TEST BURN AGREEMENT
THIS
TEST BURN AGREEMENT
(the
“Agreement”)
is
entered into this ____ day of May 2007 (the “Effective
Date”)
by and
between H2DIESEL, INC. (the “Supplier”),
a
Delaware corporation with its primary place of business at 00000 Xxxx Xxxxxxx,
Xxxxxxx Xxxxx and Dynegy Oakland, LLC (the “Owner”)
a
Delaware limited liability company (each a “Party”)
and
collectively, the “Parties”).
WHEREAS,
Owner
owns a combustion turbine power plant in Oakland, California (the “Plant”);
and
WHEREAS,
Owner
has an interest in exploring the technical and commercial viability of applying
renewable fuel technology at the Plant; and
WHEREAS,
the
Supplier is a manufacturer of certain renewable fuels called “Bioemulsion”;
and
WHEREAS,
Supplier has an interest in demonstrating the capabilities of its Bioemulsion
in
utility scale gas turbine applications; and
WHEREAS,
the
Parties both desire to conduct Bioemulsion testing (the “Testing”)
at the
Plant in 2007.
NOW,
THEREFORE,
in
consideration of the mutual promises set forth below and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Parties agree as follows:
SECTION
1:
Bioemulsion
Testing
1.1 Testing.
Owner
and Supplier agree to burn Supplier’s Bioemulsion provided by Supplier, at the
Plant in accordance with this Agreement and the Test Protocol (as defined
below). The Parties contemplate conducting full and partial load test xxxxx
trial that may consume approximately 10,000 gallons of Supplier’s Bioemulsion.
The exact quantity of Supplier’s Bioemulsion needed for the Testing shall be
determined by the Parties.
1.2 Additional
Testing.
The
Parties may, by mutual written agreement, agree to conduct additional tests
using Supplier’s Bioemulsion and such additional tests shall be performed in
accordance with, and governed by, this Agreement.
SECTION
2:
Rights,
Duties and Obligations of the Parties Before Testing
Commences
2.1 Owner
Pre-Test Rights, Duties and Obligations.
Prior
to the commencement of any Testing:
(a) Baseline
Data.
The
Owner will provide to the Supplier historical emissions and other operating
data
for the Plant collected when firing distillate fuel oil equivalent to the data
being gathered in the Testing (the “Baseline
Data”).
The
Baseline Data shall at all times be subject to the terms of this Agreement,
including, without limitation, the terms of Section
5.
(b) Test
Protocol.
Owner
shall, at its sole cost and expense, develop a test protocol applicable to
the
Testing (the “Test
Protocol”).
In
the Test Protocol Owner shall specify which of the Plant’s CTs will be used for
the Testing.
(c) Permits.
Owner
shall obtain, at its sole cost and expense, all federal, state and local permits
and approvals required in connection with this Agreement, the Test Protocol
and
the Testing. If requested by Owner, the Supplier will accompany and assist
Owner
in discussions regarding the Testing with regulatory agencies and/or public
officials.
(d) Turbine
Connection Facilities.
Owner
shall, at its sole cost and expense, provide a connection suitable for the
Supplier to connect the Supplier’s Bioemulsion delivery and storage truck to the
CT fuel delivery system (the “CT
Connection Facilities”).
Unless otherwise agreed by the Parties, the Owner shall provide hoses and
connections that will connect to a standard 3” cam lock truck fitting on the
Supplier’s delivery and storage truck.
(e) Engage
Environmental Testing Firm.
Owner
shall engage an environmental testing firm to conduct air-emissions testing
and
analyze the Testing (“Emissions
Testing”).
The
Parties shall jointly develop a scope of work for the Emissions Testing. All
costs of the Emissions Testing shall be divided evenly between the Parties;
provided,
that
the
total costs payable for the Emissions Testing shall not exceed $300,000. Upon
receipt of the final report of the results of the Emissions Testing, Owner
shall
provide the Supplier with a copy of such report. Supplier shall pay its portion
of the Emissions Testing costs within thirty (30) days after it has received
the
Emissions Testing results from Owner. The results of the Emissions Testing
and
each portion of the report describing such results shall be subject to the
terms
of this Agreement, including, without limitation, the terms of Section
5.
