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EXHIBIT 10.5
DRAFT
TRANSITIONAL SERVICES AGREEMENT
This AGREEMENT, entered into and effective as of the ____ day of
____________, 1998 (the "Effective Date"), 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., (formerly known as Conoco Energy Company) a Delaware corporation,
with its principal place of business at 000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxx
00000 ("Conoco") (Conoco and DuPont are at times referred to herein
individually as a "Party" and collectively as the "Parties").
Whereas, prior to the initial public offering (IPO) of Conoco
(pursuant to the Restructuring, Transfer and Separation Agreement as of even
date herewith) DuPont has heretofore provided certain Transitional Services (as
hereinafter defined) to Conoco and Conoco has heretofore provided certain
Transitional Services to DuPont; and
Whereas, DuPont and Conoco have both requested from each that certain
such services continue pursuant to this Agreement; and
Whereas, DuPont and Conoco agreed to provide or caused each other to
be provided with these services on terms and conditions set forth herein.
Subject to the terms, conditions, covenants and provisions of this
Agreement, DuPont and Conoco mutually covenant and agree as follows:
ARTICLE 1
SERVICES PROVIDED
1.01 Transitional Services. (a) Upon the terms and subject to the
conditions set forth in this Agreement, DuPont or Conoco as the case may be
(hereinafter the "Service Provider") will provide to DuPont or Conoco as the
case may be (hereinafter the "Service Receiver") those administrative and
support services listed in Appendix A and B attached hereto (hereinafter
referred to individually as a "Transitional Service", and collectively as the
"Transitional Services"), during the time period for each Transitional Service
set forth on Appendix A or B, (hereinafter referred to as the "Time Periods"
for all of the Transitional Services, and the "Time Period" for each
Transitional Service).
(b) Service Provider shall perform the Transitional 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 Service Provider to favor
Service Receiver over Service Provider's businesses or those of any of its
affiliates, subsidiaries or divisions.
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(c) In no event shall Service Receiver be entitled to any new
service or to increase its use of any of the Transitional Services above that
level of use specified in the Appendices without the prior written consent of
Service Provider, which consent may be withheld by Service Provider for any or
no reason in its sole and absolute discretion. Service Provider shall not be
required to provide Service Receiver extraordinary levels that are above the
ordinary levels which existed prior to the Effective Date of Transitional
Services, special studies, training, or the like or the advantage of systems,
equipment, facilities, training, or improvements procured, obtained or made
after the Effective Date by Service Provider.
(d) In addition to being subject to the terms and conditions
of this Agreement for the provision of the Transitional Services, Service
Receiver agrees that the Transitional Services provided by third parties shall
be subject to the terms and conditions of any agreements between Service
Provider and such third parties.
(e) The Parties acknowledge and agree that in respect of
Transitional Services performed outside the United States the Service Provider
and Service Receiver will in most cases not be DuPont or Conoco but one of
their respective subsidiary corporations (after implementation of the
Restructuring, Transfer and Separation Agreement). The obligations of DuPont
and Conoco hereunder in such situations will not be to provide or receive such
Transitional Services themselves but rather to use their best efforts to
require such subsidiaries to (i) provide or receive such services, as the case
may be, on the same terms and conditions as set out in this Transitional
Services Agreement and (ii) enter into agreements to provide or receive such
services, as the case may be, mutatis mutandis in form and substance the same
as this Transitional Services Agreement except to the extent it is necessary or
appropriate to modify such agreements to comply with local laws.
1.02 Representatives. DuPont and Conoco shall each nominate a
representative to act as the primary contact person for the provision of all of
the Transitional Services (collectively, the "Primary Coordinators"). The
initial Primary Coordinators shall be ____________________ for Conoco and
____________________ for DuPont. The initial coordinators for each Party for
each Transitional Service shall be the individuals named in the description of
such Transitional Service in Appendix A or B (the "Service Coordinators").
