DISTRIBUTOR SALES AGREEMENT (BRANDED)
EXXON COMPANY, U.S.A.
This CONTRACT and AGREEMENT made and entered into by and between Exxon Company,
U.S.A. (a division of Exxon Corporation), having an office and place of business
at 000 Xxxx, Xxxxxxx, Xxxxx 00000-0000 hereinafter called "Seller", and XXXXXXX
OIL, INC. having an office at 000 X.X. 00XX XXXXXX, XXXXX, XX 00000, hereinafter
called "Buyer".
1. PERIOD: Unless sooner terminated as provided elsewhere herein, this
Agreement shall be in full force and effect for the period of three (3) years
beginning on April 1, 1999, and ending on March 31, 2002.
2. QUANTITIES:
(a) Seller agrees to sell to Buyer branded motor gasoline and branded diesel
of the kinds and in the quantities and under the terms and conditions set forth
herein and in the MOTOR FUEL PRODUCT SCHEDULE TO DISTRIBUTOR SALES AGREEMENT
(BRANDED) (hereinafter "Product Schedule") annexed hereto and made a part hereof
and Buyer agrees to purchase, receive and pay for the same on the terms and
conditions herein stated and in the Product Schedule.
(b) By mutual consent this Agreement may, from time to time, be amended by
the addition to or deletion herefrom of additional or revised Product
Schedule(s). Any such additional or revised Schedule(s) shall be marked as such
and signed by the duly authorized representatives of the parties and shall
thereupon be affixed to and become a part of this Agreement from and after the
effective date appearing on such additional or revised Schedule(s).
(c) The amount of any such products that Seller is obligated to sell to
Buyer is subject to all of Seller's other rights and/or obligations to: (A)
allocate supplies of available products; and (B) allocate products pursuant to
any regulation, direction, or request (whether valid or invalid) made by any
governmental authority or any person purporting to act for any governmental
authority.
3. PRICE: The price of the products covered by this Agreement shall be as
provided in the Product Schedule.
4. PAYMENT:
(a) Unless Seller notifies Buyer otherwise, Buyer will pay Seller for any
products and other charges by electronic funds transfer at the xxxx Xxxxxx
designates. Seller has the ongoing right to periodically give Buyer notice of a
different method, time, or place of paying for any products or other charges.
(b) Nothing herein shall be construed as obligating Seller to extend any
credit to Buyer. If Seller in its sole determination does elect to extend credit
to Buyer, such extension of credit shall be made only in writing and on the
following terms and conditions:
(1) Method of payment shall be electronic funds transfer, unless
otherwise specified by Seller, at or to the payment location
specified by Seller.
(2) In the event Seller does not receive payment on or before the due
date, Seller may impose and Buyer will pay, a late payment charge
for each day that passes between the due date and the date Seller
receives payment. This late payment charge will be in addition to
Seller's other remedies, and will not exceed the lesser of: (A) the
maximum allowed by law, or (B) a fixed rate that may vary from state
to state in Seller's discretion, but that will not be less than
eighteen per cent (18%) PER ANNUM prorated over the period that
credit is outstanding.
(3) Seller may furnish to Buyer statements of Buyer's account on a
monthly basis. Payment of any such bills shall not prejudice the
right of Buyer to question the correctness thereof; provided
however, all bills and statements rendered to Buyer by Seller during
any month shall conclusively be presumed to be true and correct
after ninety (90) days following the end of any such month, unless
within said ninety (90) day period Buyer delivers to Seller's
accounting office issuing said statement written exception thereto
setting forth the item or items questioned and the basis therefor.
Time is of the essence in complying with this provision.
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(4) In the event there are additional business transactions between
Buyer and Seller including without limitation those relating to (i)
credit sales of products other than those identified herein, (ii)
promissory notes, or (iii) real estate, unless it is clearly
indicated in writing by Buyer as to how payments received by Seller
from Buyer are to be applied, then such payments shall be applied by
Seller in the following order of priority: (i) trade accounts, (ii)
promissory notes, (iii) rentals or other amounts due under any other
agreement or transaction.
(5) Seller reserves the right to withdraw such credit immediately at any
time on giving to Buyer notice thereof. In the event credit is
withdrawn, all amounts then due and owing shall become payable, and
all future sales by Seller to Buyer shall be for cash (or at
Seller's option certified or cashier's check, money order,
electronic funds transfer, or other means approved by Seller).
(6) Seller has the right, but not the obligation, to offset any amounts
owed by Buyer to Seller, whether arising from the sale of products
under this Agreement, or arising under any other agreement or
business transaction between the parties.
(c) When Buyer takes delivery of any product sold hereunder, Buyer
represents to Seller that Buyer is solvent and able to pay for such product.
