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EXHIBIT 10.17
Rev. 8/24/98
MOTOR CARRIER CONTRACT
THIS CONTRACT, made and entered into pursuant to authority granted
under 49 U.S.C. 14101(b), this 1ST day of August, 1998, by and between SENTINEL
TRANSPORTATION COMPANY, a Delaware corporation, having its principal offices at
0000 Xxxxxxxxxx Xxxx, Xxxxxxx Plaza, Read Building, Suite #101, Wilmington,
Delaware 19810 (hereinafter referred to as SENTINEL), and CONOCO INC., having
its principal offices at 000 Xxxxx Xxxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000,
(hereinafter referred to as CONOCO).
SENTINEL is a contract carrier by motor vehicle licensed by the Interstate
Commerce Commission ("ICC") under motor carrier permit number MC 294124,
authorizing operations as a contract carrier as set forth therein.
WITNESSETH:
WHEREAS, SENTINEL has represented to CONOCO that it possesses the
expertise, qualified personnel, facilities and equipment to properly and
lawfully transport freight by motor vehicle for CONOCO; and
WHEREAS, SENTINEL holds appropriate motor carrier authority to
transport freight by motor vehicle between such points and places within the
continental United States and Canada as are set forth in Exhibit "A" hereto; and
WHEREAS, SENTINEL is aware of the distinct needs of CONOCO and has
designed its transportation offering, as reflected in the balance of the
Contract and of the Exhibits attached thereto, specifically to satisfy these
needs, and
WHEREAS, CONOCO desires to engage the services of SENTINEL for
transportation of freight as hereinafter set forth;
NOW THEREFORE, in consideration of the premises and mutual benefits to
be derived by the Parties from this Contract and the mutual promises made and
exchanged between the Parties, the Parties do hereby covenant and agree as
follows:
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1. REPLACEMENT OF PRIOR CONTRACTS
This Contract shall take the place of and entirely supersede any oral
or written contracts/arrangements that deal with the same subject matter as
referenced herein.
2. SCOPE OF SERVICE
SENTINEL agrees to transport commodities between such points and places
among, within and between the states and provinces of the United States and
Canada and perform such other related services as are designated by CONOCO and
defined in Exhibit "A."
3. PERIOD OF CONTRACT
This Contract shall become effective on 1st day of September, 1998, and
shall continue in full force and effect through 1st day of September, 1999,
unless earlier terminated by CONOCO or SENTINEL pursuant to other provisions in
the Contract or by either Party without cause upon ninety (90) days' prior
written notice. Such termination, which shall be accomplished without penalty
unless otherwise specifically stated herein, shall not relieve or release either
CONOCO or SENTINEL from any rights, liabilities, or obligations that may have
accrued under the law or terms of this Contract prior to the date of such
termination.
Upon written notice given at least ninety (90) days' prior to the
expiration of this Contract or any extensions thereof, both Parties shall have
the right to mutually extend this Contract for additional periods up to two (2)
years each upon the same terms and conditions as are then in force hereunder.
4. COMPENSATION
Rules, rates and charges for transportation services hereunder are set
forth in Exhibit "A" attached hereto. Shipments made under the provisions of
this Contract may include outbound shipments prepaid and inbound shipments
collect. Changes in compensation level must be cost or otherwise justified and
agreeable to CONOCO. Any proposed change in compensation level must be received
by CONOCO in writing at least thirty (30) days prior to the effective date of
the change. Any amendment to Exhibit "A" of this Contract must be approved by
signature of both Parties. In no case will contract rate changes be retroactive.
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5. PAYMENT
SENTINEL shall furnish CONOCO a summary invoice referencing CONOCO xxxx
of lading for outbound prepaid shipments and the delivery document number which
corresponds exactly with the document left at the receiving location for inbound
collect shipments. If the above information is not available, SENTINEL will
attach a copy of the shippers xxxx of lading or inbound delivery receipt for
reference.
SENTINEL will direct all invoices for services performed hereunder to:
Conoco Inc.
