EXHIBIT 10.4




 




 




ATLAS 2000 SYSTEM




 




ASSIGNMENT, CONTRIBUTION AND LICENSE

AGREEMENT




 




 




BETWEEN




 




 




WILLIAMS ENERGY SERVICES, LLC, AND




 




AND




 




WILLIAMS ENERGY PARTNERS L.P.




 





























 




ASSIGNMENT,

CONTRIBUTION AND LICENSE AGREEMENT




 




THIS

ASSIGNMENT, CONTRIBUTION AND LICENSE AGREEMENT (the “Agreement”) effective as of

this 17th day of June, 2003 (the “Effective Date”), by and between Williams

Energy Services, LLC, a Delaware limited liability company (“WES”), and Williams Energy Partners, L.P.,

a Delaware limited partnership (the “Partnership”).




 




RECITALS




 




A.                                   This

Agreement is entered into by the parties hereto in connection with that certain

Purchase Agreement, dated April 18, 2003 as amended by Amendment No. 1

thereto, dated May 5, 2003 (as so amended, the “Purchase Agreement”), among the WEG Acquisitions, L.P., a

Delaware limited partnership (“Buyer”), WES, Williams Natural Gas Liquids, Inc.

and Williams GP LLC.




 




B.                                     Effective

as of the Closing Date (as defined in the Partnership Agreement), WES desires

to assign and transfer all right, title and interest to the Atlas Software (as

defined herein) and to contribute the Hardware and convey all title in such

Hardware (as defined herein) to the Partnership; and, pursuant to Section

4.11(a) of the Purchase Agreement, the Buyer has designated the Partnership to

receive such assignments and contributions.




 




C.                                     Upon

such assignment, the Partnership desires (i) to grant to WES a worldwide,

nonexclusive, royalty-free, irrevocable license (except in accordance with the

express provisions herein), nontransferable (other than to Affiliates (as

defined below)), without right to sublicense (except to Affiliates of WES,

Williams Bio-Energy LLC, a Delaware limited liability company (“WBE”), and WBE’s Affiliates), to use,

copy, modify, enhance, and upgrade the ATLAS 2000 System to support any

business currently owned or operated by any Selling Party (as defined in the

Purchase Agreement) (or Affiliate thereof) or WBE (or Affiliate thereof), and

(ii) to maintain and support the ATLAS 2000 System as further provided herein.




 




D.                                    Upon

transfer to the Partnership (or a Partnership Entity) of the employees of WES

or its Affiliates that support and maintain the ATLAS Software (the “ATLAS Employees”), WES desires to assign

to the Partnership the right to receive any payments in respect of such support

and maintenance services that the Partnership may receive from WBE in

connection with its sublicense to WBE.




 




NOW, THEREFORE, in consideration of the premises and

the covenants, conditions, and agreements contained herein, and for other good

and valuable consideration, the receipt and sufficiency of which are hereby

acknowledged, the parties hereto hereby agree as follows:




 




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1.                                      DEFINITIONS




 




1.1                                 Definitions.  Capitalized terms used in this Agreement and

not otherwise defined herein have the meanings corresponding thereto as set

forth in this Section 1.1.  Other

terms defined herein have the meanings so given them.  A defined term has its defined meaning throughout this Agreement

and in each Exhibit hereto, regardless of whether such term appears before or

after the place where it is defined.




 




(a)                                  “Affiliate” means with respect to a

specified person, a person that directly, or indirectly through one or more intermediaries,

controls, or is controlled by, or is under common control with, the person

specified.




 




(b)                                 “ATLAS Employees” means those G&A

Employees (as defined in the Transition Services Agreement) performing those

G&A Services (as defined in the Transition Services Agreement) contemplated

by Item 5.a of Schedule “A” of the Transition Services Agreement.




 




(c)                                  “ATLAS Software” means the ATLAS 2000

System, as more fully described in Exhibit A-1, the object code thereof,

all software user manuals, reference manuals and installation guides, or

portions thereof (if any), which are related to the ATLAS Software, and all

rights to the Intellectual Property embodied in or relating to any of the

forgoing.




 




(d)                                 “Confidential

Information” means: (i) the ATLAS Software and any Derivative

Works related thereto and (ii) any business or technical information of

WES or the Partnership or their respective Affiliates, including but not

limited to any information relating to WES’ or the Partnership’s product plans,

designs, costs, product prices and names, finances, marketing plans, business

opportunities, personnel, research, development or know-how that is designated

by the disclosing party as “confidential” or “proprietary” and, if orally

disclosed, reduced to writing by the disclosing party within thirty (30) days

of such disclosure.




 




(e)                                  “Derivative Works”

means works that are based upon one (1) or more pre-existing works, such as:

(i) for copyrightable or copyrighted material, any translation, portation,

modification, correction, addition, extension, upgrade, improvement,

compilation, abridgment, revision or other form in which such material may be

recast, transformed, or adapted; (ii) for patentable or patented material, any

improvement thereon; and (iii) for material that is protected by trade secret,

any new material derived from such existing trade secret material, including

new material




 




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that may be

protected by any of copyright, mask work right, patent, and trade secret.




 




(f)                                    “Hardware” means the computer equipment

set forth and identified in Exhibit B.




