PLAZA
FUELING AGENTS,
INCORPORATED
________________________________________________________________________
GENERAL
TERMS AND CONDITIONS FOR PETROLEUM PRODUCTS SALES January 2007
SCOPE
1. Application of Terms and
Conditions for
These General
Terms and Conditions are deemed incorporated in each Sales Confirmation of a
Marine Fuel Sales Agreement (the "Sales Confirmation "; each such
Sales Confirmation, together with these General Terms and Conditions, an
"Agreement"), which refers to the Plaza Fueling Agents, Incorporated
General Terms and Conditions for Petroleum Products Sales Agreements. In the event of any discrepancy between these
General Terms and Conditions and the terms of the Sales Confirmation (such
other terms being included in the Sales Confirmation), the terms of the Sales
Confirmation will control. References to "Party" under these General
Terms and Conditions means either Plaza Fueling Agents, Incorporated, as
"Agents", ”Buyer" or
"Seller" as that part is defined in the Sales Confirmation, and
references to "Parties" means both Agents, Buyer and Seller. These items and conditions, including any
revisions at the date of delivery contracts between the Buyer and Agents. Each delivery shall be a separate contract of
sale.
2. Appointment of Agents
(a) With
effect from the day and year stated above and continuing unless and until
terminated as provided herein, Buyer hereby appoints Agents and Agents hereby agree to act as agents for fuel
acquisition.
(b) Agents
undertakes to use their best endeavors to provide the services on behalf of
Buyer in accordance with sound management practice and to protect and promote
the interests of Buyer in all matters relating to the providing of services
hereunder. Provided, however that Agents in the performance of
their management responsibilities under this Agreement shall be entitled to
have absolute authority in regard to their overall responsibility in relation
to all vessels as may from time to time
be entrusted to their management and in particular, but without prejudice to
the generity of the foregoing, Agents shall be entitled to allocate available
supplies, and services in such manner as in the prevailing circumstances Agents in their absolute discretion consider
to be fair and reasonable.
PRICE
3. Price
(a) All prices quoted are in U.S. Dollars and
are exclusive of duties, taxes, barging, trucking, tariffs, wharfage fees, toll
fees, import charges of other exaction on the amount equivalent thereto, now or
hereafter imposed, levied, or assessed by any governmental authority upon,
measured by, incident to or as a result of any transaction in connection with
the transportation, importation, production, manufacture, use or ownership of
the goods or source materials herein concerned.
Any such amounts shall, if collectable or payable by Agents, be paid by
the Buyer on demand in addition to the prices otherwise quoted.
(b) The
Buyer shall be liable for any expenses incurred by the Agents resulting from
the Buyer’s representative rejecting in part or in full any quantity ordered by
Buyer.
(c) Buyer and Agents must agree on the price
before there is any obligation to see or buy the Product which Agents have
available. Agents reserves the right to
cancel the contract or negotiate a new price if the quantity required increases
or decreases more than 10%, if the quality or required specifications change,
or if the Receiving Vessel’s anticipated arrival date is delayed.
4. Agreement
(a) Unless
otherwise agreed by Agents, the Buyer
shall give Agents at least 7 days notice of the delivery required. At least 48-eight (48) hours (Sundays and
holidays excepted) before Buyer requires delivery of the Product (as defined in
the Agreement) under the Agreement, Buyer shall provide and offer to Agents
that includes, in addition to Buyer's name and address: (I) the name and
location of the vessel designated by Buyer to receive delivery of the Product
("Receiving Vessel"), (ii) the approximate time of tendering and
requested method of delivery, (iii) the type, quantity and specification of the
Product, and (iv) any other necessary information. Upon Agent's delivery to Buyer of Agents' written confirmation of acceptance of Buyer's
offer, Agents shall on behalf of Buyer
effect the sale and delivery from the Seller, and Buyer shall purchase and
accept delivery of the Product on the terms specified in the Agreement.