2.2 Supplier
Pre-Test Rights, Duties and Obligations.
Prior
to the commencement of any Testing:
(a) Permits.
The
Supplier shall obtain, at its sole cost and expense, all federal, state and
local permits and approvals required in connection with the production and
transport of Supplier’s Bioemulsion to and from the Plant.
(b) Review
Test Protocol.
The
Supplier shall review the Test Protocol prior to its completion and provide
Owner with comments and suggested changes.
(c) Supplemental
Disclosures.
If not
included in the Disclosure Materials (as defined below) delivered to Owner
within thirty (30) days of the Effective Date in accordance with Section
4.1(a),
as to
each blend of Supplier’s Bioemulsion tested under this Agreement or brought onto
the Plant site the Supplier shall deliver to Owner no fewer than seven (7)
days
before the arrival of such Bioemulsion at the Plant true, correct and complete
copies of the following items: the MSDS Sheet, quality specifications, special
handling instructions, any information related to worker safety in connection
with such blend, applicable information related to the environment, health
and
safety, the results of other testing, and such other materials and information
available to the Supplier that may be relevant to the Testing (collectively,
the
“Disclosure
Materials”).
2
SECTION
3:
Bioemulsion
Testing
3.1 Owner
Test Rights, Duties and Obligations:
Owner
shall have the following rights, duties and obligations related to the
Testing:
(a) Notification
of Fuel Quantity and Required Delivery Date.
Owner
shall provide the Supplier written notice thirty (30) days in advance of the
Testing date (the “Notice”)
of (a)
the expected quantity of Supplier’s Bioemulsion needed for the Testing, and (b)
the Testing date(s).
(b) Revenue
and Loss from Sale of Electricity Generated with Supplier’s
Bioemulsion.
Owner
shall be entitled to all revenue, receipts and profits from sales of electricity
generated during the Testing, and Supplier acknowledges that it has no right,
title or interest in any such revenue, receipts and profits. Moreover, if
revenue from the sale of electricity generated during the Testing is less than
the cost of production, Owner shall not hold the Supplier responsible for any
portion of such cost of production other than the supply of Supplier’s
Bioemulsion, as provided in Section
3.2(a).
(c) Personnel.
Owner
shall provide operating personnel and personnel to conduct emission data
collection during all Testing.
(d) Right
to Stop Testing; Cost Reimbursement.
At any
time before commencement of any Testing Owner may, in its sole discretion,
elect
not to conduct such Testing. If Owner elects not to conduct Testing after
providing the Notice required by Section
3.1(a),
Owner
shall reimburse Supplier for all out of pocket costs associated with producing,
transporting, and disposing of the amount of Bioemulsion stated in the Notice.
After commencement of and during any Testing, Owner may, in its sole discretion,
elect to terminate such Testing immediately and Owner shall not be responsible
for reimbursing any of Supplier’s out of pocket costs associated with producing,
transporting, and disposing of the Bioemulsion required for such terminated
Testing.
2.3 Supplier
Test Rights, Duties and Obligations:
The
Supplier shall have the following rights, duties and obligations related to
the
Testing.
(a) Supply
Bioemulsion.
The
Supplier shall, at its sole cost and expense, produce, provide and deliver
to
the Plant the Supplier’s Bioemulsion necessary for the Testing. All of
Supplier’s Bioemulsion provided to Owner for use in the testing shall meet the
specification set forth in Exhibit
A.
(b) Delivery
Vehicle.
The
Supplier understands and agrees that it shall provide the delivery vehicle
used
to transport Supplier’s Bioemulsion to the Plant and that such vehicle shall be
used as and for on-site storage of Supplier’s Bioemulsion. The Supplier shall
remove all Bioemulsion delivery/storage vehicles from the Plant (together with
any remaining Supplier’s Bioemulsion) within fourteen (14) days of Owner’s
request.
3
(c) Rights
to be Present During Testing.
The
Supplier may have representatives present during the Testing provided such
representatives adhere to all applicable Owner safety programs and Plant on-site
rules and regulations that are made known to the Supplier in advance.
SECTION
4:
Representations
and Warranties
4.1 Supplier
Representations and Warranties.
The
Supplier hereby represents and warrants to Owner:
(a) Disclosure
Materials.