 




(g)                                 “Knowledge” means the actual knowledge,

after reasonable inquiry, of those individuals named in Section 9.16(g) of the

Purchase Agreement.




 




(h)                                 “Intellectual Property”  mean

and include all intellectual property of any kind, both foreign and domestic,

including, without limitation, all patents, trademarks, service marks, trade

names, trade dress, (and the goodwill associated with each), copyrights,

confidential and proprietary information (including trade secrets and

know-how), and registrations and applications for registration of any of the

foregoing.




 




(i)                                     “Marks” means

those trademarks, trade names, service marks, logos, designs and insignias, as

identified in Exhibit C




 




(j)                                     “Partnership Entities” has the meaning

assigned to such term in Section 2.4(a) of the Purchase Agreement, but excludes

the Partnership.




 




(j)                                     “Transition Services Agreement”

has means the Transition Services Agreement, dated the date hereof, by and

between the Buyer and The Williams Companies, Inc.




 




1.2                                 Construction.  As used in this Agreement, unless expressly

stated otherwise, references to (a) “including” mean “including, without

limitation” and (b) “or” mean “either or both.”  Unless otherwise specified, all references in this Agreement to

Sections, Schedules or Exhibits are deemed references to the corresponding

sections, schedules or exhibits in this Agreement.  All monetary values set forth in this Agreement shall be deemed

to be in U.S. Dollars and do not include taxes unless otherwise clearly stated.




 




2.                                      ASSIGNMENT

AND CONTRIBUTION




 




2.1                                 ATLAS

Software.  WES hereby assigns,

grants, bargains, sells, conveys, and sets over unto the Partnership (or a

Partnership Entity designated in writing by the Partnership) and the

Partnership hereby accepts, or shall cause such Partnership Entity to accept,

all of WES’ right, title, and interest in, to, and under the ATLAS Software

effective as of the Effective Date, subject to the terms of this Agreement.




 




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2.2                                 Marks.  WES hereby assigns, grants, bargains, sells,

conveys, and sets over unto the Partnership (or a Partnership Entity designated

in writing by the Partnership) and the Partnership hereby accepts, or shall

cause such Partnership Entity to accept, all of WES’ right, title, and interest

in, to, and under the Marks, including all goodwill associated with the Marks,

effective as of the Effective Date, subject to the terms of this Agreement.




 




2.3                                 Hardware.  WES hereby contributes to the Partnership

(or a Partnership Entity designated in writing by the Partnership) and the

Partnership hereby accepts, or shall cause such Partnership Entity to accept,

all of WES’ right, title, and interest in, the Hardware effective as of the

Effective Date to have and to hold the hardware unto the Partnership, its

successors and assigns, forever, subject to the terms of this Agreement.




 




3.                                      LICENSES




 




3.1                                 ATLAS

Software License Grant.  Subject to

the terms and conditions of this Agreement and solely to the extent that it

received from WES under the terms and conditions of this Agreement the ability

to grant such a license, the Partnership hereby grants to WES a worldwide,

nonexclusive, royalty-free, irrevocable (except in accordance the terms herein)

license, nontransferable (other than to Affiliates of WES) without right to

sublicense (except as provided in clause (b) and (c) below):




 




(a)                                  to

use, copy, modify, enhance, upgrade and produce Derivative Works of the ATLAS

Software, in object or source code form;




 




(b)                                 to

sublicense the ATLAS Software to any Affiliate of WES; and




 




(c)                                  to

sublicense the ATLAS Software to WBE or any Affiliate thereof.




 




3.2                                 Trademark

License Grant:  Subject to the terms

and conditions of this Agreement and solely to the extent that it received from

WES under the terms and conditions of this Agreement the ability to grant such

a license, the Partnership hereby grants to WES a worldwide, nonexclusive,

royalty-free, irrevocable (except in accordance the terms herein) license,

nontransferable (other than to Affiliates of WES) without right to sublicense

(except to WBE or any Affiliate thereof), to use the Marks, and to reproduce

and use such Marks only in connection with the use, provision, sublicensing (as

permitted pursuant to Section 3.1 (b) and (c)), of the ATLAS Software.  WES agrees that the nature and quality of

its use of the Marks shall conform to the standard set by and be under the

control of the Partnership.  Such

standard shall at a minimum specifically be the type and quality of goods and

products that historically have been associated with the Marks.  WES shall ensure that all sub-licensees of

the 




 




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Marks by written

agreement also are bound to the forgoing standard.  The use of such Marks by WES and its Affiliates shall inure

solely to the benefit of the Partnership and nothing contained herein shall be

construed to grant any ownership interest in or to such Marks.




 




3.3                                 Third

Party Consents. Notwithstanding the foregoing provisions of this Section

3, in the event that the consent of any third-party vendor is required in

connection with the grants of the licenses described in Sections 3.1 and

3.2 above, the Partnership shall be relieved of its obligations

thereunder unless and until any such consent is obtained by WES in a form

reasonably acceptable to the Partnership.




 




3.4                                 Restrictions.

The Partnership reserves all rights and licenses to the ATLAS Software not

expressly granted to WES under this Agreement.




 




3.5                                 Ownership.

WES and the Partnership each agree that any new Derivative Works related to the

ATLAS Software will be owned by the party developing such Derivative Works.




