UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-QSB
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES ACT OF 1934 FOR THE QUARTER ENDED MARCH 31, 1997
Commission file number 0-28610
XOX CORPORATION
(Name of small business issuer as specified in its charter)
Delaware 93-0898539
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1450 Energy Park Drive, Suite 120, Saint Paul, Minnesota 55108
(612) 645-9000
(Address and telephone number of principal executive offices
and principal place of business)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter periods that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No__
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date:
Common Stock, $.025 Par Value - 2,951,731 shares outstanding as of May 9, 1997.
Transitional Small Business Disclosure Format (check one): Yes ___ No X
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PART 1
FINANCIAL INFORMATION
Item 1. Financial Statements
XOX CORPORATION March 31, December 31,
Balance Sheets 1997 1996
U.S. Dollars Unaudited
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Current assets:
Cash and cash equivalents $ 1,939,298 $ 2,720,551
Accounts receivable 344,448 193,976
Prepaid expenses 88,180 90,957
Other 126,000 12,000
----------- -----------
Total current assets 2,497,926 3,017,484
Property and equipment:
Furniture and fixtures 67,814 67,613
Computer equipment 405,004 342,448
Leasehold improvements 71,866 68,766
----------- -----------
544,684 478,827
Less accumulated depreciation 361,658 345,190
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Net property and equipment 183,026 133,637
License agreements, net of amortization of $19,167 95,833 110,208
and $4,792 at March 31, 1997 and December 31,
1996, respectively
Investment in joint venture 40,754 41,020
----------- -----------
Total assets $ 2,817,539 $ 3,302,349
=========== ===========
Current liabilities:
Accounts payable $ 165,134 $ 209,395
Accrued expenses 87,203 77,355
----------- -----------
Total current liabilities 252,337 286,750
Deferred revenue 154,998 65,667
Lont-term liabilities:
Long-term debt - related parties 682,830 734,451
Accrued payroll taxes 33,466 34,163
Other accrued liabilities 78,624 78,624
----------- -----------
Total long-term liabilities 794,920 847,238
Stockholders' equity:
Common stock 73,285 73,260
Additional paid-in capital 12,237,617 12,236,142
Accumulated deficit -10,695,618 -10,206,708
----------- -----------
Total stockholders' equity 1,615,284 2,102,694
----------- -----------
Total liabilities and stockholders' equity $ 2,817,539 $ 3,302,349
=========== ===========
See Note to Financial Statements
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XOX CORPORATION For the Three Months Ended
Statements of Operations March 31,
U.S. Dollars 1997 1996
Unaudited Unaudited
---------- ----------
Net revenues:
Customer support and consulting $ 102,603 $ 126,257
Product revenues 229,008 47,060
Royalties 0 6,010
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331,611 179,327
Operating expenses:
Research and development 348,263 180,331
Selling, general and administrative 485,580 256,209
---------- ----------
833,843 436,540
Loss from operations -502,232 -257,213
Interest income 26,854 468
Interest expense -13,266 -62,537
Share of joint venture net loss -266 0
---------- ----------
Net loss -$488,910 -$319,282
========== ==========
Net loss per share -$0.17 -$0.23
Weighted average number of shares
outstanding 2,930,401 1,408,884
See Note to Financial Statements
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XOX CORPORATION For the Three Months Ended
Statements of Cash Flows March 31,
U.S. Dollars 1997 1996
Unaudited Unaudited
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OPERATING ACTIVITIES
Net loss -$488,910 -$319,282
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation 16,468 948
Amortization 14,375 0
Share of joint venture net loss 266 0
Noncash interest expense related to warrants 0 4,000
Changes in other operating assets and liabilities:
Accounts receivable -150,472 18,996
Prepaid expenses 2,777 4,254
Accounts payable -42,861 12,844
Accrued interest 0 28,625
Accrued liabilities 9,151 16,541
Deferred revenue 89,331 89,442
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Net cash used in operating activites -549,875 -143,632
INVESTING ACTIVITIES
Purchase of property and equipment -65,857 -390
Working capital advances to IMETRIX Limited -114,000 0
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Net cash used in investing activities -179,857 -390
FINANCING ACTIVITIES
Net proceeds from issuance of common stock 1,500 67,500
Net proceeds from bridge loans 0 100,000
Payments on notes payable -53,021 -1,683
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Net cash provided (-used) by financing activities -51,521 165,817
---------- ----------
Net increase (-decrease) in cash and cash equivalents -781,253 21,795
Cash and cash equivalents at beginning of period 2,720,551 29,918
---------- ----------
Cash and cash equivalents at end of period $1,939,298 $ 51,713
========== ==========
See Note to Financial Statements
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XOX Corporation
Note to Financial Statements
March 31, 1997
The financial statements have been prepared by XOX Corporation, without audit,
pursuant to the rules and regulations of the Securities and Exchange Commission.
The information furnished in the financial statements includes normal recurring
adjustments and reflect all adjustments which are, in the opinion of management,
necessary for a fair presentation of such financial statements. Certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations, although the
Company believes that the disclosures are adequate to make the information
presented not misleading. It is suggested that these condensed financial
statements be read in conjunction with the financial statements and accompanying
notes included in the Company's annual report to the Securities and Exchange
Commission on Form 10-KSB for the fiscal year ended December 31, 1996.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
RESULTS OF OPERATIONS
Net revenues for the quarter ended March 31, 1997 were $331,611, an increase of
85% over the comparable quarter of 1996. Two customers provided approximately
83% of the net revenues for the quarter ended March 31, 1997.
Shell International Exploration & Production B.V. of the Netherlands provided
$212,500, or 64% of revenues for the quarter ended March 31, 1997. Shell also
provided an additional $37,500 of revenues that XOX Corporation has recorded as
"deferred revenue" on its balance sheet as of March 31, 1997 to cover future
support activities. Shell has signed a group-wide licensing agreement for the
Company's principal product, the SHAPES(R) Geometric Computing System. This
agreement was the subject of a press release the Company made on April 7, 1997.
In addition to the revenues from Shell, ANSYS, Inc., an early adopter of the
SHAPES(R) software, provided $61,500, or almost 19% of revenues for the quarter
ended March 31, 1997. XOX Corporation and ANSYS, Inc. have been doing
collaborative work on new product enhancements which is believed will benefit
both companies. The work with ANSYS, Inc. was the subject of a press release the
Company made on December 6, 1996.
The balance of revenues for the quarter ended March 31, 1997 came from twelve
other customers, most of whom do business in the Geosciences industry.
Although revenues for the quarter ended March 31, 1997 increased 85% over the
comparable quarter of 1996, operating expenses increased 91%. Those results
combined with a favorable improvement of $75,000 in the interest income/expense
component of operations, resulted in a net loss of almost $489,000 for the
quarter ended March 31, 1997. The net loss for the comparable quarter of 1996
was $319,000.
Research and development expenses were $348,000 for the quarter ended March 31,
1997, an increase of 93% over the comparable quarter of 1996. The employment of
additional technical people at both the Company's Saint Paul location and the
Indian joint venture account for the expense increase. During the quarter ended
March 31, 1997, the Company had ten R&D scientists and engineers working at its
Saint Paul location, another eight working in the joint venture in India, and a
lead hardware engineer working in Scotland. This total of nineteen scientists
and engineers working on XOX Corporation projects during the first quarter of
fiscal year 1997 compares to a total of approximately eight scientists and
engineers for the comparable quarter of 1996.
The majority of research and development projects that are being worked on are
expected to provide revenues for the Company during the second half of 1997.
Selling, general and administrative expenses of $486,000 for the quarter ended
March 31, 1997 represent an increase of 89% over the comparable quarter of 1996.
Increased employment levels and spending on investor relations programs and
other administrative expenses relating to operating as a public company account
for the majority of the expense increase. The Company had five additional
employees working in these functional areas during the first quarter of 1997
that were not present in the first quarter of 1996. These employees include
three additional customer support representatives, a chief financial officer and
a business manager. The expenses of these five employees was approximately
$88,000 for the quarter ended March 31, 1997. The Company also increased the
time spent on its European business prospects by its representative in London,
England. This increase in sales activity plus the amortization expense of a new
trade show booth, added approximately $17,000 of additional selling expenses in
the first quarter of 1997 when compared to the comparable quarter of 1996.