Each Party shall advise the other Party in writing of any change in the
Primary Coordinators and any Service Coordinator. DuPont and Conoco agree that
all communications relating to the provision of the Transitional Services shall
be directed to both the respective Service Coordinators and Primary
Coordinators for such Transitional Service.
1.03 Personnel. (a) In providing the Transitional Services, Service
Provider, as it deems necessary or appropriate in its sole discretion, may (i)
use its personnel or that of its affiliates, and (ii) employ the services of
third parties to the extent such third party services are routinely utilized to
provide similar services to other Service Provider businesses or are reasonably
necessary for the efficient performance of any of the Transitional Services.
(b) Service Receiver agrees that in the provision of the
Transitional Services, Service Provider shall be entitled to use a reasonable
amount of the services of those former
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employees of Service Provider, who will be employed by Service Receiver as a
result of the initial public offering of Conoco, which employees shall be made
available by Service Receiver to Service Provider for this purpose for
consideration, to be agreed provided, that Service Provider's use of such
employees shall not unreasonably interfere with the duties of such employees
for Service Receiver.
1.04 No Obligation to Continue to Use Transitional Services. (a)
Service Receiver shall have no obligation to continue to use any of the
Transitional Services and may delete any Transitional Service by providing to
Service Provider the written notice described in subsection (b) below. If any
Transitional Service is terminated by Service Receiver, Service Provider shall
have the option, in its sole and absolute discretion, to discontinue any
related Transitional Services (as specified in Appendix A or B) by providing
written notice to Service Receiver.
(b) For the purposes of this Section, unless otherwise
specifically set forth in Appendix A or B as the case may be, written notice of
the termination of a Transitional Service must be provided by Service Receiver
prior to the fifteenth (15th) day of a calendar month with such notice to be
effective as of the last day of the following calendar month.
(c) If any Transitional Service is terminated by Service
Receiver as described herein, Service Receiver does not have the right to
unilaterally reinstitute such Transitional Service.
1.05 Service Provider Access. To the extent reasonably required for
Service Provider's personnel to perform the Transitional Services, Service
Receiver shall provide Service Provider's personnel with access to its
equipment, office space, plants, and any other areas and equipment necessary
for the provision of the Transitional Services; provided, that such access
shall not unreasonably interfere with Service Receiver's conduct of its
business.
ARTICLE 2
COMPENSATION
2.01 Consideration. As consideration for the Transitional Services,
Service Receiver shall pay to Service Provider the amount specified for each
Transitional Service as set forth in Appendix A or B as the case may be. If
the amount to be paid for any Transitional Service is described in Appendix A
or B as "cost", the use of the term "cost" does not mean Service Provider's
cost to provide that Transitional Service, but the cost to Service Receiver to
receive such Transitional Service from Service Provider. Upon the termination
of any Transitional Service in accordance with Section 1.04 above, the
compensation to be paid under this Section 2.01 shall be reduced by the amount
specified for such terminated Transitional Service.
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2.02 Taxes.
(a) Income, Profits, and Capital Gains Taxes. Service
Provider shall pay all income and profits taxes and taxes on capital gains, and
related fines, penalties and interest thereon assessed or levied against
Service Provider by any government authority or any political subdivision
thereof or by the government of any other country against Service Provider or
Service Provider's subcontractors in respect of the Transitional Services
performed under this Agreement.
(b) Other Taxes. All other taxes (other than those specified
in 2.02(a) above), assessed on the provision of Transitional Services shall be
paid by Service Receiver.
2.03 Invoicing and Payment. (a) Service Receiver shall initiate
payment of all undisputed amounts contained in Service Provider's invoices
within 30 days after receipt thereof less any amount Service Receiver is
required by law to withhold or deduct. Such payment shall not prejudice
Service Receiver's right to subsequently dispute any part of an invoice. In
the event Service Receiver disputes an item billed, Service Receiver shall,
within 60 days of receipt of Service Provider's invoice, notify Service
Provider of the item in dispute, specifying Service Receiver's complaint.