 




4.                                      MAINTENANCE

AND SUPPORT SERVICES




 




4.1                                 Maintenance

and Support Services.  Subject to

the limitations in Section 4.5 and to the such other limitations as are

stated herein, the Partnership will (or will cause the appropriate Partnership

Entity or Entities to) maintain and support the ATLAS Software, at the

Partnership’s (or any Partnership Entity’s, as the case may be) sole expense,

so as to provide WES (and any Affiliate of WES) and WBE (and any Affiliate of

WBE) with the same quantity of processing, maintenance and support services as

each such entity, respectively, is receiving as of the date of Closing and with

the same quality of maintenance and support services as the current licensees

(and sub-licensees) of the ATLAS Software are receiving as of the date of

Closing (the “Services”). The

aforementioned quality, which the parties agree to be synonymous with

performing the Services in a good and workmanlike fashion, is the sole and

exclusive standard of care that will be applied to measure the Partnership’s

(or the appropriate Partnership Entity’s or Entities’) performance of the

Services.  The Partnership (or any

Partnership Entity, as the case may be) shall, to the extent that the

Partnership (or any Partnership Entity, as the case may be) produces any

upgrades, enhancements, updates or new versions of the ATLAS Software, in a commercially

reasonable manner and time (i) provide such to WES (and any licensee or

sub-licensee) under the terms of this Agreement, and (ii) make available to WES

(and its licensees or sub-licensees) any Derivative Works which it creates that

are materially different from the present version of ATLAS Software. Such

upgrades, enhancements, updates or new versions of the ATLAS Software shall be

governed by the same 




 




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license and

license restrictions as governs the ATLAS Software in this Agreement.  FOR ANY BREACH BY THE PARTNERSHIP (OR THE

APPROPRIATE PARTNERSHIP ENTITY OR ENTITIES) OF THE FORGOING OBLIGATIONS, WES

(OR ANY LICENSEE’S OR SUB-LICENSEE’S) SOLE AND EXCLUSIVE REMEDY SHALL BE

RE-PERFORMANCE OF THE UNSATISFACTORY SERVICES OR THE DELIVERY OF THE PARTICULAR

ITEMS.




 




4.2                                 Additional

Maintenance and Support Services. 

The provision of any additional maintenance and support services not

described herein to any of the forgoing entities or to any future licensees

shall be governed by subsequent arm’s-length negotiations.




 




4.3                                 Assignment

of Support Payments. Effective as of the date that the ATLAS Employees are

transferred to the Partnership (or a Partnership Entity designated in writing

by the Partnership or Buyer) pursuant to the Transition Services Agreement, WES

hereby assigns to the Partnership (or a Partnership Entity designated in

writing by the Partnership or Buyer) the right to receive any payments in

respect of such support and maintenance services that it may receive from WBE

in connection with its sublicense to WBE or any other arrangement between the

parties.




 




4.4                                 Duration.  The Partnership will provide the Services to

each of the entities listed in Section 4.1 for so long as that particular

entity continues to use (and/or sublicense) the ATLAS 2000 System.




 




4.5                                 Limitations.  The Partnership’s obligation to WES, a

specific licensee or sub-licensee under this Section 4 and the Partnership’s

obligation to provide certain aspects of the Services to such party shall be

limited to the extent that:  (i) the

party makes any change or modification to the ATLAS Software that materially,

negatively affects or precludes the provision of such particular aspect of the

Services, (ii) the party combines the ATLAS Software with products or

programs not utilized by the party as of the date of Closing, if such

combination materially increases the time or cost required for the Partnership

to perform such particular aspect of the Services or (iii) the party

modifies, changes or replaces any hardware connected with the ATLAS Software if

such modification, change or replacement individually or in combination with

other modifications, changes or replacements materially increases the time or

cost required for the Partnership to perform such particular aspect of the

Services.




 




4.6                                 In

addition, in the event that the consent of any third-party vendor is required

in connection with the performance of the Partnership’s (or any Partnership

Entity’s) obligations under this Section 4, the Partnership (and any

such Partnership Entity) shall be relieved of its obligations unless and until

any such consent is obtained by WES in a form reasonably acceptable to the

Partnership.




 




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5.                                      SUPPORTING

SOFTWARE




 




5.1                                 Supporting

Software. All software which relates to or is required for the operation of

the ATLAS Software is set forth on Schedule A-2 (the “Supporting Software”).




 




5.2                                 Migration

Supporting Software.  The IT

Migration Plan (as defined in the Purchase Agreement) will identify the

software to be included in the Migration Assets (as defined in the Purchase

Agreement) that the Partnership will use in lieu of the Supporting Software

(the “Migration Supporting Software”);

provided, the Migration Supporting

Software may, but is not required to, include all or a portion of the

Supporting Software.