During the quarter ended March 31, 1997 the Company spent approximately $65,300
on activities associated with being a public company. Investor relations
programs cost the Company approximately $22,300. During the first quarter of
1996, the Company had essentially no investor relations or administrative
expenses associated with operating as a public company. For the quarter ended
March 31, 1997 the Company had administrative expenses of approximately $15,000
for public company activities that included Nasdaq fees, transfer agent fees,
EDGAR filing fees, and fees of outside auditors and general counsel. The
Company's annual audit by Ernst & Young LLP was scheduled and completed earlier
in its most recent fiscal year to accommodate timely completion of Form 10-KSB.
This shifted approximately $8,000 of audit fees into the first quarter of 1997
when comparing to the comparable quarter of 1996.
During the quarter ended March 31, 1997 the Company also had an insurance
premium expense of $20,000 for a directors and officers liability policy. As a
private company, XOX had no such expense in the comparable quarter of 1996.
The Company had additional depreciation and amortization expenses of $30,000 for
the quarter ended March 31, 1997 when comparing to the comparable quarter of
1996. These additional expenses arose from the capital expenditures made for
property and equipment, and software license agreements for resale to its
customers, during the period subsequent to the initial public offering of
September 1996.
During the quarter ended March 31, 1997, the Company continued to keep its
surplus cash invested in money market accounts and short-term commercial paper.
These investments of the surplus cash provided approximately $27,000 of interest
income. The comparable quarter of 1996, for all practical purposes, did not have
any surplus cash, and the Company's interest income was less than $500.
The Company paid down $912,000 of debt during 1996 and in May 1996 converted
$1,508,000 of convertible debentures and $184,000 of accrued interest into
564,086 shares of Common Stock. These debt repayments and conversions resulted
in a lower interest expense for the quarter ended March 31, 1997 when comparing
to the comparable quarter in 1996. As a result of these factors, interest
expense of $13,000 was experienced in the quarter ended March 31, 1997. The
interest expense for the comparable quarter of 1996 was $63,000.
In late December 1996 the Company made an equity investment of $41,020 in its
Indian joint venture. The Company is a 47.5% shareholder in the joint venture.
For the three-month period ended March 31, 1997 the joint venture had a net loss
of $561. The Company's 47.5% share of that net loss amount, or $266, is
reflected in both the Balance Sheets and Statements of Operations as part of the
equity method of accounting for the joint venture investment. Start-up expenses
for opening a branch / satellite operation in Bangalore, India contributed to
the net loss for the Indian joint venture.
For the next several quarters, the Company believes that operating results could
vary substantially from quarter to quarter. The results of one quarter may not
be indicative of operating results in subsequent quarters. At its current stage
of business development, the Company's quarterly revenues and results of
operations may be materially affected by the timing of the development,
introduction and market acceptance of the Company's and its licensees' products.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents were $1,939,298 at March 31, 1997, compared to
$2,720,551 at December 31, 1996 and $51,713 at March 31, 1996. The Company's
working capital was $2,245,589 at March 31, 1997, compared to $2,730,734 at
December 31, 1996. The Company had a working capital deficit of $1,976,209 at
March 31, 1996.
For the quarter ended March 31, 1997, the Company used approximately $550,000 of
cash to finance its operating activities. For the comparable quarter of 1996
approximately $144,000 of cash was used in operating activities. The Company
continued to have operating expenses that far exceeded revenues, and as a
result, large negative cash flows were experienced in the operating activities
for the quarter ended March 31, 1997.
To help remedy this situation, the Company reduced its work force by five
employees effective April 22, 1997. The involuntary work force reduction
included three software engineers, a technical writer and the chief financial
officer. Lawrence W. McGraw, the Company's President and Chief Executive Officer
will take on the additional responsibilities of Chief Financial Officer. The
five employees that were terminated were paid two weeks of severance and all
earned vacation. The Company anticipates that the expense reduction and
associated reduction in the cash burn rate should begin to be reflected in the
Company's operating results in May of 1997.
The Company anticipates that the work force reduction will have a minimal impact
on 1997 revenues. The work force reduction and a sharper marketing focus of
application specific "applets" in the Geosciences industry was the subject of a
press release made by the Company on April 25, 1997.
The Company had capital expenditures of $65,857 for the quarter ended March 31,
1997. The Company made upgrades to its computer equipment and purchased new
computer equipment for a total expenditure of $48,000. The balance of the
capital expenditures of $17,857 was spent on new work cubicles and leasehold
improvements. During the comparable quarter of 1996 the Company made an
expenditure on equipment purchases of $390.
The Company has entered into a joint development and marketing agreement with an
Israeli company which owns technology for aerial and satellite data capture. The
Company hopes that integration of SHAPES with this technology or similar
technology will allow the Company to create a presence in the Geographic
Information Systems (GIS) industry.
The Board of Directors of the Company has authorized working capital advances to
be made to the Israeli company in the form of a convertible bridge loan up to
$200,000. As part of this bridge financing, the Company has made working capital
advances to the Israeli company of $12,000 in October 1996, and $114,000 in the
quarter ended March 31, 1997. The total working capital advances of $126,000 are
carried on the Company's balance sheet in the current asset section under the
heading of "other".
During the quarter ended March 31, 1997, the Company repaid approximately
$53,000 of employee interest-bearing debt to eleven individuals who elected to
participate in the Board approved employee debt reduction program. In April 1997
approximately $52,000 of employee non-interest bearing debt was converted at
$2.50 per share into 20,890 shares of unregistered Common Stock of XOX
Corporation. These transactions were described in more detail on Form 10-KSB
that was filed with the Securities and Exchange Commission on March 24, 1997.
On March 27, 1997, the Board of Directors of XOX Corporation extended the
exercise period of the warrants that were issued in connection with a $1,508,000
Convertible Debenture financing completed in 1995. The warrant exercise period
was originally scheduled to terminate on May 31, 1997. The new termination date
is May 31, 1998. The warrants to purchase Common Stock of XOX Corporation remain
exercisable at $6.00 per share.
Capital expenditures for the balance of fiscal year 1997 are estimated to be
$74,000.
The Company estimates that its current cash balance and the cash generated from
customer revenues will be sufficient to fund its operations and capital needs
through the first quarter of 1998.
PART II
OTHER INFORMATION
Item 1. Legal proceedings
The Company is not involved in any pending or, to its knowledge, threatened
litigation.
Item 6. Exhibits and Reports on Form 8-K
(A) Exhibits
10.31 Software License agreement between SHELL INTERNATIONAL
EXPLORATION & PRODUCTION B.V. and the Company dated
March 13, 1997.
27.1 Financial Data Schedule filed herewith electronically.
(B) No report on Form 8-K has been filed during the quarter for
the period covered by this report. On May 8, 1997 a Form 8-K
was filed to report termination of the Company's chief
financial officer in connection with the work force
reduction.
In accordance with the requirements of the Exchange Act, the Company caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
XOX Corporation
May 12, 1997
By /s/ Lawrence W. McGraw
Lawrence W. McGraw
President, Chief Executive Officer &
Chief Financial Officer
Corporate Software Licence and Maintenance
Agreement
between
SHELL INTERNATIONAL
EXPLORATION & PRODUCTION B.V.
and
XOX CORPORATION
for
the Use of the Computer Software known as
SHAPES(R) Geometric Computing System
(CONTRACT NO EP/CSA/96196)
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TABLE OF CONTENTS
PAGE
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Agreement 3
Article 1 Definitions 3
Article 2 Scope of licence 5
Article 3 Delivery, installation, testing and acceptance 6
Article 4 Maintenance, Help Desk and Support 6
Article 5 Proprietary rights 8
Article 6 Warranty and representations 9
Article 7 Security 9
Article 8 Secrecy 10
Article 9 Liability and insurance 11
Article 10 Remuneration and payment 12
Article 11 Conversion 12
Article 12 Export regulations 13
Article 13 Independent party 13
Article 14 Source code escrow 13
Article 15 Termination 13
Article 16 Legal construction 14
Article 17 Communications 15
Appendix I Licence Specific Details:
The Software, the Documentation, the Operating System Environment,
Effective Date, Escrow Requirements.
Appendix II Reporting Obligations
Appendix III Secrecy Declaration
Appendix IV Prices, Schedule of Rates, Payment Schedule
Appendix V Escrow Documentation
Appendix VI Pro-Forma Support Agreement
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The Agreement is made between
SHELL INTERNATIONAL EXPLORATION & PRODUCTION B.V., a company incorporated under
Netherlands law, having its place of business at Carel van Bylandtlaan 30, 2596
HR The Hague (hereinafter referred to as 'SHELL'); and
XOX CORPORATION, a company incorporated under Delaware law, having its place of
business at 1450 Energy Park Drive, Suite 120, Saint Paul, Minnesota 55108
(hereinafter referred to as 'LICENSOR').