For
each blend of Supplier’s Bioemulsion that the Parties contemplate testing under
this Agreement, the Supplier will provide within thirty (30) days of the
Effective Date true, correct and complete copies of the Disclosure
Materials.
(b) Clear
Title to Bioemulsion Supplied.
The
Supplier has full, clear, and unrestricted title to all Bioemulsion to be
furnished by the Supplier in the performance of this Agreement, free and clear
of any and all liens, restrictions, reservations, security interests, and
encumbrances. All Bioemulsion furnished by the Supplier shall become the
property of Owner upon the transfer of such Bioemulsion at the CT Connection
Facilities. Any Bioemulsion brought to the Plant for Testing and not used shall
be retained by Supplier and remove from the Plant site as provided in
Section
3.2(b).
(c) Intellectual
Property.
To the
Supplier’s knowledge, any Bioemulsion, apparatus, process, technology, know-how
and the like used by the Supplier or delivered to Owner pursuant to or in
connection with this Agreement does not and will not violate or infringe any
copyright, trademark, service xxxx, patent or invention, trade secret or other
intellectual property or proprietary right of any third party. The Supplier
shall pay all royalties and license fees which may be payable to third parties
on account of the sale or use of the Bioemulsion or in connection with any
such
apparatus, process, technology, know-how or the like used by the Supplier or
delivered to Owner pursuant to or in connection with this
Agreement.
(d) Agreement
Duly Authorized, Executed and Delivered.
This
Agreement has been duly and validly authorized, executed and delivered by the
Supplier. This Agreement constitutes the legal, valid and binding obligation
of
the Supplier enforceable against the Supplier in accordance with its terms,
except as limited by the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights of
creditors and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(e) Consents
and Approvals.
Neither
the execution and delivery by Supplier of this Agreement, nor the performance
by
Supplier of its obligations hereunder require the consent, approval or
authorization of, the giving of notice to, or the filing, registration,
qualification, licensure, permitting or taking of any other action with, any
federal, state, or foreign government authority or agency that will not be
obtained or done prior to commencement of any Testing hereunder.
4
4.2 Owner
Representations and Warranties.
Owner
hereby represents and warrants to the Supplier:
(a) Agreement
duly Authorized, Executed and Delivered.
This
Agreement has been duly and validly authorized, executed and delivered by Owner.
This Agreement constitutes the legal, valid and binding obligation of Owner
enforceable against Owner in accordance with its terms, except as limited by
the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors and general principles
of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(b) Compliance
with Laws.
In the
execution, delivery and performance of this Agreement, Owner shall at all times
and at its sole expense be responsible for all applicable governmental laws,
statutes, ordinances, rules, regulations, orders and other
requirements.
(c) Consents
and Approvals.
Neither
the execution and delivery by Owner of this Agreement, nor the performance
by
Owner of its obligations hereunder require the consent, approval or
authorization of, the giving of notice to, or the filing, registration,
qualification, licensure, permitting or taking of any other action with, any
federal, state, or foreign government authority or agency that will not be
obtained or done prior to commencement of any Testing hereunder.
(d) Intellectual
Property.
The
Testing, Test Protocol and other facilities, equipment and materials and methods
used in connection with the
Emissions
Testing do not and shall not infringe or misappropriate any patents, copyrights,
trademarks, trade secrets or other intellectual property rights, privacy or
similar rights of any third party, nor has any claim (whether or not embodied
in
an action, past or present) of such infringement been threatened or asserted,
or
is such a claim pending against Owner.
(e) Standards
of Performance.
All
Emissions Testing and other work by Owner personnel and contractors pursuant
to
this Agreement shall be performed in a workmanlike manner and with professional
diligence and skill, by individuals having sufficient professional knowledge
and
experience and all necessary licenses and qualifications to perform Emissions
Testing in a competent and accurate manner in compliance with all applicable
laws, regulations, ordinances or other legal requirements, consistent with
generally accepted industry practices. All CT’s, facilities and other equipment
used in the Emissions Testing shall be in proper working order at the
commencement of Testing and the Emissions Testing shall comply and conform
in
all material respects with the Test Protocol.
5
SECTION
5:
Intellectual
Property; Confidentiality
5.1 Confidential
Information.