 




6.                                      CONFIDENTIALITY




 




6.1                                 Use

and Disclosure Restrictions.  During

the term of this Agreement, and for a period of two (2) years after any

termination of this Agreement, each party will not use another party’s

Confidential Information except as permitted herein, and will not disclose such

Confidential Information to any third party except to employees and consultants

as is reasonably required in connection with the exercise of its rights and

obligations under this Agreement (and only subject to binding use and

disclosure restrictions at least as protective as those set forth herein

executed in writing by such employees and consultants).  However, each party may disclose

Confidential Information of another party: 

(i) pursuant to the order or requirement of a court, administrative

agency, or other governmental body, provided that the disclosing party gives

reasonable notice to the other parties to contest such order or requirement;

and (ii) on a confidential basis to legal or financial advisors.  Notwithstanding the foregoing, the parties’

confidentiality obligations with respect to all source code shall continue in perpetuity,

unless such source code becomes non-confidential in accordance with Section

6.2, below.




 




6.2                                 Exclusions.  Confidential Information shall not include

information that:  (i) is or

becomes generally known or available by publication, commercial use or

otherwise through no fault of the receiving party; (ii) is known to the

receiving party at the time of disclosure without violation of any

confidentiality restriction and without any restriction on the receiving

party’s further use or disclosure; (iii) is independently developed by the

receiving party without use of the disclosing party’s Confidential Information;

or (iv) is rightfully received from a third party not under an obligation as to

disclosure of such information.




 




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7.                                      WARRANTIES




 




7.1                                 WES

Warranties.




 




(a)                                  WES

represents and warrants to the Partnership that:  (i) it has full power and authority to enter into this Agreement;

(ii) it has sufficient right and authority to carry out its obligations

hereunder and to grant, assign or contribute, as appropriate, the ATLAS

Software, the Marks and the Hardware to the Partnership hereunder, and (iii) to

WES’ Knowledge, the ATLAS Software and the Marks do not violate any rights

relating to the Intellectual Property any third party.




 




(b)                                 WITHOUT

LIMITING IN ANY WAY THE APPLICABLE REPRESENTATIONS AND WARRANTIES CONTAINED IN

THE PURCHASE AGREEMENT, THE WARRANTIES IN THIS SECTION 7.1 ARE IN LIEU

OF ALL OTHER WARRANTIES MADE BY WES, EXPRESS AND IMPLIED, INCLUDING BUT NOT

LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE AND INFRINGEMENT, EXCEPT AS SET FORTH IN THIS SECTION 7.1.  WES DOES NOT WARRANT THAT THE ATLAS SOFTWARE

IS ERROR-FREE OR THAT ANY USE THEREOF BY THE PARTNERSHIP OR ANY LICENSEE OR

SUB-LICENSEE WILL BE UNINTERRUPTED.




 




7.2                                 PartnershipWarranties.




 




(a)                                  The

Partnership represents and warrants to WES that: (i) it has full power and

authority to enter into this Agreement; and (ii) it has sufficient right and

authority to carry out its obligations hereunder and to grant to WES and its

Affiliates all licenses and rights that the Partnership is granting to WES and

its Affiliates hereunder, and (iii) to the Partnership’s knowledge, any

updates, upgrades, enhancements or Derivative Works provided to WES and its Affiliates

pursuant to Section 4.1, do not violate any rights relating to the Intellectual

Property any third party.




 




(b)                                 THE

WARRANTIES IN THIS SECTION 7.2 ARE IN LIEU OF ALL OTHER WARRANTIES MADE

BY THE PARTNERSHIP, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY

IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND

INFRINGEMENT, EXCEPT AS SET FORTH IN THIS SECTION 7.2.  THE PARTNERSHIP DOES NOT WARRANT THAT THE

ATLAS SOFTWARE IS ERROR-FREE OR THAT 




 




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ANY USE THEREOF BY

WES OR ANY LICENSEE OR SUB-LICENSEE WILL BE UNINTERRUPTED.




 




8.                                      INDEMNIFICATION




 




8.1                                 WES

will defend at its expense any suits against the Partnership or any Partnership

Entity based upon a claim that the ATLAS Software or the Marks, as assigned

hereunder, infringes any rights related to the Intellectual Property of any

third party and will pay any damages, costs and expenses finally awarded in any

such suit (including without limitation reasonable attorneys’ fees) provided

that the Partnership or the applicable Partnership Entity:  (i) promptly notifies WES in writing of

the suit; (ii) provides WES with sole control and authority to defend and

settle such suit; and (iii) provides WES, at WES’ expense, with all reasonable

assistance and information requested by WES for the defense and settlement of

such suit.  WES may, in its sole

discretion, settle any such claim on a basis requiring WES to substitute for

the ATLAS Software alternative substantially equivalent non-infringing

programs. In the event that any preliminary injunction, temporary restraining

order or final injunction shall be obtained, WES shall, at its sole option,

either: (a) obtain the right for continued use of the infringing portions

of the ATLAS Software; or (b) modify the infringing portions so as to avoid

such infringement while obtaining at least equivalent functionality; or

(c) substitute for the infringing portions of the ATLAS Software

alternative equivalent software and supporting documentation.




 




8.2                                 WES

will have no obligation under this Section 8 for any claim of

infringement or misappropriation that arises from:  (i) the combination of the ATLAS Software with products,

programs, or data not furnished by WES, if such claim would have been avoided

by the use of the ATLAS Software as provided by WES without such combination;

or (ii) the modification of the ATLAS Software by the Partnership, if such

claim would have been avoided by use of the unmodified ATLAS Software.




