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EXHIBIT 10.4
INFORMATION SYSTEMS AND TELECOMMUNICATION CARRIER
TRANSITIONAL SERVICES AGREEMENT
This INFORMATION SYSTEMS AND TELECOMMUNICATION CARRIER
TRANSITIONAL SERVICES AGREEMENT, entered into the ____ day of ____________,
1998, by and between E. I. DU PONT DE NEMOURS AND COMPANY, a Delaware
corporation, with its principal place of business at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 ("DuPont"), and CONOCO INC., a Delaware corporation,
with its principal place of business at 000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxx
00000 ("Conoco") (Conoco and DuPont, individually, a "Party"; collectively, the
"Parties") and effective as of the date of the initial public offering of equity
in Conoco (the "Effective Date").
WHEREAS, prior to the Effective Date, DuPont has made certain
information system and telecommunication services available to Conoco and its
affiliates, subsidiaries and divisions; and
WHEREAS, Conoco has requested that after Conoco's initial
public offering certain of such services continue to be made available to Conoco
and its affiliates, subsidiaries and divisions pursuant to this Agreement; and
WHEREAS, DuPont and Conoco have agreed that such services be
made available on the terms and conditions set forth herein.
NOW, THEREFORE, subject to the terms, conditions, covenants
and provisions of this Agreement, DuPont and Conoco mutually covenant and agree
as follows:
ARTICLE 1 TRANSITIONAL SERVICES PROVIDED.
1.01 DuPont Services.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, commencing on the Effective Date and throughout the Term (as
defined in Section 5.01), DuPont shall provide to Conoco and its
affiliates, subsidiaries and divisions the information systems services
set forth in Appendix A (each, individually, a "DuPont Service";
collectively, the "DuPont Services").
(b) DuPont shall perform the DuPont Services exercising the same degree of
care as it exercises in performing the same or similar services for its
own account, with priority equal to that provided to its own businesses
or those of any of its affiliates, subsidiaries or divisions. Nothing
in this Agreement shall require DuPont to provide priority to Conoco or
its affiliates, subsidiaries or divisions with respect to the DuPont
Services over DuPont's businesses or those of any of its affiliates,
subsidiaries or divisions; provided, however, that upon Conoco's
request and DuPont's agreement, DuPont shall, in certain emergency
situations, provide priority to Conoco or its affiliates, subsidiaries
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or divisions with respect to a DuPont Services over DuPont's businesses
or those of any of its affiliates, subsidiaries or divisions.
(c) Subject to Section 1.01(e), unless the Parties otherwise agree, DuPont
shall not be required to provide:
(i) directly, any service to Conoco or its affiliates,
subsidiaries or divisions other than the DuPont Services;
(ii) increased volume with respect to any DuPont Service above the
typical volume provided to Conoco in respect of such DuPont
Service immediately prior to the Effective Date;
(iii) any DuPont Service at a level of service that is higher than
the typical level of service, if any, that existed immediately
prior to the Effective Date in respect of such DuPont Service;
(iv) any DuPont Service to a location to which such DuPont Service
was not provided immediately prior to the Effective Date; or
(v) any DuPont Service to any affiliate, subsidiary or division
of Conoco that was not receiving such DuPont Service immediately
prior to the Effective Date.
(d) DuPont may modify a DuPont Service to the extent such modification is
applicable to DuPont's provision of such service for its own account;
provided, however, that in the event that a modification by DuPont
pursuant to this Section 1.01(d) is a material modification (as
reasonably determined by DuPont), DuPont shall provide at least 30
days' notice to Conoco prior to the date on which DuPont implements
such modification.
(e) In the event that Conoco requests DuPont to modify a DuPont Service,
DuPont shall use reasonable efforts to implement such modification;
provided, however, that Conoco shall pay to DuPont any and all actual
incremental or additional costs and expenses incurred by DuPont in
connection with the implementation of any such modification and
provision of such modified DuPont Service.
1.02 Third Party Services.
(a) Upon the terms and subject to the conditions of this Agreement and any
applicable agreements between DuPont and third party information
systems service providers in effect as of the Effective Date (such
agreements, collectively, the "Third Party IS Agreements"), commencing
on the Effective Date and throughout the Term, DuPont shall provide to
Conoco and its affiliates, subsidiaries and divisions, and Conoco and
its affiliates, subsidiaries and divisions shall take from DuPont, the
third party information systems services set forth in Appendix A
(collectively, the "Third Party IS Services").
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(b) Upon the terms and subject to the conditions of this Agreement and any
applicable agreements between DuPont and third party telecommunication
carrier service providers in effect as of the Effective Date (such
agreements, collectively, the "Third Party Carrier Agreements"),
commencing on the Effective Date and until the expiration date of the
applicable Third Party Carrier Agreement, DuPont shall provide to
Conoco and its affiliates, subsidiaries and divisions, and Conoco and
its affiliates, subsidiaries and divisions shall take from DuPont, the
third party telecommunication carrier services set forth in Appendix A
(collectively, the "Third Party Carrier Services") (the Third Party IS
Agreements and Third Party Carrier Agreements, collectively, the "Third
Party Services Agreements") (the Third Party IS Services and Third
Party Carrier Services, collectively, the "Third Party Services") (the
DuPont Services and Third Party Services, collectively, the
"Transitional Services".
(c) In the event that Conoco desires to continue to receive any Third Party
Carrier Service after the expiration date of the Third Party Carrier
Agreement under which such Third Party Carrier Service was provided to
Conoco pursuant to this Agreement (such date being known as the
"Expiration Date") (such Third Party Carrier Service being known as a
"Renewal Third Party Carrier Service"), Conoco shall, no later than 150
days prior to the applicable Expiration Date provide notice to DuPont
of such desire. If DuPont agrees to provide such Renewal Third Party
Carrier Service to Conoco, (i) the Parties shall work together prior to
the Expiration Date to determine Conoco's requirements with respect to
such Renewal Third Party Carrier Service and (ii) upon the agreement of
the Parties, the Parties shall enter into a new agreement or
agreements, as the case may be, in respect of such Third Party Carrier
Service.
(d) Subject to the terms and conditions of the applicable Third Party
Services Agreement, except as the Parties otherwise agree, Conoco may
request that a third party service provider provide to Conoco a new
service or a modification to a Third Party Service and that DuPont
provide its reasonable assistance to obtain such new service or
modification; provided, however, that any request by Conoco pursuant to
this Section 1.02(d) shall be made to DuPont or, upon the agreement of
the Parties, directly to the applicable third party service provider;
provided, further, that Conoco shall pay to DuPont any and all actual
incremental or additional costs and expenses incurred by DuPont in
connection with the (i) acquisition or implementation of any such new
service or modified Third Party Service and (ii) provision of such new
service or modified Third Party Service. Unless the Parties otherwise
agree, any new services or modified Third Party Service requested by
Conoco pursuant to this Section 1.02(d) shall be considered a Third
Party IS Service or Third Party Carrier Service, as the case may be.
(e) Notwithstanding anything to the contrary in this Agreement, in the
event that during the Term any Third Party Services Agreement under
which a Third Party Service is being provided, expires or is
terminated, in whole or in part, by either DuPont or the applicable
third party, DuPont shall be relieved of any obligations under this
Agreement with respect to such Third Party Service, including the
obligation to provide such Third Party Service to Conoco or its
affiliates, subsidiaries or divisions; provided, however, that,
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unless the Parties otherwise agree, DuPont shall not be relieved of its
obligations in the event that (i) DuPont terminates such Third Party
Services Agreement for DuPont's convenience or (ii) the applicable
third party service provider rightfully terminates such Third Party
Services Agreement due to a default by DuPont. In the event that a
material Third Party Service (as reasonably determined by DuPont) is
terminated in accordance with this Section 1.02(e), DuPont will provide
notice to Conoco of such termination as soon as reasonably practicable.
1.03 Transfer of Services.
(a) DuPont may transfer the provision of any DuPont Service to a third
party service provider; provided, however, that such transfer does not
result in the diminution in the provision of such transferred DuPont
Service. After the transfer of the provision of a DuPont Service to a
third party service provider pursuant to this Section 1.03(a), such
transferred DuPont Service shall be considered a Third Party IS
Service.
(b) DuPont may transfer the provision of any Third Party Service to DuPont;
provided, however, that such transfer does not result in the diminution
in the provision of such transferred Third Party Service. After the
transfer of the provision of a Third Party Service to DuPont pursuant
to this Section 1.03(b), such transferred Third Party Service shall be
considered a DuPont Service.
