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Exhibit 10.4
APPLICATION SERVICE PROVIDER AND OUTSOURCING AGREEMENT
This Application Service Provider and Outsourcing Agreement
(the "Agreement") is made and entered into as of June 1, 2000 (the "Effective
Date") by and between Applied Terravision Systems Inc., a Texas corporation
("ATS") and Range Resources Corporation, a Delaware corporation ("Range").
RECITALS
WHEREAS, ATS and Range executed that certain Letter of Intent (the
"Letter of Intent") dated April 27, 2000 whereby both parties agreed to
negotiate in good faith a mutually acceptable Application Service Provider and
Outsourcing Agreement;
WHEREAS, the Letter of Intent and the related Professional Services
Agreement (the "Services Agreement") between ATS and Range dated May 10, 2000,
provide for an interim period (the "Interim Period") until the execution of this
Agreement whereby all information necessary for ATS to provide the services
described herein was to be collected and organized into a form usable by ATS and
subsequently verified by Range;
WHEREAS, all prior and continuing obligations required by the Letter of
Intent and the Services Agreement during the Interim Period have been met or are
continuing to be met and both parties are able to perform their obligations
hereunder and enter into this Agreement;
NOW, THEREFORE, in consideration for the mutual promises contained
herein, ATS and Range agree as follows:
ARTICLE 1. DEFINITIONS.
As used herein, the following terms shall have the meanings set forth
below:
1.1 Affiliate. The term "Affiliate" means a corporation, subsidiary
or other entity of which Range Resources owns 50%
or more of the outstanding ownership interests of
such entity, but specifically excluding Great Lakes
Energy Partners, L.L.C.
1.2 ASP Services. The term "ASP Services" includes services provided
by ATS as an Application Service Provider as listed
on Exhibit B.
1.3 ATS Software. The term "ATS Software" includes the Existing ATS
Software, the Developed ATS Software and any other
software that is proprietary to ATS and provided to
Range under this Agreement more particularly
described in Exhibit B.III.A., including any upgraded
or replacement software used to provide the ASP
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Services.
1.4 Closing Schedule. The term "Closing Schedule" means the monthly
closing schedule delivered by Range to ATS listing
the due dates for all Reports due for each month.
ATS and Range must mutually and reasonably agree
on the Closing Schedule for each month.
1.5 Confidential Information. The term "Confidential Information" means, without
limitation, reports, fee structures, procedures, records,
and other information pertaining to Range or ATS, as
applicable, all Hardware and Software licensed or
otherwise provided by one party to the other, as
applicable, with notice of its confidential nature or
restrictions as to its use, the existence of this
Agreement or any of the terms, conditions or other
facts relating to this Agreement.
1.6 Default. The term "Default" includes any material breach of
this Agreement by either party or if the other party
terminates or suspends its business, becomes subject
to any bankruptcy or insolvency proceeding under
Federal or state statute, becomes insolvent or subject
to direct control by a trustee, receiver, or similar
authority, or has wound up or liquidated, voluntarily
or otherwise.
1.7 Hardware. The term "Hardware" means any and all computers,
disk drives, tape drives, terminals, printers and other
computer hardware and related equipment owned by
ATS for use on the Range project.
1.8 Outsourcing Services. The term "Outsourcing Services" includes those data
processing services provided by ATS as listed on
Exhibit B.
1.9 Processing Cycle. The term "Processing Cycle" means the time period
from the first working day of the month to the date
that final report for that month is delivered.
1.10 Properties. The term "Properties" includes those xxxxx and
properties listed on Schedule A furnished to ATS by
Range and any additional xxxxx or properties now
owned or hereafter acquired in whole or in part by
Range or any affiliate of Range which Range requests
to be covered by this Agreement and ATS approves
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pursuant to Section 3.5
1.11 Property Count. The term "Property Count" means the number of
properties based upon the number of property
accounting units. A property accounting unit is the
lowest level of cost accumulation and accounting for
a given well or group of xxxxx. For example, a single
lease on which multiple xxxxx are located which are
treated as a single property for accounting purposes
shall be considered a single property. Conversely, a
single well with multiple zones which are treated as
multiple properties for accounting purposes shall be
considered multiple properties.