(b)
Agent's acceptance of Buyer's offer
to purchase the Product is conditioned upon Buyer's agreement to the express
terms and conditions contained in the Agreement, including, without limitation,
those contained in these General Terms and Conditions. Any proposal for additional or different terms or any other attempt by Buyer to vary
in any degree any of the terms of the Agreement in Buyer's purchase order,
acknowledgement, confirmation or other offer document submitted to Agents in
conjunction with the Agreement is hereby objected to and rejected by Agents and
Buyer's offer is deemed accepted by Agents without any such additional or
different terms. Buyer's objection to
any terms and conditions of the Agreement shall be deemed to have been waived
if written notice of such objection is not received by Agents within forty-eight
(48) hours after the date of the Sales Confirmation, or before Agents has
caused delivery of the Product, whichever occurs first.
(c) Wherever logical in connection with vessel
operations or performance under the
Agreement, the Receiving Vessel also includes the Receiving Vessel's owner(s),
operator(s), captain or master, pilot(s), tankermen, other officers, and crew,
line handlers and agents. If Agents
effects the purchase of the Product on behalf of an undisclosed principal, as
Buyer, the undisclosed principal, as
Buyer and Buyer will be jointly and severally responsible for all obligations
under the Agreement, including, without limitation, payment for the Product
delivered.
5. Delivery Terms
(a) The
Product will be delivered by Agents on an "FOB, Place of Shipment"
basis (as defined in Section 2-319 of the Uniform Commercial Code, as adopted
in the State of New Jersey ("UCC")) at Agent's shore terminal to
Buyer's vessel, barge, truck, or other mode of transportation ("Delivery
Equipment") to the Receiving Vessel.
Delivery by Seller to Buyer's Delivery Equipment will be to tank trucks, barges or marine vessels owned, leased, hired
or arranged for by Buyer. Delivery of the Product to the Receiving Vessel
by Delivery Equipment arranged for by Agents is an accommodation by Agents
(Accommodation Delivery).
Notwithstanding delivery of the Product "FOB, Place of
Shipment," all expenses relating to the Accommodation Delivery of the
Product to the Receiving Vessel will be invoiced separately and are for the
account of and paid by Buyer.
(b) The
price and charges referred to in the Agreement do not include any insurance
against the risk of loss or damage to (I) Agents' property or (ii) to the
property of Agents' supply port. It is
expressly understood and agreed that Buyer will carry its’ own insurance at
its’ own expense for the protection of Agents and the Product and property and
to the property of Agents' supply port.
All vessels, barges, trucks, or
other modes of transportation selected by the Buyer to enter Agents'
property and Agents' supply port shall
maintain insurance coverage with reputable insurance companies licensed to do
business in the State where Agents' supply port is located at no cost to Agents
with policy limits of at least $1,000,000 per occurrence. During the term of the Agreement, Buyer shall
name Agents as an additional insured on Buyers Marine Comprehensive Liability
policy, a certificate of insurance will be provided to this effect.
6. Title - Risk of Loss
(a)
All deliveries on an "FOB, Place
of Shipment" basis to Buyer’s vessels or tank trucks shall be deemed to be
complete and title and risk of loss shall pass to Buyer when the Product passes the flange connecting
Seller's delivery hose or pipe with the Receiving Vessel's intake hose
connection.
(b) All
Accommodation Deliveries to Buyer by Agents are on an "FOB, Place of
Shipment" basis by barge or tank truck to Buyer’s Receiving Vessel and
shall be deemed to be complete and title and risk of loss shall pass to Buyer
when the Product passes the flange connecting the Seller's delivery hose or
pipe with the Delivery Equipment's intake hose connection.
(c) Seller warrants title to the Product
delivered under the Agreement, free and clear of all security interests, liens,
claims, charges or encumbrances.
(d) At no time shall title or risk of loss to
the Product pass to Agents directly, indirectly or to Agents acting on behalf
of Buyer.
7. Delivery Procedures
(a) With
respect to any delivery of Product "FOB, Place of Shipment" shall be
made during normal working hours on normal working days at Agents' supply
port. If the Buyer requires delivery or
causes delivery to be made at any other than during such periods, then the Buyer shall pay to Agents' any additional
expenses or costs incurred by Agents or
Seller supplier as a result of such delivery.
