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EXHIBIT 10.6
GENERAL TRANSPORTATION TERMS
MOTOR CARRIER
1. PERSONNEL AND EQUIPMENT. Carrier will be deemed an independent
contractor to Chrysler and will provide all resources necessary to
perform transportation services. Carrier may subcontract transportation
services, subject to Chrysler's consent. Individuals engaged by Carrier
will be considered employees or subcontractors of Carrier and will be
subject to discharge, discipline and control solely and exclusively by
Carrier.
2. COMMODITY LOSS AND DAMAGE Carrier's performance of transportation
services without loss or damage to Commodities is an essential
obligation of this Agreement. Carrier will meet the requirements and
objectives of all written programs, practices and procedures instituted
by Chrysler regarding the quality of transportation services. Carrier
is deemed to have care, control, custody and possession of Commodities
from the time they are tendered to the Carrier for transportation until
delivery to Chrysler or its consignee. During such period, Carrier
assumes full responsibility for any and all loss of or damage to
Commodities. Carrier will promptly act on all claims submitted by
Chrysler or its agent.
3. INSURANCE AND INDEMNIFICATION. Carrier will furnish to Chrysler and
maintain in effect during the term of this Agreement, at its sole
expense, insurance in amounts and coverage (including self insurance
coverage) satisfactory to Chrysler. Such insurance will be primary to,
and not excess over or contributory with, any other valid, applicable
and collectible insurance in force for Chrysler. Except for Commodity
loss and damage claims filed by Chrysler or its agent that are governed
by Section 2, Carrier will defend, indemnify and hold harmless
Chrysler, its parent corporation, subsidiaries, officers, directors and
employees, from and against any and all claims, liabilities, losses,
damages, penalties, fees, and expenses in connection with 1) injury to
or the death of any person, 2) damage to or loss of an property of any
person, or 3) the violation of or noncompliance with any law or
regulation, to the extent such claims, liabilities, losses, damages,
penalties, fees or expenses result from or arise out of any act or
omission of the indemnifying party, or its employees or subcontractors,
in connection with the performance of transportation services.
Consistent with these obligations, the parties agree that effective
upon Carrier's written concurrence below, any loss and damage claims
not acted on by Carrier within 90 days from the date of Chrysler's
written claim are deemed untimely. Notwithstanding any other rights
that Chrysler may have under the terms of the Agreement, Chrysler may
debit Carrier for: 1) the amount of the untimely claim. and 2) an
amount of interest on the untimely claim computed from the date of the
claim at the rate of interest set forth in the claim.
4. COMPLIANCE WITH REGULATIONS. Carrier will obtain, at its own expense.
all licenses, permits and approvals required under any applicable
government statute or regulation for the transportation of Commodities.
Carrier will obey all applicable governmental taws and regulations
connected with the transportation of Commodities.
5. FORCE MAJEURE. The obligation of Carrier to furnish and of Chrysler to
use transportation services will be temporarily suspended during any
period in which either of
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the parties is unable to comply with this Agreement because of fire,
flood, civil commotion, government interference or regulations, or any
other events similar to the foregoing that are beyond the reasonable
control of, and are not due to the negligence of, the party claiming
force majeure. The parties will make all reasonable efforts to continue
to meet their obligations for the duration of the force majeure.
Chrysler will have the right to use other transportation services
during the period of force majeure, and any shipments made on alternate
carriers during any Carrier declared force majeure will be counted
towards Chrysler's volume obligation, if any, to Carrier.
6. PRECEDENCE OVER APPLICABLE TARIFFS. To the extent permitted by
applicable laws and regulations, the terms of this Agreement will
prevail over any rules, regulations, tariffs, tariff circulars and
terms and conditions of bills of lading regarding transportation of
Commodities.
