between the hours of 8 A.M. and 8 P.M., Sulzberger shall have three (3) hours after oral notice thereof to him or to any of his employees to substitute or furnish such tractors or trailers in place of the ones in disrepair, and if any of such events shall happen between the hours of 8 P.M. and 8 A.M., Sulzberger shall have six (6) hours after oral notice to him or to any of his employees to furnish said tractors or trailers and to substitute or furnish other tractors or trailers in place of the ones in disrepair. Should Sulzberger fail so to furnish said tractors or trailers within the time provided for herein, Empire shall have the right to cause the load which was to be shipped by such tractors or trailers not so furnished or in disrepair, or to cause the load which was in the course of shipment upon the tractors or trailers becoming in disrepair, to be transported by any common carrier or contractor, or private carrier, and such part of the cost thereof which exceeds the sum which would have been payable to Sulzberger by virtue of the completion of such a trip shall be deducted from the sum due hereunder to Sulzberger.
'Ninth: The rent payable hereunder by Empire to Sulzberger, based upon the tonnage transported, as herein provided, less the deductions as herein provided, shall, for the first week of operation under this agreement, be payable on Saturday of the next following week, and payments thereafter shall continue to be made on Saturday of each week for the rental due for the preceding week. By this procedure Empire shall have seven days to compute the said rental due to Sulzberger before payment thereof shall be due and payable.
'Tenth: Sulzberger is given the right to establish a maximum weight for each load, such maximum, however, to be not less than thirteen tons, and Empire agrees not to load any more paper or paper products on said trailers at Stroudsburg above the established maximums. Sulzberger, however, shall have the full and sole responsibility in the event that any of the said trailers are at any time overloaded. Sulzberger agrees to pay all fines and penalties imposed by any governmental authority, court or justice of the peace, for any reason whatsoever, including fines for overloading. Sulzberger also agrees to procure and keep in force, at his own expense, all tractor and trailer licenses which may be necessary for the continued operation of said tractors and trailers. Empire agrees that so far as possible, when materials therefor shall be available, to load each trailer to full visible capacity on each trip.
'Eleventh: Empire agrees to provide to Sulzberger a bill of lading with each load and to maintain accurate records of the amount of freight transported by the tractors and trailers so furnished by Sulzberger and to make available to Sulzberger duplicates thereof.
'Thirteenth: Sulzberger agrees to maintain in force and effect, at its own cost and expense, such cargo insurance and fire, theft and collision insurance upon the tractors and trailers as Empire may deem necessary.
'Seventeenth: It is mutually agreed that the rate of Two Dollars and Fifty Cents ($ 2.50) per ton shall be tied in with labor costs involved herein. At the date hereof, the chauffeurs are not unionized. Sulzberger calculates the present cost of labor for each trip contemplated by this agreement to be as follows:
'$ 10. for one 'over the road' man;
'$ 5. for a local man;
'$ 2. for a dispatch man;
making a total of Seventeen Dollars ($ 17) per round trip. If said chauffeurs are unionized after this contract has become effective, resulting in increased labor costs, the rate per ton shall be increased from Two Dollars and Fifty Cents ($ 2.50) in accordance with the formula hereinafter mentioned in this paragraph. Regardless of the unionization of the chauffeurs, at the end of the second full year of this contract, the parties agree to re-examine the rate per ton in the light of the then existing labor costs. If at that time the labor costs shall exceed present labor costs, the rate per ton to be paid by Empire shall be increased in proportion to the increased labor costs as the same relates to the average round trip revenue. For example, if the average round trip shall consist of twenty tons of paper products at $ 2.50 per ton, thus producing a round trip revenue of $ 50, and the present labor cost per round trip is $ 17, the present percentage of labor cost is 34%. In the event that the labor cost per round trip, by reason of unionization during the first two years, or thereafter for any reason, shall be increased to $ 20 per round trip, the percentage of labor cost per round trip revenue will then be 40%, or an increase of 6%. In such event the rate of $ 2.50 per ton shall be increased 6%, or $ .15 per ton, to a new rate of $ 2.65 per ton. In the event that labor costs at the end of the two year period shall be less than at the inception of the contract, a decrease in the rate per ton shall be calculated on the same basis. In the event that by reason of increased tonnage there is a reduction in the labor cost of Sulzberger, that is to say, in the salaries of dispatcher or a reduction of the use of a 'local man', the full savings thereof are to be credited to Empire. After the adjustment, if any, at the second anniversary of this contract, the parties agree to adjust the rate in accordance with the above formula on each anniversary date for the full five year term of this contract.
'Twentieth: The obligations and duties of Sulzberger hereunder, including those of keeping and maintaining the tractors and trailers herein leased by Empire from Sulzberger in good operating condition and repair, are personal to Sulzberger and this contract may not be assigned by Sulzberger.'
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