Downstream Finance
000-00 Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxx Xxxx, XX 00000-0000
Payment will be made by CONOCO within thirty (30) days from receipt of
a complete, legible invoice. Invoices not meeting above criteria will be
returned to SENTINEL.
6. EQUIPMENT
SENTINEL shall provide all equipment necessary to perform the transport
necessary to meet those distinct needs as set forth in this Agreement which
shall:
a. be suitable for the particular transportation required, and
include any special equipment that is requested and agreed to by CONOCO when the
shipping order is placed;
b. comply with the equipment specifications for such transportation
prescribed by any applicable governmental regulations (including those of the
U.S. Department of Transportation); and
c. be tendered and maintained by SENTINEL in good, safe, and
serviceable condition.
If SENTINEL is not in breach of this Agreement, and CONOCO terminates
SENTINEL's service at a terminal, SENTINEL will use its best efforts to redeploy
the vehicles to another SENTINEL terminal. If SENTINEL is unable to redeploy the
vehicles, then CONOCO will pay SENTINEL the difference between the book value of
the vehicle and the sales price of the vehicle (net of commissions, or other
selling commissions, if any). If there is a lease cancellation fee, CONOCO will
pay the cancellation fee. CONOCO will also be liable for terminal closing costs
i.e., lease cancellation, severance, etc., related to such termination.
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7. RULES AND REGULATIONS
a. SENTINEL hereby agrees to abide by all federal, state, and local
laws and regulations, and to abide by all rules and instructions promulgated by
CONOCO and furnished to SENTINEL in writing, with respect to SENTINEL's
activities hereunder.
b. SENTINEL further agrees to send to CONOCO's points of origin and
destination only such employees, agents, and others acting at its request, as
have been instructed in the safe handling methods of the commodity to be loaded
and hauled. All plant or site safety rules must be adhered to.
c. SENTINEL warrants that only vehicles meeting U.S. Department of
Transportation, ICC, and Environmental Protection Agency (or their state and
local counterparts) requirements and standards shall enter the points of origin
and destination to receive or deliver shipments.
d. Vehicles shall be compatible with the loading and unloading
equipment at the points of origin and destination. All licenses, permits, and
fees required for transportation shall be procured by SENTINEL
e. The maximum weight per loaded trailer and tractor shall not exceed
the limitations imposed by the states from, to, or through which the vehicle
moves.
8. SAFETY PRACTICES
8.1 CONOCO is vitally interested in the safe transportation of its
products and materials. Safe transportation includes all aspects of a carrier's
service including loading, transit, and pickup/delivery.
8.2 Pick and delivery of products at CONOCO and customer sites
must be performed in a safe manner. All plant or site safety rules must be
adhered to.
a. CONOCO shall have the right to audit periodically the safety
practices of SENTINEL, its subcontractors, and agents with
respect to records, equipment condition and operation, and
employee training and performance. When on CONOCO premises,
SENTINEL, its employees, subcontractors, and agents shall
comply with the safety practices (as amended from time to
time) provided in writing for general application, or at the
premises or during any CONOCO briefing session. While on the
premises of CONOCO's customers and vendors, SENTINEL, its
subcontractors, and agents shall comply with the safety
practices provided verbally or in writing by such customers
and vendors. Noncompliance
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with any such rule may result in immediate suspension,
contract termination, or removal of SENTINEL employee from the
CONOCO site.
b. SENTINEL recognizes that hazards can be involved in performing
the services hereunder. The methods employed and the
precautions taken to handle CONOCO owned or leased equipment
and commodities shall be determined and rest solely with
SENTINEL. SENTINEL agrees to provide its employees with a safe
and healthy workplace using, but not limited to, such
information as is or may be provided by CONOCO.