 




8.3                                 The

Partnership will defend at its expense any suits against WES based upon a claim

that any updates, upgrades, enhancements or Derivative Works provided to WES

and its Affiliates pursuant to Section 4.1 infringe any rights related to the

Intellectual Property of any third party and will pay any damages, costs and

expenses finally awarded in any such suit (including without limitation

reasonable attorneys’ fees) provided that: 

(i) WES promptly notifies the Partnership in writing of the suit; (ii) WES

provides the Partnership with sole control and authority to defend and settle

such suit; and (iii) WES provides the Partnership, at the Partnership’s

expense, with all reasonable assistance and information requested by the

Partnership for the defense and settlement of such suit.  The Partnership may, in its sole discretion,

settle any such claim on a basis requiring the Partnership to substitute for

the ATLAS Software alternative 




 




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substantially

equivalent non-infringing programs. In the event that any preliminary

injunction, temporary restraining order or final injunction shall be obtained,

the Partnership shall, at its sole option, either:  (a) obtain the right for continued use of the infringing portions

of the ATLAS Software; or (b) modify the infringing portions so as to

avoid such infringement while obtaining at least equivalent functionality; or

(c) substitute for the infringing portions of the ATLAS Software alternative

equivalent software and supporting documentation.




 




8.4                                 The

Partnership will have no obligation under this Section 8 for any claim

of infringement or misappropriation that arises from:  (i) the combination of the ATLAS Software (or updates,

upgrades, enhancements or Derivative Works provided to WES and its Affiliates

pursuant to Section 4.1) with products, programs, or data not furnished by the

Partnership, if such claim would have been avoided by the use of the Atlas

Software (or updates, upgrades, enhancements or Derivative Works provided to

WES and its Affiliates pursuant to Section 4.1) as provided by the Partnership

without such combination; or (ii) the modification of the ATLAS Software

(or the updates, upgrades, enhancements or Derivative Works provided to WES and

its Affiliates pursuant to Section 4.1), if such claim would have been avoided

by use of the ATLAS Software (or the updates, upgrades, enhancements or

Derivative Works provided to WES and its Affiliates pursuant to Section 4.1) as

provided by the Partnership without such modification.




 




8.5                                 THE

FOREGOING ARE WES’ AND THE PARTNERSHIP’S SOLE AND EXCLUSIVE OBLIGATIONS, AND

THEIR RESPECTIVE SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR

MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS RELATING TO THE ATLAS

SOFTWARE.




 




9.                                      LIMITATION

OF LIABILITY




 




9.1                                 THE

PARTNERSHIP SHALL NOT BE LIABLE IN ANY WAY FOR SERVICES TO THE EXTENT SUCH

SERVICES ARE PERFORMED IN ACCORDANCE WITH THE STANDARD OF CARE SPECIFIED IN

SECTION 4.  REGARDLESS OF WHETHER ANY

REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT SHALL ANY PARTY

BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR

CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOSS OF USE, DATA, BUSINESS OR

PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH

LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING

NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ANY PARTY HAS

BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, 




 




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OTHER THAN

(A) THE PARTNERSHIP’S INTENTIONAL, WILLFUL, GROSSLY NEGLIGENT AND/OR

REPETITIVE BREACH OF WES’ CONFIDENTIAL INFORMATION AND ANY INFRINGEMENT OF ANY

INTELLECTUAL PROPERTY RELATED TO THE UPDATES, UPGRADES, ENHANCEMENTS OR

DERIVATIVE WORKS PROVIDED TO WES AND ITS AFFILIATES PURSUANT TO SECTION 4.1, OR

(B) WES’ (OR ANY AFFILIATE OF WES) OR WBE’S (OR ANY AFFILIATE OF WBE)

INTENTIONAL, WILLFUL, GROSSLY NEGLIGENT AND/OR REPETITIVE BREACH OF THE

PARTNERSHIP’S CONFIDENTIAL INFORMATION, ANY INFRINGEMENT OF ANY INTELLECTUAL

PROPERTY RELATED TO THE ATLAS SOFTWARE OR ANY BREACH OF THE LICENSE PROVISIONS

IN SECTION 3 HEREIN.




 




9.2                                 IN

CONNECTION WITH A CLAIM, DEMAND OR CAUSE OF ACTION BY ONE PARTY AGAINST ANOTHER

(OR ITS AFFILIATES OR THE APPROPRIATE PARTNERSHIP ENTITY OR ENTITIES) TO

RECOVER DAMAGES BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE

OF SERVICES UNDER THIS AGREEMENT OR BASED UPON OR ARISING OUT OF ACTIONS OR

INACTIONS OF A PARTY (OR ITS AFFILIATE OR A PARTNERSHIP ENTITY OR ENTITIES)

ANCILLARY TO THE PERFORMANCE OF SERVICES, WHETHER SUCH CLAIM IS FOUNDED UPON

THEORIES OF NEGLIGENCE, BREACH OF WARRANTY, STRICT TORT LIABILITY, BREACH OF

CONTRACT, OR THE VIOLATION OF ANY OTHER APPLICABLE LEGAL DUTY OR STANDARD, THE

AMOUNT OF DAMAGES TO BE RECOVERED BY SUCH PARTY WITH RESPECT TO SUCH CLAIM,

DEMAND OR CAUSE OF ACTION SHALL BE REDUCED BY A PERCENTAGE EQUAL TO THAT

PARTY’S PERCENTAGE OF RESPONSIBILITY OR FAULT AND SUCH PARTY SHALL HAVE NO

RIGHT TO RECOVER DAMAGES IF ITS PERCENTAGE OF RESPONSIBILITY OR FAULT EXCEEDS

FIFTY PERCENT (50%).