Service Receiver may withhold payment of items in dispute without interest
until the dispute is resolved. The undisputed amount, however, shall be paid
without delay.
(b) Where applicable, Service Receiver and Service Provider
shall agree in advance on the gross lump sum amount to be charged or the "cost"
for the services to be provided, as specified in Appendix A or B, inclusive of
charges, overheads, handling fees and xxxx ups. These sums will then be
calculated and apportioned on a monthly basis and submitted by Service Provider
to Service Receiver as described above. In those areas where work cannot be
agreed on a lump sum basis, the variable basis (described in terms of readily
identifiable metrics) of billing and the required supporting documentation
shall be agreed as part of the service description. Such documentation will be
retained by Service Provider for a reasonable period subject to verification by
Service Receiver upon audit.
(c) Service Receiver, billing address and addressee shall be
set forth in Appendix A or B as the case may be.
(d) If any payment is not paid when due, Service Provider
shall have the right, without any liability to Service Receiver, or anyone
claiming by or through Service Receiver, to immediately cease providing the
Transitional Service(s) for which payment has not been made until the payment
in full of all such payments, which right may be exercised by Service Provider
in its sole and absolute discretion and shall not affect Service Provider's
right or ability to terminate this Agreement as set forth in Article 5 below.
2.04 Audits: Each Party, at its sole cost and expense, shall have
the right to audit the other Party's books of account and other records
pertaining to the cost of Transitional Services (including invoiced and
reimbursed costs) pursuant to this Agreement for a period of twenty-
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four (24) months following the end of the calendar year in which such
Transitional Services were rendered.
ARTICLE 3
LIMITATION OF LIABILITY AND WARRANTY
3.01 Transitional Services. (a) In the absence of gross negligence
or reckless or willful misconduct on Service Provider's part, and whether or
not it is negligent, Service Provider shall not be liable for any claims,
liabilities, damages, losses, costs, expenses (including, but not limited to,
settlements, judgments, court costs and reasonable attorneys' fees), fines and
penalties, arising out of any actual or alleged injury, loss or damage of any
nature whatsoever in providing or failing to provide the Transitional Services
to Service Receiver. Notwithstanding anything to the contrary contained
herein, in the event Service Provider commits an error with respect to or
incorrectly performs or fails to perform any Transitional Service, at Service
Receiver's request, Service Provider shall use reasonable efforts to correct
such error, re-perform or perform such Transitional Service; provided, that
Service Provider shall have no obligation to recreate any lost or destroyed
data to the extent the same cannot be cured by the re-performance of the
Transitional Service in question.
(b) Service Provider's liability for damages to Service
Receiver for any cause whatsoever, and regardless of the form of action,
whether in contract or in tort, including negligence, gross negligence or
willful misconduct, shall be limited to the payments made hereunder for the
specified Transitional Service that allegedly caused the damage during the
period in which the alleged damage was incurred by Service Receiver. In no
event shall Service Provider be liable for any damages caused by Service
Receiver's failure to perform Service Receiver's responsibilities hereunder.
Service Provider will not be liable to Service Receiver for any act or omission
of any other entity (other than due to a default by Service Provider in any
agreement between Service Provider and such other entity) furnishing any
Transitional Service
(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN
OR AT LAW OR IN EQUITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION
OR ANY OTHER LOSS) ARISING FROM OR RELATING TO ANY CLAIM MADE UNDER THIS
AGREEMENT OR REGARDING THE PROVISION OF OR THE FAILURE TO PROVIDE THE
TRANSITIONAL SERVICES.
ARTICLE 4
CONFIDENTIALITY
4.01 Obligation. (a) In addition to any obligations of
confidentiality pursuant to other agreements between the Parties, without the
prior written consent of the other Party, each Party shall hold in confidence
and not disclose to any third party (i) any confidential information received
by it from the other Party during the provision of the Transitional Services,
including, without limitation, information which is not related to the
Transitional Services; and (ii) with
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regard to Service Receiver, the specific terms, conditions and information
contained in this Agreement and any attachment hereto.