8.3 SENTINEL agrees to advise its employees and the employees of
its subcontractors and agents performing work under this Contract that (1) it
is the policy of CONOCO to prohibit the use, possession, manufacture,
dispensing, sale and distribution of alcohol, drugs, and other controlled
substances on its premises and on or in conjunction with equipment used to
transport material or product to or from CONOCO controlled sites and to
prohibit the presence of an individual with such substances in the body for
non-medical reasons in workplaces controlled by CONOCO; (2) entry onto CONOCO
property constitutes consent to an inspection of such person, his/her vehicle,
and personal effects when entering, while on, or upon exiting CONOCO property;
and (3) any SENTINEL employee, agent or subcontractor employee who is found to
be in violation of the policy or who refuses to permit inspection may be
removed and barred from performing further work for CONOCO or from entering
property at the discretion of CONOCO.
8.4 SENTINEL also agrees to develop and implement procedures to
test truck drivers and mechanics, to the extent permitted by law, performing
functions under this Contract that can affect the health and safety of the
general population, CONOCO employees or the environment for drug and controlled
substance use, on a) pre-assignment, b) for cause, and c) random basis. At its
option, SENTINEL shall comply either with the Minimally Accepted Drug Testing
Standards attached hereto as Exhibit "B" or with applicable drug testing
requirements imposed on interstate motor carrier drivers by the United States
Department of Transportation (DOT) regulations. Compliance with the DOT
regulations, found at 00 XXX 000, for truck drivers and/or included employees
shall be regarded as complying with this paragraph.
8.5 SENTINEL agrees to take whatever steps are necessary to
facilitate and shall permit CONOCO or its authorized agent to audit SENTINEL's
Drug Testing Program to ensure compliance with applicable requirements.
8.6 SENTINEL further agrees not to assign (or re-assign) any
individual to perform functions under this Contract, that can affect the health
and safety of the general population, CONOCO employees or the environment,
unless such individual has taken a drug screen, is subject to SENTINEL's ongoing
Drug Testing Program and has not tested (on a confirmed basis) positive for drug
or controlled substance usage.
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9. COMMITMENT
CONOCO shall tender to SENTINEL for shipment a minimum of ten percent
(10%) of the outbound prepaid bulk trucking requirements of CONOCO during each
annual period this Contract is in effect. SENTINEL shall agree to transport up
to one hundred percent (100%) of the requirements during such period. If
SENTINEL is unable to accept shipments tendered due to lack of equipment or
drivers, SENTINEL will dispatch only to other CONOCO approved carriers. Where no
dispatch authority has been granted to SENTINEL for CONOCO shipments, SENTINEL
will promptly notify the appropriate CONOCO dispatch location.
10. INDEMNIFICATION
Each Party will indemnify the other for liability (judgments and
settlements), fines, penalties, losses and expenses incurred by the other Party
which results from an act or omission (which is negligent, in violation of any
law, willful misconduct or for which strict liability applies) of that Party,
its agents, subcontractors or assigns in the performance under this Agreement.
The Party seeking indemnity shall provide prompt notice to the other of the
event which gives rise to its claim under this provision, fully cooperate in its
defense, and assign the right to defend and/or settle any such claim to the
responsible Party. In the event both Parties are jointly at fault, each shall
indemnify the other in proportion to their relative fault.
Neither Party shall be required to indemnify the other for the acts of
independent third parties over which that Party has no control (or the right to
control) or responsibility. Further, neither Party shall be liable to the other
for Special, Indirect, or Consequential Damages.
Pursuant to the terms of this contract, SENTINEL's maximum liability
per incident (such as an accident, injury or spill) will be the lesser of actual
cost or $1 million. SENTINEL's total liability from all CONOCO related incidents
shall not exceed $2 million cumulative cost during the period of this agreement.
11. INSURANCE
Sentinel will satisfy all insurance coverages required by law,
remaining self-insured where possible.
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12. CLAIMS
a. Overcharges and Undercharges
Claims for overcharges or undercharges will be made in writing,
supported by proper documentation, by the Party requesting an adjustment within
eighteen (18) months of the billing date. Each Party shall acknowledge its
receipt in writing within thirty (30) days after the date of receipt of each
claim. Both Parties agree that each shall pay, decline to pay, or settle each
overcharge, or undercharge claim within sixty (60) days after its receipt. Both
parties hereto specifically waive their respective rights under 49 USC 13710 (a)
(3) (A) and (B) as applicable regarding the pursuit of under or overcharges
hereunder.
b. Loss and Damage
Notification of loss or obvious damage to material or products will be
reported to SENTINEL'S local office within thirty (30) days after delivery of
the shipment. SENTINEL shall be afforded an opportunity to inspect the damaged
material or product in the shipment at a time mutually agreeable to SENTINEL and
CONOCO, but within thirty (30) days of receipt of notice.