(b) With
respect to any delivery of Product "FOB, Place of Shipment," the
Buyer shall give Agents written notice at least forty-eight (48) hours prior to
the delivery date of the estimated time(s) on such date when the Receiving
Vessel will be ready to receive the Product purchased by the Buyer, in such
notice the Buyer shall, if necessary, advise Agents of any special condition, peculiarity,
deficiency or defect of or with respect to the Receiving Vessel or its
equipment which might delay, hinder or otherwise affect the mooring, unmooring
or bunkering of the Receiving Vessel. If
the Buyer fails to provide this notice and the Receiving Vessel for whatever
reason is unable or refuses to accept delivery on the delivery date, or if the
Buyer provided such notice but requests an extension to the delivery date of
more than twenty-four (24) hours after twelve (12) noon on such date, then
Agents, at its option, deliver the Product to the Receiving Vessel at the
requested new delivery time on the best efforts basis, suspend delivery subject
to the Buyer’s agreement to a new price for the Product, or cancel the delivery
altogether, with or without prejudice to Agents' rights under the Agreement.
(c) With
respect to any delivery of Product "FOB, Place of Shipment," the
Buyer shall make all connections and disconnections between Seller's delivery
hose and the Receiving Vessel’s intake pipe, and shall render all necessary and
reasonable assistance and provide sufficient tankage and equipment to receive
all deliveries of Product supplied under the Agreement. All mooring charges and port dues, if any
shall be paid by the Buyer.
(e) With
respect to any Accommodation Delivery of Product "FOB, Place of
Destination," the Buyer shall make all connections and disconnections
between the Delivery Equipment's delivery hose and the Receiving Vessel’s
intake pipe, and shall render all necessary and reasonable assistance and provide
sufficient tankage and equipment to receive all deliveries of Product supplied
under the Agreement. All mooring charges
and port dues, if any shall be paid by the Buyer.
(f) If a delivery permit is required from any
government authority or any instrumentally thereof, or from any public or
private port authority. for any delivery of Product hereunder, then the Buyer
shall be responsible for obtaining it.
No deliveries shall be
made until such time as the Buyer has obtained all required delivery
permits.
(g)
The Buyer shall reimburse Agents for
overtime and/or other additional expenses incurred due to the failure of the
Buyer, its servants, or Receiving Vessel’s local agents to provide agents with
sufficient prior notice of amendments of delivery time, quantity changes or
cancellations. If such failure by the
Buyer to provide Agents with sufficient
prior notice of amendments of delivery time, quantity changes or cancellations
occurs then Agents may, at its option, deliver the Product to the Receiving
Vessel at the requested new delivery time on the best efforts basis, suspend
delivery subject to the Buyer's agreement to a new price for the Product, or
cancel the delivery altogether, with or without prejudice to Seller’s rights
under this Agreement.
(d) With respect to any Accommodation Delivery
of Product to Buyer by Agents "FOB, Place of Shipment," the Buyer,
upon arrival of the Delivery Equipment, must immediately provide, in the case
of delivery by vessel or barge, a berth to which the vessel or barge may safely
proceed or from which it may depart, and where the vessel or barge may lie
safely afloat or, if delivered by truck, shore access along side the Receiving
Vessel. Agents, Seller or the carrier
may postpone or cancel delivery of the Product if either should determine that
clear and safe berth or shore access to the Receiving Vessel is not available or for any other reason,
delivery of the Product would be unsafe or inadvisable.
8. Delays
Agents shall not
be liable for any demurrage or loss incurred by the Buyer due to congestion
affecting Agents' supply port or to the prior commitment of bunkering barge, or
for any other reasons.
9. Holidays
Where agreements
with employees’ organizations sappily, Agents shall not be liable for
inability, as a consequence, to deliver on public, customary or dock holidays.
10. Rejection
If the Receiving
Vessel remains in the port where the Product is delivered, Buyer has fort-eight
(48) hours after delivery of the Product to inspect and either accept or reject
the Product. If Buyer (I) retains the
Product for period of forty-eight (48) hours after receipt without reject it,
(ii) after delivery of the Product uses or commingles it with other products,
or (iii) the Receiving Vessel leaves the delivery port before the aforesaid
forth-eight (48) hour period without rejecting delivery of the product, then
Buyer will be deemed to have accepted delivery of the Product. If Buyer intends to reject the Product, notice
must be given to Agents by telephone (followed by written confirmation, that
will arrive no later than seventy-two (72) hours after discovery of the defect
or nonconformity in the Product, fully specifying all claimed defects and
nonconformity). Buyer may not reject
shipments that involve Product shortages that are acceptable under normal
commercial practice.