WHEREAS
LICENSOR is authorised, willing and able to make available to SHELL and
Affiliates of SHELL (as defined below) the Software (as defined below) and
maintenance thereof and support (if so desired), and
SHELL wishes to acquire a licence from LICENSOR giving SHELL and Affiliates of
SHELL the right to use the Software and receive maintenance and support thereof,
all upon the terms and conditions of the Agreement.
NOW THEREFORE, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
The following definitions shall apply to the Agreement as defined below. Words
used in the singular shall be used in the plural where the context so requires.
1.1 'AFFILIATE OF SHELL'
means:
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 SHELL
which is for time being directly or indirectly affiliated with
these two companies or either of them.
For the purpose of this definition a particular company is:
(i) directly affiliated with a company or companies if the latter
beneficially hold 50% (fifty percent) or more of the shares
carrying the right to vote 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
of the series, except the parent company or companies, is
directly affiliated with one or more companies earlier in the
series.
b) Any company not falling under the definition set out in (a)
above which is for the time being managed or operated by a
company as defined in (a) above or which has a construction,
operating or technical services agreement with SHELL and/or
company as defined in (a) above.
c) The Shell Oil Company of Houston (including its Bellaire
Technology Center, Shell E&P Technology Co.) is a wholly owned
Affiliate and hereinafter referred to as 'SOC'.
1.2 'AGREEMENT'
means this document including the Appendices I to V attached hereto, and any
amendment in writing as may subsequently be agreed between the parties.
1.3 'CONFIDENTIAL INFORMATION'
means all knowledge and information of whatever nature disclosed to or acquired
by the LICENSOR or SHELL in connection with the Agreement directly or indirectly
from the other party, to the extent that such knowledge and information at the
time of disclosure or acquisition is not:
a) in the lawful and unrestricted possession of the LICENSOR or SHELL,
or
b) part of public knowledge or literature.
1.4 'CONFIDENTIAL RECORD'
means any document, computer software or other material containing Confidential
Information. Confidential Information shall be deemed to include Confidential
Record.
1.5 'CONTRACTOR'
means companies, other than Affiliates of SHELL, and individuals working under
technical service, consultancy, development, maintenance or other contracts for
SHELL and/or Affiliates of SHELL.
1.6 'DOCUMENTATION'
means the Software's accompanying documentation as updated from time to time in
whatever form supplied by LICENSOR under the Agreement and includes, the
functional specifications of the Software, the users manuals, information
material and all other documentation necessary or useful in describing,
evaluating, installing, configuring, reviewing, using, maintaining and
supporting the Software. The Documentation may be provided in machine readable
form on appropriate media, in which case any necessary software required to
install and access the Documentation and any necessary licence therefor shall be
supplied by LICENSOR at no additional cost to SHELL. The Documentation current
on the Effective Date (as defined below) is listed in Appendix I.
1.7. 'EFFECTIVE DATE'
means the date given in Appendix I - Licence Specific details.
1.8. 'GROSS NEGLIGENCE'
means wilful misconduct or disregard for foreseeable and harmful consequences
which should have been anticipated by a person of ordinary prudence.
1.9. 'HELP DESK'
means the help desk services described in Article 4.2.
1.10. 'LICENSOR PERSONNEL'
means the employees, directors, sub-contractors, representatives and agents of
LICENSOR and the employees of such sub-contractors, representatives and agents.
1.11. 'MAINTENANCE'
means the maintenance services described in Article 4.1.
1.12. 'OPERATING SYSTEM ENVIRONMENT'
means the computer hardware and operating system(s) and data bases (if
applicable) under the control of SHELL on which the Software is generally
supported by LICENSOR. A list of the Operating System Environment(s) currently
supported is specified in Appendix I.
1.13. 'PATCHES'
means a Release of the Software which is for error correction, made as a result
of the identification of errors in the Software.
1.14. 'RELEASE'
means such consecutive versions of the Software as LICENSOR decides to market in
the normal course of business. Release shall include, as the case may be,
Patches, Updates and Versions.
1.15. 'ROYALTY PAYMENT'
means the total amount of monies owed by SHELL to LICENSOR, at a rate of $750.00
per end user copy, for all copies of the Software shipped by the Bellaire
Technology Center, whether for internal or external use, which will be
calculated on an annual basis. Such payments shall be invoiced direct to Shell
Oil Company, located in Houston, Texas, under the terms of the prior agreement
between LICENSOR and Shell Oil Company.
1.16. 'SHELL PERSONNEL'
means employees, directors, Contractors, sub-contractors, representatives,
agents of SHELL and Affiliates of SHELL and employees of such Contractors,
sub-contractors, representatives, agents.
1.17. 'SOFTWARE'
means the Software specified in Appendix I, all future Releases thereof and the
Documentation related thereto.
1.18. 'THIRD PARTY'
means any party other than the LICENSOR, SHELL and Affiliates of SHELL.
1.19. 'UPDATES'
means a release which includes numbers of Patches (the term Upgrade shall have
the same meaning as the term Update). Updates shall not include any future
products which XOX packages and licenses separately.
1.20 'VERSION'
means a release which at least shall include all Patches and Updates issued
since the previous Version together with the results of research and development
over a period of time, and will incorporate changes to enable the Software to
operate in conjunction with later versions/releases of the Operating System
Environment, relational databases, mail systems and any other necessary
pre-requisite products insofar as these are generally available and supported by
LICENSOR. A Version of any particular item of the Software shall be based on the
previously offered Version and shall have equivalent or enhanced functionality
with such corrections and amendments as LICENSOR at its sole discretion decides
to include. Version shall not include any future products which XOX packages and
licenses separately.
In the event that the LICENSOR markets a product functionally similar to the
Software but under a new identity, and if that product is a direct development
of the Software, and if concomitantly with or soon after the release the
LICENSOR ceases maintenance of the Software, then the product shall itself be
deemed to be a Version of the Software and shall be issued to SHELL and
subsequently maintained by the LICENSOR in the same way and under the same terms
and conditions as a Release of the Software.
ARTICLE 2 - SCOPE OF LICENSE
2.1 GRANTING OF LICENSE
LICENSOR, warranting that it is entitled to do so, hereby grants to SHELL, who
hereby accepts, a perpetual, non-exclusive, irrevocable and non-transferable
licence (unless terminated in accordance with Article 5.7 or 15.2a) to use the
Software and the Documentation within SHELL in accordance with the Agreement. To
the extent that the Software and the Documentation may be protected by copyright
or other intellectual or industrial property rights of LICENSOR, SHELL shall
enjoy a perpetual, non-exclusive and irrevocable licence under such rights for
the purposes described herein. SHELL shall be exclusively responsible for the
supervision, management and control of its use of the Software.
2.2 USAGE RIGHTS
The licence to use the Software and Documentation granted hereunder entitles:
a) SHELL and Affiliates of SHELL, to make an unlimited number of copies of
and use the Software and the Documentation within SHELL for purposes of
normal operational use, including the development and distribution of
computer applications within SHELL that incorporate such Software,
emergency back-up, security fall-back, help-desk, training, testing,
demonstration, installation and archiving;
b) SHELL and Affiliates of SHELL to grant SHELL Personnel access to the
Software from their working locations, including users working from their
homes (teleworkers) or from the premises of Contractors;
c) SHELL and Affiliates of SHELL to do all other acts which are necessary to
use the Software as intended, including error correction, virus testing
and in order to achieve interoperability of the Software with other
programs; and
d) SHELL and Affiliates of SHELL to distribute the Software to Affiliates of
SHELL and Contractor.
2.3 USE BY CONTRACTOR
Contractor is entitled to use the Software solely to the extent required for the
performance of Contractor's contractual obligations to SHELL and/or any
Affiliate of SHELL. SHELL and/or any Affiliate of SHELL shall, if so requested
by LICENSOR, arrange that Contractor is bound by secrecy provisions vis-a-vis
SHELL and/or Affiliate of SHELL, as the case may be, no less stringent than
those contained in the Agreement.