1.12 Software. The term "Software" means all computer programs
and user manuals, including ATS Software and Third
Party Software, supplied, or made available by ATS
to Range in accordance with this Agreement. The
term "Software" includes any corrections, bug fixes,
enhancements, updates or other modifications,
including custom modifications, to such computer
program and user manuals.
1.13 Supplemental Services. The term "Supplemental Services" means those
additional and separately billable services which
are beyond the scope of the ASP Services and
Outsourcing Services as listed in Exhibit B.
1.14 Third Party Charges. The term "Third Party Charges" means, but is not
limited to, those charges such as telephone lines,
Internet access PC networks, dedicated service lines,
postage, checks, supplies, overnight delivery charges,
travel costs by ATS personnel and any other services
provided by third parties not outlined in Exhibit B.
1.15 Third Party Software. The term "Third Party Software" means third party
software supplied by ATS to Range or made available
by ATS for use by Range in accordance with this
Agreement, such as Lotus Notes, Imaging and Client
Access.
ARTICLE 2. SERVICES AND RESPONSIBILITIES
2.1 Basic Services. In consideration of the full payment of the amounts
due under this Agreement, ATS will provide the Outsourcing Services (as defined
in Section 1.8) and the ASP Services (as defined in Section 1.2), (together,
with Outsourcing Services, the "Basic
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Services") listed on Exhibit B related to the Properties (as defined in Section
1.10) during each Processing Cycle (as defined in Section 1.9). These Basic
Services are the basis for the payment terms set forth in Article 3 hereof. This
Agreement specifically excludes any responsibility for providing any service
other than the Basic Services specifically set forth in Exhibit B and the
development of PPS (as hereinafter defined) as provided for in Section 6.2.
2.2 Supplemental Services. With the prior written approval of Range, ATS
may provide Supplemental Services (as defined in Section 1.13 and, collectively,
with Basic Services, "Services"), subject to expertise and availability of ATS
personnel, at the additional costs listed on Exhibit C. Any Supplemental
Services shall be provided in accordance with all terms and conditions of this
Agreement and shall be pursuant to a completed Professional Services Agreement,
the form of which has been attached hereto as Exhibit C. Any travel time by ATS
personnel associated with the performance of Supplemental Services shall be
billed at 50% of the applicable rate.
2.3 Responsibilities of Range. Range shall continue to have sole
responsibility for (i) providing to ATS all documents or data in a mutually
agreed format for processing, (ii) verifying the accuracy of all information
provided to ATS, (iii) making all decisions or determinations with respect to
any matter regarding the Properties requiring any exercise of discretion or
business judgment, (iv) paying any state and Federal sales and/or use taxes, and
(v) maintaining all equipment and infrastructure necessary for the performance
of the obligations of Range under this Agreement.
2.4 Hours of Operation. ATS business hours are from 8:00 a.m. to 5:00
p.m. Monday through Friday, excluding holidays. ATS personnel will be available
for customer service at a specified help line during these hours and by pager
after business hours. Subject to delay or failure by either party because of
reasons beyond such parties' reasonable control, the ASP Services and the
Software (as defined in Section 1.12) will be accessible 24 hours a day, 7 days
a week, 365 days a year. Range business hours are from 8:30 a.m. to 5:30 p.m.,
excluding holidays.
ARTICLE 3. FEES.
3.1 Charges. Range will pay ATS on the first day of each Processing
Cycle for the base charges (the "Base Charges") listed in Exhibit D. Range will
pay ATS for any Third Party Charges (as defined in Section 1.14) and any
Supplemental Services, for which charges were incurred during the current month
upon receipt of invoice at the end of the month. Any amount not paid within 30
days, except for charges disputed by Range in good faith, shall bear interest at
a rate of 1.5% per month, but in no event shall such percentage exceed the
highest lawful rate of interest. Any amount not paid within 45 days, except for
charges disputed by Range in good faith, will be considered a material breach of
this Agreement by Range.
3.2 Third Party Charges. Range will either reimburse ATS or pay directly
for Third Party Charges and costs, if any.