11. Installments
Unless provided
otherwise in the Sales Confirmation, each delivery of the Product is deemed to
constitute a single contract. Time is of
the essence under the Agreement and if Agents is authorized in the Sales
Confirmation to deliver the total quantity of the Product in separate lots,
amounts or installments (each an "Installment") at different times
during the term of the Agreement and Buyer fails to take delivery of any such
Installment, in whole or in part, at the time it is to be delivered, such
default in taking delivery with respect to such Installment is deemed to impair
the value of the whole Agreement and Agents may consider such default a breach
of the Agreement and provide Buyer written notice thereof.
12. Measurement of Quantity and
Quantity Claims
(a) The quantity of Product delivered under the
Agreement shall be made by Seller using either gauging or meter readings of
shore tanks, delivery vessels, barges, trucks or pipeline as applicable, based
upon delivery method. All measurements
and gauging under the Agreement shall be made in accordance with the latest
approved methods of the American Petroleum Institute ("API") at the
time such measurements are made and in accordance with the American Society for
Testing and Materials ("ASTM") petroleum measurement tables. Seller’s measurement of the Product delivered
shall be accepted as conclusive, absent fraud or manifest error. Buyer is at liberty to be represented at the
measuring of the Product delivered..
(b) Claims with regard to the failure of Agents
to deliver all or part of the agreed upon volume of the Product not rejected by
Buyer must be made by Buyer to Agents or its representative at the time of delivery by noting such claims
on the Bunker Certificate and formally confirming such claims to Agents within
fourteen (14) days from the date of delivery.
If any claim is not made in accordance with the foregoing procedure, it
will be deemed waived by Buyer. Volume
determination shall be made in accordance with Section 11.(a) above and any
claims based upon measurements taken by the Receiving Vessel will not be
accepted.
13. Delivery Documentation
Upon Seller's
tender of the Product, qualified personnel of the Receiving Vessel must sign a
Letter of Introduction and a Declaration of Inspection letter provided by
Seller or its carrier before the Product will be delivered. Upon completion of delivery of the Product
and prior to disconnecting the transfer hose, an authorized officer of the
Receiving Vessel must sign and will be provided a copy of a Bunker Certificate
on behalf of Buyer that shall identify, among other things, the identity and
volume of the Product delivered. Except
as provided in Section 11.(b), the Bunker Certificate may not be altered in any
way.
PRODUCT QUALITY AND WARRANTIES
14. Specifications
Agents warrants
that the Product delivered under the Agreement meets the specifications for the
Product, which are setforth in the Sales Confirmation, subject to variance for
repeatability or reproducibility, or as otherwise accepted by Buyer or its
representative upon execution of the Letter of Introduction. Any conflict between the specifications set
forth in the Sales Confirmation, or as may otherwise be accepted by Buyer or
its representative upon execution of the Letter of Introduction and any
applicable law, will be resolved in favor of the former. It being the
responsibility of the Buyer to purchase any volume of the Product which comply
with the foregoing specifications.
15. Samples
Agents, Seller or
an authorized representative will collect four (4) samples of the Product
delivered. Three (3) of such samples
shall be collected for quality purposes and the fourth sample shall be referred
to as the MARPOL control sample. One
quality sample and the MARPOL control sample shall be given to the master of
the vessel receiving the Product and the other two quality samples shall be
retained by Agents or Seller. All
samples shall be labeled, sealed and signed by Seller or its authorized
representative.
16. Disclaimer
(a) Notwithstanding anything in these Terms and
Conditions to the contrary, Agents makes no representations or guarantees
pertaining to product quality, composition, characteristics, environmental or
human safety or hazard or health effects or like matters.