2.4 AFFILIATES OF SHELL CHANGES
The licence to use the Software and the Documentation is for use by SHELL and
Affiliates of SHELL and includes any future changes thereof. Subject to the
written approval of LICENSOR, companies ceasing to be Affiliates of SHELL shall
have the right to continue to use the Software and receive Maintenance on the
terms and conditions of the Agreement for one year following the effective date
of such change at no additional cost. SHELL will inform LICENSOR of the date of
expiry of such a twelve month period at least six months prior to the date of
expiry.
2.5 MEMBERSHIP OF PRODUCT DEVELOPMENT FORA
SHELL and/or Affiliates of SHELL nominated by SHELL shall be entitled to
participate in any product development fora of LICENSOR relevant to the business
of SHELL and/or Affiliates of SHELL AND AT NO MEMBERSHIP COST.
2.6 COMPUTER SYSTEMS
SHELL, Affiliates of SHELL and Contractor shall be free to run the Software
within SHELL and/or Affiliates of SHELL on any computer system defined within
the Operating System Environment for the internal business purposes of SHELL and
Affiliates of SHELL.
2.7 REPORTING AND REVIEW
SHELL and LICENSOR'S reporting obligations are specified in Appendix II.
ARTICLE 3 - DELIVERY, INSTALLATION, TESTING AND ACCEPTANCE
3.1 This Article not used.
3.2 This Article not used.
3.3 TESTING
Upon receipt of any new Version, SHELL may during a test period of no more than
forty-five (45) days, unless otherwise agreed in writing, arrange that a series
of agreed standard tests is conducted to investigate whether the Version
operates and performs properly and in accordance with the Documentation.
3.4 ACCEPTANCE
Acceptance of the Version shall occur when the relevant tests, in SHELL's
reasonable opinion, shows that the Version operates and performs properly and in
accordance with the Documentation and confirmation thereof is given by SHELL to
LICENSOR in writing.
In the event that SHELL does not notify LICENSOR within ninety (90) days from
the completion of the relevant tests, the Version shall thereafter be deemed
accepted.
Any acceptance as described above shall not relieve LICENSOR from any of its
obligations or liabilities under the Agreement or at law.
3.5 NON-ACCEPTANCE
If, in the reasonable opinion of SHELL, the tests show that the Version does not
operate and perform properly and in accordance with the Documentation, SHELL
shall notify LICENSOR thereof in writing. Upon receipt of such notice, LICENSOR
shall promptly and without additional charge provide any support services in
respect of the Version that is necessary to ensure that the Version operates and
perform properly and in accordance with the Documentation and the warranties
given by LICENSOR in the Agreement whereafter Articles 3.3, 3.4 and 3.5 shall
apply again.
ARTICLE 4 - MAINTENANCE, HELP DESK AND SUPPORT
4.1 MAINTENANCE
LICENSOR shall, subject to Article 15.3, provide SHELL with the Maintenance as
described below in order to ensure that the Software remains in good working
order and operates and performs properly and in accordance with the
Documentation and that Releases are provided which enable the Software to
operate with later operating system/hardware platforms, and other necessary
environmental products as they become available in the market and are generally
supported by LICENSOR.
LICENSOR shall in all events furnish SHELL with new Releases in time to ensure
reasonable inter-operability with new releases of the Operating System
Environment.
LICENSOR shall provide SHELL with Maintenance of any Version for six months from
the date of the general release of a new Version, after which time only the new
Version shall be provided Maintenance. SHELL and Affiliates of SHELL are, when a
new Version is released, free to continue to use the Version they currently use.
On receipt of any Release and in case SHELL and/or any Affiliate of SHELL, as
the case may be, wish to adopt it, SHELL will test such Release in accordance
with Article 3.3 prior to implementation.
If the Release, in the reasonable opinion of SHELL proves to be in good working
order and SHELL wishes to adopt it, confirmation thereof shall be given to
LICENSOR in writing. In case of non-acceptance Article 3.5 shall apply.
4.2 HELP DESK
Help Desk assistance, to the extent reasonably possible, will be provided to
SHELL 18 hours per day as follows: LICENSOR shall provide SHELL and Affiliates
of SHELL with telephone/fax/E-mail numbers which nominated focal points can use
during local business hours in the United States (defined as 0800 to 1700 hours,
U.S. Central Time, on local workdays but excluding American public holidays) to
get assistance from nominated LICENSOR Personnel who will act as the Help Desk
during specified hours.
LICENSOR shall provide SHELL and Affiliates of SHELL with telephone/fax/E-mail
numbers which nominated focal points can use outside local business hours, U.S.
Central time (defined as 0900 to 1800 hours, Indian Standard Time (I.S.T.), on
local workdays but excluding Indian public holidays) to get assistance from
nominated personnel at the LICENSOR's location in India, who will act as the
Help Desk during specified hours.
Up to three nominated focal points at any one time may be assigned within SHELL,
each Affiliate of SHELL and, subject to Article 4.4, Contractor.
The Help Desk response time goals depend upon the severity of the problem and
are as follows:
<TABLE>
<CAPTION>
------------------- --------------------------- ------------------ ------------------------
SEVERITY LEVEL DEFINITION TARGET TIME TO TARGET TIME TO
(TO BE DEFINED BY RESPOND RESOLVE
SHELL FOCAL POINT)
------------------- --------------------------- ------------------ ------------------------
<S> <C> <C> <C>
Very High Production system - less than 0.5 hour less than 4 hours
inoperative.
------------------- --------------------------- ------------------ ------------------------
High Production system - less than 1.0 hour less than 8 hours
severe loss of
functionality, impact on
business operations.
------------------- --------------------------- ------------------ ------------------------
Medium Production system - less than 2.0 hours less than 1 working day
transaction or program
abend, business operation
not disabled.
------------------- --------------------------- ------------------ ------------------------
Low Test system - any failure. less than 8.0 hours less than 5 working days
------------------- --------------------------- ------------------ ------------------------
</TABLE>
LICENSOR shall arrange that problems of severity level "Very High" or "High" are
given the highest level of priority in allocating resources and that the Help
Desk on duty continues to work, including overtime, until the problem has been
resolved.
problems of severity level "Very High" or "High" LICENSOR shall arrange that
the Help Desk immediately informs and consults with a management nominee of
LICENSOR on how to best resolve the problem.
In the event that problem of severity level "Very High" or "High" is not
resolved or expected to be resolved within one working day, LICENSOR shall
arrange that SHELL, or an Affiliates of SHELL or a Contractor nominated by SHELL
is promptly informed and a joint plan is agreed.
LICENSOR shall for all problems (except of severity level "Low") use its best
endeavours to arrange that a temporary solution is provided within one working
day in case a problem cannot or is not expected to be resolved within one
working day.
LICENSOR shall arrange that statistics are kept on response and resolution times
(against the targets in the table above), and the character and cause of the
problems. LICENSOR shall report these statistics to SHELL for the annual joint
review of performance against targets described in Appendix II to determine
underlying and systemic causes on the basis of which LICENSOR shall take
corrective action to avoid future off-target performance.
4.3 SUPPORT
SHELL and Affiliates of SHELL may obtain Support services by entering into
individual agreements in the form of Appendix VI - Pro-forma Support Agreement.
Rates and prices will be based on the schedule of hourly rates contained in
Appendix IV.
4.4 CONTRACTOR NOMINATION
SHELL and Affiliates of SHELL shall be free to nominate to LICENSOR any
Contractor(s) to whom LICENSOR shall provide Help Desk and any other Support as
prescribed in the appropriate Support Agreement pursuant to Appendix VI. In
carrying out the services described in this Article 4 LICENSOR shall fully
co-operate with Contractor(s) to the extent that SHELL or Affiliates of SHELL
deem necessary.
ARTICLE 5 - PROPRIETARY RIGHTS
5.1 WARRANTY
LICENSOR warrants that it owns, or holds valid licences to the copyright and any
other intellectual and industrial property rights in the Software, the
Documentation and in any information the LICENSOR may make available under the
Agreement. LICENSOR further warrants that it is entitled to licence the Software
and furnish the Documentation under the terms of the Agreement.
5.2 OWNERSHIP AND COPYRIGHT
The copyright and any other intellectual and industrial property rights that may
exist in the Software and the Documentation and in any enhancement thereof
shall, unless otherwise agreed in writing, be vested in LICENSOR or be licensed
by LICENSOR from a Third Party. No title or ownership of the Software or rights
in patents, copyrights and trade secrets in the Software is transferred to SHELL
by virtue of the Agreement. All copies of the Software provided by LICENSOR or
made by SHELL, including partial copies within the Software Applications, are
and shall remain the property of LICENSOR and subject to the terms and
conditions of the Agreement.