Additional evidence of Buyer's solvency shall be the written confirmation of
Buyer's purchase.
5. CARD ADMINISTRATION:
(a) Seller may issue Seller Cards and process and pay for Seller Card sales
tickets submitted to Seller in accordance with the terms of the applicable card
guide. Seller may authorize third party issuers (Third Party Issuer(s)) to issue
Seller Cards and other cards and process and pay Buyer for Seller Cards and
other card sales tickets submitted to Third Party Issuer in accordance with the
terms of an applicable card guide or agreement. Seller has the right, but not
the obligation, to change at any time its methods or terms of issuing, or
authorizing the issuance of, Seller Cards and other cards and its methods or
terms of processing and paying, or authorizing the processing and payment of,
Seller Cards and other card sales tickets. Nothing in this Agreement obligates
Seller or Third Party Issuer to issue Seller Cards and other cards or to process
for payment Seller Cards and other card sales tickets.
(b) Buyer agrees to be bound by and comply with all terms and conditions of
any card guide or agreement under which Seller or Third Party Issuer agrees to
process and pay for Seller Cards and other card sales tickets. The terms of such
card guide or agreement may be amended and/or supplemented at any time by Seller
or Third Party Issuer(s).
(c) If Third Party Issuer agrees to pay Buyer for Seller Card or other card
sales tickets submitted for payment in accordance with the terms of the
applicable card guide or agreement, Buyer will look solely to Third Party Issuer
and not to Seller for such payment. Should Seller elect to or otherwise pay all
or any portion of any card sales ticket charged back by Third Party Issuer to
Buyer, upon demand from Seller, Buyer shall immediately reimburse Seller for any
such payments made by Seller.
(d) Seller has the right, but not the obligation, to offset any amounts owed
by Seller to Buyer against any amounts owed by Buyer to Seller, whether arising
under a contract or from any other business transaction between the parties.
Seller has the right, but not the obligation, to instruct a Third Party Issuer
to pay Seller rather than Buyer for Seller Card and other card sales tickets
submitted by Buyer to Third Party Issuer, to apply against the payment of any
amounts owed by Buyer to Seller whether arising under a contract or from any
other business transaction between the parties.
(e) If Buyer requests Seller or Third Party Issuer to accept assignment of
credit or debit card tickets from, and make return payment directly to Buyer's
customers, and Seller or Third Party Issuer agrees to accept such assignments,
Buyer agrees that such assignments shall be treated for all purposes as if
assigned directly by Buyer, that chargebacks of reassigned credit or debit sales
tickets received from Buyer's customers shall be the responsibility of Buyer,
and that such chargebacks may be deducted from sums owed by Seller or Third
Party Issuer to Buyer.
6. DELIVERY: Delivery of the product(s) covered by this agreement and passage
of title and risk of loss shall be as stated in the applicable Product Schedule.
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7. TAXES: In addition to the price charged by Seller for products purchased
hereunder, Buyer will pay to Seller any foreign or domestic tax, fee or other
charge (except taxes based on income), whether or not of the same class or kind
as those listed below, whenever imposed or assessed that any municipal, county,
state, federal or other laws (now in effect or hereafter enacted) directly or
indirectly require Seller or Seller's suppliers to collect or pay related to
the production, manufacture, sale, inspection, transport, storage, delivery, or
use of products covered by this Agreement. These charges include, without
limitation (A) duty taxes; (B) sales taxes; (C) excise taxes; and (D) taxes on
or measured by gross receipts.
8. FAILURE TO PERFORM:
(a) Any delays in or failure of performance of either party hereto shall not
constitute default hereunder or give rise to any claims for damages if and to
the extent that such delay or failure is caused by occurrences beyond the
control of the party affected, including, but not limited to, acts of God or the
public enemy; expropriation or confiscation of facilities; compliance with any
order or request of any governmental authority; acts of war, rebellion or
sabotage or damage resulting therefrom; embargoes or other import or export
restrictions; fires, floods, explosions, accidents, or breakdowns; riots;
strikes or other concerted acts of workers, whether direct or indirect;
reduction of transportation capacity; inability to obtain necessary industrial
supplies, energy, or equipment; or any other causes whether or not of the same
class or kind as those specifically above named which are not within the control
of the party affected and which, by the exercise of reasonable diligence, said
party is unable to prevent or provide against. A party whose performance is
affected by any of the causes set forth in the preceding sentence shall give
prompt written notice thereof to the other party.