(c) DuPont may transfer the provision of any Third Party Service to another
third party service provider; provided, however, that such transfer
does not result in the diminution in the provision of such transferred
Third Party Service.
(d) The DuPont Services shall not include any of the Third Party Services
and the Third Party Services shall not include any of the DuPont
Services.
(e) In the event that the provision of a Third Party Service provided by
CSC or Xxxxxxxx Consulting LLP ("Xxxxxxxx") is transferred pursuant to
this Section 1.03, DuPont shall provide prior notice to Conoco of such
transfer.
1.04 Representatives.
(a) No later than 30 days after the Effective Date, DuPont and Conoco shall
each designate a representative to act as the primary contact person
with respect to the provision of the Transitional Services (the
"Service Coordinators").
(b) No later than 30 days after the Effective Date, DuPont and Conoco shall
each designate a representative to act as the primary global contact
person with respect to the provision of the Transitional Services
worldwide (the "Global Service Coordinators").
(c) All communications relating to the provision of any Transitional
Services shall be directed to the applicable Service Coordinator or its
designee.
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(d) Each Party shall provide 30 days' prior notice to the other Party of
any change to its designated Service Coordinator and Global Service
Coordinator.
1.05 No Obligation to Continue to Use Certain Services.
(a) Conoco shall provide notice to DuPont of its intent to terminate its
receipt of a Third Party IS Service or DuPont Service prior to the
fifteenth day of the applicable calendar month, with such termination
to be effective no earlier than the last day of the following calendar
month; provided, however, that subject to Conoco entering into an
agreement or agreements with CSC pursuant to Section 5.04, Conoco shall
not (i) terminate its receipt of any non-application CSC Service or
(ii) reduce its demand for a non-application CSC Service (except as may
result from Conoco's normal demand fluctuations for any such CSC
Service as compared to the 12 months prior to the Effective Date).
(b) In the event any Third Party IS Service or DuPont Service is terminated
by Conoco pursuant to this Section 1.05, DuPont may, in its sole
discretion, terminate any directly related Transitional Services by
providing 30 days' prior notice of such termination to Conoco.
(c) Unless the Parties otherwise agree, if any Third Party IS Service or
DuPont Service is terminated by Conoco or DuPont, Conoco may not
reinstitute its receipt of such Third Party IS Service or DuPont
Service, as the case may be, and DuPont shall have no obligation to
provide such Third Party IS Service or DuPont Service, as the case may
be, to Conoco or its affiliates, subsidiaries or divisions under this
Agreement.
(d) Conoco shall not (i) terminate its receipt of any Third Party Carrier
Service or (ii) reduce its demand for any Third Party Carrier Service
(except as may result from Conoco's normal demand fluctuations for any
such Third Party Carrier Service as compared to the 12 months prior to
the Effective Date).
1.06 DuPont Access. Conoco shall provide DuPont and its
representatives and agents with access to its equipment, office space, plants
and any other areas necessary for the provision of the Transitional Services
(the "Conoco Sites"); provided, however, that such access shall not unreasonably
interfere with the conduct of Conoco's business. DuPont and its representatives
and agents shall comply with all of Conoco's standard policies and procedures as
in effect from time to time with respect to the Conoco Sites, including
procedures for the physical security of the Conoco Sites; provided that Conoco
shall provide notice to DuPont of such policies and procedures.
1.07 Facilities. Except as otherwise provided in any lease
agreement between the Parties, each Party shall provide the other Party, without
cost to such other Party, reasonable use of any incidental office space
necessary for the performance of such other Party's obligations under this
Agreement.
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ARTICLE 2 COMPENSATION.
2.01 Consideration.
(a) As consideration for the provision of each Transitional Service, Conoco
shall pay to DuPont, or its designees, the applicable fees in
accordance with the provisions set forth in Appendix A.
(b) Except as expressly set forth in this Agreement, there shall be no
charges or fees payable by Conoco in respect of DuPont's performance of
its obligations pursuant to this Agreement.
2.02 Taxes.
(a) Income, Profits, and Capital Gains Taxes. DuPont shall pay all income
and profits taxes and taxes on capital gains, and related fines,
penalties and interest thereon assessed or levied against DuPont by any
government authority or any political subdivision thereof or by the
government of any other country against DuPont or DuPont's
subcontractors in respect of the Transitional Services performed under
this Agreement.
(b) Other Taxes. Any applicable sales, use, gross receipt, gross income, or
any other excise tax imposed by any taxing jurisdiction covered by this
Agreement shall be paid by the Party who is liable for the tax
according to the laws of the jurisdiction involved.
2.03 Administrative Services.
(a) Conoco shall provide to DuPont, at no cost or expense to DuPont, the
two and one half individuals (each, an "Incumbent Employee") that were
performing certain administrative services in connection with DuPont's
provision of the Transitional Services (the "Administrative Services")
as of the Effective Date. As of the Effective Date, the Incumbent
Employees shall be exclusively dedicated to perform the Administrative
Services on a full-time basis. In the event that during the Term an
Incumbent Employee ceases, in whole or in part, for any reason, to
provide the Administrative Services, Conoco shall either (i) on the
date that such Incumbent Employee ceases to provide the Administrative
Services, provide to DuPont a full-time equivalent to replace such
Incumbent Employee (such full-time equivalent being known as a
"Replacement FTE") acceptable to DuPont or (ii) pay to DuPont
$10,417.00 per month for each month in which Conoco does not provide a
Replacement FTE acceptable to DuPont.
(b) Conoco may not remove a Replacement FTE unless DuPont consent to such
removal or such Replacement FTE (i) voluntarily resigns from Conoco,
(ii) is dismissed by Conoco or (iii) dies or is unable to work due to
his or her disability. In the event that DuPont consents to the removal
of a Replacement FTE or such Replacement FTE otherwise ceases to
provide the Administrative Services pursuant to the preceding sentence,
Conoco shall (x) on the date that such Replacement FTE ceases to
provide the Administrative Services, provide to DuPont another
Replacement FTE acceptable to DuPont or (y) pay to DuPont $10,417.00
per month for each month in which Conoco does not provide a Replacement
FTE acceptable to
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DuPont or (y) pay to DuPont $10,417.00 per month for each month in which Conoco
does not provide a Replacement FTE acceptable to DuPont.
(c) In the event that Conoco enters into a services agreement or agreements
with CSC in accordance with Section 5.04, Conoco's obligations to
provide Incumbent Employees, Replacement FTEs or make payments to
DuPont pursuant to Section 2.03(a) and Section 2.03(b) shall cease 90
days after the date on which such agreement or agreements with CSC are
entered into by Conoco and CSC .
2.04 Invoicing and Payment.
(a) Within 30 days after the last day of each month of the Term, DuPont, or
its designees, shall invoice Conoco for the fees in respect of the
Transitional Services performed during that month (the "Invoices");
provided, however, that any third party service provider that directly
invoiced Conoco as of the Effective Date shall continue to directly
invoice Conoco during the Term. Conoco's billing address shall be set
forth in Appendix C.
(b) Conoco shall pay all undisputed amounts contained in the Invoices
within 30 days after receipt thereof less any amount Conoco is required
by law to withhold or deduct; provided, however, that if any third
party service provider directly sends an Invoice to Conoco pursuant to
Section 2.04(a), then Conoco shall comply with the payment provisions
of the applicable Third Party Services Agreement under which such
Invoice was sent. Any payments made to DuPont in accordance with this
Section 2.04 shall not prejudice Conoco's right to subsequently dispute
such payments.
(c) In the event that Conoco disputes an Invoice with respect to:
(i) a DuPont Service, Conoco shall, within 30 days of its
receipt of the disputed Invoice, notify DuPont of the amount
in dispute and specify Conoco's complaint. Conoco may withhold
payment of such amounts in dispute without interest until the
dispute is resolved; or
(ii) a Third Party Service, Conoco may dispute such Invoice
to the extent permitted under, and in accordance with, the
terms and conditions of the applicable Third Party Services
Agreement; provided, however, that such dispute shall not
adversely affect DuPont's receipt of services or payment
obligations, or result in a diminution in any of its rights or
remedies, under such Third Party Services Agreement.
Upon resolution of any dispute pursuant to this Section 2.04(c), Conoco
shall promptly pay to DuPont or the applicable third party provider, as
the case may be, any undisputed withheld amounts owed to DuPont or such
third party service provider.