SHELL agrees that copies of the Software shall bear LICENSOR's copyright,
patent, proprietary and trademark notices, which SHELL and/or Affiliates of
SHELL shall reproduce on all copies of the Software it manufactures. Such
notices shall be placed on Documentation, on the Software, on screen at log-on,
in object code, on packaging, labels, and diskette or tape jackets, as
appropriate.
5.3 THIRD PARTY DISPUTES
LICENSOR represents that, upon execution of the Agreement, to the best of its
knowledge the copyright and/or other intellectual or industrial property rights
in the Software are not disputed by any Third Party.
5.4 THIRD PARTY INDEMNIFICATION
LICENSOR shall indemnify and hold SHELL, Affiliates of SHELL and SHELL Personnel
harmless from all claims, liabilities, losses and damages asserted by any
person, together with all costs, expenses or liabilities relating thereto based
upon or resulting from any claim or action in respect of infringement of
copyright or any other intellectual or industrial property rights made against
SHELL, Affiliates of SHELL or SHELL Personnel and (allegedly) resulting from
their possession or use of the Software or Documentation; provided SHELL gives
LICENSOR prompt written notice within 30 days of such claim against it and
further cooperates completely with LICENSOR in providing all necessary
authority, information and reasonable assistance to enable LICENSOR at its
option, to settle or defend such claim. LICENSOR shall have no liability for any
claim of infringement based on use of the Software as modified or used by SHELL
with other software or data if such infringement would have been avoided by the
avoidance of use with such other software or data.
5.5 INFORMATION DUTY
SHELL shall promptly notify LICENSOR of any matters in respect of which the
indemnity and hold harmless in Article 5.4 may apply and of which SHELL has
knowledge.
5.6 DEFENCE AND SETTLEMENT
Upon notification in writing of any action or claim for which LICENSOR in
accordance with Article 5.4 is to provide indemnity, LICENSOR shall defend or
settle, at its option and at the expense of LICENSOR, all such actions or claims
provided that LICENSOR shall have the right to control the defence and
settlement of all such actions or claims. SHELL will take all such actions at
the expense of LICENSOR, as may be reasonably requested by LICENSOR in
connection with such defence or settlement.
5.7 CONSEQUENCES OF AN INFRINGEMENT
If a final judgement shall be rendered against SHELL, Affiliates of SHELL or
SHELL Personnel for use or possession of the Software and Documentation or any
part thereof by reason of an infringement, LICENSOR shall at its own expense and
option either:
i) procure for SHELL, Affiliates of SHELL and SHELL Personnel the
right to continue to use the Software and the Documentation as
described in the Agreement; or
ii) modify or replace the Software and the Documentation or the
infringing part thereof so that it becomes non-infringing without
adversely affecting the capability of the Software. LICENSOR shall
remain responsible for the Maintenance of the modified or replaced
Software.
If the foregoing alternatives are not available and SHELL and/or Affiliates of
SHELL are obliged to discontinue their use of the Software under such a
judgement, LICENSOR shall request SHELL and Affiliates of SHELL to return all
the Software to LICENSOR at LICENSOR's expense and repay to SHELL the total
Licence fees paid by SHELL to LICENSOR hereunder, without prejudice to any other
rights of SHELL under the Agreement or at law, and SHELL shall then agree to
allow the Agreement and the licence granted thereunder to be terminated.
5.8 This Article not used.
5.9. This Article not used.
ARTICLE 6 - WARRANTY AND REPRESENTATIONS
6.1 This Article not used.
6.2 This Article not used.
6.3 VIRUS TESTING/HIDDEN FUNCTIONALITY
LICENSOR warrants that any new Releases upon delivery will be free from computer
code designed to disrupt the Software or the Operating System or destroy,
corrupt or interfere with data including computer viruses or other malicious
program code. LICENSOR shall establish appropriate checks and controls over the
production and dispatch of Releases, Documentation and data files. LICENSOR
undertakes to apply such controls to all diskettes, tapes, PC hard drives and
any other form of program and file delivery whether tangible or intangible
including any Releases delivered electronically via a telecommunications
network.
6.4 This Article not used.
LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT THE SOFTWARE
IS, MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES EXCEPT
AS EXPRESSLY SET FORTH IN THE AGREEMENT.
ARTICLE 7 - SECURITY
7.1 This Article not used.
7.2 CONTINGENCY
Upon prior written approval by LICENSOR, SHELL and Affiliates of SHELL may store
any part of the Software with a Third Party for safe-keeping and, in a fall-back
situation, use the Software at the premises of a Third Party. LICENSOR shall in
such an event, after written notice by SHELL or an Affiliate of SHELL, provide
Maintenance, Help Desk and other Support pursuant to Article 4.5 to such
premises.
7.3. AUDIT BY SHELL
Without prejudice to LICENSOR's responsibilities under the Agreement, SHELL or
its authorised representative shall have the right to carry out audits of
LICENSOR and LICENSOR's records to verify LICENSOR's compliance with the
provisions of the Agreement.
LICENSOR shall fully co-operate with SHELL in the carrying out of such audits.
In particular SHELL shall have access to all LICENSOR Personnel dealing with
matters relating to the Agreement and to all appropriate accounting records
related to the Agreement. LICENSOR shall maintain such material for a minimum
period of two years, or the length of time required under applicable law
(whichever is the longer) from the termination of the Agreement to enable SHELL
to carry out audits. SHELL shall have the right to reproduce for its internal
purposes any of the aforementioned material. All information obtained by SHELL
in the course of such audit shall be deemed Confidential Information and shall
not be used or disclosed to any other person or firm except for the purpose of
the Agreement.
ARTICLE 8 - SECRECY
8.1 UNDERTAKINGS
LICENSOR undertakes:
a) to use Confidential Information received by it only for the
purposes of the Agreement.
b) to disclose Confidential Information only to LICENSOR Personnel
who need it for the purpose of the Agreement;
c) to preserve and cause LICENSOR Personnel to preserve the secrecy
of Confidential Information; and
d) not to disclose Confidential Information to a Third Party (other
than to LICENSOR Personnel).
SHELL may disclose confidential information of LICENSOR to an Affiliate of SHELL
or a Contractor provided that such party is bound vis-a-vis SHELL or Affiliates
of SHELL, as the case may be, by secrecy provisions similar to those contained
in the Agreement.
SHELL undertakes:
a) to use Confidential Information received by it only for the
purposes of the Agreement.
b) to disclose Confidential Information only to SHELL Personnel who
need it for the purpose of the Agreement;
c) to preserve and cause SHELL Personnel to preserve the secrecy of
Confidential Information; and
d) not to disclose Confidential Information to a Third Party (other
than to SHELL Personnel).
8.2 LENGTH OF UNDERTAKING
LICENSOR's undertaking under Article 8.1 shall continue for so long as the
Confidential Information in question has not:
a) become part of public knowledge or literature without breach of
confidence on the part of LICENSOR (including LICENSOR Personnel);
b) been disclosed to LICENSOR by a Third Party (other than one
disclosing on behalf of SHELL and/or any Affiliate of SHELL) whose
possession and disclosure of such Confidential Information is
lawful and who was not under any secrecy obligation with respect
to the same.
SHELL's undertaking under Article 8.1 shall continue for so long as the
Confidential Information in question has not:
a) become part of public knowledge or literature without breach of
confidence on the part of SHELL (including SHELL Personnel);
b) been disclosed to SHELL by a Third Party (other than one
disclosing on behalf of LICENSOR) whose possession and disclosure
of such Confidential Information is lawful and who was not under
any secrecy obligation with respect to the same.
8.3 PUBLICITY
SHELL hereby agrees that LICENSOR is authorized to make reference to the
Agreement or the activities carried out thereunder in any advertising, sales
promotion or any other publicity or public statement in written, electronic or
broadcast form. Use of Shell copyright logos shall be subject in each instance,
to SHELL's written agreement.
8.4 LICENSOR PERSONNEL AND SHELL PERSONNEL
If requested by SHELL, the LICENSOR shall arrange that LICENSOR Personnel
assigned to the provision of Maintenance requiring access to SHELL Confidential
Information sign(s) a personal secrecy declaration vis-a-vis SHELL in the form
of the Pro Forma given in Appendix III.