(b) If for any reason Seller's supplies of product deliverable under this
Agreement are inadequate to meet Seller's contract obligations to its customers
for such products, or if Seller determines, in its sole discretion, in
consideration of the uncertainties of worldwide raw material availability or
refining capacity limitations or other factors, that it is appropriate to impose
a plan of allocation (by grade or otherwise), then Seller shall have the right
to impose such a plan and the right to include one or more of the following:
(1) Seller's "customers" for products of the kind deliverable
hereunder shall be deemed to include (i) purchasers pursuant to
current contracts, (ii) purchasers whose contracts have expired where
Seller, at its sole option, determines to continue sales, (iii)
purchasers to whom sales have been made on a regular and recurring
basis to whom contracts have not been submitted and (iv) new customers
to whom Seller determines to commence selling at its sole option.
(2) Seller shall have the right to give preference in allocation to
those customers whose needs (including resellers who sell for similar
needs) are related to (i) protection of life or health, (ii)
production and transportation of food and energy, (iii) mass
transportation customers, and (iv) national defense.
(3) Seller's allocation plans may be put into effect on such
geographical basis (including treating one geographic area differently
than another one) as Seller may determine, without regard for the
specific inventory at the place or places from which products
deliverable hereunder are normally produced, shipped or delivered.
(4) Seller shall have sole discretion to determine the proportions in
which it will manufacture various products from the raw material
available to it and to determine the level of inventories which it
maintains for all raw materials and all products. Seller shall have no
obligation to purchase or otherwise obtain additional products of the
kind deliverable hereunder or raw materials from which such products
are derived, and Seller shall have complete discretion as to the
disposition of any raw materials or products which Seller may buy.
(5) Seller's allocation plans shall be applied after making provisions
for Seller's own requirements for products of the kind deliverable
hereunder. In the context of this subsection "Seller" shall include
Exxon Corporation and all of its divisions, subsidiaries, and
affiliates whether wholly or partially controlled and whether domestic
or foreign.
(c) Seller shall be under no obligation to make sales hereunder at any time
when in Seller's sole judgment it has reason to believe that making of such sale
would be likely to cause strikes to be called against it or cause its properties
to be picketed.
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(d) Seller shall not be required to make up sales omitted on account of any
of the causes set forth in this Section.
(e) Nothing in this Section shall excuse Buyer from making payment when due
for sales under this Agreement.
(f) Seller shall be under no obligation to make sales hereunder at any time
when in Seller's sole judgment Buyer's equipment, is unsafe for the delivery of
product(s). Buyer accepts full responsibility for all damages to any person or
property in any way resulting from Buyer's failure to provide safe premises and
equipment, including tanks safe and fit for the storage or handling of motor
fuels, whether such failure is known or unknown to Seller or Seller's
representative, and Buyer indemnifies and holds Seller harmless with respect to
any such damages or any cause of action arising therefrom.
9. PRICE ADJUSTMENT: Buyer shall pay to Seller in addition to the prices
provided for herein any foreign or domestic duty, tax, sales tax, excise tax,
gross receipts tax, fee or other charge, whether or not for the same class or
kind, now in effect or thereafter imposed or assessed (but exclusive of taxes
based on net income) which Seller or Seller's supplier, direct or indirect, may
be required by any municipal, state, federal or foreign government law, rule,
regulation or order, to collect or pay with respect to the production,
manufacture, sale, transportation, storage, delivery or use of products sold
hereunder, and which is not otherwise given effect in Seller's applicable
prices.
10. NEW OR CHANGED REGULATIONS: The parties are entering into this Agreement in
reliance on the regulations, law and arrangements with governments or
governmental instrumentalities (hereinafter called "regulations") in effect on
the date of execution by Seller affecting the products (including the raw
materials, manufacturing or distribution facilities used therefor) sold
hereunder insofar as said "regulations" affect Buyer, Seller or Seller's
suppliers. If the effect of any change in any regulation or of any new
"regulation" (1) is not covered by any other provision of this Agreement, and
(2) in the affected party's judgment, either (a) has an adverse effect upon the
party (or if Seller, upon Seller's suppliers) or (b) increases the risk to the
party of performance under this Agreement, the affected party may request
renegotiation of the terms of this Agreement. The affected party has the right
to terminate this Agreement on written notice, effective ninety (90) days after
the request for renegotiation, if the renegotiation is not satisfactorily
completed. Such right to request renegotiation or, upon failure to agree, to
terminate, shall without limitation also be available if "regulations":
(a) Inhibit Seller from freely establishing, by increasing or decreasing,
prices of products covered by this Agreement:
(b) Prohibit Seller from collecting the price adjustment provided for above
under "Price Adjustment";
(c) Regulate the prices or recipients of products covered by this
Agreement;or
(d) Affect Seller's liability.