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3.3 Quarterly Adjustments. The Base Charges shall be adjusted quarterly
if the Property Count (as defined in Section 1.11) increases or decreases in the
aggregate of 10%, on a cumulative basis, exclusive of any material acquisition
or divestiture of Properties. Any material acquisitions or divestitures of
Properties will automatically increase or decrease the Base Charges on either
the effective or takeover date, whichever is appropriate. A material acquisition
or divestiture is one in which the Property Count changes by 10% as a result of
a single transaction. The adjustment in charges for the increase or decrease in
number of Properties shall be based upon the charges shown in Exhibit
D,provided, however, if Range believes the charges to be too high for the types
of Properties added, Range shall propose a schedule of charges for the
additional Properties and Range and ATS will negotiate such proposal. If the
parties cannot agree as to the charges for the Properties, Range shall have the
option to exclude the additional Properties from the Properties covered by this
Agreement and ATS will have no responsibility for any such Properties so
removed. Any Property acquired or divested by Range after the Effective Date of
this Agreement will be included or excluded from the Property Count, as
applicable, and the Base Charges will be adjusted accordingly.
3.4 Pricing Review. The Base Charges are subject to an annual review by
ATS on each anniversary date of the Effective Date during the Term (as defined
in Section 4.1 below). After such review, ATS will have the right to propose an
adjustment of the Base Charges not to exceed 5% of the previous year's Base
Charges, provided the need for any such increase is reasonably documented by
ATS. In addition, the Base Charges are subject to adjustment at any time and in
such amount as is mutually agreed by ATS and Range.
3.5 Affiliates. If requested by Range, ATS may, at its option, provide
any of the Services to Affiliates (as defined in Section 1.1) of Range. Upon
approval by ATS of an Affiliate, the Base Charges for each Affiliate will be
negotiated in good faith by ATS and Range. Any breach of the terms of this
Agreement by an Affiliate for which ATS is providing Services shall be deemed a
breach by Range.
ARTICLE 4. TERM AND TERMINATION
4.1 Term. The term of this agreement will commence on the Effective Date
and will end on the three year anniversary of the Effective Date (the "Term"),
unless earlier terminated or extended in accordance with the provisions of this
Agreement.
4.2 Renewal Period. The term of this Agreement will automatically extend
for a month-to-month basis or such other mutually agreed period after the third
anniversary of the Effective Date (the "Renewal Period") unless either of the
parties notifies the other party of their intent not to renew in writing at
least three Processing Cycles prior to such anniversary date. The Base Charges
for such Renewal Period may be adjusted by ATS if ATS provides a written notice
to Range which sets forth the reasons supporting such adjustment and ATS and
Range agree the amount of the adjustment. "Term" shall include any Renewal
Period pursuant to this Section 4.2.
4.3 Discontinuation of Outsourcing Services. ATS may terminate this
Agreement at any time upon giving three Processing Cycles prior written notice
to Range if ATS no longer
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desires to offer Outsourcing Services. In the event this Agreement is terminated
pursuant to this Section 4.3, ATS agrees to provide Range the right to continue
ASP Services at a monthly price of $600 per user per month for up to six
Processing Cycles after the expiration of the three Processing Cycle notice
period and at Range's option, either (i) a $500,000 (subject to adjustment by
Section 4.10) payment by ATS to Range in return for relinquishment by Range of
all rights to use any ATS Software or to use ATS as an Application Service
Provider; or (ii) the right to a paid-up license for the ATS Software then in
use. The option Range selects shall be Range's exclusive remedy with respect to
any claim of breach by reason of ATS' termination pursuant to this Section 4.3.
4.4 ATS Termination for Convenience. ATS may terminate this Agreement
for any reason after the third anniversary of the Effective Date, upon giving
three Processing Cycle written notice to Range. Upon a termination pursuant to
this Section 4.4 and if Range so elects, ATS agrees to provide Range the right
to continue ASP Services at a monthly price of $600 per user per month for up to
six Processing Cycles after the expiration of the three Processing Cycle notice
period and to continue to license the ATS Software at its then current rates.
4.5 ATS Termination for Default. ATS can terminate this Agreement in the
event of a Default (as defined in Section 1.6) by Range, if such Default is not
cured within 30 days after delivery of written notification describing each
Default. In the event of a Termination for Default, Range will be obligated to
pay ATS a severance fee ("Severance Fee") of up to $100,000 for all costs
reasonably incurred by ATS attributable to the severance of the Services. If
such Default is cured after 30 days and Range pays all fees due, including the
Severance Fee, ATS agrees to provide Range the right to continue ASP Services at
a monthly price of $600 per user per month for up to six Processing Cycles after
the expiration of the three Processing Cycle notice period and to license the
ATS Software at its then current rates.
