NOBLE OIL SERVICES INC.’S TERMS AND CONDITIONS

IN CONSIDERATION of the covenants, agreements, and conditions hereinafter set forth and the mutual benefits to be derived therefrom, the adequacy of which is hereby acknowledged, Noble Oil Services, Inc. (“Noble”) and Generator agree as follows:

1. SCOPE OF SERVICES. Subject to all the terms and conditions of this Agreement, Generator hereby engages Noble and possibly Compliance Centre, Inc. to provide TEC (Total Environmental Compliance) services as follows:

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  • Used Oil: Collect used oil meeting Noble’s specifications.
  • Used Antifreeze: Collect used anti-freeze meeting Noble’s specifications.
  • Oil/Water Mixtures: Collect non-hazardous oil/water mixture(s) meeting Noble’s specifications.
  • Parts Washer Service: Exchange the parts washer fluid for parts washer(s). Noble will provide at its  own expense routine maintenance for the Noble-owned parts washer machines.
  • Filter Container Service: Provide a Noble used-oil filter container, and routine maintenance, for disposal of non-terne coated used- oil filters that have been removed from motor vehicles and/or equipment (“Used Oil Filters”), and empty the filter container at specified intervals.
  • Separator Service: Provide separator service cleanouts on an annual basis.
  • Compliance Services: Environmental, safety and health compliance services provided by Compliance Centre, Inc. and subject to terms and conditions found on Schedules A, B and C and Compliance Centre, Inc.’s website.
  • Price: One Monthly Service Fee, see Schedule B for pricing detail.
    
     

2.  Term.  The initial term of this Agreement shall commence on the date hereof and shall continue for a period of two (2) years, unless terminated earlier as provided for herein.  Simultaneously with the expiration of the initial term and each renewal term, if any, of this Agreement, the Agreement shall be automatically renewed for an additional two-year period unless either party has provided sixty (60) days prior written notice to the other that the term shall not so renew. During any renewal term, either party may cancel this Agreement with written notice of same delivered to the other no later than sixty (60) days after the end of the prior term.  Noble may cancel this Agreement and suspend or terminate service without prior notice and at any time if one or more of the following occurs: a) Generator fails timely to pay for any service provided by Noble; b) Generator allows a competitor to service the parts washers and/or used oil filter containers (individually and/or collectively, “Units”); c) Generator damages or attempts to lease, sell, encumber, or dispose of the Units; or d) the used oil, used anti-freeze, oil/water mixture, or other waste or waste stream does not meet Noble’s specifications and/or contains hazardous waste other than its original hazardous waste characterization, if any, provided to Noble.
   
    
3. Service Receipts.  Generator shall sign and deliver a Service Receipt on Noble’s standard form, which shall indicate the type of services provided, and for collection services, a certification as to the nature and quantities of materials collected from Generator’s site and indemnification of Noble in the event Generator’s certification is not accurate.  Noble’s services, and the Service Receipts, shall be governed by the terms and conditions of this Agreement.
4. Compensation.  The price that Noble will pay Generator for used oil shall be mutually agreed to on Schedule B or under separate document.
   
    
5. Invoices.  For providing the Services as identified by this Agreement, Generator shall remit to Noble the sum(s) specified on the Service Receipt(s) and/or Noble’s monthly invoices submitted to Generator.  If Generator selects Compliance Services as part of this Agreement, the amount invoiced shall also include the monthly amount due for Compliance Services that Compliance Centre provides to Generator.  All payments are due within thirty (30) days from date of invoice unless specified otherwise. Generator shall pay Noble interest on all sums from the due date until paid at the rate of one and one-half percent (1.5%) interest per month.  If Noble refers the account to an attorney for enforcement or collection, Generator shall pay Noble its reasonable attorneys’ fees and actual costs associated with the enforcement or collection, including through appeal.
   
