- -------------------------------- ---------------------------------
Module A: Viewer [*] [*]
----------------------------- -------------------------------- ---------------------------------
Module B: 3D/4D Slicing [*] [*]
----------------------------- -------------------------------- ---------------------------------
Module C: 3D Gridder [*] [*]
----------------------------- -------------------------------- ---------------------------------
Module D: Web Smoother [*] [*]
----------------------------- -------------------------------- ---------------------------------
Module E: C++ & IDL API [*] [*]
----------------------------- -------------------------------- ---------------------------------
Totals [*] [*]
----------------------------- -------------------------------- ---------------------------------
B.4 SPECIFIC CONDITION
B4.1 For the purposes of Article 4, paragraph 4, [*]
* Confidential portion has been omitted and filed separately with the Securities
and Exchange Commission.