 




9.3                                 SUBJECT

TO SECTION 9.2 ABOVE, IN CONNECTION WITH A CLAIM, DEMAND OR CAUSE OF ACTION BY

ONE PARTY AGAINST ANOTHER (OR ITS AFFILIATES OR A PARTNERSHIP ENTITY OR

ENTITIES) TO RECOVER DAMAGES BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE

PERFORMANCE OF THE SERVICES UNDER THIS AGREEMENT OR BASED UPON OR ARISING OUT

OF ACTIONS OR INACTIONS OF SUCH PARTY (OR ITS AFFILIATES OR A PARTNERSHIP

ENTITY OR ENTITIES) ANCILLARY TO THE PERFORMANCE OF SERVICES, WHETHER SUCH CLAIM

IS FOUNDED UPON THEORIES OF NEGLIGENCE, BREACH OF WARRANTY, STRICT TORT

LIABILITY, BREACH OF CONTRACT OR THE VIOLATION OF ANY OTHER APPLICABLE LEGAL

DUTY OR STANDARD, SUCH PARTY (OR ITS AFFILIATES 




 




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OR PARTNERSHIP

ENTITY OR ENTITIES) SHALL BE LIABLE TO SUCH CLAIMANT ONLY FOR THAT PERCENTAGE

OF CLAIMANT’S DAMAGES WHICH ARE EQUAL TO SUCH PARTY’S (OR ITS AFFILIATES OR A

PARTNERSHIP ENTITY’S OR ENTITIES’) PERCENTAGE OF RESPONSIBILITY OR FAULT WITH

RESPECT TO THE CLAIM, DEMAND OR CAUSE OF ACTION FOR WHICH DAMAGES ARE

ALLOWED.  TO THE EXTENT THAT THE ACTIONS

OR INACTIONS OF SOME OTHER ENTITY (EVEN AN ENTITY WHICH HAS SETTLED WITH

CLAIMANT) CAUSED OR CONTRIBUTED TO CAUSE IN ANY WAY CLAIMANT’S HARM FOR WHICH

RECOVERY OF DAMAGES IS SOUGHT, THE PARTY AGAINST WHOM THE CLAIM IS BROUGHT (OR

ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES) SHALL NOT BE RESPONSIBLE TO

CLAIMANT FOR THE PERCENTAGE OF CLAIMANT’S DAMAGES ATTRIBUTABLE TO ANY SUCH

THIRD PARTY FOR WHOSE CONDUCT THE PARTY AGAINST WHOM THE CLAIM IS BROUGHT (OR

ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES) IS NOT LEGALLY LIABLE.  IN THE EVENT THAT CLAIMANT SETTLES WITH A

THIRD PARTY OR RECOVERS FUNDS FROM ANY SOURCE WITH RESPECT TO A CLAIM, DEMAND

OR CAUSE OF ACTION BROUGHT BY CLAIMANT AGAINST PARTY AGAINST WHOM THE CLAIM IS

BROUGHT (OR ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES), THE PARTY

AGAINST WHOM THE CLAIM IS BROUGHT (OR ITS AFFILIATES OR PARTNERSHIP ENTITY OR

ENTITIES) SHALL BE ENTITLED TO A CREDIT AGAINST THE AMOUNT OF DAMAGES THE

CLAIMANT OTHERWISE WOULD BE ENTITLED TO RECOVER AGAINST THE PARTY AGAINST WHOM

THE CLAIM IS BROUGHT (OR ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES) IN

THE SUM OF THE DOLLAR AMOUNTS OF ALL SUCH SETTLEMENTS OR PAYMENTS RECEIVED BY

CLAIMANT FROM OTHER SOURCES.




 




9.4                                 IN

THE EVENT THAT A PARTY HEREUNDER BELIEVES THAT IT HAS A CLAIM AGAINST ANOTHER

PARTY (OR ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES) FOR DAMAGES ARISING

OUT OF THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES UNDER THIS AGREEMENT

OR BASED UPON OR ARISING OUT OF ACTIONS OR INACTIONS OF THE PARTY AGAINST WHOM

THE CLAIM MAY BE BROUGHT (OR ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES)

ANCILLARY TO THE PERFORMANCE OF SERVICES, WHETHER SUCH CLAIM IS FOUNDED UPON

THEORIES OF NEGLIGENCE, BREACH OF WARRANTY, STRICT TORT LIABILITY, BREACH OF

CONTRACT OR THE VIOLATION OF ANY OTHER APPLICABLE LEGAL DUTY OR STANDARD, THE

CLAIMANT SHALL PROMPTLY SO NOTIFY THE PARTY AGAINST WHOM THE 




 




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CLAIM MAY BE

BROUGHT (OR ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES).  THE PARTY AGAINST WHOM THE CLAIM MAY BE

BROUGHT (OR ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES) SHALL THEREAFTER

