Appendix 1
AGREEMENT
THIS AGREEMENT (“Agreement”) is made onthe [ ]of [ ]2018 between:
(1)Japan Oil, Gas and Metals National Corporation, a corporation duly organized and existing under the laws of Japan, having its principal office at Toranomon Twin Building, 2-10-1, Toranomon, Minato-ku, Tokyo 105-0001, JAPAN (“JOGMEC”); and
(2)[ ], a corporation duly organized and existing under the laws of the[ ], having its principal office at [ ](“Contractor”).
JOGMEC and the Contractor may individually be referred to as “Party” and collectively as the “Parties”.
THE PARTIES AGREE as follows:
- Term of Agreement
1.1. This Agreement becomes effective as of the date first above written, and, unless terminated earlier under clause 7, remains effective until all the Service Fees are paid to the Contractorin accordance with clause 3.
1.2. The clause 1.2, clause 4 (Propriety Rights and Copyright of Reports), clause 6 (Confidentiality), clause 7 (Early Termination) and Schedule 1 (Payment Adjustment Mechanism), clause 10 (Limitation of Liability; Third Party Claims; Disclaimer), clause 12 (Waiver), clause 13 (Notices), clause 14(General), clause 16(Governing Law) and clause 17 (Disputes and Arbitration) survives any termination of this Agreement and continue in force for ten (10) years from the date first above written.
- Scope of Work
2.1.The Contractor must perform the researchin accordance with the scope of work set out in Scheule 2 and provide JOGMECwith a report (“Report”)as described in Schedule 2.
2.2.The Contractor must carry out this researchusing the Contractor's experience and all of the relevant resources necessary and produce thorough and reliable Report.
2.3.The Contractor must deliver the following materials in respect of theReport to JOGMEC within 15 days of the lastpayment by JOGMEC ofService Fee in accordance with clause 3:
2.3.1.Three (3) copies of the final Report;
2.3.2.Two(2) copy of CD that include without limitation the information contained in the final draft of Report (MS Word format) and presentation materials (MS Power Point format).;
2.4.JOGMEC has the right to amend the scope of work and other details in Schdule 2, provided that such amendments may not be material or substantial in nature. In the contractor considers that it is necessary to revise the Service Fee, such amendment to the scope of work and other details in Schedule 2 is subject to the agreement by the Parties to the revision of the Service Fee.
Service Fees and Method of Payment
3.1.Subject to the terms and conditions hereinafter set forth, JOGMEC must paythe service feesin the amount of:
3.1.1.US $[ ] following attendance of the Kick-Off Meeting;
3.1.2.US$[ ] following delivery of the Report in accordance with Schedule 2,
(each a “Service Fee”, and together the “Service Fees”).
3.2.Payments of bothService Fees under clause 3.1 are subject to the completion of the following procedures:
3.2.1. JOGMEC completes the review of Report submitted to it in accordance with Schedule 2 by the Contractor, and either approve it, or request that modifications and/or amendments be made to it;
3.2.2. The Contractor makes such modifications and/or amendments to the Reportas required by JOGMEC under clause 3.2.1, and resubmit themodified and/or amended Report to JOGMEC for approval;
3.2.3. Upon the Reportis approved under clauses 3.2.1 or 3.2.2, the Contractor issues to JOGMEC an invoice for each Service Fee, as applicable;
3.2.4. No later than thirty (30) days after each invoice is received by JOGMEC in accordance with clause 13 (Notices), JOGMEC will make the payment of theService Fee invoiced by way of electronic bank transfer to the bank account specified by the Contractor, which bank account must be in the name of the Contractor.
3.3.The Contractor must pay and bear all out-of-pocket expenses, including without limitation travel expenses during the term of this Agreement, unless otherwise agreed by JOGMEC.
3.4.For the avoidance of doubt, the amounts of the Service Fees cover all costs and expenses related to the presentation, including without limitation preparation, travel, travel time, accommodation and time spent working on and delivering the presentation, and the amountsof the Service Fees stated in clause 3.1are the only amounts that JOGMEC may be liable for under this Agreement, unless otherwise agreed by JOGMEC.