4.6 Range Termination for Convenience. Range may terminate this
Agreement for any reason by giving ATS three Processing Cycles written notice.
In the event this Agreement is terminated pursuant to this Section 4.6, Range
will be obligated to pay ATS an early termination fee of $250,000 (subject to
adjustment by Section 4.10), the Severance Fee and all other fees due up to the
effective date of termination. Range shall pay all fees due, including the
Severance Fee, within 15 days after the effective date of termination. Upon a
termination pursuant to this Section 4.6, ATS agrees to provide Range the right
to continue ASP Services at a monthly price of $600 per user per month for up to
six Processing Cycles after the expiration of the three Processing Cycle notice
period and to license the ATS Software at its then current rates.
4.7 Range Termination for Default. Range may terminate this Agreement in
the event of any Default by ATS. However, prior to such termination, Range must
provide ATS with notification of each Default in writing and allow ATS 30 days
to provide Range a solution or a plan for a solution for each Default. If ATS
does not provide Range a solution or a plan for a solution within 30 days of
such notification of each Default or if such provided plan is reasonably
rejected by Range, Range may either terminate this Agreement upon giving three
Processing Cycles written notice to ATS or assess ATS a fine of up to five
percent of the monthly payment then due, prorated on a daily basis, for each
Default until such Default is resolved to Range's satisfaction. However, under
no circumstances shall the cumulative of the
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assessed fine(s) exceed 50% of the monthly payment then due, prorated on a daily
basis. In the event Range elects to assess ATS a fine, both ATS and Range have
the option to terminate this Agreement upon giving three Processing Cycles
written notice. In the event ATS or Range elects to terminate this Agreement
pursuant to this Section 4.7, ATS agrees to provide Range the right to continue
ASP Services at a monthly price of $600 per user per month for up to six
Processing Cycles after the expiration of the three Processing Cycle notice
period and to license the ATS Software at its then current rates.
In the event either party terminates this Agreement pursuant to this
section, it shall not limit or effect such parties' ability to recover damages
caused by any default or breach of the Agreement by the other party except that
ATS shall be entitled to credit for the amount of any fines assessed by Range
and paid by ATS pursuant to the terms of this section.
4.8 Delivery of Data. Upon termination of the use of the ASP Services,
ATS shall provide Range a copy of all data files containing information obtained
from, or developed for Range under this Agreement on a computer disk or data
tape, and ATS shall provide Range with access to all information and data for a
period of 5 years after the termination as provided in Section 8.3 below.
4.9 Requirements upon Termination. Upon completion of the Term or any
six month optional period, all Software supplied by ATS to Range will be
immediately returned to ATS, all licenses to the Software will be automatically
terminated and Range will promptly return or destroy all Confidential
Information of ATS.
4.10 Reduction of Termination Fees. In the event of termination of this
Agreement pursuant to Sections 4.3 or 4.6, the $500,000 fee provided for in
Section 4.3 and the $250,000 fee provided for in Section 4.6 shall be prorated
on an annual basis with such payment being reduced by one-third of the original
amount each anniversary date of the Effective Date.
ARTICLE 5. PERIODS OF SERVICE
This Agreement, together with the Letter of Intent and Services
Agreement, provides for the performance of the Services in three stages as
follows:
5.1 Interim Period. The Letter of Intent and Services Agreement set
forth the obligations of ATS and Range during the Interim Period.
5.2 Operation Period. After the execution of this Agreement, ATS will
continue training of Range personnel necessary for daily operations, begin
performing the Basic Services, prepare customized reports as necessary and
establish a cut-off date from Range's Hartville, Ohio computer facilities.
5.3 Restructure Period. The Letter of Intent details certain selected
obligations of ATS and Range during the Restructure Period. However, at any
time, performance of additional services by ATS including, but not limited to,
data conversion, new software development, and
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other tools for conducting business activities may be agreed to by both parties
in accordance with Section 2.2.