In
connection with this Agreement the Parties will make available in each other
certain confidential information. As a condition to furnishing such information
to each other, the Parties agree to treat all information concerning this
Agreement (whether prepared by either Party, and irrespective of the form of
communication) that has been or will be furnished in connection with the
Agreement in accordance with the provisions of this Agreement, and to take
or
abstain from taking certain other actions hereinafter set forth.
5.2 Supplier’s
Confidential Information.
(a) Any
and
all information, data and test results furnished by Supplier to Owner, including
the formulation, manufacturing methods and all other aspects of the Supplier’s
Bioemulsion, including any enhancements made as a result of information gathered
as a result of the Testing (the “Supplier’s
Intellectual Property”)
are
and will remain the sole property of the Supplier. Owner will have no claim
or
rights whatsoever related to the Supplier’s Intellectual Property regardless of
whether or not such Supplier’s Intellectual Property derived directly from the
Testing, the Baseline Data or the Emissions Data. Owner shall not use such
information for any purpose other than for the work to be performed under this
Agreement and as otherwise approved or authorized hereunder. Specifically,
but
without limitation, Owner shall not attempt to reverse-engineer or derive the
formulation or other trade secrets embodied in Supplier’s Bioemulsion or such
information, or use any of same in furtherance or otherwise in connection with
development of any product, process or service other than Supplier’s
Bioemulsion. Upon termination of this Agreement, Owner shall return or, at
Supplier’s instruction, destroy (providing written certification of return of
all copies of materials or destruction, as applicable) and erase from its
electronic systems and devices all such Supplier Intellectual Property,
retaining only one or more copies as required under applicable law and/or for
archival purposes.
(b) Owner
acknowledges and agrees that: (i) it does not and shall not acquire any license
or any other interest whatsoever in any of the Disclosure Materials or any
other
information provided by Supplier pursuant to Section
4.1(a)
regarding the Bioemulsion or otherwise acquired by Owner as a result of this
Agreement, (ii) such Disclosure Materials and other information are and shall
remain the sole property of Supplier, (iii) such Disclosure materials include
proprietary trade secrets and other intellectual property owned by Supplier,
and
(iv) Owner shall take all reasonable measures to preserve the confidentiality
of
same. Owner shall keep all of the Disclosure Materials and other information
in
a secure location with access provided only to Owner personnel that must have
access to same. Neither Owner nor any of its affiliates shall contest, attack
or
otherwise challenge Supplier’s rights with respect to Supplier’s Bioemulsion or
any of its Disclosure Materials provided to Owner by Supplier pursuant to this
Agreement.
5.3 Owner’s
Confidential Information.
Any and
all information, data and test results furnished by Owner to Supplier, including
the Baseline Data, and the Testing Protocol (the “Owner’s
Intellectual Property”)
shall
remain Owner’s exclusive property. The Supplier shall not use any such
information, data or test results for any purpose other than for the work to
be
performed under this Agreement.
6
The
Owner’s Intellectual Property, including any enhancements made as a result of
information gathered as a result of the Testing, is and will remain the sole
property of the Owner and other _______ as set forth herein, Supplier shall
have
no claim or rights whatsoever related to the Owner’s Intellectual Property. Upon
termination of this Agreement, Supplier shall return or, at Owner’s instruction,
destroy (providing written certification of return of all copies of materials
or
destruction, as applicable) and erase from its electronic systems and devices
all such Owner’s Intellectual Property, retaining only one or more copies as
required under applicable law and/or for archival purposes.
5.4 Use
of
Data.
The
Supplier shall have only limited rights to access and use the data gathered
during the Emissions Testing, other data gathered during the Testing, and the
Baseline Data. Supplier shall only use such data for its marketing purposes
and
in using such data shall not identify the Plant or Owner by name or other
distinctive identifying characteristics. Supplier may generally describe the
Plant and its general location in its marketing materials. Notwithstanding
anything to the contrary contained herein, nothing in this Section
5
will be
construed to limit the Owner’s use of the data gathered during the Emissions
Testing, the Baseline Data, or any other data collected as part of the Testing
for any purpose whatsoever.
5.5. Communications.
Except
pursuant to the Securities and Exchange Commission (the “SEC”)
disclosure requirements, or as otherwise required by applicable law or by an
order of a court of competent jurisdiction the Parties shall cooperatively
manage all communications to third parties regarding the Testing or this
Agreement, as set forth below:
(a) General
Announcement/Press Releases by one Party with No Mention by Name of the Other
Party.