(d) If any undisputed Invoice is not paid by Conoco in accordance with
Section 2.04(b), upon 15 days' notice to Conoco, DuPont may, in its
sole discretion, without any liability
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or expense to Conoco or any entity by or through Conoco, immediately
cease providing the Transitional Services for which such Invoice
related until such Invoice is paid in full by Conoco. Nothing in this
Section 2.04(d) shall affect DuPont's right or ability to terminate
this Agreement as set forth in Article 5.
(e) In the event that DuPont is invoiced by Conoco in respect of any of the
Third Party Services set forth in Appendix D, DuPont shall pay all
undisputed amounts contained in such invoice within 30 days after
receipt thereof less any amount DuPont is required by law to withhold
or deduct. Any payments to Conoco in accordance with this Section
2.04(e) shall not prejudice DuPont's right to subsequently dispute such
payments. In the event that DuPont disputes an invoice by Conoco,
DuPont shall, within 30 days of its receipt of such disputed invoice,
notify Conoco of such dispute and specify DuPont's complaint. DuPont
may withhold payment of such amounts in dispute without interest until
the dispute is resolved. Upon resolution of any dispute pursuant to
this Section 2.04(e), DuPont shall promptly pay to Conoco any
undisputed withheld amounts owed to Conoco.
2.05 Proration. All periodic fees or charges under this
Agreement are to be computed on a calendar month basis and shall be prorated on
a per diem basis for any partial month.
2.06 One-Time Payment to Conoco. No earlier than December 1,
1998 and no later than December 15, 1998, DuPont shall pay to Conoco
$6,400,000.00 payable by wire transfer of immediately available funds at a bank
designated by Conoco and in accordance with Conoco's reasonable instructions.
ARTICLE 3 LIMITATION OF LIABILITY AND WARRANTY.
3.01 DuPont Liability.
(a) Each of the Parties shall be liable to the other for any direct damages
arising out of or relating to its performance or failure to perform
under this Agreement; provided, however, that the aggregate liability
of a Party to the other Party, whether based on an action or claim in
contract, equity, negligence, tort or otherwise, for any event, act or
omission shall not exceed an amount equal to the greater of (i)
$250,000.00 and (ii) 12 times the average aggregate monthly fees (based
on calendar months) in respect of the DuPont Services paid by Conoco to
DuPont since the Effective Date; provided, however, that the limitation
on liability set forth in this Section 3.01(a) shall not apply to (x)
the failure of Conoco to make payments to DuPont, or its designees, due
under this Agreement, (y) breaches of Article 4, Section 1.05, Section
5.04 or Section 7.17 or (z) indemnification claims, as set forth in
Article 6.
(b) Notwithstanding anything to the contrary contained herein, in the event
DuPont commits an error with respect to, or incorrectly performs or
fails to perform, any DuPont Service, DuPont shall, at Conoco's
request, use reasonable efforts to correct such performance or
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failure to perform; provided, however, that DuPont shall have no
obligation to recreate any lost or destroyed data to the extent such
data cannot be cured by such performance.
(c) Notwithstanding anything to the contrary contained herein, DuPont shall
not be liable to Conoco for any act or omission of any third party in
connection with such third party (other than directly due to a default
by DuPont in any agreement between DuPont and such third party)
providing a Transitional Service.
3.02 Third Party Liability.
(a) Conoco and its affiliates, subsidiaries and divisions shall irrevocably
(i) assign and convey to DuPont, or its designee, without further
consideration, any and all actions or claims arising out of or relating
to the provision of a Transitional Service by a third party and (ii)
waive any rights and remedies Conoco or its affiliates, subsidiaries or
divisions may have with respect to any such actions or claims. In the
event that DuPont recovers any damages in connection with an action or
claim assigned to DuPont pursuant to this Section 3.02(a), DuPont shall
pay to Conoco the portion of such damages attributable to such assigned
action or claim less any amounts owed to DuPont in accordance with the
following sentence. Conoco shall reimburse DuPont for any costs or
expenses (including attorneys' fees and expenses) or liability or
damages (in respect of any action or claim based on Conoco's acts or
failure to act) incurred by DuPont in connection with DuPont bringing
an action or claim on behalf of Conoco pursuant to this Section
3.02(a).
(b) Conoco acknowledges and agrees that with respect to any and all actions
or claims, by or on behalf of Conoco or its affiliates, subsidiaries or
divisions against a third party with respect to, or in connection with,
such third party providing a Transitional Service, the aggregate
liability of any such third party, whether based on an action or claim
in contract, equity, negligence, tort or otherwise, for any event, act
or omission shall not exceed an amount equal to the lesser of (i) the
limitation on damages set forth in the applicable Third Party Services
Agreement under which such action or claim relates and (ii) 12 times
the average monthly amount (based on calendar months) paid by, or
attributable to, Conoco under the applicable Third Party Services
Agreement under which such action or claim relates.
3.03 CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN OR AT LAW OR IN EQUITY, NEITHER PARTY SHALL BE LIABLE
FOR, NOR SHALL THE MEASURE OF DAMAGES INCLUDE, ANY PUNITIVE, SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR ANY OTHER LOSS) ARISING OUT
OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
3.04 Year 2000. Subject to the limitation of liability set
forth in Section 3.01 and exculpation of liability set forth in Section 3.03,
DuPont represents and warrants that the DuPont Services shall not be interrupted
to the extent such interruption is caused by the failure of
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any software, hardware or equipment, in each such case, within DuPont's control,
but excluding any software, hardware or equipment provided or maintained by a
third party, to account for all calculations using a century and date sensitive
algorithm for the year 2000 and the fact that the year 2000 is a leap year (a
"Year 2000 Problem"). Notwithstanding anything to the contrary in this
Agreement, DuPont shall not be liable for any damages arising out of or relating
to any Year 2000 Problem that is caused by circumstances outside of DuPont's
reasonable control. In the event that Conoco does not accept modifications, in
whole or in part, by DuPont, or its designee, to any DuPont Service to avoid or
remedy a Year 2000 Problem and applicable to DuPont's provision of such services
for its own account, DuPont may cease to provide such DuPont Service to Conoco,
until such time as Conoco accepts such modification.
3.05 DISCLAIMER. EXCEPT AS SPECIFIED IN SECTION 3.04, DUPONT
MAKES NO OTHER WARRANTIES WITH RESPECT TO THE TRANSITIONAL SERVICES AND
EXPLICITLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A SPECIFIC PURPOSE.
ARTICLE 4 CONFIDENTIALITY.
4.01 Obligation. With respect to confidential information
disclosed in connection with this Agreement, Conoco and its affiliates,
subsidiaries and divisions shall comply with the provisions in this Article 4;
provided, however, that in the event that any confidential information is
disclosed in connection with Conoco's or its affiliates', subsidiaries' or
divisions' receipt of a Third Party Service, Conoco and its affiliates,
subsidiaries and divisions shall also comply with any confidentiality provisions
under the applicable Third Party Services Agreement that are in addition to, or
more restrictive than, the provisions in this Article 4. DuPont shall provide to
Conoco the applicable confidentiality provisions from such Third Party Services
Agreements.
4.02 Confidentiality. In addition to any obligations of
confidentiality pursuant to other agreements between the Parties, the Parties
shall treat any confidential information disclosed in connection with this
Agreement in accordance with the terms and conditions set forth in Appendix E.
ARTICLE 5 TERM AND TERMINATION.
5.01 Term. This Agreement shall commence on the Effective
Date and remain in full force and effect until the date 24 months after the
Effective Date (the "End Date") (the "Term") or such earlier date upon which all
of the Transitional Services are terminated by Conoco in accordance with Section
1.05 or this Agreement is terminated in accordance with Section 5.02 or Section
7.11.
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5.02 Termination.
(a) If either Party defaults in the performance of any of its obligations
under this Agreement (the "Defaulting Party"), the other Party (the
"Non-Defaulting Party") may give notice to the Defaulting Party
specifying the nature of such default and stating that the
Non-Defaulting Party intends to terminate this Agreement (a "Default
Notice"). If such default is not cured within 45 days of the date on
which the Default Notice was provided, the Non-Defaulting Party may
immediately terminate this Agreement upon notice to the Defaulting
Party.
(b) Either Party may immediately terminate this Agreement by giving notice
to the other Party upon the occurrence of any of the following events:
(i) the other Party enters into proceedings in bankruptcy or
insolvency;
(ii) the other Party shall make an assignment of this Agreement for
benefit of creditors;
(iii) a petition is filed against the other Party under a bankruptcy
law, a corporate reorganization law, or any other law for relief as
a debtor (or similar law in purpose or effect); or
(iv) the other Party enters into liquidation or dissolution
proceedings.