11. TRADEMARKS:
(a) Buyer is permitted to display Seller's trademarks solely to designate
the origin of said products and Buyer agrees that petroleum products of others
(or unbranded petroleum products purchased from Seller) will not be sold by
Buyer under any trade name, trademark, trade dress, brand name, label, insignia,
symbol, or imprint owned by Seller or used by Seller in its business
(collectively "Exxon Identification"). Upon termination of this Agreement or
prior thereto upon demand by Seller, Buyer shall discontinue the posting,
mounting, display or other use of Exxon Identification except only to the extent
they appear as labels or identification of products manufactured or sold by
Seller and still in the containers or packages designed and furnished by Seller.
Buyer is not a licensee of Seller's trademarks. Without Seller's prior written
authorization, Buyer shall not mix, commingle, adulterate, or otherwise change
the composition of any of the products purchased hereunder and resold by Buyer
under said Exxon Identification. Seller is hereby given the right to examine at
any time, and from time to time, the contents of Buyer's tanks or containers in
which said product(s) purchased hereunder are stored and to take samples
therefrom, and if in the opinion of Seller any samples thus taken are not said
product(s) and in the condition in which delivered by Seller to Buyer, then
Seller may at its option cancel and terminate this Agreement. If there shall be
posted, mounted, or otherwise displayed on or in connection with the premises
any sign, poster, placard, plate, device or form of advertising matter whether
or not received from Seller, consisting in
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whole or in part of the name of Seller or any Exxon Identification, Buyer agrees
at all times to display same properly and not to diminish, dilute, denigrate, or
otherwise adversely affect same and to discontinue the posting, mounting or
display of same immediately upon Buyer's ceasing to sell Seller's branded motor
fuels (or other branded products of Seller) or in any event upon demand by
Seller. Buyer further agrees to take no action which will diminish or dilute the
value of such trademarks or other identifications owned or used by the Seller.
(b) Buyer or Buyer's customers shall not sell non-Exxon branded motor
gasoline under any Exxon-identified canopy or at any fueling island where Buyer
or Buyer's customer is selling Exxon branded motor gasoline. Provided, however,
that "non-Exxon branded motor gasoline" as used in the preceding sentence shall
not be construed to apply to gasohol or other synthetic motor fuels of similar
usability, to the extent provided for in the Gasohol Competition Act of 1980,
Pub. L. 96-493.
(c) Without affecting Buyer's obligations under Section 11 (b) above, if
Buyer offers non-Exxon products for sale, Buyer agrees to protect the identity
of Exxon branded products and Exxon's trademarks by all reasonable methods which
would prevent customer confusion or misinformation. Buyer agrees to conform to
Exxon's deidentification requirements, as same may be revised from time to time,
including but not limited to posting of Exxon approved signs which clearly
distinguish Exxon products from non-Exxon products, disclaiming any product
liability of Seller for damage resulting from use of non-Exxon products, and
removing or covering any signs which may mislead, confuse, or misinform some
customers or reduce their goodwill toward the Exxon Identification. In addition,
Buyer agrees to comply with any additional steps beyond the Exxon
deidentification requirements required by any applicable law, ordinance or
regulation regarding the labeling of petroleum products.
(d) In furtherance of its obligations as set forth in the preceding
paragraphs of this Section, Buyer agrees that it will for itself, and as to any
of its customers to whom Seller's trademark symbol has been provided or who is
permitted the display of such trademark or other Exxon Identification require of
such customers that they will, while identifying the source of the products sold
at their premise(s), or any location operated directly by Buyer, with Seller's
trademark or other Exxon Identification comply with the foregoing, and will
incorporate in its arrangements with such customers the undertakings provided in
this section and will assist in the enforcement thereof. Such assistance
includes, but is not limited to the authorization to Seller to commence legal
proceedings in Buyer's name, and at Buyer's expense, for the purposes of
enforcing Buyer's obligations in this paragraph. Buyer further agrees to
immediately-notify Seller of any customers failing to comply with this section.
(e) Buyer shall have neither the right to use or display at marinas, nor the
right to authorize or permit the use or display at marinas, Exxon Identification
in connection with the sale of products purchased hereunder.
(f) To permit Seller to carry out its right and obligation to protect its
trademark from diminution, dilution, or destruction by misuse or failure by
those to whom permission to display it has been granted hereunder, Buyer agrees
that upon request by Seller (but not more frequently than once each year) it
will provide Seller with a list of the names and addresses to which Buyer has
provided Seller's trademark symbol or other Exxon Identification and where such
locations are displaying Seller's trademark or other Exxon Identification of
Seller as the source of the products sold, it being understood and agreed that a
breach of any provision of this Section 11 is an event which is relevant to the
franchise relationship as defined in the Petroleum Marketing Practices Act (15
U.S.C.A. 2801 et seq.) and as a result of which termination of the franchise or
nonrenewal of the franchise relationship as defined is reasonable.
