SURFER SOFTWARE LICENSE AGREEMENT
This Agreement, is by and between Shell E&P Technology Company, a
Division of Shell Exploration & Production Company, acting as an agent for Shell
Oil Company ("SHELL"), a Delaware Corporation having its principal place of
business in Houston, Texas, and XOX Corporation ("LICENSEE"), a Delaware
Corporation having its principal place of business in St. Xxxx, Minnesota.
SHELL has developed the SURFER software package which reconstructs
surfaces in 3-dimensions from a given network of curves.
LICENSEE desires to receive certain rights to SURFER in order to prepare
a derivative software product which will be licensed to third parties.
Therefore, in consideration of the mutual covenants, terms, and
conditions contained herein, the parties hereto hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1 As used herein, the following terms shall have the following meanings:
(a) "Affiliates" as applied to SHELL shall mean:
(1) N. V. Koninklijke Nederlandsche Petroleum Maatschappij
B.V., a Netherlands company, The "Shell" Transport and Trading
Company p.l.c., an English company, and any company (other
than SHELL) which is for the time being directly or indirectly
affiliated with the two first-mentioned companies or either of
them. For the purposes of this definition particular company
is: (i) directly affiliated with another company or companies
if the latter hold/holds shares carrying fifty percent 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 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.
(2) any company which is managed or operated by SHELL or a
company as defined in (1) above, and/or has a construction,
operating or technical service agreement with SHELL or a
company as defined under (1) above.
(b) "SURFER" shall mean the SURFER software package as developed
by SHELL and related documentation as described in Exhibit A
hereto.
(c) "SURFER+" shall mean the software product comprised of SURFER
and software calls to LICENSEE's SHAPES computer software
package ("SHAPES") to implement topological correction
operations on SURFER output. SURFER+ shall not include SHAPES.
(d) "License Fee" shall mean the total amount payable to LICENSEE
by sublicensees of SURFER+ or any derivative work thereof in
exchange for the right to use such software.
(e) "Effective Date" shall mean the date on which this Agreement
becomes effective, which shall be the last date this Agreement
is signed by a party hereto.
ARTICLE II - SOFTWARE ESCROW
2.1 Within seven days of the Effective Date, SHELL shall archive a full
copy of SURFER in an internal escrow account. The parties agree that
such archived copy of SURFER shall be used to verify, for any purposes
hereunder, the status and content of SURFER on the Effective Date.
ARTICLE III - GRANTS
3.1 SHELL hereby grants to LICENSEE, subject to the terms and conditions of
this Agreement, a sole license to use SURFER to develop SURFER +, and
to license SURFER+ to third parties in executable code format only.
3.2 SHELL's grant hereunder does not provide any rights to the smoothing
algorithm which is employed in SHELL's internal use of SURFER and is
further described in Exhibit B hereof. LICENSEE shall remove the
smoothing algorithm code from SURFER and replace it with an algorithm
code of LICENSEE's origin, in its development of SURFER+.
3.3 SHELL reserves the right to modify and use SURFER in its own operations
and in the operations of joint ventures and partnerships of SHELL. This
right shall be extendable by SHELL to its' Affiliates for use in their
own operations and in the operations of joint ventures and partnerships
of Affiliates.
3.4 LICENSEE shall grant SHELL a royalty free right to use SURFER+ in its
own operations and in the operations of joint ventures and partnerships
SHELL. This grant shall include the right to copy, modify, and prepare
derivative works of SURFER+. These rights shall be extendable by SHELL
to its Affiliates for use in their own operations and in the operations
of joint ventures and partnerships of Affiliates.
3.5 Each party hereto shall retain all ownership interest in intellectual
property rights relating or attaching to their information, software,
and inventions. The parties agree that SURFER+ shall not be a joint
work of authorship.
3.6 SHELL shall provide SURFER to LICENSEE within thirty days of the
Effective Date.
3.7 SHELL agrees to provide the following cost-free services to LICENSEE.
regarding SURFER:
(a) Three consecutive days of assistance at LICENSEE's offices by
an individual designated by SHELL to be a SURFER expert.
(b) Limited support for a period of one year after the Effective
Date for SURFER problems encountered by LICENSEE. Such SHELL
support shall be limited to 80 person-hours and will be
provided by telephone or by LICENSEE's visit to SHELL's
offices.
ARTICLE IV - CONSIDERATION
4.1 In consideration for the license granted herein, LICENSEE agrees to pay
to SHELL a royalty for each license of SURFER+ equal to the greater of
[Confidential treatment requested pursuant to the Securities Act of
1933, rule 406(b)].
4.2 In the event that royalty payments by LICENSEE to SHELL hereunder do
not equal or exceed [Confidential treatment requested pursuant to the
Securities Act of 1933, rule 406(b)], SHELL shall have the right,
upon sixty days notice, to convert the license granted in Paragraph 3.1
from sole to nonexclusive.
4.3 LICENSEE shall, on or before the last day of January and July of each
calendar year, forward to SHELL a written statement showing the
licenses of SURFER+ in the immediately preceding semi-annual period and
the computation of the royalty payable hereunder. Payment of the amount
shown to be due to SHELL shall accompany each such statement LICENSEE.
Payments made after thirty days from the due date shall include an
interest charge on the amount due, calculated at the annual rate of
twelve percent (12%).
4.4 LICENSEE shall keep such detailed records and account books as may be
necessary to determine the license fees owing hereunder. SHELL shall
have the right to examine, at its own expense, these detailed records
and account books of LICENSEE during regular business hours. It is
understood that SHELL shall not have access to records not related to
licenses of SURFER+.