(b) Whilst
the Agents warrants that each grade of Marine Fuel supplied hereunder shall be
merchantable quality, there is no implied condition or warranty that the Marine
Fuel supplied hereunder shall be reasonably fit or suitable for the purpose
intended by the Buyer.
(c) AGENTS MAKES NO OTHER WARRANTIES, EXPRESS
OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR MERCHANTABILITY, OR
THAT THE PRODUCT DELIVERED UNDER THE AGREEMENT IS FIT FOR A PARTICULAR PURPOSE,
EVEN IF KNOWN TO AGENTS.
17. Quality Claims
All claims
regarding the quality of the Product delivered and not rejected by Buyer must
be submitted to Agents in writing not later than fourteen (14) days after the
date of delivery and any claim that is not received by Agents within the
aforesaid period will be deemed waived by Buyer. Buyer's written notice regarding a quality
clam must include all necessary information for Agents to evaluate Buyer's
claim, including without limitation, any and all analyses made by Buyer of the
samples provided to the Receiving Vessel pursuant to Section 14. above. Resolution of all claims with regard to the
quality of the Product delivered shall be based upon tests of the sample or
samples retained by the Agents or Seller pursuant to Section 14. above such tests to be made as soon as practicable
by an independent laboratory mutually acceptable to the Parties. If the Parties are unable to agree upon an
independent laboratory to conduct the tests, Agents may select one. The non-prevailing Party in any Product
quality dispute will pay the costs for the laboratory analysis of the Product
samples. Any claims based on samples
other than those taken by Agents or Seller pursuant to Section 14. Above will
not be accepted. Buyer shall preserve
and make available for inspection And testing by Agents, any parts allegedly
damaged by the Product and shall make the Receiving Vessel available for
inspection by Agents or its representative within a reasonable period after
Agents' receipt of Buyer's notice of claim.
Buyer shall also provide Agents with immediate access to the original
Receiving Vessel's logs, computer records, and other pertinent communications
and documents for review and copying.
Agents shall not be responsible to Buyer for any claim arising from the
commingling of the Product with other products or materials by the Receiving
Vessel.
TAXES
18. Liability, Payment and Exemption
(a) Buyer
shall be liable for any and all federal, state or local sales, use, gross
receipts, consumption, environmental, spill fund, pollution, or other similar
taxes (including income taxes), fees or charges that may arise from, be levied upon, or imposed with respect to the sale or
delivery or the Product under the Agreement, (collectively, the
"Taxes"), whether such taxes, fees or charges are in effect on the
date of the Agreement, or are made effective (or are increased) after the date
of the Agreement. Buyer agrees to indemnify,
defend and hold Agents harmless from and against the payment of, or liability for, any and all Taxes. Such indemnification obligation shall survive
termination of the Agreement. Buyer
agrees to provide Agents with any exemption certificate and any other necessary
information to allow Agents to make proper and timely payments and to file
required returns for Taxes. Any Taxes
for the account of Buyer shall be in addition to the price of the Product. Notwithstanding the fact that Taxes for which
Buyer assumes responsibility may be collectible from a person other than Buyer,
Buyer, upon Agents' demand, shall nonetheless be responsible and pay, or cause
to be paid, such Taxes.
(b) Not
withstanding Section 17. (a), Agents shall be liable for the payment of all
taxes on Agents' income and for the privilege of doing business and exercising
a franchise in the state in which the Product is delivered.
PAYMENTS
19. Payments Terms
(a) Buyer shall pay Agents for the Product
delivered at the price and in accordance with the instructions set forth in the
Sales Confirmation. In the absence of
such payment instructions in the Sales Confirmation, Buyer shall pay Agents for
the Product delivered under the Agreement without discount, offset or deduction
shall be made in U.S. Dollars within thirty (30) days after the date of
delivery, notwithstanding any disputes or claims, and Buyer's payment shall be
made by electronic wire transfer of immediately available Federal funds, by
Automated Clearing House (ACH) transfer, to Agents' designated bank account as
indicated on Agents invoice to Buyer, unless alternative means of payment is
mutually agreed upon between Agents and Buyer.
Payment shall be due and shall be made by means of telegraphic transfer
quoting Agents’ invoice number and the Buyer’s name to the bank stated on
Agents' invoice for the account of Plaza Fueling Agents on or before the due
date set forth in Agents' invoice.