Under no circumstances is SENTINEL to dispose of CONOCO'S material or
product without CONOCO'S prior written consent.
Written notification and documentation in support of all loss and
damage claims will be filed with SENTINEL within 270 days after delivery of the
damaged material or product or within 240 days after delivery should have been
made. In the case of lost or missing product or material, SENTINEL shall
acknowledge receipt in writing to CONOCO within thirty (30) days after the date
of receipt of each loss and damage claim. SENTINEL will pay, decline, or make a
firm compromise offer in writing to CONOCO within 120 days after receipt of loss
and damage claim.
13. ALTERNATIVE DISPUTE RESOLUTION
Both Parties understand and appreciate that their long term mutual
interests will be best served by affecting a rapid and fair resolution of any
claims or disputes which may arise out of Services performed under this Contract
or from any dispute concerning Contract terms. Therefore, both Parties agree to
use their best efforts to resolve all such disputes as rapidly as possible on a
fair and equitable basis. Toward this end, both Parties agree to develop and
follow a process for presenting, rapidly accessing, and settling claims on a
fair and equitable basis.
If any dispute or claim arising under this Contract cannot be readily
resolved by the Parties pursuant to the process referenced in section noted
above, the Parties agree to refer the
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matter to a panel consisting of one (1) senior executive from each Party not
directly involved in the claim or dispute for review and resolution. A copy of
the Contract terms, agreed upon facts (and areas of disagreement), and concise
summary of the basis for each side's contentions will be provided to both
executives who shall review the same, confer, and attempt to reach a mutual
resolution of the issue.
If the dispute cannot be resolved under the process set forth in the
two sections noted above, the Parties may elect to resolve the dispute through
non-binding mediation. If mediation is to be utilized, the Parties shall select
a single unrelated but qualified mediator who shall hold a hearing (not to
exceed one day) during which each Party shall present its version of the facts
(supported, if desired, by sworn, written testimony, and other relevant
documents provided to their senior executives under the second paragraph noted
above) at least ten (10) days prior to the scheduled date of the mediation
hearing. The Parties may also provide the Mediator with copies of any laws or
regulations which they feel are relevant to the dispute. A copy of the Contract
will be provided to the Mediator. Formal written arguments, legal memorandum,
and live testimony are discouraged, but may be permitted at the discretion of
the Mediator. Both Parties agree to make any involved employees or documents
available to the other Party for its review and use in preparing its position
under this clause without the need for subpoena or other court order.
The Mediator, within ten (10) days of the completion of the hearing,
will meet with both Parties and provide each of them, on a confidential basis,
with his/her written views of the strengths and weaknesses of their respective
positions. The Parties will then reconvene and, with the assistance of the
Mediator, attempt to resolve the matter. If resolution cannot be achieved by the
Parties within forty-eight (48) hours of this second meeting, the Mediator will,
within ten (10) additional days, issue a written, non-binding decision on the
issue.
Each Party shall, within five (5) days of the Mediator's written
decision, notify the other in writing whether it will accept or reject that
decision. If the matter has not been resolved utilizing the processes set forth
in this clause and the Parties are unwilling to accept the nonbinding decision
of the mediator, either or both Parties may elect to pursue resolution through
litigation.
The selected Mediator shall execute a confidentiality agreement,
satisfactory to all Parties, prior to his/her active participation in the
mediation. The costs of the Mediator shall be shared equally by the parties.
Each Party will bear its own costs of mediation.
If the Parties cannot agree upon a choice of a mediator within ten (10)
days of the date of the panel's conference pursuant to the second paragraph of
this section, either or both Parties may elect to directly pursue litigation.