(g) If Buyer, for whatever reason, ceases to display or authorize the
display of Exxon Identification at any location, then Buyer will notify Seller
in writing within thirty (30) days of that event.
12. MARKET DEVELOPMENT AND REPRESENTATION:
(a) A primary business purpose of Seller is to optimize effective and
efficient distribution and representation of its branded motor fuel products in
the interbrand motor fuel market through planned market development and image
improvement. In furtherance of this business purpose, Buyer and Seller agree as
follows:
(i) While it is not a requirement of this Agreement, Seller believes
that it is important for Buyer to have, and periodically update,
a market development plan. The plan should provide for the
selection and acquisition of "key sites" and "special opportunity
sites" (both as defined from time to time by Seller) and the
development of optimal facilities, effective operating
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practices, and the necessary financial and management resources.
If Buyer, or key person of Buyer, has not attended a market
development seminar given by Seller, then Buyer, or key person of
Buyer will attend any such seminar if requested to do so by
Seller.
(ii) Unless pursuant to specific prior written authorization from
Seller, Buyer agrees not to display, or to authorize or permit
Buyer's customers to display Exxon Identification in connection
with the sale of motor fuel at any retail motor fuel store. This
subparagraph (ii) shall not apply to Exxon branded motor fuel
stores validly operated by Buyer on March 31, 1987, or to stores
at which Buyer validly authorized Buyer's customers to display
Exxon Identification on such date.
(iii) Unless pursuant to specific prior written authorization from
Seller, Buyer shall not, directly or indirectly, sell or supply,
or cause to be sold or supplied, any motor fuels purchased from
Seller to any person or entity currently having a branded motor
fuels supply agreement directly with Seller, which supply
agreement pertains to a specific retail outlet. The reference to
"entity" in the preceding sentence shall be deemed to include any
other entity owned or controlled by the person or entity having
the aforementioned supply agreement directly with Seller.
(b) Buyer shall cause all retail stores which Buyer supplies with Seller's
branded motor fuels to meet the following minimum conditions, or Buyer shall
lose the right to use or display Exxon Identification, or to grant to its
customers the right to use or display Exxon Identification, at any such store:
(i) Paved driveways with safe and good ingress and egress;
(ii) Permanent building which is structurally sound and complies with
all fire, building and zoning codes and ordinances;
(iii) Clean premises free of debris, trash, and fire hazards;
(iv) Modern restrooms for men and women available to the general
public;
(v) Offer three (3) grades of Exxon branded motor gasoline.
(vi) Posting, at all times, of actual motor fuel prices, in numerals,
in all Exxon Retail Identification (RID) price sign systems
located on the premises.
(vii) Compliance with applicable standards as described in Attachment
A--Facility Requirements to Distributor Sales Agreement
(Branded), which is incorporated herein and made a part of this
Agreement.
13. PROMOTION OF PRODUCTS:
(a) Buyer agrees to diligently promote the sale of gasoline and other motor
fuel purchased hereunder.
(b) In order to facilitate the promotion of Exxon products, Buyer agrees
that Seller may charge an advertising fee of up to $.001 (one tenth of one cent)
per gallon on each invoice for all branded motor gasoline purchases. Exxon
agrees to match such fees collected and spend the total of the sums for
advertising expenditures. Advertising expenditures include, but are not limited
to, the production and placement of spot TV ads, network cable TV ads, radio
ads, sports marketing, store point-of-sale (POS), market wide promotions and
outdoor billboards.
14. CUSTOMER SERVICE AND COMPLAINTS: While using any Exxon Identification of
Seller, as set forth in Section 11, Buyer agrees:
(a) To render appropriate, prompt, efficient, and courteous service at the
premises to Buyer's customers for such products, to respond expeditiously to all
complaints of such customers, making fair adjustment when appropriate, and
otherwise conduct Buyer's business in such products in a fair and ethical manner
and maintain the premises' facilities, all in a manner which will xxxxxx
customer acceptance of and desire for the products sold by Seller to Buyer;
(b) To provide sufficiently qualified and neatly dressed store personnel in
uniform as appropriate to render first class service to customers;
(c) To keep the restrooms clean, orderly, sanitary and adequately furnished
with rest room supplies; and
(d) To assist in maintaining a high level of customer acceptance of the
Seller's trademarks by keeping the premises open for dispensing of products
associated with such trademark during such hours each day and days a
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week as are reasonable considering customer convenience, competitive conditions
and economic consequences to Buyer.