ARTICLE 6. SOFTWARE AND HARDWARE
6.1 Existing ATS Software. Except as otherwise set forth in this
Agreement, ATS shall retain all right, title and interest in and to any
software, meaning all computer programs and user manuals, including existing ATS
Software listed on Exhibit B, the ("Existing ATS Software"). Range shall have no
right, title, or interest in or to such Existing ATS Software for any purpose
except as may be expressly set forth herein or in a separate written agreement
executed between the parties. Range is granted a non-exclusive,
non-transferable, non-sublicenseable perpetual license to use the Existing ATS
Software. In the event that a Third Party Software (as defined in Section 1.15)
license of ATS is terminated, Range's right to use such Third Party Software
will also be terminated and Range will be entitled to a reasonable reduction in
the Base Charges unless ATS provides a license to replacement software capable
of performing the same functions as those performed by the expiring licensed
software.
6.2 Developed ATS Software. Subject to the terms and conditions of this
Agreement, ATS agrees to develop, design and install a proprietary production
payment software ("PPS") that allows for monthly production payment processing
with online inquiry capability. ATS shall own all right, title and interest to
the PPS and any modifications and enhancements to the PPS. Range shall retain
ownership of any data provided to ATS in relation to the development and
implementation of PPS as a Service to be provided to Range. ATS will grant to
Range and its Affiliates a non-exclusive, non-transferable, non-sublicenseable
right and license to use PPS solely in connection with Services. ATS shall own
all right, title and interest to any other newly developed software developed by
ATS pursuant to this Agreement, including, but not limited to the PPS (the
"Developed ATS Software") and will grant to Range and its Affiliates a
non-exclusive and non-transferable right and license to use such Developed ATS
Software as necessary. Any Developed ATS Software, not including the PPS,
provided to Range or its Affiliates shall be considered a Supplemental Service
and shall be provided in accordance with all terms and conditions of this
Agreement and shall be pursuant to a completed Professional Services Agreement
and Terms of Agreement, the forms of which have been attached hereto as Exhibit
C.
6.3 Hardware. ATS will provide all Hardware (as defined in Section 1.7)
that is necessary for the performance by ATS of its Services under this
Agreement and is not otherwise available to Range.
ARTICLE 7. EMPLOYEES
7.1 Independent Contractor. Except as otherwise provided in this
Agreement, each party shall be and act as a independent contractor. This
Agreement creates no relationship of employment, joint venture, partnership,
limited partnership or agency among the parties and the parties hereby
acknowledge that no other facts or relations exist that would create any such
relationship between them. Neither party has the right or authority to assume or
to create any
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obligation or responsibility on behalf of the other party, except as may be
provided herein or as may from time to time be provided otherwise by written
agreement signed by both parties.
7.2 Staffing. ATS will assign qualified employees to the Range project
to perform the Services. The number of qualified employees shall be increased or
decreased based on the determination by ATS that the current number of employees
is not at an appropriate level for performing the Services. Any increase or
decrease in the number of employees shall be mutually agreed to by ATS and
Range. ATS shall provide written notice which sets forth the reasons supporting
such increase or decrease and Range shall not unreasonably withhold approval of
any such increase or decrease.
7.3 Bonuses. Range may pay bonuses to ATS at its sole discretion.
ARTICLE 8. PROCESSING
8.1 Normal Processing. All documents received by Range shall be
delivered to ATS in a mutually agreed upon format. Documents not received by ATS
on or before the last day of each Processing Cycle (the "Cutoff Date") will be
processed in the next Processing Cycle.
8.2 Reports. Required reports ("Reports") will be available either
electronically or through hard page documents to Range in a mutually agreed upon
format as scheduled in the monthly Closing Schedule (as defined in Section 1.4),
except that certain reports requested by Range shall be made available on
reasonable demand. Range shall have the sole responsibility to discover any
errors or inaccuracies contained in any Reports or any part thereof delivered to
Range hereunder and to bring any such errors or inaccuracies to the attention of
ATS for correction within one Processing Cycle of such delivery of the Reports.
If Range fails to bring any such error or inaccuracy to ATS attention within
such period, ATS shall have no responsibility to correct any such error. Changes
or corrections discovered by Range subsequent to the one Processing Cycle review
period will be processed at ATS' next Processing Cycle.
8.3 Document Storage. During the Term of this Agreement, all Range
information will be maintained online for a five-year recurring period and
thereafter archived on data tape for future reference by ATS or Range. In the
event of termination of this Agreement, all Range information will be returned
to Range on data tape.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
ATS does hereby represent and warrant that:
9.1 Good Standing; Authority. ATS has been duly incorporated and is
validly existing as a corporation and is in good standing under the laws of the
State of Texas, with full power and authority to own, lease and operate its
properties and conduct its business and to execute and deliver, and perform this
Agreement.