Prior
to a Party issuing any public announcements, public written communications
and/or press releases to third parties regarding the Testing, this Agreement,
or
the scope, type of work or actual work contemplated or agreed upon in this
Agreement, where the other Party is not explicitly mentioned or referenced,
the
issuing Party shall submit to the other Party for informational purposes and
for
comment, all draft press releases or other such public written communications
and public announcements.
(b) General
Announcement/Press Releases by One Party with Mention of the Other
Party.
A Party
shall not issue any communications, announcements and/or press release to third
parties regarding the Testing, this Agreement, or the scope, type of work or
actual work contemplated or agreed upon in this Agreement, where the other
Party
is explicitly mentioned or referenced, unless the issuing Party shall have
first
submitted to the other Party, and receive written approval and authorization
of,
the draft press releases or other such communication or announcement. Such
approval and authorization will not be unreasonably withheld, conditioned,
or
delayed.
(c) Discussions
or Direct Communications with Regulatory/ Government Parties on
Project.
The
Supplier shall not initiate or engage in any discussions regarding the Testing
or the Agreement with any agents or representatives of any local, or state
regulatory bodies or government agencies within the State of California without
the prior, express, written consent of Owner, such consent to not be
unreasonably withheld, conditioned, or delayed.
7
(d) General
Announcements/Press Releases Regarding Similar Work as Project.
Prior
to a Party issuing any public announcements, public written communications
and/or press releases to third parties regarding the general scope or general
nature of the type of work as provided for in this Agreement, but which in
no
way mentions this Agreement or the Testing, the issuing Party agrees to promptly
notify the other Party of such public announcements, public written
communications and/or press releases, which would allow the other Party to
prepare for any possible third party inquiries regarding such release of
information by the issuing Party.
5.5 Duration
of Obligations.
The
Parties confidentiality obligations hereunder shall survive for a period of
two
(2) years after the Effective Date.
SECTION
5:
Indemnities
6.1 By
Supplier.
To the
fullest extent permitted by applicable law, the Supplier waives any right of
contribution and agrees to indemnify, hold harmless, and defend Owner, its
parents, affiliates, sister entities, officers, directors, employees, agents,
representatives, subsidiaries, successors, and assigns (collectively,
“Owner
Indemnities”)
from
and against all claims, liability, damage, expenses, suits, demands or costs
(including, without limitation, reasonable attorneys’ fees and court costs) for
any losses, damages, injuries, or death to any persons including third parties,
the Supplier’s employees or any subcontractor’s employees, or for damage or loss
to any property, including the property of third parties, arising out of or
in
any manner related to, based upon, or in connection with (i) negligent or
willful misconduct by Supplier and/or Supplier’s personnel in the performance of
this Agreement, (ii) any activities of the Supplier and/or Supplier’s personnel
or, the Plant premises, or in connection with any property of, Owner or its
affiliates, (iii) failure of the Supplier and/or Supplier’s personnel to adhere
to its obligations under this Agreement, (iv) any claim that the supply or
use
of Supplier’s Bioemulsion infringes, or is alleged to infringe any patents or
inventions, copyrights, trade secrets, trademarks, or any other intellectual
property or proprietary rights of any third party, or (v) any release or spill
of Supplier’s Bioemulsion onto any property, including third party property, by
Supplier except to the extent such release or spill is caused by a failure
of
the CT Connection Facilities or any other cause not attributable to conduct
by
the Supplier. The obligations of the Supplier under this Section
6.1
shall
not extend to the liability of the Owner Indemnitees arising out of their own
negligence or any claims or liability not attributable to wrongful or negligent
conduct by the Supplier. The Supplier shall impose identical duties upon all
subcontractors of the Supplier.
6.2 By
Owner.
Notwithstanding Section
6.1,
Owner
shall bear all liability for any damage to Owner’s CT as a result of burning
Supplier’s Bioemulsion during the Testing or under this Agreement and Owner
agrees that it will not hold the Supplier liable for any such damage, except
to
the extent caused by the Supplier’s breach or default under Section
4.1.