Buyer also agrees that as to any of its customers to whom it sells product
purchased from Seller hereunder and to whom Exxon Identification has been
provided or who is permitted the use of such Exxon Identification, Buyer will
include in its arrangements with such customers the undertaking provided in this
section and will undertake the enforcement thereof. Buyer further agrees that
Seller may revoke the right of Buyer to display, or permit the display at
Buyer's customers, Exxon Identification at any location which, after reasonable
notice by Seller to Buyer to cure, continues to be in violation of this Section
14.
15. DETERMINATION OF QUANTITY AND QUALITY: The quantity and quality of products
sold hereunder shall be for all purposes conclusively deemed to be the quantity
and quality set forth in Seller's documents of delivery unless within seven (7)
days of the date of delivery Buyer delivers to Seller written notice of any
claimed shortage in quantity or claimed deviation in quality. Time is of the
essence in complying with this provision.
16. QUALITY, GRADE, SPECIFICATION, OR NAME OF PRODUCT: Seller shall have the
right at its sole discretion at any time during the life of this Agreement to
change, alter, amend or eliminate any of the grades, trade names, trademarks or
brands of petroleum products covered by this Agreement. Seller may also, in its
sole discretion, change or alter the quality of specification of any of the
products covered by this Agreement. If any such change or alteration materially
affects the performance of the products or need of Buyer therefor for the
purposes intended by Buyer, Buyer may terminate this Agreement as to any
products so affected on thirty (30) days' prior written notice to Seller;
however, Buyer may not terminate this Agreement for any change in quality or
specification of any said products resulting from compliance with governmental
regulations. Seller shall give Buyer written notice of discontinuance of the
manufacture of any products covered by this Agreement. The Agreement shall
terminate as to such products when such notice is effective. Seller shall have
the right to enter the premises of the Buyer or of any of the Buyer's customers
who have purchased product sold to Buyer under this Agreement and being offered
for sale by such customer under Exxon Identification during normal business
hours for the purpose of obtaining a sample or samples of any product available
for the sale under Exxon Identification or other Exxon Identification by paying
Buyer or customer of Buyer the current retail price therefor. Buyer will include
in its arrangements with its customers the right of Seller to enter the premises
of such customers for the sole purpose stated in the preceding sentence of this
paragraph and agrees to assist in the enforcement thereof.
17. ASSIGNMENT: This Agreement shall not be transferred or assigned by Buyer in
whole or in part, directly or indirectly. Seller may assign this Agreement in
whole or in part upon ten (10) days prior written notice to Buyer.
18. WAIVER: No waiver by either party of any breach of any of the covenants or
conditions herein contained to be performed by the other party shall be
construed as a waiver of any succeeding breach of the same or any other covenant
or conditions. All waivers must be in writing.
19. LAWS:
(a) Buyer agrees that in receiving, storing, handling, offering for sale,
selling, delivering for use or using itself products purchased from Seller under
this Agreement, Buyer will comply, and instruct his employees with respect to
same, with all applicable federal, state, county and local laws, statutes,
ordinances, codes, regulations, rules, orders, and permits.
(b) Buyer will indemnify and hold Seller, its employees, agents, successors,
and assigns, from and against any and all expenses, costs (including, without
limitation, professional fees), penalties, fines (without regard to the amount
of such fines), liabilities, claims, demands, and causes of action, at law or in
equity (including, without limitation, any arising out of the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA), the Resource
Conservation and Recovery Act (RCRA), or the Clean Air Act) for Buyer's failure
to comply with Section 19(a), and such failure by Buyer to comply shall also
entitle Seller to terminate this Agreement.
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(c) If at any xxxx Xxxxxx determines that due to governmental regulations,
it is unable to increase the price of any of the products deliverable under this
Agreement by an amount which is sufficient in Seller's judgment to reflect
increase in either (a) the cost of such product(s) to Seller or Seller's
supplier or (b) the fair market value of such product(s), which have occurred
since the date of this Agreement or the date of the last increase in the price
of such product(s) whichever is later, Seller may cancel this Agreement upon
thirty (30) days written notice to Buyer, or may suspend this Agreement while
such limitation is in effect.
20. NOTICES: All written notices required or permitted to be given by this
Agreement shall be deemed to be duly given if delivered personally or sent by
certified mail to Seller or to Buyer, as the case may be, at the address set
forth above or to such other address as may be furnished by either party to the
other in writing in accordance with the provisions of this Section. The date of
mailing shall be deemed the date of giving such notice, except for notice of
change of address, which must be received to be effective.
21. TERMINATION:
(a) This agreement shall terminate upon expiration of term stated in
Section 1.
(b) This Agreement may be terminated by Seller:
(1) Upon assignment of the agreement by Buyer contrary to Section 17.
