PLAZA
MARINE,
INCORPORATED
________________________________________________________________________
GENERAL
TERMS AND CONDITIONS FOR PETROLEUM PRODUCTS SALES AGREEMENTS 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 Marine, 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 Marine Incorporated, as
"Seller" or ”Buyer" as that part is defined in the Sales
Confirmation, and references to "Parties" means both Seller and
Buyer. These items and conditions,
including any revisions at the date of delivery contracts between the Buyer and
the Seller. Each delivery shall be a
separate contract of sale.
PRICE
2. 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 the Seller, 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 Seller resulting from
the Buyer’s representative rejecting in part or in full any quantity ordered by
Buyer.
(c) Buyer and Seller must agree on the price
before there is any obligation to see or buy the product which the seller has
available. Seller 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 Vessel’s anticipated arrival date is delayed.
3. Agreement
(a) Unless
otherwise agreed by the Seller, the Buyer shall give the Seller 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 Seller 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 Seller's delivery to
Buyer of Seller's written confirmation of acceptance of Buyer's offer, Seller
shall sell and deliver, and Buyer shall purchase and accept delivery of the
product on the terms specified in the Agreement.
(b)
Seller'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 Seller in conjunction with
the Agreement is hereby objected to and rejected by Seller and Buyer's offer is
deemed accepted by the Seller 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 Seller within forty-eight (48) hours after the
date of the Sales Confirmation, or before Seller has delivered 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 an agent
purchases the Product on behalf of an undisclosed principal, as Buyer, the
agent and Buyer will be jointly and severally
responsible for all obligations under the Agreement, including, without
limitation, payment for the Product delivered.
4. Delivery Terms
(a) The
Product will be delivered by Seller 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 Seller'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 Seller is at Seller's option as an
accommodation by Seller (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) Seller's Product or property or (ii)
to the property of Seller's supply port.
It is expressly understood and agreed that Buyer will carry its’ own
insurance at its’ own expense for the protection of Seller's Product and
property and to the property of Seller's supply port. All vessels,
barges, trucks, or other modes of transportation selected by the Buyer
to enter Seller's property shall maintain insurance coverage with reputable
insurance companies licensed to do business in the State where Seller's supply
port is located at no cost to Seller with policy limits of at least $1,000,000
per occurrence. During the term of the
Agreement, Buyer shall name Seller as an additional insured on Buyers Marine
Comprehensive Liability policy, a certificate of insurance will be provided to
this effect.
5. 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 Seller 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 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.
6. 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 Seller's 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 the Seller any additional expenses or costs incurred by the Seller or its supplier as a
result of such delivery.
(b) With
respect to any delivery of Product "FOB, Place of Shipment," the
Buyer shall give the Seller 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 the Seller 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 the Seller 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
berth or shore access to the Receiving Vessel is not available or when, for any
other reason, delivery of the Product would be unsafe or inadvisable. Under the foregoing circumstances, Buyer will
be responsible and reimburse Seller for all costs (including, without
limitation, demurrage) incurred by Seller or the carrier. Buyer will be responsible for and must make
all connections and disconnections to and from the Receiving Vessel and the
Delivery Equipment and shall provide a hose of reasonable size and length to do
so. Should the Receiving Vessel require
hoses, reduces or flanges that do not comply with the applicable standards
therefor as defined by the American National Standards Institute, Buyer will be
responsible and reimburse Seller for all costs, delays and demurrage that
result from any delays incurred as a result thereof. Buyer will be bound by any and all terms set
forth in the tariff applicable to the
Delivery Equipment utilized to deliver the Produce to the extent that such
tariff does not conflict with the other terms of the Agreement. Buyer must render all other necessary assistance
and provide sufficient tanks and equipment to accept delivery of the Product.
(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.
(d) With respect to any Accommodation Delivery
of Product to Buyer by Seller "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. 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.
(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 the Seller
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 the
Seller with sufficient prior notice of amendments of delivery time, quantity
changes or cancellations. If such
failure by the Buyer to provide the Seller with sufficient prior notice of
amendments of delivery time, quantity changes or cancellations occurs then the Seller 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.
7. Delays
The Seller shall
not be liable for any demurrage or loss incurred by the Buyer due to congestion
affecting the Seller’s supply port or to the prior commitment of bunkering
barge, or for any other reasons.
8. Holidays
Where agreements
with employees’ organizations sappily, the Seller shall not be liable for
inability, as a consequence, to deliver on public, customary or dock holidays.
9. 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 Seller 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.
10. 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 Seller 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 Seller may consider such default a breach
of the Agreement and provide Buyer written notice thereof.
11. 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 Seller
to deliver all or part of the agreed upon volume of the Product not rejected by
Buyer must be made by Buyer to Seller or its representative at the time of delivery by noting such claims
on the Bunker Certificate and formally confirming such claims to Seller within
twenty-one (21) 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.
12. Delivery Documentation
Upon Seller's
tender of the Product, qualified personnel of the Receiving Vessel must sigh 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
13. Specifications
Seller 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.