3.5.The amounts that JOGMEC is to pay under clause 3.1 are inclusive of all taxes.
- Propriety Rights and Copyright of Reports
4.1.Each Party retains all right, title and interest in its“Background IP”, which means all Proprietary Information and the IPR in it and which either existed and was owned by that Party and/or its licensors prior to the date of this Agreement or which comes into existence during the term of this Agreement other than as a result of the performance of this Agreement; for the purposes of this provision, the following terms meanas set out below:
4.1.1.“IPR”, means copyrights (including but not limited to right to translate, transform, or otherwise adapt an original work, and rights of the author of an original work which are the same types as those possessed by the author of derivative works of the orignal work in connection with the exploitation of the derivative works.), patents, registered designs, trade marks and trade names (including any attached goodwill), moral rights, registered database rights and any applications for any of the foregoing together with any right or form of protection of a similar nature and having equivalent or similar effect to any of them anywhere in the world; and
4.1.2.“Proprietary Information”means,including without limitation designs, drawings, reports, specifications, procedures, instructions, software, data, methods, methodologies, know-how, processes, information, analysis, get up and any other technical or commercial information and data and any unfinished versions of the same in any form or medium.
4.2.The ownership of Presentation materials and the Reports, as well as any and allIPRin the Presentation materials and Reportsbelongswholly and exclusively to JOGMEC. The Contractor agrees to do all acts and execute all documents to give effect to this provision, promptly on the request of JOGMEC. Nothing in this Agreement is deemed to grant or convey ownership of the Contractor’s Background IP to JOGMEC.
4.3.The Contractorhereby grants to JOGMEC and its legal successors non-exclusive, royalty-free, worldwide right and license to use the Contractor’s Background IP to the extent the same is incorporated into the Presentation materials and the Reports.
4.4.The Contractor hereby waives any and all of the Contractor’s moral rights in the Presentation materials and the Reports in favour of JOGMEC.
4.5.The Contractor hereby agrees to indemnify JOGMEC for any costs, losses or expenses incurred by JOGMEC as a result of any claim by any third party that the use or possession by JOGMEC of the Presentation materials and any Reports (or part thereof) or that the preparation of the Reports by the Contractor infringes any IPR of any third party, providedthat theContractor is notified in writing of any such suit or claim against JOGMEC and further provided that JOGMEC permits the Contractor to defend, compromise or settle same subject to the prior written approvl by JOMGEC, and gives the Contractor reasonable assistance. If, as the result of any claim of infringement against any patent, trademark, copyright, license or other property right, the Contractor or JOGMEC is enjoined from using or utilizing the Reports, or if the Contractor believes that the Presentation materials and the Reportsare likely to become the subject of a claim of infringement, the Contractor, at its own costs and expenses, must procure the right for JOGMEC to continue to use the Reports, or replace or modify the Preseatation materials and the Reports so as to make it non-infringing as JOGMEC prefers.
5.Ownership of Results
5.1.Subject to this clause, neither Party shall acquire any right to, or interest in, any IPR in any information, documents or other materials provided to it by the other Party under this Agreement.
5.2.The Contractor hereby grants to JOGMEC and/or undertakes to procure the grant from any third party to JOGMEC a non-exclusive, perpetual, irrevocable, royalty-free, non-assignable and non-sub-licensable license to such IPR as are required by JOGMEC to receive and use the Services and the Reports including any deliverables.
5.3.The ownership of the Reports and any IPR acquired or developed in connection with, or as a result of, the provision of the Services (collectively the “Results”) shall belong to JOGMEC. On or before the date by which the Contractor is required to complete theprovision of theServices, as specified in Schedule 2 (“Completion Date”), the Contractor shall submit and transfer all the Results to JOGMEC. The Contractor shall not retain any Results after the Completion Date.