8
To
the
fullest extent permitted by applicable law, Owner waives any right of
contribution and agrees to indemnify, hold harmless, and defend the Supplier,
its parents, affiliates, sister entities, officers, directors, employees,
agents, representatives, subsidiaries, successors, and assigns (collectively,
“Supplier
Indemnitees”)
from
and against all claims, liability, damage, expenses, suits, demands or costs
(including, without limitation, reasonable attorneys’ fees and court costs) for
any losses, damage, injuries, or death to any persons including but not limited
to Owner’s employees or any subcontractor’s employees, or for damage or loss to
any property, arising out of or in any manner related to, based upon, or in
connection with any release or spill of Supplier’s Bioemulsion onto the property
of Owner or elsewhere to the extent such release or spill is caused by a failure
of the CT Connection Facilities or otherwise attributable to acts or omissions
of Owner or any of its personnel or contractors. The obligations of Owner under
this Section
6.2
shall
not extend to the liability of the Supplier Indemnitees arising out of their
own
negligence or any claims or liability not attributable to wrongful or negligent
conduct by the Owner.
SECTION
7:
Term;
Termination
7.1 Term;
Termination; Survival.
If not
terminated earlier, this Agreement shall expire December 31, 2007. This
Agreement may be terminated (i) by mutual written consent of the Parties,
(ii) by either Party for any reason, upon five (5) days’ written notice to
the other Party provided that
Owner
shall comply with Section
3.1(d)
or
(iii) immediately, by either Party for the other Party’s breach of any of
its representations, warranties or obligations under this Agreement.
Notwithstanding anything in this Agreement to the contrary, the obligations
of
the Parties under Sections
3.2(b),
5,
6,
8.4
and
8.7
shall
survive performance, expiration and/or termination of this
Agreement.
SECTION
8:
Miscellaneous
8.1 Relationship
of
Parties; Future Commercial Relationship.
The
Parties shall not be deemed to be in a relationship of partners of joint
venturers by virtue of this Agreement, nor shall any Party be an agent,
representative, trustee or fiduciary of the other. No Party shall have any
authority to bind the other.
8.2 Future
Purchases.
Upon
successful completion of the Testing, Owner shall negotiate with Supplier
regarding (i) an agreement for the purchase of Bioemulsion by the Owner from
the
Supplier on terms and conditions mutually acceptable by the Parties; and (ii)
any future testing that may be desirable to further demonstrate the commercial
and technical viability of the Bioemulsion. Owner shall be under no obligation
to enter into any purchase agreement with Supplier. In the event that Owner
elects to purchase Supplier’s Bioemulsion in a quantity equal to or greater than
20,000 barrels within 24 months of completion of the Testing, the Supplier
agrees that the price applicable to such purchase shall be no less favorable
to
Owner than the price the Supplier charges for Supplier’s Bioemulsion to other
commercial purchasers purchasing the same or reasonably similar quantities
of
Bioemulsion from Supplier on the same or reasonably similar terms.
9
8.3 Compliance
with Law; Governing Law.
The
Parties shall be subject to all applicable laws, including rules, regulations,
and orders of any regulatory body having jurisdiction, including those federal,
state, county, and/or local bodies or agencies implementing various
environmental and/or safety and health laws and regulations, whether now in
force or adopted or enacted after the date of this Agreement. This Agreement
shall be governed and construed in accordance with the laws of the State of
Texas.
8.4. Entire
Agreement; Waiver of Consequential Damages.
This
Agreement represents the entire agreement between the Parties as to the subject
matter contained in this Agreement and shall supersede any prior agreements
between the Parties (whether written or oral). In no event, whether based on
contract, indemnity, warranty, tort (including negligence), strict liability
or
otherwise, shall one party be liable to the other for indirect, incidental,
punitive, special, exemplary or consequential damages whatsoever, including
lost
or prospective profits. Except for injury to third parties or third party
property damages as described in Section
6,
in no
event shall either Party’s total aggregate liability under this Agreement exceed
the total out of pocket costs of the Emissions Testing.