ENDEAVOR IN GOOD FAITH TO RESOLVE THE CLAIM WITH THE CLAIMANT.  IT IS EXPRESSLY AGREED THAT THE STATUTE OF

LIMITATIONS GOVERNING ANY AND ALL CAUSES OF ACTION THAT SUCH CLAIMANT MAY HAVE

AGAINST THE PARTY AGAINST WHOM THE CLAIM MAY BE BROUGHT (OR ITS AFFILIATES OR

PARTNERSHIP ENTITY OR ENTITIES) ARISING OUT OF THIS AGREEMENT OR THE

PERFORMANCE OF THE SERVICES UNDER THIS AGREEMENT OR BASED UPON OR ARISING OUT

OF ACTIONS OR INACTIONS OF THE PARTY AGAINST WHOM THE CLAIM MAY BE BROUGHT (OR

ITS AFFILIATES OR PARTNERSHIP ENTITY OR ENTITIES) ANCILLARY TO THE PERFORMANCE

OF SERVICES, WHETHER SUCH CLAIM IS FOUNDED UPON THEORIES OF NEGLIGENCE, BREACH

OF WARRANTY, STRICT TORT LIABILITY, BREACH OF CONTRACT OR THE VIOLATION OF ANY

OTHER APPLICABLE LEGAL DUTY OR STANDARD, SHALL BE ONE (1) YEAR FROM THE DATE

THAT THE CLAIMANT KNEW OR THROUGH REASONABLE DILIGENCE SHOULD HAVE KNOWN OF THE

FACTS GIVING RISE TO THE CAUSE OF ACTION.




 




9.5                                 A

PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SUBJECT

MATTER OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE

TOTAL AMOUNT PAID TO THE PARTNERSHIP (OR ANY PARTNERSHIP ENTITY OR ENTITIES)

(I) IN THE CALENDAR YEAR IN WHICH THE CLAIM OR CAUSE OF ACTION AROSE AND (II)

FOR THE PARTNERSHIP’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT.




 




9.6                                 THE

EXCLUSIVE REMEDY (IN LIEU OF ANY OTHER REMEDY AT LAW OR IN EQUITY) OF ANY OF

WES, A LICENSEE OR A SUB-LICENSEE FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE

FORM OF ACTION, WHETHER IN CONTRACT OR TORT, AND THE PARTNERSHIP’S (AND ANY

PARTNERSHIP ENTITY’S OR ENTITIES’) ENTIRE LIABILITY TO WES, A LICENSEE OR A

SUB-LICENSEE IS SET FORTH IN THIS SECTION 9.




 




9.7                                 IT

IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS

AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF

WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE

AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.  WES AND 




 




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THE PARTNERSHIP

EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS AGREEMENT WERE NEGOTIATED TO

REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN WES AND THE PARTNERSHIP OF

ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE SUBJECT MATTER OF THIS

AGREEMENT.




 




10.                               TERM AND

TERMINATION




 




10.1                           Term.

 This

Agreement commences as of the

Effective Date and shall remain in force for so long as WES, an

Affiliated assignee, WBE or any Affiliate sub-licensee continues to use the

ATLAS 2000 System in accordance with the terms of this Agreement.




 




10.2                           Termination.  This Agreement and the licenses

granted hereunder shall terminate upon the earliest to occur of the

following:  (i) thirty (30) days after

the Partnership gives WES notice of a material breach of any provision of this

Agreement, unless such breach is cured within thirty (30) days of such notice;

(ii) with respect to WES or an individual licensee or sub-licensee, thirty (30)

days after such party gives the Partnership written notice of the party’s

desire to terminate this Agreement, for any reason; or (iii) immediately with

respect to WES or an individual licensee or sub-licensee if such party files

for bankruptcy (subject to an automatic stay ordered by a Federal Bankruptcy

Court), becomes insolvent, ceases to do business or makes an assignment for the

benefit of creditors.




 




10.3                           Duties Upon Termination.  Upon any termination hereunder, the licenses hereunder

are terminated (and all rights in and to the ATLAS Software granted

pursuant to such licenses shall

terminate).  The terminated party or parties shall immediately cease all use of the

ATLAS Software and shall irretrievably delete and/or remove such software from

all computer hardware and storage media. 

Within thirty days after any termination, the terminated party or

parties shall deliver to the Partnership at the party’s or parties’ sole

expense (adequately packaged and insured for safe delivery) or destroy all

copies of (i) the ATLAS Software in every form and (ii) all Confidential

Information of the Partnership.  To the

extent that the Partnership has any Confidential Information of a terminated

party, the Partnership within thirty days after any termination will deliver to

such party at the Partnership’s sole expense or destroy all copies of

all Confidential Information of the terminated party.




 




10.4                           Survival.  The rights and obligations of the parties

contained in Sections 2, 5, 6, 8, 9, 10,

and 11 will survive any termination of this Agreement.




 




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11.                               GENERAL




 




11.1                           Governing

Law.  This Agreement shall be

governed by and construed in accordance with the internal and substantive laws

of New York and without regard to any conflicts of laws concepts that would

apply the substantive law of some other jurisdiction.