    
6. IMPORTANT ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO NOBLE’S SERVICES: IMPORTANT ADDITIONAL TERMS AND CONDITIONS AGREED UPON BETWEEN NOBLE AND GENERATOR REGARDING NOBLE’S SERVICES ARE SET FORTH HERE AND ON NOBLE’S WEBSITE AT http://www.nobleoil.com/tc/ . BY EXECUTING THE FIRST PAGE OF THIS AGREEMENT, (A) GENERATOR AGREES TO ALL SUCH TERMS AND CONDITIONS, WHICH ARE HEREBY INCORPORATED BY REFERENCE AS IF SET FORTH VERBATIM HEREIN; AND (B) GENERATOR WARRANTS AND REPRESENTS TO NOBLE THAT GENERATOR HAS KNOWINGLY AGREED TO ALL SUCH TERMS AND CONDITIONS.  IN THE EVENT OF ANY CONFLICT, THE TERMS AND CONDITIONS ON NOBLE’S WEBSITE SHALL CONTROL OVER TERMS SET FORTH ON THIS PAGE.  IF THIS AGREEMENT AUTOMATICALLY RENEWS, THE TERMS AND CONDITIONS POSTED ON NOBLE’S WEBSITE AT THE TIME OF THE AUTOMATIC RENEWAL SHALL BE INCORPORATED BY REFERENCE INTO THIS AGREEMENT AS IF SET FORTH VERBATIM HEREIN.
   
    
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8. Parts Washer and Used-Oil Filter Containers. Generator agrees to exclusively use Noble for the service of the identified parts washers and used oil filter containers (individually and/or collectively, “Units”) throughout the term of this Agreement. At all times, Noble shall own the Units, and once the Units are at Generator’s site, Generator shall be solely responsible for damage to or loss of any Unit, normal wear and tear excepted.  Noble is authorized to enter Generator’s facility or other such location to recover any Unit, without a court order or other legal process, during or after the initial and/or renewal term(s) of this Agreement.
   
    
9. Collection of Used Oil and Used Anti-freeze. During the term of this Agreement, Generator shall exclusively use Noble for the collection of used oil and used anti-freeze. 
   1. Generator must monitor its tank(s) daily and notify Noble when tanks reach 80% capacity.  Noble shall not be responsible for overflows.  All collections are generally provided within five (5) business days or less from the time of notification. 
      
       
   2. Noble will make every effort to collect used oil and/or used anti-freeze on a scheduled date, however, regularly scheduled collections are not guaranteed.  Generator must inform Noble in advance of scheduled activities resulting in tanks filling faster than normal.  A minimum of 200 gallons of used oil and/or 100 gallons of used anti-freeze is required before a service call can be scheduled.  Requests for collection of lesser amounts may be subject to a per-stop fee payable at the time of service.  An out-of-route service charge, per incident, may be assessed in addition to other applicable charges in the event of service being needed prior to the scheduled service date.  If same-day emergency collections are required, a service charge may be assessed, per incident, in addition to other applicable charges.
      
       
   3. Generator must provide Noble trucks with at least 30 feet of clear access to tanks at the time of collection.  Failure to do so may, in the sole discretion of Noble, result in a skipped collection and/or an additional charge.  Tanks, drums, or other vessels must have a minimum opening of two (2) inches.  Used oil and used anti-freeze containers must be in good condition, free of leaks, and shall be labeled “USED OIL” and “USED ANTI-FREEZE,” respectively.  All spills must be cleaned up by Generator before service by Noble.
      
       
   4. Used oil must be free of other contaminants, contain less than 1000 PPM of total halogens, and have a flash point greater than 100°F. Generator shall not leave for collection mixtures of used oil and/or anti-freeze that are Hazardous Waste under applicable federal, state, and/or local laws, rules, or regulations. 
      
       
   5. Generator shall supply Noble with information through analysis, SDS, and/or generator’s knowledge, satisfactory to Noble, concerning the characteristics of any used oil, used anti-freeze, oil/water mixture or other waste (“waste stream”), which is reasonably necessary to provide for its safe and proper handling, and its proper and lawful disposal or recycling. 
      
       
   6. Generator warrants and represents that (i) no changes or modifications in or to that waste stream will occur without prior notification to Noble, with a representative sample of the new or modified waste stream submitted for pre-approval; and (ii) Generator has not mixed Hazardous Waste (as defined by applicable law) with the waste stream, or introduced constituents or components that would cause the waste stream to be considered a Hazardous Waste, or if the waste stream is already considered Hazardous Waste and Noble has previously been so notified, that would cause the waste stream to become hazardous for reasons other than its original Hazardous Waste characterization. 
   7. Title to used oil, and risk of loss regarding same, shall pass to Noble upon Noble’s collection of it at Generator’s facility. 
      