(2) If Buyer or any of its key persons, managers, or stockholders
makes any material false or misleading statement or representation
(by act or by omission) which induces Seller to enter into this
Agreement, or which is relevant to the relationship between the
parties hereto;
(3) If Buyer becomes insolvent;
(4) If possession of the business location(s) of the Buyer is
interrupted by an act of any government or agency thereof;
(5) If Buyer fails to pay in a timely manner any sums when due
hereunder;
(6) 1f Buyer fails to purchase any products covered by this agreement
during any calendar month;
(7) If Buyer defaults in any of its obligations under this Agreement:
(8) If Buyer is declared incompetent to manage his property or affairs
by any court, or if Buyer is mentally or physically disabled for
three (3) months or more to the extent that Buyer is unable to
provide for the continued proper operation of the business of the
Buyer;
(9) Under the circumstances described in causes for termination by
Seller in any Section of this agreement;
(10) If Buyer dies;
(11) If Buyer or any of its key persons, managers, or stockholders
engages in fraud or criminal misconduct relevant to the operation
of the business of the Buyer;
(12) If Buyer or any of its key persons, managers, or stockholders is
convicted of felony or of a misdemeanor involving fraud, moral
turpitude or (commercial dishonesty, whether or not the crime
arose from the operation of the business of the Buyer; or
(13) If Buyer breaches Section 11 (a) by willfully committing an act of
misbranding of motor fuels;
(14) If there occurs any other circumstance under which termination of
a franchise is permitted under the provisions of the Petroleum
Marketing Practices Act (15 U.S.C.A. 2801 et seq.)
(15) Seller loses the right to grant the right to use the EXXON
trademark;
(c) If Seller has cause to believe that Buyer has engaged in fraudulent,
unscrupulous or unethical business practices (which shall include but not be
limited to practices forbidden by federal, state or local laws or regulations),
Seller may, at its sole discretion, give Buyer written notice of its belief.
Following the receipt of such notice, Buyer shall be given reasonable
opportunity to discuss the matter with Seller's representatives. In following
such discussions (or reasonable opportunity therefor) and after such
investigation of the matter as is reasonable under the circumstances, Seller
reaches a good faith conclusion that Buyer has engaged in one or more such
practices, Seller shall have the right to terminate this Agreement.
(d) Any termination of this Agreement shall be preceded by such notice from
Seller as may be required by law.
(e) Upon the expiration of the term hereof or upon termination hereof,
Seller shall have the right, at its option, to enter upon any premises at which
the Exxon Identification is displayed, and to remove, paint out, or
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obliterate any signs, symbols or colors on said premises or on the buildings
or equipment thereof which in Seller's opinion would lead a purchaser to believe
that Seller's products are being offered for sale at the premises.
(f) In the event Buyer is terminated pursuant to Section 21(b)(13) for
willful misbranding (whether said willful misbranding is the sole reason for
termination or is cited in combination with other reasons), Seller will suffer
substantial damages which are anticipated to be difficult and time consuming to
prove with exactitude. Furthermore, both parties are desirous of avoiding what
they believe will be the disproportionate cost of possible litigation and legal
fees which a future dispute over the magnitude of such damages would engender.
The parties, therefore, have determined that if Buyer is terminated as
aforesaid, it must pay to Seller as liquidated damages, and not as a penalty,
within thirty days of demand by Seller a sum to be determined in the following
manner:
The monthly average of the number of gallons of Exxon branded
motor fuel purchased by Buyer from Seller during the number of
whole months from the beginning date of this Agreement until
the effective date of the termination will be determined. This
monthly gallonage average will be multiplied by $0.01 (one
cent). The resulting amount will be multiplied by the number
of whole months remaining between the effective date of the
termination and the ending date stated in Section 1 of the
Agreement.
Both Buyer and Seller agree that such a calculation of damages will yield
liquidated damages which arc reasonable in light of the anticipated or actual
harm to Seller, whenever in this three year Agreement a termination as aforesaid
may occur.
(g) Termination of this Agreement by either party for any reason shall not
relieve the parties of any obligation theretofore accrued under this Agreement.
22. ACCORD: The parties to this Agreement have discussed the provisions herein
and find them fair and mutually satisfactory; and further agree that in all
respects the provisions are reasonable and of material significance to the
relationship of the parties hereunder, and that any breach of a provision by
either party hereto or a failure to carry out said provisions in good faith
shall conclusively be deemed to be substantial.
23. NATURE OF AND MODIFICATION OF AGREEMENT:
(a) In consideration of the granting and execution of this Agreement, the
parties understand and agree that they are not contractually obligated to extend
or renew in any way the period or terms of this Agreement, that this Agreement
shall not be considered or deemed to be any form of "joint venture" or
"partnership" at the premise(s) of Buyer or elsewhere.