 




11.2                           Relationship

of the Parties.  The parties to this

Agreement are independent contractors and this Agreement will not establish any

relationship of partnership, joint venture, employment, franchise, or agency

between the parties.  No party will have

the power to bind the others or incur obligations on the others’ behalf without

the other’s prior written consent.




 




11.3                           Severability.  If any provision of this Agreement shall be

held by a court of competent jurisdiction to be illegal, invalid or

unenforceable, the remaining provisions shall remain in full force and effect.




 




11.4                           Waiver.  No waiver of any breach of any provision of

this Agreement shall constitute a waiver of any prior, concurrent or subsequent

breach of the same or any other provisions hereof, and no waiver shall be

effective unless made in writing and signed by an authorized representative of

the waiving party.




 




11.5                           Notice.  All notices required or permitted under this

Agreement will be in writing and delivered by confirmed facsimile transmission,

by courier or overnight delivery service, or by certified mail, and in each

instance will be deemed given upon receipt. 

All communications will be sent to the addresses set forth below or to

such other address as may be specified by a party to the others in accordance

with this Section 11.5.




 




	

  To WES:


  	

   


  	

  To the Partnership:


  
	

   


  	

   


  	

   


  
	

  One Williams Center


  	

   


  	

  c/o WEG GP LLC


  
	

  Tulsa, Oklahoma 

  74172


  	

   


  	

  One Williams Center


  
	

  Attention: 

  Mr. Tony Gehres


  	

   


  	

  Tulsa, Oklahoma 

  74172


  
	

  Facsimile: 

  (918) 573-4503


  	

   


  	

  Attention: 

  Mr. Lonny Townsend


  
	

   


  	

   


  	

  Facsimile: 

  (918) 573-6928


  





 




11.6                           Continuing

Cooperation; Successors and Assigns. 

The parties to this Agreement hereby agree to cooperate in good faith to

give full legal effect to the transactions provided for in this Agreement,

including, without limitation, by executing, delivery and/or filing such other

instruments or certificates as may be reasonably requested by the other party

to this Agreement.  The provisions of

the immediately preceding sentence shall survive the consummation of the

transactions contemplated by this Agreement. 

Each of the Partnership and WES may, upon written notice to, but without

the prior consent of, the other party, assign or transfer its rights hereunder

to the Buyer or any Partnership Entity (in the case of the Partnership) or any

Affiliate of 




 




15





























 




WES (in the case

of WES) and, if so assigned or transferred, such transferee shall be entitled

to enforce the rights hereunder so transferred or assigned as if it were a

named party hereto, but no such transfer or assignment shall relieve the

transferor of its obligations hereunder. 

This Agreement shall be binding upon, and inure to the benefit of, the

heirs, devises, executors, administrators, legal representatives, successors

and permitted assigns of the parties hereto.




 




11.7                           Force

Majeure. Except for any obligation to make payments, no party will be

liable for any failure or delay in its performance under this Agreement due to

causes beyond its reasonable control, including, but not limited to, acts of

God, war, riot, embargoes, terrorism, acts of civil or military authorities,

strikes, lockouts, fire, floods, earthquakes, accidents, strikes, or fuel

crises.




 




11.8                           Entire

Agreement.  This Agreement, together

with the exhibits attached hereto, and the provisions of the Purchase Agreement

relating hereto, represent the entire agreement and understanding of the

parties hereto and thereto with reference to the matters set forth herein and

no representations or warranties have been made in connection herewith other

than those expressly set forth herein or therein.  This Agreement, together with the exhibits attached hereto, and

the provisions of the Purchase Agreement relating hereto, supersedes all prior

negotiations, discussions, correspondence, communications, understandings and

agreements between the parties relating to the subject matter hereof and all

prior drafts of such documents (including Exhibit 1.2(a)(iv)(3) to the Purchase

Agreement).  No prior drafts of such

documents and no words or phrases from any such prior drafts shall be

admissible into evidence in any action or suit involving such documents.




 




11.9                           Counterparts.  This Agreement may be executed in two

counterparts, each of which will be deemed an original, but both of which

together will constitute one and the same instrument.




 




11.10                     Publicity.  The parties agree to make appropriate public

press announcements to announce this Agreement, at a mutually agreeable time

and in a mutually agreeable format and manner.




 




11.11                     Third-party Beneficiaries.  This Agreement shall inure solely to the

benefit of and be binding upon WES and the Partnership and their respective

successors and permitted assigns and no other person shall have any right,

remedy, or claim under or by reason of this Agreement.




 




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                IN WITNESS WHEREOF, the parties have caused

this Agreement to be executed and delivered by their duly authorized officers

as of the date first above written.




 




	

  WILLIAMS ENERGY PARTNERS L.P.


  	

  WILLIAMS ENERGY SERVICES, LLC


  
	

   


  	

   


  
	

   


  	

   


  
	

  By:


  	

  WEG GP LLC


  	

   


  
	

   


  	

  its General Partner


  	

   


  
	

   


  	

   


  	

   


  
	

  By: 


  	

     /s/ Don R. Wellendorf


  	

   


  	

  By:


  	

  /s/ Phillip D. Wright


  
	

  Name:


  	

  Don R. Wellendorf


  	

  Name:


  	

  Phillip D. Wright


  
	

  Title:


  	

  Authorized Signatory


  	

  Title:


  	

  Authorized Signatory


  
								





 




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