9.2 "As Is" Basis. All Third Party Hardware, Software, and other items
provided by ATS to Range are provided on an "As Is" basis without warranty, with
the exception of any
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manufacturers' or licensors' warranties which ATS is able to pass on to Range.
Third Party Software is sublicensed to Range pursuant to the terms of the
license or reseller agreement between ATS and such third party. Range agrees to
comply with all terms and conditions of use set forth by the third party for the
use of such Third Party Software and execute any documents required by the third
party licensor.
9.3 PPS and Newly Developed Software.The PPS and Developed ATS Software
will contain no known error, malfunctions or defects. The PPS and Developed ATS
Software will not infringe on any patents, copyrights, trade secrets or other
proprietary rights of third parties.
9.4 No Other Warranties. EXCEPT AS SPECIFICALLY STATED IN THIS
AGREEMENT, ATS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY,
FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE
OF ANY INFORMATION TECHNOLOGY SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIALS
PROVIDED UNDER THIS AGREEMENT.
Range does hereby represent and warrant that:
9.5 Good Standing; Authority. Range has been duly incorporated and is
validly existing as a corporation and is in good standing under the laws of the
State of Delaware, with full power and authority to own, lease and operate its
properties and conduct its business and to execute and deliver, and perform this
Agreement.
9.6 Equipment. All equipment, including but not limited to Hardware,
provided by Range is in good condition to be used in accordance with the terms
of this Agreement.
9.7 Compliance with Laws. All Properties and facilities provided by
Range comply with and will be maintained in compliance with all applicable
local, state and federal laws.
9.8 Reverse Engineering. Range agrees not to reverse engineer,
disassemble, or decompile any of the Software.
ARTICLE 10. CONFIDENTIALITY
10.1 Nondisclosure. Neither party shall disclose any Confidential
Information (as defined in Section 1.5), of the other party to any third party
without first obtaining written consent of the other party. Each party shall
limit dissemination of the other party's Confidential Information only to those
employees who require access thereto to perform their functions under this
Agreement, and who have been appraised of the confidential nature of such
information and agree to abide by the obligations contained herein. Each party
agrees to return the Confidential Information to the disclosing party upon
receipt of written request and upon the termination of this Agreement. Each
party agrees to use reasonable care in the treatment of the other party's
confidential information.
10.2 Exceptions. The obligations of nondisclosure in section 10.1 shall
not apply to
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any information that was already rightfully in the possession of the receiving
party or any of its related companies prior to disclosure; was independently
developed by employees having no access to Confidential Information; was
rightfully received from a third party without restrictions on disclosure or
use; was available by inspection of products or services marketed without
restrictions, offered for sale or leased in the ordinary course of business by
either party hereto or others; or was required to be produced or disclosed
pursuant to applicable laws, regulations or court order, provided the receiving
party has given the disclosing party the opportunity to defend, limit or protect
such production or disclosure, and such disclosure is not greater than what was
required to be produced or disclosed.
10.3 Security. Each party will designate one security officer to
coordinate with the other security officer all security clearances, appropriate
separation of duties and responsibility consistent with commonly accepted
internal control procedures.
10.4 Survivability. This Article 10 is severable from all other
provisions of this Agreement and shall stand on its own and remain in full force
and effect as if it is an agreement unto itself supported by valid
consideration, receipt of which is hereby acknowledged by the parties. The term
of the provisions of this Article 10 shall survive termination or expiration of
this Agreement or any determination that this Agreement or any portion hereof is
void, voidable, invalid or unenforceable.
ARTICLE 11. LIABILITY
11.1 Correctness of Information. Range agrees that ATS shall have no
liability or responsibility for the accuracy of any information provided by
Range. From time to time during the Interim Period and thereafter, ATS will
provide to Range summaries of information contained in the materials provided by
Range for verification. Within seven days of receipt of such summaries, Range
agrees to (i) review the information contained in such summaries, (ii) make any
changes which may be necessary for such summaries to be true and accurate and
(iii) return the summaries to ATS with any such changes duly executed by Range
to reflect such verification. After any such summary has been so verified, ATS
shall be entitled to rely thereon in performing any of its functions under this
Agreement and shall have no obligation to refer to any of the documents or other
information from which such summary is derived.