If requested by LICENSOR, SHELL shall arrange that SHELL Personnel requiring
access to LICENSOR Confidential Information sign(s) a personal secrecy
declaration vis-a-vis LICENSOR in substantially the form of the Pro Forma given
in Appendix III
8.5 CONTAMINATION
LICENSOR shall use its best efforts to ensure that no information shall come to
the knowledge of SHELL or Affiliates of SHELL or SHELL Personnel which is
proprietary to Third Parties and which LICENSOR is not free to disclose without
binder of secrecy.
8.6 RETURN OF MATERIAL
Upon termination LICENSOR and SHELL shall forthwith return to the other party
all Confidential Records held in connection with the Agreement.
8.7 SURVIVAL OF TERMINATION
The provisions of this Article 8 shall survive the termination of the Agreement.
ARTICLE 9 - LIABILITY AND INSURANCE
9.1 PROPERTY
9.1.1 LICENSOR PROPERTY
LICENSOR shall be responsible for, indemnify and hold SHELL harmless against all
claims, proceedings, liabilities, losses, damages, costs and expenses whatsoever
arising out of or resulting from any loss or damage to the property of LICENSOR
or LICENSOR Personnel relating to the performance of the Agreement even if the
loss or damage is caused by negligence on the part of SHELL or SHELL Personnel.
However, the foregoing shall not apply to the extent Gross Negligence of SHELL
or SHELL Personnel caused such loss or damage.
9.1.2 SHELL PROPERTY
SHELL shall be responsible for, indemnify and hold LICENSOR harmless against all
claims, proceedings, liabilities, losses, damages, costs and expenses whatsoever
arising out of or resulting from any loss or damage to the property of SHELL or
SHELL Personnel relating to the performance of the Agreement even if the loss or
damage is caused by negligence on the part of LICENSOR or LICENSOR Personnel.
However, the foregoing shall not apply to the extent Gross Negligence of
LICENSOR or LICENSOR Personnel caused such loss or damage.
9.2 This Article not used.
9.3 This Article not used.
9.4 INDIRECT LOSS OR DAMAGE
Without prejudice to any indemnity given in the Agreement, neither party shall
be liable to the other party for loss of profit, anticipated profit or revenue
or business interruption or any other indirect or consequential loss or damage
arising out of or in connection with the Agreement.
9.5. INDEMNITIES
Any rights and indemnities given to SHELL in this Article 9 shall be deemed to
include SHELL, Affiliates of SHELL, Contractor and their respective Personnel.
Any rights and indemnities given to LICENSOR in this Article 9 shall be deemed
to include LICENSOR Personnel.
9.6. INSURANCE
Without limiting its obligations, LICENSOR shall, at its own expense, maintain
for the duration of the Agreement, adequate insurance to cover its liabilities
under the Agreement.
SHELL may, at any time, request proof of such compliance.
ARTICLE 10 - REMUNERATION AND PAYMENT
10.1 LICENCE FEE
In full consideration of the licence to use the Software and the Documentation
and all other rights granted under the Agreement, SHELL shall pay to LICENSOR
the one-time licence fee specified in Appendix IV.
10.2 MAINTENANCE FEE AND ROYALTY PAYMENTS
In full consideration for the provision of Maintenance and Help Desk, SHELL
shall pay to LICENSOR the annual Maintenance fee specified in Appendix IV.
For one year from the Effective Date of the Agreement, SHELL shall continue to
pay to LICENSOR the Royalty Payment for runtime licenses shipped by the Bellaire
Technology Center as originally agreed upon by both parties pursuant to License
Agreement #9325. As of the Effective Date, and continuing thereafter for the
duration of the Agreement, the Royalty Payment shall also be used to calculate
the Maintenance fee as specified in Appendix IV.
10.3 THIS ARTICLE NOT USED
10.4 SUPPORT RATES
The schedule of Support rates included in Appendix IV shall be the basis of
rates to be incorporated in individual Agreements in the form of Appendix VI
which may be executed by the LICENSOR and SHELL or Affiliates of SHELL for
services in support of the Software. The schedule of Support rates may be
revised by LICENSOR on an annual basis.
10.5 INVOICING AND PAYMENT PROCEDURES
LICENSOR's invoices shall clearly identify the Agreement reference number and
the item to which they refer. The licence fee shall be invoiced to SHELL in
accordance with the schedule in Appendix IV.
The annual Maintenance fee referred to in Article 10.2 shall be invoiced to
SHELL and paid yearly in advance. Maintenance fees shall cover calendar years
unless terminated in accordance with the Agreement.
Payment of all invoices under the Agreement shall be made by SHELL within thirty
(30) days from the date of receipt by SHELL of the invoice, provided that the
invoice is correctly prepared and adequately documented. SHELL reserves the
right to pay only the undisputed portion of a disputed invoice. SHELL and
LICENSOR shall endeavour to settle at the earliest possible date any matters in
dispute.
10.6 PAYMENT OF TAXES ETC.
LICENSOR shall be responsible for all taxes, levies, social security and other
charges and duties imposed in connection the fulfilment of LICENSOR's
obligations under the Agreement and shall indemnify and hold SHELL and
Affiliates of SHELL harmless against any claim of whatever nature brought
against SHELL or Affiliates of SHELL as a consequence thereof. Exceptionally,
all prices quoted are exclusive of Value Added Tax or any other similar sales
tax.
ARTICLE 11. - CONVERSION
11.1. EXISTING AGREEMENTS WITH SHELL
Upon the Effective Date of the Agreement any existing agreements that SHELL has
with LICENSOR for the licensing, maintenance and/or support of the Software or
parts thereof shall be automatically terminated and all such licences,
maintenance and support shall thereafter be considered as provided on the terms
and conditions of the Agreement; provided however, that SHELL shall continue to
pay the Royalty Payment for runtime licenses shipped by the Bellaire Technology
Center pursuant to License Agreement #9325 for one year from the Effective Date
of the Agreement. (see 10.2)
11.2. EXISTING AGREEMENTS WITH AFFILIATES OF SHELL
Affiliates of SHELL having agreements in place with LICENSOR for the licensing,
maintenance and/or support of the Software or parts thereof shall, following the
signature of the Agreement have the right, but not be obliged, to terminate such
existing agreements with thirty (30) days prior written notice upon the
effective day of which such licences, maintenance and support shall be
considered as provided on the terms and conditions of the Agreement.
11.3. WAIVER OF FEES FOR EARLY TERMINATION
Any early termination fees which might be payable under agreements terminated in
accordance with the foregoing are hereby waived by LICENSOR.
LICENSOR shall arrange that the terms of this Article 11 will be fully honoured
by all other affiliates of the LICENSOR and by distributors and agents of
LICENSOR in so far as SHELL and Affiliates of SHELL have agreements in place
with such companies and distributors or agents for the licensing, maintenance
and/or support of the Software.
Credits for licence fees paid by SHELL and Affiliates of SHELL for the Software
and parts thereof are specified in Appendix IV.
ARTICLE 12. - EXPORT REGULATIONS
LICENSOR shall be responsible for obtaining at its own expense such
authorisations, approvals, permits, consents, export and other licences as are
necessary for LICENSOR'S deliveries to SHELL or Affiliates of SHELL.
ARTICLE 13. - INDEPENDENT PARTY
LICENSOR renders the licence, maintenance and other services under the Agreement
as an independent party and is not authorised to act as the agent or
representative of SHELL or Affiliates of SHELL or to represent that LICENSOR is
entitled so to act.
ARTICLE 14. - SOURCE CODE ESCROW
14.1. ESCROW AGREEMENT
The parties shall upon the signing of the Agreement execute an Escrow Agreement
in the form of that attached to the Agreement as Appendix V, where such an
Escrow Agreement is required by the Licence Specific details in Appendix I.
14.2. INVOCATION OF ESCROW
In the event that the LICENSOR fails to provide Maintenance or Help Desk in
accordance with the Agreement, is declared bankrupt, enters into a voluntary
arrangement with creditors, administration or similar circumstances or fails to
fulfil its responsibilities under the circumstances described in Article 16.3
below, SHELL shall be entitled to invoke the terms of the Escrow Agreement and
thereafter be able freely to develop, maintain, distribute and support the
Software and derivatives thereof for the business purposes of SHELL and
Affiliates of SHELL. In the event that the Escrow Agreement is invoked as a
result of failure to provide Maintenance or Help Desk services, such Escrow
Agreement shall be invoked only for the purpose of correcting the problem, after
which time the Source Code shall be returned to Escrow.
