Railroad Materials Transportation Agreement

RAILROAD MATERIALS TRANSPORTATION AGREEMENT

Parties

Recitals

WHEREAS, Carrier is duly authorized and equipped to provide rail transportation and related services for bulk and packaged materials by railroad and has experience transporting the type of materials described herein; and

WHEREAS, Shipper desires to engage Carrier to transport specified materials on the terms and conditions set forth in this Agreement; and

WHEREAS, the parties intend that Carrier's performance hereunder shall be subject to the limitations of liability, insurance requirements, and operational obligations contained in this Agreement.

Scope of Work

Carrier shall provide rail transportation services for materials described as:

Carrier shall perform services in accordance with applicable railroad operating rules, applicable tariffs and the schedules mutually agreed in writing. Carrier retains the right to allocate equipment and routing in its sole discretion provided such allocation does not unreasonably delay delivery.

Payment Terms

All amounts due under this Agreement are exclusive of taxes which shall be the responsibility of the party required by law to collect or pay such taxes. Invoices not disputed in writing within ten (10) business days shall be deemed accepted.

Insurance and Liability

Carrier shall maintain insurance customary for rail carriers, including liability for loss or damage to cargo and public liability, in amounts not less than:

Except as otherwise set forth, Carrier's liability for loss or damage to materials shall be limited to repair or replacement value or the invoice value of the lost goods, whichever is less, subject to applicable statutory and tariff limitations.

Term and Termination

This Agreement shall commence on and shall expire on unless earlier terminated pursuant to this section.

Either party may terminate this Agreement for convenience upon days' prior written notice to the other party. Either party may terminate immediately for cause upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice.

Termination shall not relieve either party of obligations accrued prior to the effective date of termination, including payment for services performed.

Confidentiality

Each party shall hold in confidence and not disclose to any third party any non-public information or materials disclosed by the other party that is designated as confidential or would reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure ("Confidential Information"). Confidential Information does not include information that is or becomes generally available to the public through no breach of this Agreement, is lawfully received from a third party without restriction, or is independently developed by the receiving party.

A receiving party may disclose Confidential Information to its employees, contractors, insurers, and legal advisors who have a legitimate need to know, provided such persons are bound by confidentiality obligations no less protective than those in this Agreement.

Indemnification

Each party shall indemnify, defend and hold harmless the other party and its officers, directors, employees and agents from and against all claims, liabilities, losses, damages and expenses (including reasonable attorneys' fees) arising out of or resulting from the indemnifying party's negligence, willful misconduct, or breach of this Agreement, except to the extent caused by the negligence or willful misconduct of the indemnified party.

Force Majeure

Neither party shall be liable for failure or delay in performing obligations under this Agreement to the extent such failure or delay is caused by events beyond the reasonable control of the affected party, including but not limited to acts of God, war, terrorism, strikes, labor disputes, natural disaster, epidemic, governmental act or order, or disruption of rail infrastructure, provided that the affected party gives prompt written notice and uses commercially reasonable efforts to resume performance.

Compliance with Law

Each party shall comply with all applicable federal, state, and local laws, regulations and rules applicable to its performance under this Agreement, including hazardous materials handling, reporting, and placarding requirements when applicable. Carrier shall comply with applicable railroad operating rules and tariffs.

Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflicts of law principles. Any dispute arising under or relating to this Agreement shall be resolved by binding arbitration if agreed in writing by the parties, or otherwise in the courts having jurisdiction in the governing state.

Notices

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or such other address as a party shall designate by notice in accordance with this paragraph. Notice shall be deemed given upon personal delivery, one business day after delivery by overnight courier, or three business days after deposit in the U.S. mail (first-class, certified), properly addressed and postage prepaid.

Entire Agreement

This Agreement, together with any attachments, schedules and written amendments signed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether oral or written. No amendment, waiver or modification shall be effective unless in writing and signed by authorized representatives of both parties.

Miscellaneous Provisions

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other party, except to a successor in interest in connection with a merger or sale of substantially all assets.

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