11.2 Limited Liability. Except as expressly provided herein, neither
party shall have any liability to the other party prior to the Effective Date of
this Agreement or under this Agreement for any reason, except for liability
resulting from the gross negligence, willful misconduct, or breach of this
Agreement by either party; or claims by either party's employees and
contractors.
11.3 Remedies. RANGE'S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS
RELATING TO THIS AGREEMENT WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR
OTHERWISE SHALL BE THE EXCLUSIVE REMEDY SPECIFIED FOR SUCH CLAIM OR IF NO SUCH
EXCLUSIVE REMEDY IS EXPRESSLY SPECIFIED FOR SUCH CLAIM, INCLUDING ANY CLAIM FOR
FAILURE TO PROVIDE SUCH AN EXCLUSIVE REMEDY, THE RECOVERY OF RANGE'S DAMAGES,
NOT TO EXCEED IN
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THE AGGREGATE THE GREATER OF $500,000 OR PAYMENTS OF BASE CHARGES TO DATE UNLESS
SUCH CLAIM RESULTS FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR A MATERIAL
BREACH OF THE PROVISIONS OF ARTICLE 10 ON THE PART OF ATS. ATS shall not be
liable for any damages incurred by Range to the extent attributable to incorrect
data or information furnished by Range to ATS. Further, no cause of action which
accrued more than two years prior to the filing of a suit alleging such cause of
action may be asserted against ATS. In connection with the conduct of any
litigation with third parties relating to any liability of ATS to Range or to
such third parties, ATS shall have all rights (including the right to accept or
reject settlement offers and to participate in such litigation) which are
appropriate to its potential responsibilities or liabilities. Range and ATS
expressly acknowledge that the limitations and exclusions contained in this
Article have been the subject of active and complete negotiation between the
parties and represent the parties' agreement based upon the level of risk to ATS
and Range associated with their respective obligations under this Agreement and
the payments provided under this Agreement to ATS for such performance.
ARTICLE 12. INDEMNIFICATION
12.1 Indemnification by Range. Range agrees to indemnify and to hold
harmless ATS and any officer, employee, agent, representative, or other person
acting on behalf of or at the request of ATS (individually, "ATS Indemnified
Person") from and against any and all claims, suits, actions or proceedings of
any third parties (collectively "Claims") and any losses, judgments, damages,
costs, obligations, debts, and liabilities (including any investigation
litigation expenses, court costs, attorneys' fees, and other expenses) incurred
in connection with, and any amount paid in settlement of any Claims
(collectively "Liabilities") to which an ATS Indemnified Person becomes subject
resulting from any (i) breach or violation or alleged breach or violation of
this Agreement by Range or (ii) any breach or alleged breach of the
representations or warranties made in this Agreement by Range, or (iii) any
error or omission contained in any data or any information furnished under this
Agreement by Range; provided, however, that Range shall not indemnify and hold
an ATS Indemnified Person harmless from and against any Claim or Liability to
the extent resulting from the negligence, willful misconduct or breach of this
Agreement by an ATS Indemnified Person.
12.2 Indemnification by ATS. Subject to Section 11.3, ATS agrees to
indemnify and to hold harmless Range and any officer, employee, agent,
representative, or other person acting on behalf of or at the request of Range
(individually, "Range Indemnified Person") from and against any and all claims,
suits, actions or proceedings of any third parties (collectively "Claims" and
any losses, judgments, damages, costs, obligations, debts, and liabilities
(including any investigation litigation expenses, court costs, attorneys' fees,
and other expenses) incurred in connection with, and any amount paid in
settlement of any Claims (collectively "Liabilities") to which a Range
Indemnified Person becomes subject resulting from any (i) breach or violation or
alleged breach or violation of this Agreement by ATS, (ii) any breach or alleged
breach of the representations or warranties made in this Agreement by ATS, (iii)
any third party claims of patent or copyright infringement relating to the ATS
Software, (iv) any third party claims for breach of any licenses to the Third
Party Software, or (v) the performance of the ASP Services; provided, however,
that ATS shall not indemnify and hold a Range Indemnified Person from and
against any Claim or Liability to the extent resulting from the negligence,
willful misconduct or
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breach of this Agreement by a Range Indemnified Person.