(b) Each Party agrees that it shall only use the confidential
information received by it from the other Party in connection with the
provision or receipt of the Transitional Services, and for no other purpose
whatsoever.
(c) For the purposes of this Agreement, confidential
information shall not include information:
(i) which is or becomes part of the public domain
other than through breach of this Agreement or through the fault of the
receiving Party;
(ii) which is or becomes available to the receiving
Party from a source other than the disclosing Party, which source has no
obligation of confidentiality to the disclosing Party in respect thereof;
(iii) which is required to be disclosed by law or
governmental order; or
(iv) the disclosure of which is mutually agreed to
by the Parties.
4.02 Effectiveness. The foregoing obligation of confidentiality
shall be in effect during the term of this Agreement and any extensions thereof
and for a period of twenty (20) years after the termination or expiration of
this Agreement.
4.03 Care and Inadvertent Disclosure. With respect to any
confidential information, each Party agrees as follows:
(a) it shall use the same degree of care in safeguarding said
information as it uses to safeguard its own information which must be held in
confidence; and
(b) upon the discovery of any inadvertent disclosure or
unauthorized use of said information, or upon obtaining notice of such a
disclosure or use from the other Party, it shall take all necessary actions to
prevent any further inadvertent disclosure or unauthorized use, and, subject to
the provisions of Article 3 above, such other Party shall be entitled to pursue
any other remedy which may be available to it.
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ARTICLE 5
TERM AND TERMINATION
5.01 Term. This Agreement shall become effective on the Effective
Date and shall remain in force until the expiration of the longest Time Period
(plus any extension in accordance with the provisions of Section 5.02 below)
unless all of the Transitional Services are terminated by Service Receiver in
accordance with Section 1.04 above, or this Agreement is terminated under
Section 5.03, 7.07 or 7.11 below prior to the end of such period.
5.02 Extension. Subject to the earlier termination of this Agreement
in accordance with Section 5.03, 7.07 or 7.11 below, Service Receiver may
extend each Time Period for one (1) additional thirty (30) day period by
providing Service Provider with at least forty-five (45) days' prior written
notice before the end of the Time Period in question.
5.03 Termination. (a) If a Party (hereafter called the "Defaulting
Party") shall fail to perform or default in the performance of any of its
obligations under any applicable Transitional Service (other than as described
in subsection (b) below), the other Party (hereinafter called the
"Non-Defaulting Party") may give written notice to the Defaulting Party
specifying the nature of such failure or default and stating that the
Non-Defaulting Party intends to terminate any affected Transitional Service if
such failure or default is not cured within forty five (45) days of such
written notice. If any failure or default so specified is not cured within
such forty five (45) day period, the Non-Defaulting Party may elect to
immediately terminate the affected Transitional Services; provided, however,
that if the failure or default relates to a good faith dispute by the
Defaulting Party, the Non-Defaulting Party may not terminate any such
Transitional Service pending the resolution of such dispute. Such termination
shall be effective upon giving a written notice of termination from the
Non-Defaulting Party to the Defaulting Party and shall be without prejudice to
any other remedy which may be available to the Non-Defaulting Party against the
Defaulting Party.
(b) Either Party may immediately terminate this Agreement by
written notice to the other Party without any prior notice 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 for
benefit of creditors;
(iii) a petition shall be 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.
5.04 Administrative and Support Services. (a) Service Receiver
acknowledges that Service Provider is providing the Transitional Services as an
accommodation to Service Receiver to allow Service Receiver a period of time to
obtain its own administrative and support
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services for its businesses. During the term of this Agreement, Service
Receiver agrees that it shall take all steps necessary to obtain its own
administrative and support services prior to the expiration of the Time Period
for each other Transitional Service.
