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SAMPLE WORDING ONLY
SHOULD BE REVIEWED BY PRIVATE COUNSEL
AGREEMENT
This Agreement is made and entered into on the ___ day of ___________, 1999, in the City of ___________________, County of _________________, by and between COMPANY, a California corporation, (hereinafter referred to as "COMPANY"), and Dealer’s Name dba OPERATOR’S BUSINESS NAME, a sole proprietorship, (hereinafter referred to as "OPERATOR") as follows:
RECITALS
WHEREAS, OPERATOR operates a retail gasoline service station located at _______________ _____________________; and
WHEREAS, COMPANY is a member of Commercial Fueling Network ("CFN"); and
WHEREAS, COMPANY owns card reader equipment; and
WHEREAS, the parties hereto desire to enter into this Agreement, the purpose of which is to enable COMPANY's CFN customers access to a COMPANY owned card reader equipment at the site allowing said customers to use COMPANY's cards.
THEREFORE, in consideration of the mutual covenants and terms and conditions hereinafter set forth and for valuable consideration herein referenced below, the parties hereto agree as follows:
The term of this Agreement shall be from __________________, 1999 to ______________, 2000. This Agreement shall be renewed annually provided both COMPANY and OPERATOR agree, in writing, to the renewal at least sixty (60) days prior to the expiration of the current Agreement. However, either party may terminate this Agreement by giving thirty (30) days written notice of termination to the other.
COMPANY shall install and maintain the card reader equipment (VeriFone Tranz 380) at the site. The card reader equipment shall remain the sole and separate property of COMPANY. COMPANY shall pay for the installation and monthly charges for the telephone line(s).
OPERATOR will follow COMPANY’s VeriFone Procedures attached hereto as Exhibit A and incorporated herein by this reference when dispensing products. OPERATOR shall not allow unauthorized use.
OPERATOR shall be responsible for posting signs on canopy showing the amount of clearance. COMPANY shall not be responsible for any damage to canopy caused by a CFN customer.
COMPANY will pay average OPIS (state location) weekly price plus $0.___/gallon commission (includes haul) for domestic transactions and average OPIS (state location) weekly price plus $0.____/gallon commission (includes haul) for foreign transactions to OPERATOR for COMPANY's customers' purchases at the site. These prices will be set on Monday for the following week based on average OPIS (state location) weekly price. COMPANY will pay OPERATOR weekly for the preceding week based on COMPANY's posting records for the site. Payment shall be conclusively deemed correct if no objection is made in writing within thirty (30) days after payment is made and received.
It is mutually agreed that if either party shall violate or materially breach any of the terms, conditions or provisions of this Agreement and if said breach or violation is not cured by the defaulting party within seventy-two (72) hours of written notice of such breach or violation, the other party may, at its sole option, terminate this Agreement by giving written notice to the defaulting party, whereupon this Agreement shall immediately thereafter terminate. Any bankruptcy or insolvency shall be considered a violation and a material breach under this Agreement.
OPERATOR's failure to operate, or allow access to, the site for seven (7) consecutive days, or such shorter period of time which, under the facts and circumstances, is an unreasonable period of time shall be considered a violation and a material breach under this Agreement. OPERATOR's failure to have a continuous supply of fuel available at the site shall be considered a violation and a material breach under this Agreement.
OPERATOR agrees to and does hereby indemnify, hold harmless and defend COMPANY against any and all third party claims so long as said claims do not relate to or are not based upon COMPANY's alleged negligence in performing its services.
At the termination of this Agreement, COMPANY will remove its card reader equipment.
This Agreement constitutes the entire Agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. Any amendment to a change of this Agreement must be in writing and signed by both parties.
If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
No representations or warranties whatever are made by any party, except as specifically set forth in this Agreement. The representations, warranties, and indemnities made by the parties in this Agreement, together with the covenants and agreements of the parties herein contained, shall be deemed to be continuing and shall survive the execution of this Agreement and the consummation of all of the transactions contemplated herein.
OPERATOR hereby accepts jointly and severally all terms, conditions and provisions herein set forth.
This Agreement shall be interpreted and construed in accordance with and shall be governed by the laws of the State of California.
All notices, requests, orders, confirmations, or other communications required or permitted to be delivered hereunder shall be in writing, delivered personally or by United States mail, postage prepaid as follows:
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