ARTICLE 15. - PERIOD AND TERMINATION OF AGREEMENT
15.1. PERIOD OF THE AGREEMENT
The Agreement shall come into force on the Effective Date and it shall
thereafter remain in force for an indefinite period of time, unless terminated
pursuant to Article 5.7 or 15.2a.
15.2. TERMINATION BY LICENSOR
a) LICENSOR may terminate the Agreement with immediate effect upon
SHELL's receipt of written notification to that effect in the
event that SHELL, despite a reminder in writing from LICENSOR,
defaults in the payment of the licence fee or maintenance fee due
under the Agreement for more than sixty (60) days after its due
date(s) as specified in Appendix IV. However, non-payment of a
disputed amount shall not entitle LICENSOR to terminate in
accordance with the foregoing. Upon termination pursuant to the
foregoing, SHELL will either return to LICENSOR all copies of the
Software and Documentation or certify in writing to LICENSOR that
all such copies have been destroyed.
b) In case of a serious default in the performance of the obligations
under the Agreement to respect LICENSOR's intellectual or
industrial property rights in the Software and the Documentation
which default remains unremedied for a period of sixty (60) days
after LICENSOR has given written notice to SHELL specifying such
default and requesting the same to be remedied, LICENSOR may by
written notice and with immediate effect, as LICENSOR's sole and
exclusive remedy, exclude from the licence granted under the
Agreement the usage rights of the relevant defaulting company,
whether being SHELL, Affiliates of SHELL or Contractor, whilst all
other rights granted under the Agreement shall remain unaffected.
Upon partial termination in accordance with the foregoing, SHELL
shall arrange that all copies of the Software and Documentation
held by the defaulting company either are returned to LICENSOR or
that it is certified in writing to LICENSOR that all such copies
have been destroyed.
15.3. TERMINATION/SUSPENSION OF MAINTENANCE AND HELP DESK
SHELL may terminate the Maintenance and Help Desk to be provided under the
Agreement to the end of each calendar year by giving LICENSOR at least ninety
(90) days prior written notice thereof.
In case SHELL defaults in the payment of the annual Maintenance and/or Help Desk
fee due under Articles 10.2 for more than sixty (60) days after LICENSOR has
given written notice to SHELL specifying such default and requesting the same to
be remedied, LICENSOR may as its sole and exclusive remedy suspend all
Maintenance and/or Help Desk services until the default has been corrected.
With effect from the end of the tenth (10th) calendar year following the
Effective Date and as from the end of any subsequent calendar year, LICENSOR may
terminate the obligations to provide Maintenance and/or Help Desk by giving
SHELL at least two years prior written notice thereof. Notwithstanding any prior
existing source code escrow arrangements, LICENSOR shall, in case of such
termination, provide all necessary assistance to SHELL in establishing
satisfactory continuing arrangements for source code escrow.
15.4. NO PREJUDICE
The termination of the Agreement shall not prejudice the application of its
relevant terms to any remedies sought thereafter or to any rights or obligations
then outstanding or specified or implied to survive expiry or termination.
ARTICLE 16. - LEGAL CONSTRUCTION
16.1. APPLICABLE LAW/DISPUTE SETTLEMENT
The Agreement shall be exclusively governed by and construed in accordance with
Minnesota law.
16.2. ASSIGNMENT/SUBCONTRACTING
LICENSOR may not assign any of its rights or obligations under the Agreement to
any Third Party except with the prior written consent of SHELL.
Except as described under Article 4, LICENSOR may not subcontract any of the
services to be provided under the Agreement without the prior and written
consent of SHELL. In the event that SHELL gives its consent to and LICENSOR
subcontracts, LICENSOR shall remain fully responsible for the fulfilment in
accordance with the Agreement of its obligations so subcontracted.
SHELL shall be free to assign any or all of its rights and/or obligations to an
Affiliate of SHELL subject to:
(i) SHELL giving the LICENSOR such reasonable notice and other
information as is necessary for the LICENSOR to fulfil its obligations
under the Agreement, and
(ii) SHELL obtaining from the Affiliate of SHELL an undertaking to
abide by the terms and conditions of this Agreement.
16.3. AMALGAMATION/MERGER/TAKE-OVER
LICENSOR undertakes in the event of an amalgamation or merger with or take-over
by a Third Party of its business or any other restructuring or reorganisation
thereof including disposal of its rights to the Software, to use its best
endeavours to ensure that its obligations under the Agreement will be performed
and, if applicable and so requested by SHELL, to procure that the Third Party or
new legal entity succeeding LICENSOR will replace LICENSOR as a full party to
the Agreement. In the event that the LICENSOR fails to arrange terms
satisfactory to SHELL, then the terms of Article 14 shall apply.
16.4. ENTIRETY
The Agreement sets out the entire understanding between the parties with respect
to the subject matter thereof and supersedes all prior oral and written
arrangements and understandings between the parties relating thereto, subject to
the requirements of Article 1.15.
16.5. AMENDMENTS AND WAIVERS
The Agreement shall not be amended and none of its provisions shall be deemed to
have been waived by any act or acceptance by either party except by an
instrument in writing signed by authorised officers of the parties.
16.6. PARTIAL INEFFECTIVENESS
If any provision of the Agreement shall be found to be illegal, unenforceable or
otherwise invalid, then, notwithstanding any such invalidity, the Agreement
shall remain in full force and effect and such provision shall be deemed to be
deleted and substituted by a valid one which in its economic effect comes so
close to the invalid provision that it can be reasonably assumed that the
parties would have contracted also with this new provision. In case such a new
provision cannot be found, the invalidity of one or more provisions of the
Agreement will not affect the validity of the Agreement as a whole, unless the
invalid provision was of such essential importance to the Agreement that it is
to be reasonably assumed that the parties would not have contracted the
Agreement without the invalid provision.
16.7 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.
ARTICLE 17. - COMMUNICATIONS AND LANGUAGE
All notices or other communications to be sent by either party to the other
party under the Agreement shall be deemed to have been sufficiently given if in
writing and delivered by hand against written receipt or if sent by (registered)
mail, telex, telegram, cable or facsimile to the address given in Appendix I -
Licence Specific details, provided that either party may at any time designate a
different or further address to which notices and other communications are
thenceforth to be sent.
All communications under the Agreement shall be made in English.
IN WITNESS WHEREOF the parties have caused the Agreement to be validly executed
by their duly authorised officers in duplicate originals on the dates and in the
places hereinafter indicated.
FOR AND ON BEHALF OF FOR AND ON BEHALF OF
LICENSOR SHELL
Signed /s/ Lawrence McGraw Signed /s/ illegible signature
Title President/CEO Title EPT-SG CCM
Date 13 March 1997 Date 2 April 1997
Place St. Paul, MN, USA Place Rijswijk
[SHELL LOGO]
APPENDIX I - LICENCE SPECIFIC DETAILS.
A.1.1. THE SOFTWARE:
The Software, referred to in Articles 1.15 and 2.2.a. of the Agreement, is as
detailed below:
SHAPES(R) Geometric Computing Kernel Version 2 (including the SHAPES(R)
Microtopology Module).
A.1.2. THE DOCUMENTATION:
The Documentation current at the Effective Date of the Agreement and referred to
in Articles 1.6, 1.17 and 2.2.a of the Agreement, is as detailed below:
Six (6) complete sets of SHAPES(R) user manual
A.1.3. THE EFFECTIVE DATE:
The Effective date of the Agreement, referred to in Article 1.7 of the Agreement
and being the date on which the terms and conditions of the Agreement
shall be deemed to have come into force and to become binding on the
Parties, shall be MARCH 13, 1997.
A.1.4. THE OPERATING SYSTEM ENVIRONMENTS:
The Operating System Environments referred to in Articles 1.12 and 2.2.a of the
Agreement, and supported by the LICENSOR at the Effective Date are:
A.1.4.1: Computer Hardware:
Silicon Graphics 5.3 (32-bit) and 6.2 (64-bit)
Sun UltraSparc 1&2
IBM RS6000
Intel 386
Any other platform designated by LICENSOR
A.1.4.2: Operating Systems:
Sun 4/Sparc (O.S.4.1 or greater)
SGI Irix 5.3 & 6.2
IBM AIX
4.1 Linux (Intel 386)
Sun Solaris 2.5
Any other platform designated by LICENSOR
A.1.4.3: Data Bases:
Not Applicable.