14. Samples
Seller or its
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 Seller. All samples shall be
labeled, sealed and signed by Seller or its authorized representative.
15. Disclaimer
(a) Notwithstanding anything in these Terms and
Conditions to the contrary, Seller 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 Seller 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) SELLER 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 SELLER.
16. Quality Claims
All claims
regarding the quality of the Product delivered and not rejected by Buyer must
be submitted to Seller in writing not later than twenty-one (21) days after the
date of delivery and any claim that is not received by Seller within the
aforesaid period will be deemed waived by Buyer. Buyer's written notice regarding a quality
clam must include all necessary information for Seller 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 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, Seller 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 Seller pursuant to Section 14. Above will not be
accepted. Buyer shall preserve and make
available for inspection And testing by Seller, any parts allegedly damaged by
the Product and shall make the Receiving Vessel available for inspection by
Seller or its representative within a reasonable period after Seller's receipt
of Buyer's notice of claim. Buyer shall
also provide Seller with immediate access to the original Receiving Vessel's
logs, computer records, and other pertinent communications and documents for
review and copying. Seller 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
17. 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 Seller 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 Seller with any exemption certificate and any other necessary
information to allow Seller 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 Seller's demand, shall nonetheless be responsible and pay, or cause
to be paid, such Taxes.
(b) Not withstanding Section 17. (a), Seller
shall be liable for the payment of all taxes on Seller's income and for the
privilege of doing business and exercising a franchise in the state in which
the Product is delivered.
PAYMENTS
18. Payments Terms
(a) Buyer
shall pay Seller 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 Seller 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 Seller's designated bank account as indicated on Seller's
invoice to Buyer, unless alternative means of payment is mutually agreed upon
between Seller and Buyer. . Payment shall be due and shall be made by
means of telegraphic transfer quoting the Seller’s invoice number and the
Buyer’s name to the bank stated on Seller’s invoice for the account of Plaza
Marine on or before the due date set forth in the Seller’s invoice.
(b) The Seller’s 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 the Seller 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 Seller's 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
Seller, Seller 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 Seller 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.
19. Financial Responsibility and Credit
(a)
(b) The Seller 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 the Seller, 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 the Seller (whether
arising out of the Agreement or otherwise)
or becomes bankrupt or insolvent, or if the Seller at any time considers
the financial condition of the Buyer to be unsatisfactory, the Seller 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 the Seller.
(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, Seller 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 the Seller 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. The Seller 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 Seller: Plaza Marine, 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 Seller 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 Seller 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 Seller a letter of credit in a form
and substance and from a first-class bank reasonably acceptable to Seller,
pursuant to which Seller 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 19., "Outstanding Indebtedness" means,
as of any day during the term of the Agreement, all amounts due or which will
become due to Seller under all Agreements between Seller and Buyer, including,
without limitation, the Agreement, where delivery of, but no payment for, the
Product has been made.
(i) If
Buyer fails to: (I) pay Seller 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, Seller may declare all the Outstanding
Indebtedness to be immediately due and payable and terminate the Agreement.
(j) If
Seller determines that the financial condition of Buyer has become impaired or
unsatisfactory, Seller at its sole option, may require Buyer to provide Seller
adequate assurances of performance.
Seller's requirement for adequate assurances may include modification of
the credit terms of the Agreement, in which case Seller 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 Seller, issued or confirmed by a
first class bank reasonably acceptable to Seller in an amount sufficient to cover the full
estimated invoice amount under the Agreement or (iii) deliver to Seller at least two (2) business
days prior to the Product delivery date a parent company guaranty in form and
substance reasonably acceptable to Seller 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
Sellers written notice thereof to
Buyer. The exercise by Seller of any right under this
Section 19. (j) is without prejudice to any claim for damages, or any other
right Seller may have at law or equity.
DAMAGES
20. Liquidated Damages
In the event
Buyer defaults in its obligation to take delivery of the Product under the
Agreement, in whole or in part, Seller, 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 Seller's 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 Seller, Buyer shall have no further obligation to Seller and Seller
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
21. Force Majeure
(a) Neither the Buyer nor the Seller 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 the Seller 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 Seller. Neither Party shall be required to settle any
labor dispute against its will. Seller
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
22. Limitation of Liability
IN NO EVENT SHALL EITHER PART BE LIABLE TO THE OTHER
PARTY FOR , AND EACH OF THE PARTIES WAIVES ITS RIGHT TO SEEK, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND.