(c) In the event of a (i) consolidation or merger of Conoco with or into
any entity, other than an affiliate of Conoco, (ii) sale, transfer or
other disposition of all or substantially all of the assets of Conoco
or (iii) acquisition by any entity, or group of entities acting in
concert (excluding acquisitions (x) by pension and mutual funds in
which the trustees of such funds are not entitled to vote the
securities or other interests of Conoco or (y) of securities of Conoco
pursuant to a public offering of such securities), or beneficial
ownership of 20 percent or more of the outstanding voting securities of
Conoco, upon 30 days' prior notice to Conoco, DuPont may terminate any
Transition Service that is provided by or through a DuPont information
technology system (i.e., with respect to this Section 5.02(c), DuPont
may not terminate any Third Party Service that is provided by CSC or
any other third party that is not provided by or through a DuPont
information technology system).
5.03 DUPONT LIABILITY DISCLAIMER. DUPONT SHALL HAVE NO
LIABILITY OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES) TO CONOCO, OR
TO ANYONE CLAIMING BY OR THROUGH CONOCO, FOR DUPONT'S CEASING TO PROVIDE ANY
TRANSITIONAL SERVICE UPON THE EXPIRATION OF THIS AGREEMENT (AND ANY EXTENSION
THEREOF) OR THE TERMINATION OF A TRANSITIONAL SERVICE IN ACCORDANCE WITH SECTION
1.02 OR SECTION 1.05 OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH
SECTION 5.02, SECTION 7.07 OR SECTION 7.11. CONOCO SHALL INDEMNIFY DUPONT FROM
AND HOLD DUPONT HARMLESS AGAINST AND WAIVES ANY AND
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ALL RIGHTS, AT LAW OR IN EQUITY, THAT IT MAY HAVE TO BRING ANY SUIT, INCLUDING,
BUT NOT LIMITED TO, INJUNCTIVE RELIEF, OR TO ANY CLAIMS, DAMAGES, LOSS, COSTS
(INCLUDING ATTORNEYS' FEES AND EXPENSES), ACTIONS, OR LIABILITY AGAINST DUPONT
OR DUPONT'S EMPLOYEES, AGENTS, ASSIGNEES, SUBSIDIARIES OR AFFILIATES ARISING OUT
OF DUPONT'S CEASING TO PROVIDE ANY TRANSITIONAL SERVICE UPON THE EXPIRATION OF
THIS AGREEMENT (AND ANY EXTENSION THEREOF) OR THE TERMINATION OF A TRANSITIONAL
SERVICE IN ACCORDANCE WITH SECTION 1.02 OR SECTION 1.05 OR THE TERMINATION OF
THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.02, SECTION 7.07 OR SECTION 7.11.
5.04 Conoco Services Agreements. Conoco shall enter into a
services agreement or agreements with CSC as described in the Letter Agreement
entered into by and between CSC and Conoco on September 15, 1998, and set forth
in Appendix B (the "Letter Agreement"). Any breach of the Letter Agreement by
Conoco shall be deemed a breach of this Agreement.
5.05 Survival of Certain Obligations. Without prejudice to
the survival of the other agreements of the Parties, the terms of Section 1.05,
Section 2.01, Section 2.03 (in respect of payments due by Conoco to DuPont),
Article 4, Section 5.03, Section 5.04, Section 5.05, Section 6.02, Section 7.03,
Section 7.05, Section 7.09, Section 7.16, Section 7.17 and Article 10 shall
survive the expiration or any termination of this Agreement.
ARTICLE 6 INDEMNITIES.
6.01 Indemnity by the Parties for Third Party Claims. Each
Party (the "Indemnifying Party") shall indemnify the other Party from and hold
the other Party harmless against any losses, damages, liability, costs or
expenses (including attorneys' fees and expenses) arising out of or relating to
any third party claim:
(a) relating to personal injury (including death) or tangible property
damage resulting from the Indemnifying Party's or its agents' acts or
omissions; provided, however, that in the event any such liability is
the result of the acts or omissions of both DuPont and Conoco, each of
DuPont and Conoco shall be liable to indemnify the other only for its
proportional fault;
(b) relating to work-related injury (except as may be covered by the
Indemnifying Party's workers' compensation plan) or death, regardless
of the cause or reason thereof, and regardless of the negligence of the
other Party; or
(c) relating to any duties or obligations of the other Party or its agents
accruing after the Effective Date with respect to a third party.
Each Party shall indemnify the other Party from any costs and expenses incurred
in connection with the enforcement of this Section 6.01.
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6.02 Term of Indemnity and Filing of Actions. The indemnities
contained in this Article shall survive for a period of three years after the
expiration or termination of this Agreement, and any claim for indemnity under
this Article must be made by notice to the Indemnifying Party within one year
after the discovery thereof.
ARTICLE 7 MISCELLANEOUS.
7.01 Amendments. This Agreement shall not be supplemented,
amended or modified in any manner whatsoever (including by course of dealing or
of performance or usage of trade) except in a writing signed by an authorized
representative of each of the Parties.
7.02 Successors and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties and their respective
successors and permitted assigns. No Party shall assign this Agreement or any
rights herein without the prior consent of the other Party, which may be
withheld for any or no reason.
7.03 Texas Deceptive Trade Practices - Consumer Protection
Act.
(a) DuPont and Conoco have each assessed their respective rights,
liabilities, and obligations under the Texas Deceptive Trade Practices
- Consumer Protection Act as set out in Texas Business & Commerce Code
Annotated Section 17.41 et seq. (Vernon's) as interpreted by applicable
case law (the "Act"). DuPont and Conoco each agree that the Act does
not apply to either DuPont or Conoco because neither DuPont nor Conoco
qualifies as a "Consumer" under Section 17.45(4) of the Act. However,
in the event that either DuPont or Conoco is found to be a consumer
under the Act, each of them waive their rights under the Act pursuant
to Section 24(b) of the Act. In this regard, DuPont and Conoco each
represent to one another that (i) neither of them is in a significantly
disparate bargaining position and (ii) each of them is represented by
legal counsel in seeking or acquiring the goods or services under this
Agreement.
(b) WAIVER OF CONSUMER RIGHTS. EACH OF DUPONT AND CONOCO WAIVES ITS RIGHTS
UNDER THE DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT, SECTION
17.41 ET SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS
SPECIAL RIGHTS AND PROTECTIONS. EACH OF DUPONT AND CONOCO, AFTER
CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, VOLUNTARILY
CONSENTS TO THIS WAIVER.
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7.04 Notices. All notices, consents, requests, approvals,
designations and other communications provided for or required herein, and all
legal process in regard thereto, must be in writing and shall be deemed validly
given, made or served, (a) when delivered personally or sent by telecopy to the
facsimile number indicated below with a required confirmation copy sent in
accordance with this Section 7.04(c); (b) on the next business day after
delivery to a nationally-recognized express delivery service with instructions
and payment for overnight delivery; or (c) on the fifth day after deposited in
any depository regularly maintained by the United States postal service, postage
prepaid, certified or registered mail, return receipt requested, addressed to
the following addresses (i.e., the Service Coordinators) or to such other
address as the Party to be notified shall have specified to the other Party in
accordance with this Section:
If to DuPont:
E. I. du Pont de Nemours and Company
Xxxxx 000 & 00
Xxxxxxxxxx, Xxxxxxxx 00000, XXX
Attention: Xxxx Xxxxxx
Fax number: (000) 000-0000
With copy to:
Attention: Xxxxx Xxxxxxxx
Fax number: (000) 000-0000
If to Conoco:
Conoco Inc.
000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: X. X. Xxxxxxx
Fax number: (000) 000-0000
With copy to:
Attention: Xxxxx Xxxxx
Fax number: (000) 000-0000
7.05 Governing Law. This Agreement and the rights and
obligations of the Parties shall be governed by and construed in accordance with
the laws of the United States of America and the State of Delaware, and shall
not be governed by the United Nations Convention on Contracts for the
International Sale of Goods.
7.06 Headings. The various headings used in this Agreement
are for convenience only and are not to be used in interpreting the text of the
Articles or Sections in which they appear or to which they relate.