A.1.5. SUPPLY REQUIREMENTS:
All Software and Documentation has been provided to SHELL under the prior
License Agreement #9325, dated October 7, 1994, between SHELL and
LICENSOR.
A.1.6. ESCROW AGREEMENT:
Pursuant to Article 14.1 an Escrow Agreement shall be executed in accordance
with the Terms of the pro-forma Escrow Agreement in Appendix V.
A.1.7. COMMUNICATIONS:
Pursuant to Clause 17 all notices and official contractual communications shall
be addressed to:
SHELL LICENSOR
SHELL INTERNATIONAL XOX CORPORATION
EXPLORATION & PRODUCTION B.V.
Carel van Bylandtlaan 30, 1450 Energy Park Drive, Suite 120
2596 HR The Hague Saint Paul, Minnesota 55108
The Netherlands U.S.A.
F.a.o.: EPT-SG F.a.o.
Notification address:
Research and Technical Services
Volmerlaan 8
2288 GD Rijswijk
The Netherlands
[SHELL LOGO]
APPENDIX II - REPORTING OBLIGATIONS
A.2.1. REPORTING OBLIGATIONS OF LICENSOR TO SHELL:
Pursuant to Article 2.7 of the Agreement the LICENSOR shall produce and issue to
SHELL on the dates specified below the following reports:
A.2.1.1: The LICENSOR shall produce an annual review of performance
against mutually agreed maintenance targets for the year. The review
shall include the Help Desk statistics to be collected by the LICENSOR
pursuant to Article 4.2 of the Agreement. The report shall be submitted
to SHELL by February 15 of the year following the year to which the
report relates. Within two weeks of receipt of the report and at a
mutually agreed date the Parties shall conduct an annual joint review of
performance and shall agree to any necessary remedial actions appropriate
and to amend targets if and as necessary for the ensuing year. For the
first year of the Agreement, the maintenance performance targets shall
be:
a. Not applicable........................................................
b........................................................................
c........................................................................
ETC...
A.2.1.2: The LICENSOR shall keep SHELL reasonably informed of all product
development and enhancement plans and shall officially notify SHELL of
significant developments as soon as release planning is known to the
LICENSOR.
A.2.1.3: As soon as it is known to the LICENSOR and, in any event, not
less than six (6) months prior to implementation or introduction,
LICENSOR shall inform SHELL of any changes, increases or decreases in the
support for Operating System Environments being provided by the LICENSOR.
A.2.2. REPORTING OBLIGATIONS OF SHELL TO LICENSOR:
A.2.2.1. In the event that SHELL decides to licence SHELL proprietary
software including software covered by this Agreement, SHELL will
promptly inform LICENSOR of such a decision and include appropriate
information.
[SHELL LOGO]
APPENDIX III - PRO FORMA SECRECY DECLARATION
PERSONNEL SECRECY DECLARATION
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 "LICENSOR") hereby declares vis-a-vis SHELL
INTERNATIONALE PETROLEUM MAATSCHAPPIJ B.V., a company incorporated under
Netherlands law, having its registered office at 30, Carel van Bylandtlaan, 2596
HR, The Hague, The Netherlands (hereinafter referred to as "SHELL") 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 LICENSOR's rendering of services to SHELL pursuant to the
Agreement for
....................................................... between the LICENSOR and
SHELL, 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 to the DECLARANT by
or on behalf of SHELL or any AFFILIATE OF SHELL (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 SHELL or any
AFFILIATE OF SHELL, 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
(b) 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;
(b) not disclose to any third party any CONFIDENTIAL INFORMATION
except, in each case, with SHELL's prior written consent in
which event the DECLARANT shall require from such third party
that they shall abide by stipulations on nondisclosure
equivalent to those contained in this secrecy declaration;
(c) 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;
(b) been disclosed to the DECLARANT (without any obligation to
maintain its secrecy) by a third party (other than an
AFFILIATE OF SHELL or a party disclosing on behalf of SHELL or
an AFFILIATE OF SHELL) who could lawfully do so and who did
not derive such CONFIDENTIAL INFORMATION from SHELL or any
AFFILIATE OF SHELL.
4. The title to, ownership of and copyright in any document or other material
containing CONFIDENTIAL INFORMATION obtained by the DECLARANT from SHELL in
connection with the services referred to above shall remain vested in SHELL
and the DECLARANT undertakes to return all such documents and other
materials to SHELL upon completion of the said services without retaining
any copies thereof.
5. "AFFILIATE OF SHELL" 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 SHELL which is for the time being directly or indirectly
affiliated with the 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(s) shares carrying fifty per cent (50%) or more of
the 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 of the 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 SHELL 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
at.........................................................
this..................day of .................. 199
(Name).....................................................
/
(Signature)................................................
[SHELL LOGO]
APPENDIX IV - PRICES, SCHEDULE OF RATES, PAYMENT SCHEDULE
A.4.1. LICENCE:
A.4.1.1: Corporate Licence Fee
Pursuant to Article 10.1 of the Agreement and in full consideration for
unlimited and perpetual worldwide internal use by SHELL, Affiliates of
SHELL and Contractors of the Software and Documentation all as described
in the Agreement, SHELL shall pay to the LICENSOR the one time licence
fee of Two Hundred Fifty Thousand Dollars ($250,000.00) in U.S. currency.
A.4.1.2: Payment Schedule
The Licence fee referred to in A.4.1.1. above shall be invoiced
accordance with the following schedule:
Payment 1:....$100,000, an amount established by SHELL as of December 31,
1996
Payment 2:.....$150,000, upon the Effective Date of the Agreement
A.4.2. MAINTENANCE:
A.4.2.1: Maintenance Fee
The annual Maintenance Fee, which will be payable beginning one year from
the Effective Date of the Agreement, shall be:
Thirty-Seven Thousand Five Hundred Dollars ($37,500.00) plus Fifteen
Percent (15%) of the Royalty Payment owed for the prior year, in U.S.
currency.
A.4.2.2: Payment Schedule
The one time license fee specified in A.4.1 includes payment for
maintenance provided during the first twelve months following the
Effective Date. Sixty days after the one year anniversary of the
Effective Date, Payment 1 shall be invoiced covering maintenance provided
during that year. The second and subsequent payments shall be invoiced on
the twelve month anniversary date of Payment 1.
A.4.2.3: This Article not used.
A.4.2.4: This Article not used.
A.4.2.5: This Article not used.
A.4.3. THIS ARTICLE IS NOT USED
A.4.4. SUPPORT RATES:
A.4.4.1: Support Rates
Support requested by SHELL or Affiliates of SHELL pursuant to Article
10.4 and subject to execution of a Support Agreement in the form of
Appendix VI between SHELL or the Affiliate of SHELL as the case may be,
and the LICENSOR, shall be charged at the following rates:
<TABLE>
<CAPTION>
Pos.Nr. Position Title Daily Rate
(U.S. CURRENCY)
------------------------ --------------------------------------------------- ------------------------
<S> <C> <C>
Craig Andersh Support Manager $750.00
------------------------ --------------------------------------------------- ------------------------
Randy Guetter Customer Support Representative $750.00
------------------------ --------------------------------------------------- ------------------------
Eric Moore Software Engineer $750.00
------------------------ --------------------------------------------------- ------------------------
</TABLE>
A.4.4.3. Review Date
The Support Rates may be reviewed pursuant to Article 10.4 of the
Agreement.
A.4.4.4: This Article not used.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM XOX CORPORATION'S BALANCE SHEET AND STATEMENT OF OPERATIONS AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000798122
<NAME> XOX CORPORATION
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-1-1997
<PERIOD-END> MAR-31-1997
<CASH> 1,939,298
<SECURITIES> 0
<RECEIVABLES> 344,448
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 2,497,926
<PP&E> 544,684
<DEPRECIATION> 361,658
<TOTAL-ASSETS> 2,817,539
<CURRENT-LIABILITIES> 252,337
<BONDS> 0
0
0
<COMMON> 73,285
<OTHER-SE> 12,237,617
<TOTAL-LIABILITY-AND-EQUITY> 2,817,539
<SALES> 0
<TOTAL-REVENUES> 331,611
<CGS> 0
<TOTAL-COSTS> 833,843
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 13,266
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (488,910)
<EPS-PRIMARY> (0.17)
<EPS-DILUTED> 0
</TABLE>