4.5 LICENSEE agrees to pay all applicable sales or use taxes, charges or
fees, other than taxes on the net income of SHELL, which now or
hereafter are required to be paid or collected by SHELL as a result of
this Agreement. If LICENSEE fails to timely pay taxes, LICENSEE agrees
to indemnify and hold SHELL harmless from any liability for taxes,
interest, penalties and other expense by reason of LICENSEE's failure.
ARTICLE V - TERMINATION
5.1 If LICENSEE shall be in default for more than thirty (30) days in its
obligations under any provision of this Agreement, then SHELL may give
written notice to LICENSEE calling its attention to such default. If
LICENSEE has not remedied such default within thirty (30) days after
receipt of such written notice, then SHELL shall have the right to
terminate all licenses under this Agreement.
5.3 Any termination under this Agreement shall not relieve LICENSEE of any
obligations incurred hereunder prior to such termination.
ARTICLE VI - WARRANTIES & INDEMNIFICATION
6.1 SHELL MAKES NO REPRESENTATION, EXTENDS NO WARRANTIES (EITHER EXPRESS OR
IMPLIED), AND ASSUMES NO RESPONSIBILITIES WHATSOEVER WITH RESPECT TO
THE PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE
OF SURFER. FURTHER SHELL DOES NOT REPRESENT OR WARRANT THAT DEVELOPMENT
OF SURFER + WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES OUTSIDE THIS AGREEMENT AND SHELL DOES NOT ASSUME ANY
RESPONSIBILITY FOR SUCH INFRINGEMENT. LICENSEE SHALL HAVE THE SOLE
RESPONSIBILITY FOR DETERMINING THE FITNESS OF SURFER FOR ITS INTENDED
USE AND HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD SHELL HARMLESS FROM
ANY DAMAGES, EXPENSES, FEES, COSTS, ETC., RELATED TO ANY DAMAGE, INJURY
OR INFRINGEMENT CAUSED, OR CLAIMED TO BE CAUSED, IN ANY WAY BY
LICENSEE'S USE OF SURFER.
ARTICLE VII - NOTICES
7.1 All written notices and royalty statements and payments are to be sent
by first-class, certified or registered mail, as follows:
If to SHELL: Shell E&P Technology Company
0000 Xxxxxxxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: Licensing Manager
If to LICENSEE: XOX Corporation
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xx. Xxxx, XX 00000
Attention: Xx. Xxxxxxxx X. XxXxxx
or to such address as may be specified in writing in the manner
prescribed by this Paragraph 7.1.
ARTICLE VIII - CHOICE OF LAW
8.1 The validity, construction, performance and termination of this
agreement shall be governed by the laws of the State of Texas.
ARTICLE IX - MISCELLANEOUS
9.1 This Agreement togather with the Confidential Disclosure Agreement
dated October 17, 1995, embodies the entire understanding between the
parties relating to the subject matter hereof. There are no prior
collateral representations, warranties, or agreements relating thereto.
This Agreement is executed and delivered upon the basis of this
understanding.
9.2 The invalidity or unenforceability of any provision of this Agreement
shall not in any way affect any other provision hereof, and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
9.3 Any modifications or amendments to this Agreement are required to be in
writing and signed by both parties.
9.4 This Agreement is not intended to be, nor shall be construed as, a
joint venture, partnership or other formal business organization.
Furthermore, the parties agree that this Agreement does not constitute
a partnership for tax purposes. In the event that it is so construed,
however, the parties agree to be excluded from the provisions of
Subchapter K of the United States Internal Revenue Code of 1986, as
amended.
9.5 LICENSEE shall obtain SHELL's approval before making any reference to
SHELL in any marketing material regarding the licensing of SURFER +
hereunder. Such approval shall not be unreasonably withheld.
IN WITNESS WHEREOF; the parties hereto have caused this Agreement to
be executed on the dates hereinafter shown.
SHELL E&P TECHNOLOGY COMPANY, X0X CORPORATION
A DIVISION OF SHELL EXPLORATION
& PRODUCTION COMPANY, ACTING
AS AN AGENT FOR SHELL OIL
COMPANY
By: /s/ X.X.Xxxxxxx By: /s/ Xxxxxxxx X. XxXxxx
--------------------- --------------------------
Name: X.X. Xxxxxxx Name: Xxxxxxxx X. XxXxxx
--------------------- --------------------------
Title: Licensing Manager Title: President/CEO
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Date: October 1, 1996 Date: 10/3/1996
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EXHIBIT A
DESCRIPTION OF SURFER
SURFER is a computer software package developed by SHELL which reconstructs
surfaces in 3-dimensions from a given network of curves. SURFER automatically
analyzes the network and decomposes the surface into patches bounded by simple
closed curves. SURFER requires that each curve have an intersection with another
in the network, but has no further restriction on the orientation or geometry of
the curves. SURFER includes all source and executable code as archived pursuant
to Paragraph 2.1 hereof. Documentation consists of written materials describing
the SURFER application and its use.
EXHIBIT B
DESCRIPTION OF THE SMOOTHING ALGORITHM
The smoothing algorithm is a computer software routine which provides a general
method for interpolating quantities at the nodes of discrete meshes. SURFER as
used internally by SHELL uses the smoothing algorithm to interpolate spatial
coordinates from nodes at given locations to nodes without pre-assigned
locations.