(b) Agents'
invoice (which may be sent by fax, telex or telegraph) shall be based on
telegraphic, telex or other advise of the quantity delivered and of other
charges if incurred, and payment made pursuant to 18. (a) above shall be
subject to such subsequent adjustment as may be necessary on receipt by Agents
of further details or as may be agreed by the parties to be necessary after
detailed checking of the invoice.
(c) Late payments shall accrue interest from the
due date until receipt of payment at a rate equal to the lesser of The Buyer
shall pay interest from the due date of any invoice to the payment thereof at
(I) the higher of the rate of one and one-half percent (1and 1/2%) per month,
or (ii) the maximum amount by law. Buyer
agrees to pay all of Agents' costs
(including attorney's fees and courts costs) of collecting past due payments
and late payment charges.
(d) If payment fall on a non-business day, then
payment shall be made on or before the nearest business day to the due
date. If the next preceding and next
succeeding business days are equally near the due date, then payment shall be
made on or before the next preceding business day.
(e) Without
prejudice to any other rights of Agents, Agents may apply and offset, in
satisfaction of any obligation owing under the Agreement by Buyer, any sums
that may then be, or thereafter become, due and owing from Agents to Buyer
under any other agreement between the Parties.
(f) If
payment has been made by Buyer in advance of delivery of Product, the payment
amount shall be adjusted based upon actual delivered volumes of the Product
identified on the Bunker Certificate.
Any additional payment due from or credit to Buyer shall be made within
thirty (30) days of the date of delivery of the Product.
20. Financial Responsibility and
Credit
(a)
(b) Agents
will have and may asset any and all maritime liens available to it against the
Receiving Vessel, wherever found, for the full amount of the delivered price of
the Product supplied to such Receiving Vessel by Agents, plus accrued interest
and collection costs and other obligations incurred by the Buyer hereunder.
(c) If the
Buyer in any way breaches the Agreement, defaults in the payment of any
indebtedness to Agents (whether arising out of the Agreement or otherwise) or becomes bankrupt or insolvent, or if
Agents at any time considers the financial condition of the Buyer to be
unsatisfactory, Agents may, in addition to any other rights and remedies it may
have, cancel or suspend deliveries hereunder until such time as the Buyer
remedies such beach or default and/or provides suitable additional security and
or guarantee acceptable to Agents.
(d) The Buyer is presumed to have this authority to
encumber the Receiving Vessel pursuant to 46 U.S.C. 971 through 976 and the
General Maritime Law. In all sales, and in addition to any other
rights which it may have, Agents holds the Receiving Vessel responsible for satisfaction of the purchase
price. Any notice to the contrary, in
order to be effective, must be expressed in writing, served upon and agreed to
by Agents a minimum of forty-eight (48) hours before the fuel, service or
product is delivered to the Receiving Vessel.
(e) In
all sales, the Receiving Vessel is deemed to be responsible for satisfaction of
the purchase price. Agents does not
waive but, rather expressly reserves, all rights afforded pursuant to U.S.C.
971 through 976 and the General Maritime Law.
Any stamp, letter, telex, document or agreement, whether written or
oral, which purports to be such a waiver, shall not be valid.
(f) Notice in writing, via
fax, telex, registered airmail or cable to Agents: Plaza Fueling Agents, Incorporated
300
(g) If
at any time Buyer's Outstanding Indebtedness (as defined below) exceeds the Credit Limit then in effect for
Buyer, Buyer must reduce the Outstanding Indebtedness due Agents to an amount
that is less than the Credit Limit then in effect for Buyer by taking any one
of the following actions:
(i) Pay
Agents all or a portion of the Outstanding Indebtedness such that the remaining
balance of the Outstanding Indebtedness is less that the Credit Limit, or
(ii) Provide Agents a letter of credit in a form
and substance and from a first-class bank reasonably acceptable to Agents, pursuant
to which Agents shall be permitted to draw down an amount that is not less than
the amount by which the Outstanding Indebtedness exceeds the Credit Limit.