6.Confidentiality
6.1The Contractor agrees to keep confidential the existence, source and content of this Agreement and the Presentation Materials and the Reports (and/or any part thereof), as well as any information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, know-how, customers, suppliers, processes or affairs of JOGMEC and not to disclose or otherwise make available the same to any third party without the prior written consent of JOGMEC.
6.2The confidentiality obligations under clause 6.1 do not apply to the disclosure by the Contractor of any information contained in the Presentation Materials and the Reports:
6.2.1.to its directors, officers, employees, advisers, representatives and agents, in each case, to the extent required to enable the Contractor to carry out its obligations under this Agreement and the Contractor make each of them aware of its obligations under this Agreement and ensure that each of them strictly observes the confidentiality obligationsunder clause 6.1;
6.2.2.to the extent required by any applicable law or by the regulations of any stock exchange or regulatory or supervisory authority to which the Contractor is subject or pursuant to any order of the court or other competent authority or tribunal;
6.2.3.to the extent that such information is in or comes into the public domain other than by breach of this Agreement by the Contractor;and
6.2.4.to such private Japanese companies in the oil industry and other relevant bodies as may be determined by JOGMEC.
6.3.Notwithstanding clause 6.1, the Contractor is not limited, restricted or prohibited in any way from producing reports, research materials or advice similar to what is set out in clause 2.1 for any thir party provided that:
6.3.1.the Contractor may not solicit any third party to produce reports on the same or similar subject matters; and
6.3.2.the Contractor must report to JOGMEC the identity of any third party who requests any report from the Contractor on the same or similar subject matters.
6.4.For the avoidance of doubt, JOGMEC is not restricted in any way in disclosing the information regarding this Agreement and the information obtained through this Agreement, including the following information, in any manner.
(a) the title of the contract;
(b) the date of the contract;and
(c) the name and address of Contractor;
7.Termination
7.1.Unless terminated earlier under clause 7, this Agreement shall terminate when all the Services have been provided to JOGMEC and all the payments associated with this Agreement have been made in full.
7.2.JOGMEC may terminate this Agreement:
7.2.1.immediately by giving the notice to the Contractor, if (i) the Contractor makes a material breach of this Agreement, (ii) the Contractor enters into any form of insolvency or bankruptcy proceedings, or (iii) there is a change where a person (or persons acting in concert) who directly or indirectly has the power of a person to secure, directly or indirectly, (whether by the holding of shares, possession of voting rights or by virtue of any other power conferred by the constitution, partnership deed or other documents regulating another person or otherwise) that all of the affairs of such other person are conducted in accordance with his or its wishes (“Control”) of a Party as at the date of this Agreement ceases to do so or if a person (or persons acting in concert) obtains directly or indirectly Control of a Party after the date of this Agreement (“Change of Control”) of the Contractor; or
7.2.2.by giving thirty [30] days' prior written notice to the Contractor, with or without cause.
7.3.Either Party may terminate this Agreement by obtaining the prior written consent of the other Party:
7.3.1.if either Party faces a change in economic circumstances that materially affects its ability to perform its obligations under this Agreement; or
7.3.2.if any event or circumstance beyond the reasonable control of a Party which prevents or impedes the due performance of this Agreement and which by the exercise of reasonable diligence such Party is unable to prevent, including war, riot, act of terrorism, natural disaster, fire, strike or other labor dispute, or the enactment or amendment of any law affecting the performance of this Agreement taking effect after the Effective Date (“Force Majeure Event”) materially affects either Party's ability to perform its obligations under this Agreement for more than sixty [60] days.
7.4.The termination of this Agreement for any reason:
7.4.1.shall be without prejudice to any rights or obligations which shall have accrued or become due prior to the date of termination;
7.4.2.shall not prejudice the rights or remedies which any party may have in respect of any breach of the terms of this Agreement prior to date of termination
8.Effect of Termination
8.1.If this Agreement is terminated under clause 7, JOGMEC shall compensate the Contractor for any Services it has provided up to the date of termination. The amount of compensation shall be adjusted in accordance with Schedule 1.