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7.07 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law. If any portion of this Agreement is declared invalid for
any reason in any jurisdiction, such declaration shall have no effect upon the
remaining portions of this Agreement, which shall continue in full force and
effect as if this Agreement had been executed with the invalid portions thereof
deleted; provided, however, that the entirety of this Agreement shall continue
in full force and effect in all other jurisdictions.
7.08 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same instrument.
7.09 Rights of the Parties. Nothing expressed or implied in
this Agreement is intended or shall be construed to confer upon or give any
person or entity, other than the Parties and their respective subsidiaries and
affiliates, as the case may be, any rights or remedies under or by reason of
this Agreement or any transaction contemplated thereby.
7.10 Reservation of Rights. Either Party's waiver of any of
its rights or remedies afforded hereunder or at law is without prejudice and
shall not operate to waive any other rights or remedies which that Party shall
have available to it, nor shall such waiver operate to waive the Party's rights
to any remedies due to a future breach, whether of a similar or different nature
(subject to any applicable limitations at law or otherwise). The failure or
delay of a Party in exercising any rights granted to it hereunder shall not
constitute a waiver of any such right and that Party may exercise that right at
any time. Any single or partial exercise of any particular right by DuPont shall
not exhaust the same or constitute a waiver of any other right.
7.11 Force Majeure. Any failure or omission by a Party in the
performance of any obligation under this Agreement shall not be deemed a breach
of this Agreement or create any liability, if the same arises from any cause or
causes beyond the control of such Party, including, but not limited to, the
following, which, for purposes of this Agreement shall be regarded as beyond the
control of each of the Parties hereto: acts of God, fire, storm, flood,
earthquake, governmental regulation or direction, acts of the public enemy, a
Year 2000 failure of a supplier of such Party, war, rebellion, insurrection
riot, invasion, third party strike or lockout; provided, however, that such
Party shall resume the performance whenever such cause or causes are removed.
Notwithstanding the foregoing, if such Party cannot perform under this Agreement
for a period of 45 days due to such cause or causes, either Party may terminate
this Agreement by providing notice to the other Party.
7.12 Relationship of the Parties. It is expressly understood
and agreed that in rendering the Transitional Services hereunder, DuPont is
acting as an independent contractor and that this Agreement does not constitute
either Party as an employee, agent or other representative of the other Party
for any purpose whatsoever. Neither Party has the right or authority to enter
into any contract, warranty, guarantee or other undertaking in the name or for
the account of the other Party, or to assume or create any obligation or
liability of any kind, express or implied, on behalf of the other Party, or to
bind the other Party in any manner whatsoever, or to hold itself
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out as having any right, power or authority to create any such obligation or
liability on behalf of the other or to bind the other Party in any manner
whatsoever (except as to any actions taken by either Party at the express
request and direction of the other Party).
7.13 Conflict. In case of conflict between the terms and
conditions of this Agreement and any Appendix, the terms and conditions of this
Agreement shall control and govern as it relates to the Transitional Service to
which those terms and conditions apply.
7.14 Entire Agreement. All understandings, representations,
warranties and agreements, if any, heretofore existing between the Parties
regarding the Transitional Services are merged into this Agreement, including
the Appendices attached hereto, which fully and completely express the agreement
of the Parties with respect to the subject matter hereof. The Parties have
entered into this Agreement after adequate investigation with neither Party
relying upon any statement or representation not contained in this Agreement or
Appendices attached hereto.
7.15 Language. This Agreement is executed in the English
language, and any interpretation or construction of this Agreement shall be
based solely on the English language official text.
7.16 WAIVER OF JURY TRIAL AND CONSENT TO JURISDICTION. EACH
PARTY HEREBY (a) WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A JURY TRIAL IN
CONNECTION WITH ANY MATTER OR RIGHT ARISING UNDER THIS AGREEMENT OR RELATING TO
THE TRANSITIONAL SERVICES, (b) CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT WITHIN THE STATE OF DELAWARE AND IRREVOCABLY AGREES THAT
ALL ACTIONS OR PROCEEDINGS ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSITIONAL SERVICES SHALL BE LITIGATED IN ANY SUCH COURT, AND (c) WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED UPON IMPROPER VENUE OR FORUM NON CONVENIENS TO
THE CONDUCT OF ANY PROCEEDINGS IN ANY SUCH COURT.
7.17 Electronic Information Systems Security.
(a) On the Effective Date, Conoco shall execute, deliver and abide by the
Electronic Information Systems Security Agreement (ELIS 0004E) set
forth in Appendix F. In addition, Conoco shall abide by any specific
security policies or requirements of DuPont's affiliates, third party
agents or contractors, such as CSC or Xxxxxxxx. Any exceptions to this
Section 7.17 must be agreed by the Parties.
(b) No non-Conoco employee, performing work for Conoco, may access or use
the Transitional Services without first signing a DuPont Electronic
Information Security Agreement (ELIS Form 0004E). This shall include,
but not be limited to, Conoco contractors, consultants or agents or
employees of entities, directly or indirectly, having an ownership
interest in Conoco.
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(c) DuPont, through its affiliates, third party agents or contractors, such
as CSC or Xxxxxxxx, shall administer all access control and other
security measures to be applied to Conoco's computer applications users
of the Transition Services. DuPont, through its affiliates, third party
agents or contractors, such as CSC or Xxxxxxxx, reserves the right to
define Conoco's access level to DuPont's systems and applications.
7.18 Compliance with Laws. Conoco, in the use of DuPont's or
its affiliates, or third party's agent or contractors' systems, shall not
violate any Federal, state or other governmental or any other country's
statutes, laws, rules, regulations or ordinances, including, but not limited to,
the United States Copyright Act of 1976, as amended. Nor shall Conoco cause or
place any computer viruses, worms, Trojan horses, disabling code, time bombs or
other similar software programs or routines to be loaded onto or affect any of
DuPont's or its affiliates', third party agents' or contractors' software,
hardware, networking or data systems.
7.19 References. In this Agreement and the Appendices to this
Agreement: (a) the Appendices to this Agreement shall be incorporated into and
deemed part of this Agreement and all references to this Agreement shall include
the Appendices; (b) references to any law, legislative act, rule, or regulation
shall mean references to such law, legislative act, rule, or regulation in
changed or supplemented form or to a newly adopted law, legislative act, rule,
or regulation replacing the previous law, legislative act, rule, or regulation;
and (c) references to and mentions of the work "including" or the phrase "e.g."
shall mean "including, without limitation".
7.20 Consents, Approvals and Requests. Except as specifically
set forth in this Agreement, all consents and approvals to be given by either
Party under this Agreement shall not be unreasonably withheld or delayed and
each Party shall make only reasonable requests under this Agreement.
7.21 Remarketing. Conoco or its affiliates, subsidiaries or
divisions may not remarket all or any part of the Transitional Services, or make
all or any portion of the Transitional Services available to any third party,
without the prior consent of DuPont; provided, however, that Conoco or its
affiliates, subsidiaries or divisions may use (but not resell as a separate
product offering) the Transitional Services in providing services to third
parties in the ordinary course of Conoco's or its affiliates', subsidiaries' or
divisions' business.
7.22 DuPont hereby assigns and conveys to Conoco all of
DuPont's rights set forth in Section 32.01(4)(a)(i) of the MSA, to the fullest
extent that such rights may be assigned to Conoco by DuPont under the terms and
conditions of the MSA. DuPont shall incur no liability to Conoco or its
affiliates, subsidiaries or divisions in connection with the assignment of
Section 32.01(4)(a)(i) of the MSA to Conoco pursuant to this Section 7.22.
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ARTICLE 8 MONITORING COMMITTEE.
8.01 Establishment. Both Service Coordinators of the Parties
shall constitute the Monitoring Committee. Upon the agreement of the Parties,
additional representatives may be appointed to serve on the Monitoring
Committee.
8.02 Purpose. The purpose of the Monitoring Committee is to
review the implementation of this Agreement and to use all reasonable efforts to
resolve issues in an effort to ensure the smooth and efficient operation of this
Agreement.
8.03 Frequency of Meetings. The Monitoring Committee shall
meet once a month throughout the duration of this Agreement (or less frequently
as agreed by the Parties) and as otherwise reasonably requested by either Party.
8.04 Meeting Procedure. The Monitoring Committee shall keep
minutes of its meetings.
ARTICLE 9 DISPUTE RESOLUTION.
(a) The Parties understand and appreciate that long term mutual interests
of the Parties will be best served by effecting a rapid and fair
resolution of any claims or disputes that may arise under this
Agreement or from any dispute concerning this Agreement's terms and
conditions. Therefore, each Party agrees to use its best efforts to
resolve all such claims or disputes as rapidly as possible on a fair
and equitable basis.