(b) SERVICE PROVIDER SHALL HAVE NO LIABILITY OF ANY KIND OR
NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES) TO SERVICE RECEIVER, OR TO ANYONE
CLAIMING BY OR THROUGH SERVICE RECEIVER, FOR SERVICE PROVIDER'S CEASING TO
PROVIDE (OR HAVE A THIRD PARTY PROVIDE) ANY TRANSITIONAL SERVICE UPON THE
EXPIRATION OF THE TIME PERIOD (AND ANY EXTENSION THEREOF IN ACCORDANCE WITH
SECTION 5.02). SERVICE RECEIVER SHALL HOLD SERVICE PROVIDER HARMLESS AND
WAIVES ANY AND 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 ATTORNEY FEES), ACTIONS, OR LIABILITY AGAINST
SERVICE PROVIDER OR SERVICE PROVIDER'S EMPLOYEES, AGENTS, ASSIGNEES,
SUBSIDIARIES OR AFFILIATES ARISING OUT OF SERVICE PROVIDER'S CEASING TO PROVIDE
ANY TRANSITIONAL SERVICE UPON THE EXPIRATION OF THE TIME PERIOD (AND ANY
EXTENSION THEREOF IN ACCORDANCE WITH SECTION 5.02) FOR SUCH TRANSITIONAL
SERVICE OR THE TERMINATION OF THIS AGREEMENT.
5.05 Survival of Certain Obligations. Without prejudice to the
survival of the other agreements of the Parties, the following obligations
shall survive the termination of this Agreement: (a) for the period set forth
therein, the obligations of each Party under Articles 4, 5 and 6, and (b)
Service Provider's right to receive the compensation for the Transitional
Services provided, and reimbursement of the costs and expenditures described in
Section 2.01 above incurred, prior to the effective date of termination.
5.06 Conditions. Consummation of the transactions and Appendices
provided in this Agreement are conditioned upon and shall only be effected
after, (i) the final approval of the Separation, the Restructuring (as such
terms are defined in the Restructuring, Transfer and Separation Agreement), and
the IPO by the Board of Directors of DuPont and (ii) the closing of the IPO.
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ARTICLE 6
INDEMNITIES
6.01 Indemnity by Service Receiver. Subject to the limitation set
forth in Article 3.01(c) above, Service Receiver shall indemnify, defend and
hold Service Provider harmless against any and all claims, liabilities, damages
losses, costs, expenses (including, but not limited to, settlements, judgments,
court costs and reasonable attorneys' fees), fines and penalties arising out of
any injury or death, and any loss or damage of any nature whatsoever
(including, without limitation, loss of or damage to property, or damage to the
environment) due or relating to the operations and activities of Service
Receiver, except for losses, liabilities, obligations, costs, expenses or
damages which are the direct and sole result of gross negligence or willful
misconduct of the personnel of Service Provider and/or any contract personnel
who are managed and directed by Service Provider.
6.02 Indemnity by the Parties for Claims by Employees. Service
Provider and Service Receiver mutually agree to defend, indemnify and hold
harmless each other from and against any and all claims or causes of action for
injury to or death of their respective employees which may arise in connection
with the performance of this Agreement, regardless of the cause or reason
thereof, and regardless of the negligence of the other.
6.03 Term of Indemnity and Filing of Actions. The indemnities
contained in this Article shall survive for a period of three (3) year after
the termination of this Agreement for any reason, and any claim for indemnity
under this Article must be made by written notice to the indemnifying Party
within one (1) 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 writing signed by 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 written 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
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a consumer under the Act, each of them waive their rights under the Act
pursuant to Section 7.03(b) below. 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.
(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.
7.04 Notices. All notices, consents, requests, approvals, 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
subsection (c) below; or (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 (5th) 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 Primary Coordinators and to the respective
Service Coordinators as identified in the applicable Appendix) 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
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000, XXX
Attention:
Fax Number:
If to Conoco:
Conoco Inc.
000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention:
Fax Number:
7.05 Governing Law. This Agreement 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.
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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.