       
   8. Other than as expressly set forth in this Agreement, Generator shall have no right to any revenue, royalty or other compensation by reason of Noble’s collection, transportation, refinery or resale of any used oil, water/oil mix, used oil filter and/or used anti-freeze collected from Generator.
      
      
       
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11. Delegation.  Except as provided for in this Agreement, no obligation of a party under this Agreement shall be delegated to a third party without the prior written consent of the other party.
    
     
12. Assignment.  This Agreement shall not be assigned by either party without the prior written consent of the other party; provided, however, and notwithstanding the foregoing, a party shall be entitled to assign all of its right, title and interest in and to this Agreement to a wholly-owned affiliate under common ownership with the ultimate parent entity of such party without the prior consent of the other party.  A change in control of any party will be considered a permitted assignment by that party for purposes of this paragraph.  Any assignment other than in compliance with this paragraph shall be null and void.
    
     
13. Confidentiality. Generator shall hold as confidential the terms and conditions of this Agreement and shall not disclose any of them to any other person or entity except as required by law and with prior written notice to Noble.
    
     
14. Representations and Warranties.  Each person signing on behalf of a party to this Agreement warrants and represents that he/she is authorized to sign this Agreement on behalf of that party.  Each party represents and warrants to the other party as of the date of the Agreement that:
     
    1. such party has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
       
        
    2. the person signing on behalf of such party is duly authorized to execute this Agreement, and that no other signatures are necessary;
       
        
    3. such party is duly organized and validly existing under the applicable legal requirements of the jurisdiction of its incorporation or organization;
       
        
    4. such party has taken all action necessary to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement;
       
        
    5. this Agreement is a legal and valid obligation of such party, binding upon such party and enforceable against such party in accordance with the terms of this Agreement, except as enforcement may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles; and
       
        
    6. the execution, delivery and performance of this Agreement by such party does not conflict with, breach or create in any third party the right to accelerate, terminate or modify any agreement or instrument to which such party is a party or by which such party is bound, and does not violate any legal requirement of any governmental authority having authority over such party.
       
        
15. No waiver.  Any delay or failure by Noble to enforce its rights under this Agreement shall not prevent it from enforcing any rights at a later time.
    
     
16. Force Majeure.  If any party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no liability of the Claiming Party for an event or condition that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise Commercially Reasonable Efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (e) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.
    
    A “Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence.  A Force Majeure Event may include, provided that the conditions in (a) through (d) in the foregoing sentence are met, a failure or interruption of performance due to an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire or explosions.  Notwithstanding the foregoing, Force Majeure Event does not include the lack of economic resources of a Party.
    
     
17. Indemnity.  Generator shall fully defend (with an attorney reasonably approved by Noble), indemnify and hold harmless Noble and its shareholders, officers, directors, managers, employees, agents, successors and permitted assigns (individually, collectively and/or in any combination, the “Noble Indemnified Parties”) from and against any and all demands, claims, actions, causes of action, damages, losses, liabilities, fines, penalties, fees, costs and expenses, including without limitation reasonable attorneys’ fees (individually, collectively and/or in any combination, “Noble Liabilities”), arising out of or related to:  (i) any breach by Generator of any promise, warranty and/or representation set forth in this Agreement or (ii) any act or omission of Generator or its shareholders, officers, directors, managers, employees, agents, contractors, successors, and/or assignees during the term of this Agreement (individually, collectively and/or in any combination, “Generator’s Indemnification Obligations”).  In the event any of the Noble Indemnified Parties, without fault on its/his/her part, is made a party to any litigation commenced by or against Generator, Generator’s Indemnification Obligations shall also require Generator to fully defend, protect, indemnify and hold harmless the Noble Indemnified Parties, and Generator shall pay all costs, expenses and reasonable attorneys’ fees incurred or paid by the Noble Indemnified Parties in connection with such litigation, as well as any and all Noble Liabilities.  Generator’s Indemnification Obligations shall also require Generator to pay all costs, expenses and reasonable attorneys’ fees incurred or paid by the Noble Indemnified Parties in enforcing such covenants and agreements in this Agreement.  Generator’s Indemnification Obligations shall survive the expiration or termination of this Agreement (for whatever reason) with respect to any acts or omissions occurring prior to such expiration or termination that give rise to any Noble Liabilities, regardless of when such Noble Liabilities are asserted, incurred, assessed or imposed.
    