8.5 Warranties.
SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND DISCLAIMS
ANY
IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT,
WITH RESPECT TO SUPPLIER’S BIOEMULSION OR ANYTHING ELSE PROVIDED BY SUPPLIER
HEREUNDER. SUPPLIER DOES NOT REPRESENT OR WARRANT THAT THE SUPPLIER’S
BIOEMULSION IS COMMERCIALLY VIABLE OR THAT THE SUPPLIER’S BIOEMULSION WILL BE
AVAILABLE FOR PURCHASE OR USE PRESENTLY OR IN THE FUTURE.
8.5 Force
Majeure.
Neither
Party shall be deemed in default or otherwise liable for any delay in or failure
of its performance under this Agreement (other than the payment of money) by
reason of any act of God, fire, natural disaster, accident, riot, terrorism,
act
of government, strike or labor dispute, shortage of materials or supplies,
or
any other cause beyond the reasonable control of such Party, and which cannot
be
reasonably circumvented by such Party, provided that the Party invoking force
majeure (a) gives the other Party prompt notice of such cause, and (b) used
its
commercially reasonable best efforts to correct promptly such failure or delay
in performance. In the event of a force majeure event which prevents performance
permanently or for more than twelve (12) months in duration, either Party may
terminate this Agreement without further obligation except with respect to
those
provisions that survive termination.
8.7 Notices.
Whenever under the provisions of this Agreement, notice is required or permitted
to be given, it shall be in writing and shall be deemed given either when
delivered personally, or by courier, or three (3) days after mailing, postage
prepaid by registered or certified mail, return receipt requested, addressed
to
the Party for whom it is intended with copies provided to the address set forth
in the first paragraph of this Agreement or to such other addresses as a Party
shall hereinafter designate in writing to another Party.
8.8 Amendment.
No
amendment, waiver, or modification (collectively, an “Amendment”)
of
this Agreement or any provision of this Agreement shall be valid unless in
writing, stating with specifically the particular amendment or modification
to
be made, and duly executed by the Parties.
10
Upon
mutual acceptance and execution of an Amendment, the terms of such Amendment
shall be deemed incorporated into this Agreement. To the extent that an
Amendment conflicts with the terms of this Agreement, the Amendment shall
control.
8.9 No
Waiver.
Nothing
contained in this Agreement shall cause the failure of either Party to insist
upon strict compliance with any covenant, obligation, condition or agreement
contained in this Agreement to operate as a waiver of, or estoppel with respect
to, any such covenant, obligation, condition or agreement. Waiver by any Party
of any breach of any provision of this Agreement shall not be considered as,
nor
constitute a continuing waiver or waiver, or cancellation of any provision
of
this Agreement.
8.10 Assignment.
Neither
Party may assign this Agreement and/or any rights and/or obligations hereunder,
without the prior written consent of the other Party and any attempt to do
so
shall be void, provided,
however,
that
either Party may, without such consent, upon written notice to the other Party
assign this Agreement and/or any rights and/or obligations hereunder in
connection with a merger, sale, transfer, conveyance, acquisition or other
corporate reorganization or change in control or ownership relating to all
or
substantially all of such Party’s assets, operations or business relating to
this Agreement. This Agreement is binding on the Parties and their respective
successors and permitted assigns.
8.11 Counterparts.
The
Parties may execute and deliver this Agreement in counterparts, each of which
shall be deemed an original and all of which, when taken together, shall be
deemed to be one agreement. Each party acknowledges and agrees that this
Agreement is intended to be executed and transmitted to the other party via
electronic means. Accordingly, a party may execute and deliver this Agreement
electronically (e.g., by digital signature and/or electronic reproduction of
a
handwritten signature), and the receiving party shall be entitled to rely upon
the apparent integrity and authenticity of such signature for all
purposes.
IN
WITNESS WHEREOF,
the
Parties have caused this Agreement to be executed by their respective duly
authorized representatives as of the date first written above.
|
Dynegy
Oakland LLC
|
H2Diesel,
Inc.
|
|
By: /s/
[illegible]
|
By: /s/
Xxxxx X. Xxxxxxxxx
|
|
Name: [illegible]
|
Name: Xxxxx
X. Xxxxxxxxx
|
|
Title: Executive
Vice President
|
Title: Chief
Executive Officer
|
|
Commercial
and Development
|
|
|
Date: May
1, 2007
|
|
|
Date: May
1, 2007
|
11
EXHIBIT
A
H2Diesel
Fuel Specification