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, that the entirety of this Agreement shall continue in full
force and effect in all other jurisdictions. Notwithstanding the foregoing, if
the portion of this Agreement which is declared invalid has the effect of
reducing the compensation due hereunder or preventing the reimbursement of the
costs and expenditures described in Section 2.01(b) above, Service Provider, at
its sole discretion, may terminate this Agreement by providing thirty (30) days
written notice to Service Receiver.
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 will be construed to confer upon or give any person or
entity, other than the Parties and their respective subsidiaries and
affiliates, as the case my 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.
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 Service Provider 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,
war, rebellion, insurrection riot, invasion, strike or lockout; provided,
however, that such Party shall resume the performance whenever such causes are
removed. Notwithstanding the foregoing, if such Party cannot perform under
this Agreement for a period of forty-five (45) days due to such cause or
causes, either Party may terminate this Agreement by providing written notice
to the other Party.
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7.12 Relationship of the Parties. It is expressly understood and
agreed that in rendering the Transitional Services hereunder, Service Provider
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
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
written request and direction of the other Party).
7.13 Setoff. Subject to 2.03, if Service Receiver fails to pay any
amount owing to Service Provider when due, Service Provider is hereby
authorized at any time from time to time, without notice to Service Receiver
(any such notice being expressly waived by Service Receiver), to set off and
apply (or cause any affiliate of Service Provider to set off and apply) any and
all amounts at any time held and any indebtedness at any time owing by Service
Provider or such affiliate to or for the credit of the account of Service
Receiver, against any or all of such amounts, and any amount due under this
Agreement, any promissory note or otherwise, irrespective of whether or not
Service Provider shall have made any demand and although such obligations may
be unmatured. The rights stated in this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off or
lien) that Service Provider may have.
7.14 Conflict. In case of conflict between the terms and conditions
of this Agreement and any Appendix, the terms and conditions of such Appendix
shall control and govern as it relates to the Transitional Service to which
those terms and conditions apply.
7.15 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.
7.16 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.
7.17 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
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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.
ARTICLE 8
MONITORING COMMITTEE
8.01 Establishment. Both Primary Coordinators of the Parties shall
constitute 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 or as necessary throughout the duration of this Agreement (other than
where the Parties agree that such a periodic meeting is not necessary) and as
otherwise reasonably requested by either Party.
8.04 Meeting Procedure. The Monitoring Committee shall keep minutes
of its meetings and develop a reasonable procedure if needed.
ARTICLE 9
DISPUTE RESOLUTION
9.01 Alternative Dispute Resolution
(a) The Parties understand and appreciate that their mutual
interests will be best served by effecting a rapid and fair resolution of any
claims or disputes which may arise out of this Agreement or from any dispute
concerning this Agreement's terms. Therefore, each Party agrees, to use its
best efforts to resolve all such disputes as rapidly as possible on a fair and
equitable basis. Toward this end each Party agrees to develop and follow a
process for presenting, rapidly assessing, and settling claims and other
disputes on a fair and equitable basis.
(b) If any dispute or claim arising under this Agreement
cannot be readily resolved by the Parties pursuant to Section 9.01(a), the
Parties agree to refer the matter to the Monitoring Committee which shall meet
and attempt to resolve the dispute within fifteen (15) days from the date the
dispute was brought before its attention.
(c) If any dispute or claim arising under this Agreement
cannot be resolved by the Monitoring Committee pursuant to Section 9.01(b), the
Parties agree to refer the matter to a panel consisting of one (1) senior
executive from each Party for review and resolution. The senior executive
shall not have been directly involved in the claim or dispute. A copy of the
Agreement terms, relevant facts, areas of disagreement and a concise summary of
basis of each
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side's contention will be provided to both executives who shall review the
same, and attempt to reach a mutual resolution of the issue. The senior
executives shall meet and resolve the dispute within thirty (30) days of their
appointment.
IN WITNESS WHEREOF, the parties hereto have caused this Transitional
Services Agreement to be executed the day and year first above written.
E. I. DU PONT DE NEMOURS AND COMPANY
By:
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Title:
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CONOCO INC.
By:
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Title:
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