marine terminal services agreement port of houston authority

MARINE TERMINAL SERVICEAGREEMENT 201195PORT OF HOUSTON AUTHORITY ANDCIA SUDAMERICANA DE VAPORES S.A.Event of Default shall not include entitlement to punitive, indirect, or consequentialdamages.9. Payments by Carrier. Upon an Event ofDefault resulting from the failure ofCarrierto perform, comply with, or observe its agreements, obligations, and undertakings in Sections5 and 6 ofthis Agreement, and the continuance ofsuch failure for a period ofthirty(30) daysafter written notice from PHA to Carrier specifying the failure, Carrier shall pay and refundto the PHA the total amount ofthe Commitment Discount provided to Carrier for those five(5) years of the term during which Carrier's Container Volume was the highest, or suchshorter period during which this Agreement has been in effect. Carrier understands andagrees that the exact amount ofdamages to the PHA as a result ofan Event ofDefault underSections 5 and 6 hereofis and will be difficult to determine. PHA and Carrier recognize thedelays, expense, and difficulties involved in proving the actual loss suffered by the PHAupon such Event ofDefault. Accordingly, instead ofrequiring any such proof, the PHA andthe Carrier agree that as liquidated damages (but not as a penalty), the Carrier shall pay suchamount. The Carrier agrees that such amount is a fair and reasonable estimate ofthe amountofdamages the PHA will incur upon an Event ofDefault under Sections 5 and 6 hereof. TheCarrier specially binds and obligates itself to pay such damages to the PHA. No statute oflimitation or other time bar limitation shall apply to the obligations and liability under thisSection 9 and Carrier hereby waives the same and similar defenses with respect to suchobligations and liability.10. Filing. Upon the Effective Date, PHA shall file this Agreement with the FederalMaritime Commission, as provided for in Section 5 of the Shipping Act (46 App. U.S.c.§1704).11. Force Majeure.a. In the event that PHA's premises are damaged or destroyed by acts of Godincluding but not limited to flood, earthquake, volcanic eruption, tidal wave, windstorm, hail,or should they be seized, or operation of or full utilization thereof be suspended, abated,prevented or impaired by reason ofwar, warlike operations, acts ofterrorism, governmentaldecree, strikes, or other labor disputes, lockouts or other work stoppages (provided such arebona fide labor / management disputes) or by reason of any other condition beyond thecontrol of the parties (but excluding the failure of either party to pay amounts owinghereunder or to third parties when due), so as to render the premises wholly or partiallyuntenable or unfit for use, PHA's obligations hereunder and the Carrier's Cargo Commitmentin Section 5 hereof shall be reduced on a pro-rata basis commensurate with the period offorce majeure.b. In the event of any of the aforementioned force majeure events affectingCarrier's operations, including without limitation a seamen's strike, which prevents orimpairs the movement of vessels, containers, or cargo by Carrier to the Terminal Region,upon written notification from the Carrier to PHA indicating the effective date ofsuch forcePage 9