(b) If any dispute or claim arising under this Agreement cannot be readily
resolved by the Parties, either Party may refer the matter to the
Monitoring Committee which shall make a good faith effort to meet
(including by telephone conference) and attempt to resolve the dispute
within 15 days from the date on which the dispute was referred to it.
(c) If any dispute or claim arising under this Agreement cannot be resolved
by the Monitoring Committee in accordance with the time period set
forth in Section 9.01(b), either Party may refer the matter to a panel
consisting of one senior executive from each Party that has not been
directly involved in the dispute or claim (the "Executive Panel"). Each
Party shall appoint its representative to the Executive Panel within
five days from the date the dispute or claim was referred to the
Executive Panel. The Executive Panel shall meet (including by telephone
conference) and attempt to resolve the dispute or claim within 30 days
from the date on which the dispute or claim was referred to it. Unless
the Executive Panel otherwise resolves such dispute in writing, either
Party may pursue its rights and remedies under this Agreement after the
end of such 30-day period.
ARTICLE 10 PARENT GUARANTEE.
Each Party hereby guarantees the performance of its
affiliates, subsidiaries and divisions under this Agreement and any applicable
services agreements for similar services in the countries set forth in Appendix
G.
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ARTICLE 11 INFORMATION TECHNOLOGY SEPARATION COSTS
To effect the logical separation of Conoco and DuPont information technology:
(a) DuPont, or its designee, and Conoco will obtain and DuPont, or its
designee, be responsible for payment of (i) software consent or license
fees required to transfer, assign, or replace on behalf of Conoco those
shared operating systems software licenses, utility software licenses
and applications software licenses, in each such case, on mainframe,
midrange and distributed computers and telecommunications equipment
that are shared by the Parties and in effect as of the Effective Date
and any related external labor costs to effect such transfers,
assignments or replacements and (ii) external labor costs to (x)
identify software and hardware maintenance agreements shared by the
Parties and in effect as of the Effective Date and (y) create separate
"duplicate" agreements for each Party where required by such software
or hardware agreements or as the Parties otherwise agree;
(b) DuPont, or its designee, will be responsible for payment of actual
external labor costs:
(i) incurred by the Parties necessary to plan, architect and effect
the logical separation of the Parties' information technology
computing and networking infrastructure in effect as of the
Effective Date. Such logical separation requires (t) separating
the mainframe environments, (u) network design and addressing for
a logically separated environment, (v) relocating users from
shared environments to stand-alone environments, (w) implementing
sufficient security to effect logical separation of the networks,
(x) setting-up and installing replacement hardware, (y) setting-up
separate e-mail environments and (z) any such other separations as
the Parties may agree;
(ii) incurred by the Parties necessary to plan, architect and effect
any physical separation of the Parties' information technology
networking infrastructure in effect as of the Effective Date to
the extent such separation is required by regulatory requirements;
and
(iii) incurred by the Parties, including payments in respect of any
new external replacement contractors for internal staff, necessary
to effect the planned separation of the Parties' applications
systems; provided, however, that such payments shall not include
any application development costs in respect of replacement
applications or enhancements in functionality;
provided, however, that in each such case, DuPont, or its designee,
shall not be liable for any payments in respect of (i) through (iii),
unless and until Conoco obtains DuPont's pre-approval of each
applicable (x) statement of work and (y) technical design specification
(e.g., including implementation and financial responsibilities of the
Parties, any third parties' involvement and estimated costs) in respect
of such payments. DuPont
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shall provide a response to Conoco with respect to a submission by
Conoco for pre-approval of a completed statement of work and technical
design specification in accordance with this paragraph no later than 20
days after the date on which such completed materials are submitted to
DuPont (such date being known as the "Response Date"). If Conoco fails
to obtain DuPont's approval in accordance with the preceding sentence,
the Parties shall expeditiously work in good faith with each other to
resolve the basis for any such failure. Neither Party may submit any
dispute in connection with the preceding sentence sooner than the date
30 days after the Response Date. With respect to the aforementioned
separation of Conoco and DuPont information technology, each party
shall have the right to review and reject any technical design
specification or other instruction submitted by the other party, or to
a third party, if such specification or instruction materially
adversely impacts such other party's electronic security, computer
systems, networks, applications or the receipt of services from a third
party.
(c) In no event shall any amounts payable by DuPont, or its designee,
pursuant to this Article 11 include any costs incurred by Conoco or its
affiliates, subsidiaries or divisions in connection with its
negotiation of any third party agreement that expires or otherwise
terminates after the Effective Date.
(d) Upon notice from DuPont, Conoco and its affiliates, subsidiaries and
divisions shall provide DuPont, or its designee, with access to such
financial records and supporting documentation as may be requested by
DuPont, or its designee, for the purpose of performing an audit of the
accuracy of the separation costs paid by DuPont, or its designee,
pursuant to this Article 11. Any such audit shall be conducted at
DuPont's expense. In the event that it is determined by an audit
conducted pursuant to this paragraph that Conoco overcharged DuPont,
Conoco shall pay to DuPont the amount of such overcharge.
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IN WITNESS WHEREOF, each of DuPont and Conoco has caused this Agreement
to be signed and delivered by its duly authorized representative.
E. I. DU PONT DE NEMOURS AND COMPANY
By:
---------------------------------------
Title:
------------------------------------
CONOCO INC.
By:
---------------------------------------
Title:
------------------------------------
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LEASE
1. PARTIES. THIS LEASE is made this ______day of
__________________, 1998 between CONOCO INC., a Delaware corporation, of 000
Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxx, 00000 ("LANDLORD"), and X. X. XXXXXX DE
NEMOURS AND COMPANY, a Delaware corporation, of 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 ("TENANT").
2. PREMISES LEASED. LANDLORD hereby lets and leases unto
TENANT and TENANT hereby hires and takes from LANDLORD the following office and
data center space at LANDLORD'S Ponca City, Oklahoma Site, and as further
described on Exhibit "A", attached hereto and made a part hereof, including the
use of adjacent parking and common areas all as listed on Exhibit "B" attached
hereto and made a part hereof; All LEASED PREMISES shall be accepted by TENANT
in their current "AS IS" condition with no express or implied warranties, but
all office furniture shall remain the property of LANDLORD. Access to the LEASED
PREMISES shall be governed in accordance with the terms of this Lease.
3. APPURTENANT RIGHTS. TENANT shall have right to use the
following additional areas outside the LEASED PREMISES as described in Exhibit
"C", attached hereto and made a part hereof, for the sole and exclusive purposes
of delivery of information technology services, including without limitation
data center, telecommunications services and general office uses pertaining
thereto.
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The areas described in Exhibits A, B, and C are hereinafter
referred to as the "LEASED PREMISES"
4. SERVICES. LANDLORD shall supply to TENANT at the LEASED
PREMISES the following additional services as set forth on Exhibit "D" attached
hereto and made a part hereof. Any services not listed on Exhibit D requested by
TENANT must be approved in advance by LANDLORD.
5. RELOCATION. Upon ninety (90) days prior written notice,
LANDLORD may re-locate all or part of TENANT'S office space but not the Computer
Data Center space at LANDLORD'S sole cost and expense to other alternate,
mutually agreed upon, similar office space which is equally accessible to the
Computer Data Center that is a portion of the LEASED PREMISES at LANDLORD'S
Ponca City, Oklahoma Site. All such re-locations shall be performed in a manner
that does not materially interfere with TENANT'S operations.
6. USE. TENANT or Computer Sciences Corporation, ("CSC"),
Xxxxxxxx Consulting, L.L.P. ("Xxxxxxxx") or other third parties providing
similar services, shall use and occupy the LEASED PREMISES solely and
exclusively for the delivery of information technology services, including,
without limitation, data center, telecommunication services, and general office
purposes pertaining thereto.
TENANT shall use the LEASED PREMISES in a reasonably efficient
manner. To the extent that TENANT operates the LEASED PREMISES in an inefficient
manner that materially increases the facilities costs incurred by
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LANDLORD, LANDLORD shall promptly notify TENANT to take corrective action and
after notification, LANDLORD reserves the right to escalate the rent payable
hereunder, but only to the extent such excess facilities costs are attributable
to TENANT.
7. TERM. The term of this Lease shall be for a period
commencing with the date of this Lease and terminating at midnight on May 30,
2007.