8.2.If this Agreement is terminated under clause 7.2.2, in addition to compensation under clause 8.1, the Contractor may request compensation for reasonable fees it has incurred and expenditures it has made up to the date of termination in preparing for the provision of the Services scheduled beyond the date of termination.
8.3.Upon agreement between the Parties as to the amount and method of payment of any compensation under clause 8.1 (and clause 8.2, if relevant), JOGMEC shall within thirty [30] days of the receipt of an invoice from the Contractor pay the agreed amount of compensation to the Contractor.
9.Early Termination Payment
9.1.If the Agreement is terminated under clause 7.2.1, the Contractor shall make an early termination payment to JOGMEC of ten percent [10%] of the amount of Service Fees as specified in clause 3.1, adjusted for any Services already properly provided by the Contractor before the date of termination (“Early Termination Payment”) within thirty [30] days of the date of termination.
9.2.If the Contractor does not pay the Early Termination Payment on time, the Contractor shall pay interest of five percent [5%] per annum on the Early Termination Payment, calculated pro rata on a daily basis. Such interest shall accrue from the day after the final date by which payment of the Early Termination Payment is due until the day on which payment of the Early Termination Payment is actually completed.
10.Limitations of Liability; Third Party Claims; Disclaimer
10.1.Neither JOGMEC nor any of its subsidiaries, affiliates nor their respective officers, employees, representatives, agents or subcontractors (each an “Indemnitee”) have any liability to the Contractor unless such liability arises from fraud, negligence,breach of contract or willful misconduct of JOGMEC. Without in any way limiting the foregoing, The Contractor agrees to indemnify and hold harmless each Indemnitee from any claim or loss, liability, expense and cost including but not limited to court costs and legal fees arising out of or related to any dispute in connection with this Agreement, except in so far as such claim, loss, liability, expense or cost results from the fraud, negiligence or wilful misconduct of such Indemnitee.
10.2.Under No Circumstances any Indemnitee isliable for indirect, special or punitive damages or loss, arising from or in connection with or otherwise relating to the Agreement, irrespective of whether on the basis of negligence, tort, breach of contract, misrepresentation, indemnity or otherwise.
10.3.This Agreement is made exclusively for the benefit of the Parties to it and does not confer any rights on any third party.
11.Variation
No variation of this Agreement is effective unless it is in writing signed by the Parties. The expression “variation” as used in the preceding sentence includes, but is not limited to supplement, deletion or replacement, however effected. Variation of this Agreement cannot be effected via email.
12.Waiver
The rights and remedies of either Party will not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by such Party except a specific waiver or release in writing.Any such waiver or release do not prejudice or affect any other rights or remedies of such Party. No single or partial exercise of any right or remedy by either Party prevents any further or other exercise thereof or the exercise of any other right or remedy by such Party.
13.Notices
13.1.Any notice or other communication required or permitted to be given under this Agreement:
13.1.1.must be in writing in the English language; and
13.1.2.must be left at the address of the addressee or sent by pre-paid post with recorded delivery or courier to the address of the addressee or sent by facsimile to the facsimile number of the addressee in each case which is specified in this clause in relation to the Party to whom the notice is addressed, and marked for the attention of the person so specified, or to such other address or facsimile number, and/or marked for the attention of such other person, as the relevant Party may from time to time specify by notice given in accordance with this clause. Email is not an appropriate medium for notices required or permitted to be given under this Agreement.
The relevant details of each party at the date of this Agreement are:
JOGMEC
Address:Japan Oil, Gas and Metals National Corporation
1-2-2 Hamada, Mihama-ku Chiba-city 261-0025 Japan
Facsimile:+81-43-276-9549
Attention:Takeshi Nambara
Development and ProductionTechnologyDivision
Technology Department
Oil & Gas Upstream Technology Unit
Contractor
Address:[ ]
[ ]
Facsimile: [ ]
Attention:[ ]
[ ]