     
18. Cumulative Remedies.  Any remedies set forth in this Agreement shall be in addition to, and shall not be to the exclusion of, any other remedies available under law to the parties and, whether or not a termination or non-renewal is effected and notwithstanding anything contained in this Agreement to the contrary, all other remedies shall remain available to the parties as provided by law, except as may be specifically agreed to otherwise in this Agreement.
    
     
19. Attorneys’ Fees.  In any litigation between the parties arising out of or related to this Agreement, the non-prevailing party shall pay to the prevailing party all reasonable expenses and court costs, including but not limited to reasonable attorney’s fees, incurred by the prevailing Party.  A party shall be a prevailing party if (i) it initiates the litigation and substantially obtains the relief sought (either through a judgment, order or voluntary action), or (ii) the other party initiates the action and does not substantially obtain the relief sought (either through a judgment, order or voluntary action) or withdraws its action without substantially obtaining the relief it sought.
    
     
20. Binding Effect; Survival.  This Agreement and all of the terms, conditions, covenants and provisions hereof shall inure to the benefit of and be binding upon the respective legal representatives, successors and permitted assigns of the parties hereto.  The warranties and representations contained in this Agreement shall survive its expiration or termination.  Promises set forth in this Agreement shall survive its expiration or termination if the promise is expressly made to survive, or if the promise is of such a nature that the parties intended by implication that it would survive, the expiration or termination of this Agreement.
    
     
21. Partial Invalidity; Severability.  If any term, promise, covenant or condition of this Agreement is determined by a court of competent jurisdiction to be invalid, unenforceable and/or illegal to any extent, the remainder of this Agreement shall not be affected thereby and shall continue in effect and be enforceable to the fullest extent permitted by law so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.
    
     
22. Entire Agreement.   This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, and Generator warrants and represents to Noble that Generator has not relied on any prior negotiations, commitments, representation, understandings, agreements or promises, of any kind or nature whatsoever, either oral or written, which is not expressly set forth herein, and all such prior negotiations, commitments, representation, understandings, agreements and promises are merged herein.  Except as herein otherwise provided, no subsequent alteration, modification, amendment, change or addition to this Agreement shall be binding upon the parties unless reduced to writing and signed by both parties.
    
     
23. No Third-Party Beneficiaries.  Except as to persons and entities who are express third-party beneficiaries of this Agreement and/or persons entitled to be indemnified per this Agreement, nothing in this Agreement nor any action taken hereunder shall be construed to create any duty, liability or standard of care to any person or entity who is not a party, (b) no person or entity who is not a party shall have any rights or interest, direct or indirect, in this Agreement and (c) this Agreement is intended solely for the benefit of the parties, and the parties expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to this Agreement.
    
     
24. No Rule of Construction. No rule of construction shall apply to this Agreement which construes any language, whether ambiguous, unclear or otherwise, in favor of, or against any party by reason of that party’s role in drafting this Agreement.
    
     
25. Governing Law.  The internal substantive laws of the State of North Carolina (but not its conflict of laws principles) shall govern and apply to this Agreement such that all issues concerning this Agreement (including without limitation validity, enforceability, construction, interpretation, performance, breach and remedies) shall be decided under the internal substantive laws of the State of North Carolina.  Any and all claims, controversies and causes of action arising out of or related to this Agreement, whether sounding in contract, tort or statute, shall be governed by the laws of the State of North Carolina, including, without limitation, its statutes of limitations, without giving effect to any conflict-of-laws or other rule that would result in the application of the laws of a different jurisdiction.
    
     
26. Exclusive Forum and Consent to Personal Jurisdiction. The parties agree that the courts of the State of North Carolina shall be the exclusive judicial forums for the adjudication of all disputes between them arising out of or relating to this Agreement, and Noble and Generator each for itself consents to the exercise of personal jurisdiction over it in any such adjudication and hereby waive any and all objections and defenses to such personal jurisdiction regardless of the nature of such objection or defense.