8. RENT. TENANT'S rent shall be the annual sum of Seven
Hundred Fifty Thousand ($750,000.00) Dollars, payable in advance in equal
monthly installments of Sixty Two Thousand Five Hundred ($62,500.00) Dollars.
Said rental shall include the costs of all real estate taxes for the LEASED
PREMISES, all utilities used by TENANT at the LEASED PREMISES, and the cost of
services provided pursuant to Section 4 of this Lease. Notwithstanding the
foregoing, to the extent there is an increase of fifty percent (50%) or more to
the cost of electricity incurred by LANDLORD at the LEASED PREMISES as of the
date of this Lease, then LANDLORD reserves the right to increase the rent
payable hereunder to reflect any increase in such cost of electricity incurred
by LANDLORD and attributable to TENANT'S use of the LEASED PREMISES.
9. TERMINATION. TENANT may terminate this Lease at any time
during the term hereof by giving LANDLORD twelve (12) months prior written
notice. If TENANT does not give the required twelve (12) months prior written
notice then
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TENANT may still terminate this Lease upon written notice but shall pay an
amount equal to the lesser of (i) the rent for twelve (12) months minus the
number of months after the notice of termination in which TENANT remains on the
LEASED PREMISES and pays rent, or (ii) the rent for the remainder of the term of
this Lease as liquidated damages. TENANT shall bear all costs incurred by it in
moving from the LEASED PREMISES upon termination.
LANDLORD may terminate this Lease at any time during the
period hereof by giving TENANT twelve (12) months written notice. If LANDLORD
terminates this Lease, any direct and actual documented relocation costs
(including Data Center and employee relocation costs) associated with moving
TENANT from the LEASED PREMISES shall be borne by LANDLORD.
10. LANDLORD'S AND TENANT'S COVENANTS. TENANT and LANDLORD
covenant and agree as follows:
(a) TENANT shall use and occupy the LEASED PREMISES in a
careful and proper manner; and shall not commit or permit waste or damage to the
LEASED PREMISES;
(b) TENANT shall comply with such lawful requirements of
Federal, State and local authorities as relate to its use and occupancy of the
LEASED PREMISES and shall not use such LEASED PREMISES for any unlawful purpose
or act;
(c) TENANT shall comply with all of LANDLORD'S standard
policies and procedures as in effect from time to
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time with respect to the LEASED PREMISES, including but not limited to
procedures for the physical security of the LEASED PREMISES; provided, however,
LANDLORD shall provide notice to TENANT of such policies and procedures. To the
extent that any changes in LANDLORD'S standard policies and procedures may
affect the delivery of information, telecommunication, and technology services,
then such changes in the policies and procedures must be mutually agreed upon by
LANDLORD and TENANT.
(d) TENANT acknowledges and agrees that the LEASED PREMISES
let hereunder shall be jointly occupied by both LANDLORD and TENANT AND TENANT
shall permit LANDLORD and LANDLORD's contractors, employees, agents and
representatives to enter upon the LEASED PREMISES at any time for the purpose of
delivering information technology services and other ancilliary services or to
perform facilities-related services; provided, however, that LANDLORD shall not
unduly interfere with TENANT's operations.
(e) Unless otherwise prohibited by law, LANDLORD will provide
TENANT with twenty four (24) hours prior notice for the purpose of making
inspection and to determine that the LEASED PREMISES are in compliance with all
applicable Federal, State and local laws, rules and regulations, and for any
other purpose deemed necessary by LANDLORD.
(f) LANDLORD shall pay all taxes assessed against the LEASED
PREMISES.
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(g) Except for damage to the LEASED PREMISES caused by TENANT,
LANDLORD shall be responsible for the costs of all maintenance and repairs of
the LEASED PREMISES and the building(s) of which the LEASED PREMISES is a part.
(h) TENANT shall make no alterations or improvements to the
LEASED PREMISES without the prior written consent of LANDLORD. Such consent
shall specify whether said modification or alteration must be removed at the end
of the term. Any alterations or modifications to the LEASED PREMISES will be
requested by TENANT in writing, and, if approved by LANDLORD, shall be paid by
LANDLORD, but only to the extent that such alterations or modifications are
necessary to continue to provide, improve, or enhance information technology
services to LANDLORD. All other alterations or modifications to the LEASED
PREMISES shall be paid by TENANT. No alterations and modifications to the LEASED
PREMISES which would or could adversely affect the marketability or market value
of the LEASED PREMISES shall be permitted without the prior written consent of
the LANDLORD. Consent shall not be unreasonably withheld to the extent that the
alterations and modifications to the LEASED PREMISES are necessary to continue
to operate and use the data center and enable the data center to adapt to
changing technology. To the extent LANDLORD requests the removal of any such
alterations and modifications, TENANT shall pay the removal costs of all
alterations and modifications paid for by TENANT, and shall restore such space
to the condition it
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was in prior to the alterations and modifications. If LANDLORD elects to remove
or restore the alterations and modifications it paid for, LANDLORD shall do so
at its cost.
11. HAZARDOUS MATERIALS
a. TENANT shall not cause or permit any Hazardous Material (as
defined in Subparagraph b. below) to be handled, stored or used in or about the
LEASED PREMISES by TENANT, its agents, employees, contractors or invitees, in
violation of any statute, law, rule or regulation of any governmental authority
having jurisdiction without the prior written consent of LANDLORD. TENANT hereby
indemnifies LANDLORD from and against any breach by TENANT of the obligations
stated in the preceding sentence, or from and against any losses (as hereinafter
defined) resulting from the use, disposal or release in violation of any law, of
Hazardous Materials handled, stored or used in or about the LEASED PREMISES by
TENANT, its agents, employees, contractors or invitees, and agrees to defend and
hold LANDLORD harmless from and against any and all loss, damage, cost and/or
expense (including, without limitation, diminution in value of the LEASED
PREMISES, damages for the loss or restriction on use of rentable or usable space
damages arising from any adverse impact on marketing of LEASED PREMISES and fees
collectively, "Losses") which arise during or after the term of this lease as a
result of such breach or from and against any losses (as hereinafter defined)
resulting from the use, storage, disposal or
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release in violation of any Laws of Hazardous Materials brought, kept or used in
or about the LEASED PREMISES by TENANT, its agents, employees, contractors or
invitees. This indemnification of LANDLORD by TENANT includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, or restoration work required by
any federal, state, or local governmental agency or political subdivision
because of Hazardous Material present in the soil or ground water on or under
the LEASED PREMISES which results from TENANT'S operations or from and against
any losses (as hereinafter defined) resulting from the use, disposal or release
in violation of any Laws as a result of Hazardous Materials handled, stored or
used in or about the LEASED PREMISES by TENANT, its agents, employees,
contractors or invitees. Without limiting the foregoing, if the presence of any
Hazardous Material on or about the LEASED PREMISES caused or permitted by TENANT
results in any contamination in or about the LEASED PREMISES TENANT shall
promptly take all actions at its sole expense as are necessary to return the
LEASED PREMISES to the condition existing prior to the introduction of such
Hazardous Material; provided that LANDLORD'S approval of such actions, and that
of the U.S. Environmental Protection Agency, if necessary, ("USEPA") of the
contractors to be used by TENANT in connection therewith, shall first be
obtained.
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b. As used herein, the term "Hazardous Material" means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any local governmental authority or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance
which is (i) defined as a "hazardous waste or constituent, extremely hazardous
waste or "restricted hazardous waste" or similar term under the law of the
jurisdiction where the property is located or (ii) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1317), (iii) defined as a "hazardous waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq. (42 U.S.C. Section 6903), or (iv) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C.
Section 9601).
c. As used herein, the term "Laws" means any applicable
federal, state, or local laws, ordinances, or regulations relating to any
Hazardous Material affecting the LEASED PREMISES, including, without limitation,
the laws, ordinances, and regulations referred to in Subparagraph b above.
The indemnifications in this Paragraph 11 shall survive for a
period of one (1) year after the termination or earlier expiration of this
Lease.
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12. QUIET AND PEACEABLE POSSESSION. If TENANT performs the
requirements hereof on its part to be performed, it shall have quiet and
peaceable possession and enjoyment of said LEASED PREMISES during the term
aforesaid.
13. INSURANCE. TENANT shall be responsible for acquiring and
maintaining Commercial General Liability (occurrence form including Contractual
Liability) in a combined single limit for Bodily Injury and Property Damage of
$1,000,000.00 per occurrence. The policy shall name LANDLORD as an additional
insured, naming itself and TENANT as insureds as their interest may appear.