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All statements, correspondence, memorandum, briefs, decisions,
testimony, communications, and materials, whether written or oral, submitted to
or generated by the panel and/or mediator in connection with the processes set
forth above shall be deemed to be in furtherance of settlement negotiations and
shall be privileged and shielded from production and disclosure in any
subsequent litigation. Notwithstanding the foregoing, documents prepared in the
normal course of business, such as invoices, waybills, and freight bills, shall
be subject to discovery in subsequent litigation in accordance with applicable
law.
14. CONFIDENTIALITY
No Party hereto shall disclose any information of any nature regarding
any part of this Agreement or any amendments, attachments or addenda hereto
except that either Party may make such disclosures as are specifically required
by law.
15. EMERGENCY REPORTING RESPONSE INFORMATION
SENTINEL shall be responsible to assure that a current edition of the
Department of Transportation (DOT) Emergency Response Guidebook or equivalent
emergency response information conforming to the requirements of Title 49 Code
of Federal Regulations (CFR), Section 172.602, shall be carried in the power
unit of all vehicles which are used to transport hazardous materials which are
tendered for transportation
SENTINEL shall insure that, for all Hazardous Materials or Dangerous
Goods originating at CONOCO sites or transported under SENTINEL control, all
Bills of Lading, Hazardous Materials Waste Manifests, and shipping papers
generated by it or its agents (including interline or intermodal carriers)
clearly identify CONOCO as the knowledgeable person who should be contacted in
the event of a release or other emergency involving the Hazardous or Dangerous
Materials. CONOCO shall accomplish this by placing the following language in a
prominent place on all Bills of Lading, Hazardous Materials Waste Manifests, or
other shipping papers generated by it or its agents:
"For a chemical emergency (spill, leak, acute exposure, fire or
accident) contact CONOCO - day or night - by calling: CHEMTREC at (000) 000-0000
(toll free), or outside Continental USA call (000) 000-0000 (collect)."
A chemical emergency is defined as an incident involving any placarded
truck (loaded or empty) containing DOT regulated hazardous materials, substances
or waste belonging to CONOCO where there is a reportable loss of regulated
hazardous material and the truck is not upright or has sustained body or shell
damage.
CONOCO shall also insure that all Bills of Lading, Hazardous Materials
Waste Manifests, or other shipping papers generated by it or its agents for
Hazardous or Dangerous Materials originating from or designated to move to a
CONOCO location pursuant to the terms of this Contract include the full
technical shipping description (see 49 CFR 172.602) for all
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Hazardous or Dangerous Materials covered by the shipping papers and are in all
other respects in full compliance with 49 CFR Parts 171, 172, and 173 before
such materials are loaded, transported, or stored in transit.
SENTINEL shall not accept for shipment to a CONOCO location any
Hazardous or Dangerous Materials unless accompanied by Bills of Lading,
Hazardous Materials Waste Manifests, or other shipping papers that are in full
compliance with 49 CFR Parts 171, 172, and 173, and which contain a telephone
number, monitored at all times by a person who is knowledgeable of the hazards
and characteristics of the Hazardous or Dangerous Material being shipped.
SENTINEL shall promptly notify CONOCO through CHEMTREC - Chemical
Manufacturers Association, 0000 Xxxxxx Xxxx., Xxxxxxxxx, XX, 00000, by telephone
- day or night - if a chemical emergency (spill, leak, acute exposure, fire or
accident) involving one of CONOCO's products or other Hazardous or Dangerous
Materials transported pursuant to the terms of this Contract occurs. CHEMTREC
can be reached at:
Within the USA 0-000-000-0000 (toll-free)
Outside the USA 0-000-000-0000 (call-collect)
16. OIL SPILL PREVENTION AND RESPONSE PLANS
If SENTINEL transports oil, as defined in 49 CFR 130.5 on behalf of
CONOCO, SENTINEL shall have in place a written response plan that fully complies
with the requirements of 49 CFR 130.31 et al.