(h) For
the purposes of this Section 20., "Outstanding Indebtedness" means,
as of any day during the term of the Agreement, all amounts due or which will
become due to Agents under all Agreements between Agents and Buyer, including,
without limitation, the Agreement, where delivery of, but no payment for, the
Product has been made.
(1) If
Buyer fails to: (I) pay Agents for any
amount when due (whether or not such failure has subsequently been cured), or
(ii) otherwise comply with the terms of the Agreement, then in addition to
ceasing to deliver Product under the Agreement, and regardless of any payment
terms then in effect for Buyer, Agents may declare all the Outstanding
Indebtedness to be immediately due and payable and terminate the Agreement.
(j) If
Agents determines that the financial condition of Buyer has become impaired or
unsatisfactory, Agents at its sole option, may require Buyer to provide Agents
adequate assurances of performance.
Agents' requirement for adequate assurances may include modification of
the credit terms of the Agreement, in which case Agents may require buyer
to: (I) prepay by wire transfer the full
estimated invoice amount under the Agreement at least one (1) business day
prior to the Product delivery date, (ii) post at least two (2) business days
prior to the Product delivery date and irrevocable, standby letter of credit,
in form and substance reasonably acceptable to Agents, issued or confirmed by a
first class bank reasonably acceptable to Agents in an amount sufficient to cover the full
estimated invoice amount under the Agreement or (iii) deliver to Agents at least two (2) business
days prior to the Product delivery date a parent company guaranty in form and
substance reasonably acceptable to Agents for the prompt payment, when due, of
any and all present or future indebtedness of Buyer as a result of any sale of
the Product under the Agreement. Any
such modification of the credit terms shall be effective immediately upon
Agents' written notice thereof to Buyer. The exercise by
Agents of any right under this Section 20. (j) is without prejudice to any
claim for damages, or any other right Agents may have at law or equity.
DAMAGES
21. Liquidated Damages
In the event
Buyer defaults in its obligation to take delivery of the Product under the
Agreement, in whole or in part, Agents, in lieu of seeking other damages or
remedies under the Agreement or at law or equity, may require Buyer to pay
liquidated damages in full and final settlement of all Agents' claims against
Buyer arising from Buyer's breach of the Agreement in the amount equal to the
greater of $5,000.00 or ten-percent (10%) of the total dollar amount of the
volume of the Product to be delivered under the Agreement. Upon Buyer's payment of such liquidated
damages to Agents, Buyer shall have no further obligation to Agents and Agents
agrees to release Buyer with regard to such claims. Both parties acknowledge that it would be
impracticable or difficult to determine the actual amount of damages that could
arise out of Buyer's breach of the Agreement and that the liquidated damages are
a reasonable estimate of what such damages could be and are not a penalty.
FORCE MAJURE
22. Force Majeure
(a) Neither the Buyer nor Agents nor its
Supplier shall be responsible for damages caused by delays, failure to perform
in whole or in part any obligation hereunder (other than the payment of money),
or noncompliance with any of the terms hereof when such delay, failure or
noncompliance is due to or results from causes beyond the reasonable control of
the affected party, including, without limitation, acts of God, fires, floods
perils of the sea, war (declared or undeclared), embargoes, accidents,
strikes, labor disputes, failure or shortage of vessel or barge service
normally available to Agents or its Supplier, to breakdown of or damage to, or shortage
in facilities used for production, refining or transportation of Product, acts
in compliance with requests of any governmental authority or person purporting
to act therefor, or any other similar causes.
The expression "or any other similar causes" is deemed to
include, without limitation, the failure, cessation, termination or curtailment
of any of the existing or contemplated sources of Product of Agents. Neither Party shall be required to settle any
labor dispute against its will. Agents
shall not be required to make up any delivery, and Buyer shall no be liable to
accept any deliveries of the Product excused due to any event of force majeure. Notwithstanding the provisions of this
Article , the Buyer shall not relieved
of any obligation to make payments for all sums due hereunder.
(b) The excuse for performance provided to
either party under this Section 15 is in addition to and not in lieu of the
excuse for performance that may be provided to either Party under Section 2-615
of the UCC.
LIMITATION OF LIABILITY, ACTIONS AND ATTORNEY FEES
23.