TENANT shall also provide for the insurance of the contents of the LEASED
PREMISES. TENANT shall be permitted to provide such insurance through its
self-insurance program. LANDLORD shall provide Fire and Extended Coverage
insurance for the improvements to the LEASED PREMISES in their full insurable
value. All such policies shall include a waiver of subrogation against TENANT
and/or LANDLORD, their employees, agents and contractors. LANDLORD may provide
such insurance through its self insurance program.
14. LOCAL RULES. TENANT shall comply with all local LANDLORD
safety rules, procedures, and site policies including the use of dining rooms,
cafeterias, fitness facilities and other ancillary services, as from time to
time are in effect, and as further described in the Safety, Security and
Construction Procedures attached as Exhibit "E" attached hereto and made a part
hereof.
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15. ASSIGNMENT AND SUBLETTING. TENANT may not assign this
Lease or sublet said LEASED PREMISES or any part thereof for any lawful business
without the prior written consent of LANDLORD, (which consent may not be
unreasonably withheld). If TENANT makes a written request to LANDLORD for
consent to assign or sublet, and if LANDLORD approves, TENANT shall remain
liable for the performance of its covenants hereunder. A change of service
provider shall not be deemed an assignment or sublease; provided, however, (i)
TENANT provides LANDLORD with ninety (90) days written notice prior to any such
change and, further provided; that (ii) LANDLORD reserves the right to prohibit
any change in service provider who, in LANDLORD'S judgment, is a competitor, or
is controlled in whole or in part by a competitor, of any of LANDLORD'S
businesses. Notwithstanding the foregoing, to the extent that LANDLORD enters
into the information technology business, LANDLORD cannot prohibit transfer to
another information technology service provider.
16. DEFAULT AND NOTICE. In the event either party hereto
materially defaults in carrying out any of such party's covenants and agreements
contained herein, and does not cure or is not diligently working to cure such
default for a period of ninety (90) days after written demand for compliance has
been made, such default shall, at the option of the party not in default,
terminate this Lease. If TENANT is in default and LANDLORD terminates this
Lease,
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then TENANT shall have twelve (12) months to vacate the LEASED PREMISES;
provided however, TENANT's obligation to pay rent hereunder shall survive
termination of this Lease for the aforementioned period of up to twelve (12)
months during which time TENANT vacates the LEASED PREMISES. Notices pursuant to
this Lease shall be sent certified mail, return receipt requested, to TENANT at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Real
Estate; and to LANDLORD at 0000 X. Xxxx, Xxxxx Xxxx, Xxxxxxxx, 00000, Attention:
Director Facility Management, or at such other place as LANDLORD and TENANT,
respectively, may in writing designate.
17. CASUALTY. To the extent that there is loss or other damage
to all or any portion of the LEASED PREMISES, LANDLORD shall at its expense
substitute additional space acceptable to TENANT so that TENANT can perform its
obligations under the MSA or similar agreements.
18. EMINENT DOMAIN. To the extent that all or any portion of
the LEASED PREMISES is taken by the exercise of eminent domain, LANDLORD shall
at its expense substitute additional space acceptable to TENANT in order that
TENANT shall be able to perform its obligations under the MSA or similar
agreements.
19. SUCCESSION. The covenants and conditions herein contained
shall inure to the benefit of and be binding upon the parties hereto, their
respective successors and assigns.
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20. FORCE MAJEURE. Any failure or omission by LANDLORD or
TENANT in the performance of any obligation under this Lease shall not be deemed
a breach of this Lease or create any liability, if the same arises from any
cause or causes beyond the control of LANDLORD or TENANT, including but not
limited to the following, which, for purposes of this Lease shall be regarded as
beyond the control of each of the Parties hereto: acts of God, fire, storm,
flood, earthquake, hurricane, government direction or regulation, acts of the
public enemy, war, rebellion, insurrection, riot, invasion, third party strike
or lockout; provided, however, that LANDLORD and TENANT, as the case may be,
shall resume the performance whenever such cause or causes are removed.
21. ENTIRE AGREEMENT. All understanding, representations,
warranties and agreements, if any, heretofore existing between LANDLORD and
TENANT regarding this Lease and the LEASED PREMISES are merged into this Lease,
including the exhibits attached hereto, which fully and completely express the
agreement of LANDLORD and TENANT with respect to the subject matter hereof.
LANDLORD and TENANT have entered into this Lease after adequate investigation
with neither relying upon any statement or representation not contained in this
Lease agreement or the exhibits attached hereto.
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22. DISPUTE RESOLUTION.
(a) The parties agree to make a diligent, good faith attempt
to resolve all disputes arising under this Lease. In the event this Lease
requires any dispute to be resolved by Dispute Resolution, the aggrieved party
shall promptly (or within the period of time required herein) notify the other
party to this Lease of the dispute. If the parties shall have failed to resolve
the dispute within ten days after delivery of such notice, either party may
submit the dispute to be settled by arbitration in the County of Xxx, Oklahoma
in accordance with the provisions of this Paragraph 22 and the then existing
rules of the American Arbitration Association (or at any other place or under
any other form of arbitration mutually acceptable to the parties). The dispute
in question shall be settled by two independent arbitrators, one chosen by
TENANT and one by LANDLORD. TENANT or LANDLORD, as the case may be, shall
deliver a notice to the other appointing its arbitrator within 15 days after
receipt from the other of a notice appointing its arbitrator. If, within 30 days
after appointment of the two arbitrators, they are unable to agree upon the
determination in question, a third independent arbitrator shall be chosen within
ten days thereafter by mutual consent of the first two arbitrators or, if the
first two arbitrators fail to agree upon the appointment of a third arbitrator,
such appointment shall be made in
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accordance with the rules of the American Arbitration Association, or any
organization successor thereto, from a panel of qualified arbitrators. The
decision of the arbitrators so appointed and chosen shall be given within 30
days after the selection of the third arbitrator. If three arbitrators shall be
appointed and the determination of one arbitrator is disparate from the middle
determination by more than twice the amount by which the other determination is
disparate from the middle determination, then the determination of such
arbitrator shall be excluded, the remaining two determinations shall be averaged
and such average shall be binding and conclusive on TENANT and LANDLORD;
otherwise the average of all three determinations shall be binding and
conclusive on TENANT and LANDLORD. Each party shall bear its own costs and
expenses of arbitration unless otherwise provided for herein or directed by the
arbitrator or arbitrators. The parties shall each abide by and perform any
resulting arbitration award. The arbitration award, when issued, shall be final
and shall be enforceable in any court of competent jurisdiction.
(b) While any dispute under this Lease is unresolved, the
parties shall continue to perform their obligations hereunder to the extent
possible notwithstanding such dispute.
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23. GOVERNING LAW. This Lease shall be governed under the laws
of the State of Oklahoma without regard to conflict of law principals.
24. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied
in this Lease is intended or shall be construed to confer upon or give any
person or entity, other than LANDLORD and TENANT, as the case may be, any rights
or remedies under or by reason of this Lease or any transaction contemplated
thereby.
25. NOTICE. All notices, consents, requests, approvals,
designations and other communications provided for or required herein must be in
writing and shall be deemed validly given, made or served (i) when delivered
personally or by facsimile transmission to the number indicated below (with
confirmation copy sent upon request of the receiver); (ii) by overnight mail;
(iii) or on the fifth day after deposited in any depository regularly maintained
by the United States Postal Service, postage pre-paid, certified or registered
mail, return receipt requested, addressed to the following or to such other
address as the party to be notified shall have specified to the other party in
accordance with this paragraph:
If to LANDLORD:
Conoco Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxx
Attention: Director Facility Management
Fax Number (000) 000-0000
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If to TENANT:
E. I du Pont de Nemours and Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000, XXX
Attention: Corporate Real Estate
Fax Number: (000) 000-0000
26. MEMORANDUM OF LEASE. The parties will at any time, at the
request of either one, promptly execute duplicate originals of an instrument, in
recordable form, which will constitute a short form of Lease.
27. COUNTERPARTS. This Lease may be executed in two or more
counterparts each of which shall be deemed an original, and all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, LANDLORD and TENANT have executed this
Lease the day and year first above written.
WITNESS: CONOCO INC.
By:
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Title:
------------------------------
WITNESS: X. X. XXXXXX DE NEMOURS AND COMPANY
By:
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Title:
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Ponca City Data Center Lease-4
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