17. XXXX OF LADING
Each shipment shall be tendered to SENTINEL on a standard Uniform Xxxx
of Lading. Unless otherwise provided herein, the Uniform Standard Xxxx of Lading
shall govern the rights and responsibilities of CONOCO and SENTINEL in their
performance hereunder. In the event of a conflict between the terms of the Xxxx
of Lading and this Agreement, the terms of this Agreement shall govern.
18. FORCE MAJEURE
No liability shall result to either Party from delay in performance or
from nonperformance caused by circumstances beyond the control of the Party who
has delayed performance or not performed. Such circumstances shall include, but
are not limited to: Acts of God, fire, flood, explosion, war, or action or
requests of government authority. The nonperforming Party shall be diligent in
attempting to remove any such cause and shall promptly notify the other Party of
its extent and probable duration.
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If the nonperforming Party, due to circumstances beyond its control,
is unable to supply the total demands for the goods or services required by the
Contract, then that nonperforming Party shall allocate its available supply
among all purchasers in proportion to the amounts previously provided to those
purchasers.
If the nonperforming Party who has delayed performance or not
performed on account of circumstances beyond its control, is unable to remove
the causes within seven (7) days, the other Party shall have the right to
terminate or suspend, at its option, this entire Contract or any portion of it,
without imposition of penalty.
19. INDEPENDENT CONTRACTOR
It is understood that employees, methods, facilities, and equipment of
SENTINEL shall at all times be under its exclusive direction and control.
SENTINEL's relationship to CONOCO shall be that of an independent contractor.
Nothing in the Contract shall be construed to constitute SENTINEL, or any of its
employees, as an agent, associate, joint venturer, or partner of CONOCO.
As a limited exception to the INDEPENDENT CONTRACTOR article, SENTINEL
may be considered CONOCO's agent for the limited purpose of acting as a
"shipper" or "receiver" of MATERIAL, PRODUCT, or other goods. As such SENTINEL
may sign or certify that it has properly classified, described, packaged, marked
and labeled MATERIAL, PRODUCT, or other goods for shipment and that they are in
proper condition for transportation according to the applicable regulations of
the Department of Transportation. Similarly, SENTINEL may certify and
acknowledge receipt, after ascertaining the accuracy of CONOCO's count and the
delivered condition of the MATERIALS, PRODUCTS, or other goods involved.
20. NOTICES
Any notice given in writing under this Contract shall be considered as
having been given by either Party to the other Party upon the mailing thereof to
such other Party by registered United States mail at the below appropriate
address. A Post Office receipt showing the deposit of such notice and the date
thereof shall be prima facie evidence of the giving of such notice on the date
of such deposit.
CONOCO SENTINEL
Conoco Inc. Sentinel Transportation
Commercial Transportation 0000 Xxxxxxxxxx Xxxx
P.O. Box 0000 Xxxxxxx Xxxxx, Xxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000 Wilmington, DE 19810
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21. GOVERNING LAW
This Agreement will be governed by and construed in accordance with the
laws of the state of Delaware without giving effect to principles of conflict of
law and the courts within Delaware will be the only courts of competent
jurisdiction. The Parties do hereby irrevocably submit themselves to the
personal jurisdiction of the Delaware courts process upon them. This Agreement
will not be governed by the U.N. Convention on Contracts for the International
Sale of Goods.
The Parties hereby reciprocally and irrevocably waive in advance any
and all objections to the Delaware courts as forums based upon any question of:
venue; the doctrine of forum non conveniens; the present or future pendency of
any other case or proceeding elsewhere; the compulsory counterclaim rule or any
other doctrine, statute, rule of practice, or fact.
22. DEFAULT
In the event either Party to this Contract shall default in the
performance of any obligations specified, the nondefaulting Party shall notify
the other Party in writing, and if such default is not remedied with reasonable
promptness, then the nondefaulting Party shall have the right to terminate this
Contract immediately. Termination under this Article, or under any other Article
of this Contract, shall not relieve or release either Party from any liability
which accrued prior to the date of such termination.