7. DEFAULT, CURE AND TERMINATION. In the event that Carrier fails to
perform any of its obligations herein, Chrysler will give the Carrier
written notice specifying the nature of the default and demanding cure
satisfactory to Chrysler within thirty (30) days following receipt of
the demand to cure. Failing such cure, Chrysler will have the right: 1)
to cease tendering all or a portion of Commodities for future
shipments, or 2) to terminate the Agreement. If Carrier's default is
related to transit times. then Chrysler may also, at any time and
without written notice as provided above, use alternate carriers to
transport all or a portion of Commodities. Carrier recognizes that
Commodities must be shipped on a timely basis and without loss or
damage in order for Chrysler to avoid loss and expense as a consequence
of plant shutdowns, schedule realignments, off-line repairs or the
necessity of procuring higher-cost alternate transportation.
8. INSPECTION AND AUDIT. Chrysler my, on reasonable notice, inspect any
Commodity and any equipment used to handle and transport Commodities
wherever located. Chrysler may also, on reasonable notice, inspect
Carrier's records relating to Deportation of Commodities. Chrysler may,
at any time and with notice to Carrier, remove Commodities from
Carrier's care, possession, custody or control.
9. MISCELLANEOUS CLAUSES. This Agreement will be binding on permitted
successors and assigns. The failure to exercise any of the terms of
this Agreement will not be construed as a continuing waiver of such
term.
Neither this Agreement nor any of the duties herein may be assigned or
delegated without the written permission of the other party.
Carrier will notify Chrysler of all relevant information regarding any
actual or potential labor dispute delaying or threatening to delay
timely performance of this Agreement.
If any provision of this Agreement is held to be legally invalid or
unenforceable, such provision will be deemed omitted and all other
provisions of this Agreement will continue in force.
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Carrier will not, without the prior written consent of Chrysler,
advertise or publish in any manner the rates established herein or use
the name or trademarks of Chrysler, its products or any of its
associated companies.
All notices or communications which are required to be given under this
Agreement will be sent by regular or certified mail, postage prepaid,
to the other party at the business address specified in this Agreement.
Notices may also be communicated by any electronic means which can
produce a written copy provided that acknowledgment of receipt of the
electronic communication notice is obtained.
The terms of this Agreement will be governed by the laws of the State
of Michigan (without regard to its conflicts of laws rules), except to
the extent preempted by federal law.
10. ENTIRE AGREEMENT. This Agreement, which consists of the Transportation
Contract, General Transportation Terms and other documents referred to
herein, constitute the complete and entire agreement between Carrier
and Chrysler for the transportation services defined herein and
supersedes all prior and contemporaneous proposals, representations,
statements, agreements and promises, express or implied, with respect
thereto. This Agreement may be amended only in a writing signed by the
parties.
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CONTRACT ADDENDUM
AGREEMENT REGARDING FUTURE RATE ADJUSTMENTS DUE TO DIESEL FUEL PRICE FLUCTUATION
Haulaway rates established in the agreement between the Carrier and
DalmlerChrvsler will be subject to a fuel price adjustment based on the
Department of Energy (D.O.E.) National Diesel Fuel Price Average. The fuel
adjustment will be made quarterly based on the previous three-month D.0.E.
Diesel Fuel Price Average. The percentage of adjustment will be determined
according to the following methodology:
1) Records will be maintained of the weekly D.O.E. self service
diesel (with taxes) national average price.
2) At the end of each quarter, the straight average of weekly
prices will be calculated.
3) The % change in the average fuel price will be calculated on
the difference between the quarter just ended and the previous
quarter.
4) The % adjustment to rates will be established as follows: the
% change in quarterly average price X Carrier's Fuel Cost as a
% of Total Cost = % of rate adjustment (the fuel adjustment
factor).
5) Rates will be adjusted effective the 15th day of the first
month after the end of each quarter.
Rates will be based on a fuel cost average of [XXX]. Allied's fuel percent of
total cost is [XXX%] for U.S. contracts and [XXX%] for Canadian contracts.
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[XXX] represents material deleted per the Company's request for Confidential
Treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934.
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RATES
The rate information contained in 22 pages of attachments to this
Agreement has been omitted pursuant to the Company's Request for Confidential
Treatment and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934.