12.3 Survivability. This Article 12 is severable from all other
provisions of this Agreement and shall stand on its own and remain in full force
and effect as if it is an agreement unto itself supported by valid
consideration, receipt of which is hereby acknowledged by the parties. The term
of the provisions of this Article 12 shall survive termination or expiration of
this Agreement or any determination that this Agreement or any portion hereof is
void, voidable, invalid or unenforceable.
ARTICLE 13. MISCELLANEOUS
13.1 Notices. Any notice or other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, sent by reputable overnight courier or delivered by hand, to the addresses
of the parties set forth below, or at such other address furnished in writing to
the other parties hereto and shall be deemed to have been delivered three days
after it has been mailed by such certified or registered mail, one day after it
has been delivered to the overnight courier, or upon delivery if hand delivered.
If to ATS:
Applied Terravision Systems, Inc.
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000 (phone)
(000) 000-0000 (fax)
If to Range:
Range Resources Corporation
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
(000) 000-0000 (phone)
(000) 000-0000 (fax)
13.2 Waiver. Waiver of strict performance of any provision of this
Agreement shall not be deemed a waiver nor shall it prejudice the waiving
party's right to require strict performance of the same provision or any other
provision in the future unless such waiver has rendered further performance
commercially impossible.
13.3 Assignment. Neither this Agreement, nor any of either party's
rights or obligations under this Agreement, shall be assignable without the
prior written consent of both parties.
13.4 No Authority. Neither party shall have any authority, and neither
party shall represent that it has any authority, to assume or create any
obligation, express or implied, on behalf of the other party, except as provided
in this Agreement. Each party is an independent
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contractor, and this Agreement shall not be construed as creating a partnership,
joint venture or employment relationship between the parties or as creating any
other form of legal association that would impose liability on one party for the
act or failure to act of the other party.
13.5 Governing Law; Jurisdiction. This Agreement shall be interpreted by
the laws of the State of Texas and both parties agree to submit to the
jurisdiction of the state and Federal courts in and for Xxxxxx County, Texas
with respect to any dispute arising under or relating to this Agreement.
13.6 Severability. If any part of this Agreement is found to be invalid,
all other provisions shall remain in full force and effect and the provisions
found invalid shall be enforced to the maximum extent enforceable by law.
13.7 Force Majeure. Neither party shall be liable for any delay or
failure to perform its obligations hereunder to the extent that such delay or
failure is caused by a force or event beyond the control of such party,
including without limitation, war, embargoes, strikes, riots, fires, floods,
earthquakes, or other Acts of God.
13.8 Further Assurances. Each party shall execute, acknowledge and
deliver all documents, provide all information, and take or forbear all such
action as may be necessary or appropriate to achieve the purposes of this
Agreement.
13.9 Alterations. The waiver, amendment, or modification of any
provision of this Agreement or any right, power or remedy hereunder, whether by
agreement of the parties or by custom, course of dealing or trade practice,
shall not be effective unless in writing and signed by the party against whom
enforcement of such waiver, amendment or modification is sought.
13.10 Third-Party Beneficiaries. Nothing contained in this Agreement
shall be construed to give any person other than ATS and Range any legal or
equitable right, remedy or claim under or with respect to this Agreement.
13.11 Copies of Agreement. This Agreement may be executed in any number
of copies, each of which shall be deemed an original and all of which together
shall constitute one and the same instrument.
13.12 Number and Gender. All terms and words used in this Agreement
regardless of the number and gender in which they are used, shall be deemed and
construed to include any other number, singular or plural, and any other gender,
masculine, feminine or neuter, as the context or sense of this Agreement or any
paragraph or clause herein may require, the same as if such words have been
fully and properly written in the number and gender.
13.13 Headings. The headings of sections and paragraphs, if any, to the
extent used herein are for convenience and reference only, in no way define,
limit or describe the scope or intent of any provision hereof, and therefore
shall not be used in construing or interpreting the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
affixed hereto as of the date first above written.
APPLIED TERRAVISION SYSTEMS, INC.
By: /s/ Xxxxx X. Xxx
-----------------------------
Printed Name: Xxxxx X. Xxx
-------------------
Title: Senior Vice President
--------------------------
RANGE RESOURCES CORPORATION
By: /s/ Xxxxx X. XxXxxxx
-----------------------------
Printed Name: Xxxxx X. XxXxxxx
-------------------
Title: Chief Financial Officer
--------------------------
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