23. WAIVER
Failure of either Party to insist upon the performance of any of the
terms, covenants, or conditions of the Contract or to exercise any right or
privilege herein, or the waiver by either Party of any breach of any of the
terms, covenants, or conditions of this Contract, shall not be construed as
thereafter waiving any such terms, covenants, conditions, rights or privileges,
but the same shall continue and remain in full force and effect the same as if
no such forbearance or waiver had occurred.
24. TAXES
CONOCO agrees either to pay directly all property taxes, licenses,
charges and assessments properly levied by any properly constituted governmental
authority upon the CONOCO-owned Material, Equipment, and Product hereunder, or
to reimburse SENTINEL therefore if paid by SENTINEL at SENTINEL's written
direction. SENTINEL assumes full responsibility for the payment of all foreign,
United States federal and state taxes of whateversort, social security and
unemployment compensation taxes, withholding taxes, and all other taxes or
charges applicable to SENTINEL's actions, employees, facilities, and materials
for performing Services hereunder or applicable to SENTINEL's income hereunder.
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25. SUCCESSORS AND ASSIGNMENT
The rights and obligations covered herein are personal to each Party
hereto and for this reason this Agreement shall not be assignable, including
assignment to a successor in interest of all or part of the assets of such Party
by way of merger, by either Party in whole or in part, without the prior written
consent of the other Party.
26. SEVERABILITY
In the event that any Article of this Contract shall be found to be
void or unenforceable, such findings shall not be construed to render any other
Article of this Contract either void or unenforceable, and all other Articles
shall remain in full force and effect unless the Article(s) which is/are invalid
or unenforceable shall substantially affect the rights or obligations granted to
or undertaken by either Party.
27. YEAR 2000 COMPLIANCE
Each party covenants and agrees that it will not permit a Year 2000
Problem to computer systems, software or equipment owned, leased or licensed by
it, its affiliates or subsidiaries to interfere with its performance under this
Agreement. This undertaking is subject to any standard of performance or any
excuse for non-performance provided in this Agreement, at law, or in equity.
Each party further agrees, to the extent that the party deems it appropriate, to
request, from those of its suppliers whose performance may materially affect
that party's performance hereunder, that each such supplier undertake the same
obligation with respect to such material performance. The parties will use
reasonable commercial efforts to cooperate and share information to further
comply with this Article, and to minimize the impact of any Year 2000 Problem on
performance of this Agreement. Each party will inform the other party of any
circumstance indicating a possible obstacle to such compliance, and the steps
being taken to avoid or overcome the obstacle.
Provided a party complies with the paragraph above, it will not be
liable to the other party for any failure to perform obligations under this
Agreement to the extent such failure arises from a Year 2000 Problem (1)
affecting one of the non-performing party's suppliers or (2) beyond that party's
reasonable control (e.g., a Year 2000 Problem affecting a governmental entity).
IN PARTICULAR, SUCH NON-PERFORMING PARTY SHALL HAVE NO LIABILITY FOR ANY
DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES.
A "Year 2000 Problem" means a date handling problem relating to the
Year 2000 date change that would cause a computer system, software or equipment
to fail to correctly perform, process and handle date-related data for the dates
within and between the twentieth and twenty-first centuries and all other
centuries.
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28. ENTIRETY
THIS CONTRACT together with the attachments and Exhibits specifically
referenced and attached hereto embodies the entire understanding between CONOCO
and SENTINEL and there are no Contracts, understandings, conditions, or
representations, oral or written, with reference to the subject matter hereof
which are not merged herein. Except as otherwise specifically stated, no
modifications hereto shall be of any force or effect unless (1) reduced to
writing and signed by both Parties hereto, and (2) expressly referred to as
being modifications of this Contract.
IN WITNESS WHEREOF, the Parties have hereto caused this Agreement to be
duly executed in duplicate originals the day and year first above written.
WITNESS: SENTINEL TRANSPORTATION COMPANY
By:
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Name:
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Title:
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WITNESS: CONOCO INC.
By:
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Name:
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Title:
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