(b) Buyer agrees to provide sixty (60) days' prior written notice of any
change in the name or legal form of buyer.
(c) This Agreement may be modified only by a writing signed by both of the
parties or their duly authorized agent.
24. COMPLIANCE WITH LAWS: SEVERABILITY OF PROVISIONS: Both parties expressly
agree that it is the intention of neither party to violate statutory or common
law and that if any section, sentence, paragraph, clause or combination of same
is in violation of any law, such sentences, paragraphs, clauses or combination
of same shall be inoperative and the remainder of this Agreement shall remain
binding upon the patties hereto unless in the judgment of either party hereto,
the remaining portions hereof are inadequate to properly define the rights and
obligations of the parties, in which event such party shall have the right, upon
making such determination, to thereafter terminate this Agreement upon the
notice to the other.
25. EXPRESS WARRANTIES: EXCLUSION OF OTHER WARRANTIES: Seller warrants that the
product(s) supplied hereunder will conform to the promises and affirmations of
fact made in Seller's current technical literature and printed advertisements
related specifically to such product(s); that it will convey good title to the
product(s) supplied hereunder, free of all liens, and that the products supplied
hereunder meet such specifications as have been expressly made a part of this
Agreement. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED. THE
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WARRANTY OF MERCHANTABILITY, IN OTHER RESPECTS THAN EXPRESSLY SET FORTH
HEREIN, AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, IN OTHER RESPECTS THAN
EXPRESSLY SET FORTH HEREIN, ARE EXPRESSLY EXCLUDED AND DISCLAIMED.
26. ENTIRE AGREEMENT: This writing is intended by the parties to be the final,
complete and exclusive statement of this agreement about the matters covered
herein. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES
AFFECTING IT.
27. DAMAGES: NO CLAIM SHALL BE MADE UNDER THIS AGREEMENT FOR SPECIAL, OR
CONSEQUENTIAL DAMAGES, EXCEPT AS PROVIDED OTHERWISE BY LAW.
28. PRIOR AGREEMENT: This Agreement cancels and supersedes any prior agreements
between the parties thereto, covering the purchase and sale of product(s)
covered by this Agreement.
29. QUALITY ASSURANCE PROCEDURES: Seller has provided Buyer a copy of "QUALITY
CONTROL PROCEDURES FOR UNLEADED GASOLINE." Buyer agrees that this document and
any revisions thereof provided to Buyer by Seller shall be a part of this
Agreement and Buyer further agrees in the storage, handling, sale and dispensing
of unleaded gasoline to comply with the procedures contained in this document
and in any revisions thereof. In the event Buyer fails to comply with this
provision, Seller may engage the services of an outside contract firm to perform
sampling, testing and reporting. The cost of such outside contract firm shall be
borne by Buyer.
30. ATTORNEYS FEES: If Buyer fails to pay any amount due under this Agreement
or takes any action not requested in writing by Seller for which Buyer's
customers bring a claim or lawsuit against Seller, Buyer agrees to pay Seller's
reasonable costs and attorneys fees thereby expended in Seller's pursuit or
defense of such matters.
31. SAFETY AND HEALTH INFORMATION: Seller has furnished to Buyer information
(including Material Safety Data Sheet(s)) concerning the safety and health
aspects of products and/or containers for such products sold to Buyer hereunder,
including safety and health warnings. Buyer acknowledges receipt of such
information and agrees to communicate such warnings and information to all
persons Buyer can reasonably foresee may be exposed to or may handle such
products and/or containers, including, but not limited to, Buyer's employees,
agents, contractors and customers.
32. KEY PERSON CLAUSE: If Buyer is a corporation or a partnership, it agrees to
execute the Key Person Clause To Distributor Sales Agreement (Branded) attached
hereto and incorporated herein.
EXECUTED by Buyer and Seller on the date indicated for each signature.
Date: 12-23-0 98 Buyer: XXXXXXX OIL, INC.
------------------------- ----------------------------
/s/ Xxxxxx Xxxxxxxxxxx By:(X) /s/ X Xxxxxxx
------------------------- ----------------------------
Witness Buyer
COO
----------------------------
Office or Title
Date: 12-23-98
----------------------------
EXXON COMPANY, U.S.A. (SELLER)
a division of Exxon Corporation)
Date: 1/21/99 By: /s/ ILLEGIBLE
------------------------- ----------------------------
Area Manager
/s/ Xxxxxxx X. Xxxxxx Date: 1/21/99
------------------------- ----------------------------
Witness
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