BUYER'S EXCLUSIVE REMEDY FOR ANY AND ALL LOSSES OR DAMAGES RESULTING
FROM THE SALE OF THE PRODUCT DELIVERED UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY ALLEGATION OF BREACH OF WARRANTY OR BREACH OF CONTRACT OR NEGLIGENCE OR
STRICT LIABILITY, IF SUCH TORT ACTIONS ARE PERMITTED UNDER APPLICABLE LAW,
SHALL BE LIMTED TO THE REPLACEMENT OF THE PRODUCT, FOR WHICH A CLAIM IS
SUBMITTED. IF SELLER FAILS TO DELIVER
THE PRODUCT, BUYERS EXCLUSIVE REMEDY FOR ANY AND ALL LOSSES OR DAMAGES UNDER
THE AGREEMENT SHALL BE LIMITED TO PAYMENT OF THE POSITIVE DIFFERENCE, IF ANY,
BETWEEN (I) THE MARKET VALUE OF THE PRODUCT WHEN IT WAS TO BE DELIVERED, AS
REASONABLY DETERMINED BY SELLER, AND (II) THE PRICE SET FORTH IN THE AGREEMENT.
23. Commencement of Action
A PARTY MUST COMMENCE ANY ACTION FOR BREACH OF THE
AGREEMENT BY THE OTHER PART WITHIN ONE (1) YEAR AFTER THE CAUSE OIF ACTION HAS
ACCRUED.
24. Attorney’s Fees
If any action, at
law, in equity or in admiralty, is brought by the Seller, either under the
provisions of these Terms and Conditions of Sale or to enforce the Buyer’s
contractual obligation arising from the transaction referenced hereby, the
Seller should it prevail in such action, shall be entitled to recover its
reasonable attorney’s fees from the Buyer in the principle action or in a
related action brought specifically for the purpose in addition to any other
relief to which the Seller may be entitled.
NOTICES
25. Notices
All notices and
communications under the Agreement must be in writing, must be made to the
addresses, whether physical or electronic, as specified in writing by each
Party to the other from time to time, and will be deemed given to a Party, (I)
if delivered by hand or sent by overnight carrier, on the day of receipt by the
receiving Party, (ii) if sent by registered or certified mail return receipt
requested, on the date of receipt, or (iii) if transmitted by electronic mail
or facsimile, at the time of confirmation of transmission.
DEMURRAGE
26. Demurrage
Seller shall be
responsible for all reasonable demurrage costs incurred by Buyer or the
Receiving Vessel proximately caused by Seller or the Delivery Equipment with
respect to the delivery of the Product under the Agreement. Buyer shall be responsible for all reasonable
demurrage costs incurred by Seller or the Delivery Equipment proximately caused
by Buyer or the Receiving Vessel with respect to the receipt of the Product
under the Agreement.
GOVERNING LAW
27. Governing Law
This Agreement
shall be governed by and construed in accordance with the laws of the State of
New Jersey, without regard to choice of laws of that State that would require
the laws of another jurisdiction to govern, exempt (I) with regard to and to
the extent that the Parties acknowledge and agree that Seller shall have a
valid maritime lien, superior in priority to other liens, mortgages, or
encumbrances against the Receiving Vessel, and (ii) as to other matters, if
any, under the Agreement that involve vessels, harbors, seamen, or maritime
affairs or commerce generally, which matters shall be governed by the General
Maritime Law of the United States of
America, or the law of the United States of America, or the law of the State of
New Jersey where the General Maritime Law is silent or inapplicable.
ASSIGNMENT AND NO WAIVER
28. Assignment and No waiver
(a) Neither
Party may assign its rights or delegate its performance under the Agreement
with the prior written consent of the other Party, which consent will not be
unreasonably withheld, conditioned or delayed.
Any assignment made without obtaining such prior approval shall be void
and of no effect. The other Party's
consent shall not be required for the assigning Party to transfer its interest
in the Agreement to a parent or affiliate by assignment, merger, or
otherwise. Upon any transfer and
assumption of the Agreement by either Party, the transferring or assigning
Party shall not be relieved of or discharged from any obligations under the
Agreement unless the assignee or transferee (I) has assumed in writing all of the obligations of the
transferring Party and (ii) provides the consenting Party evidence of financial
responsibility at least equal to that of the transferring Party.
(b) No waiver by either Party of any provision
of the Agreement shall be binding unless made expressly and expressly confirmed
in writing. Further, any such waiver
shall relate only to such matter, non-compliance or breach as it expressly relates
to and shall not apply to any subsequent or other matter, non-compliance or
breach.
INDEMNIFICATION
30. Indemnification
Each Party (the "Indemnitor") agrees to
indemnify, defend and hold harmless the other Party (the Indemnitee") from
and against any penalties. Fines, liabilities, claims, expenses (including
attorney's fees and costs of defense), losses and damages (I) caused by the
negligence or willful misconduct of the Indemnitor, its offices, employees,
agents, representatives or subcontractors, including without limitation, those
of the Receiving Vessel and the Delivery Equipment, in the course of its
performance of the Agreement and (ii) failure of the Indemnitor, its offices,
employees, agents, representatives or subcontractors to comply with all
applicable laws, ordinances, rules and
regulations of any government or agency having jurisdiction, except to the
extent cause by the negligence, willful misconduct or omission of the
Indemnitee its offices, employees, agents, representatives or subcontractors. In addition to the other obligations that a Party may assume
under the terms of the Agreement, each Party shall obtain insurance covering
its indemnity hereunder to the extent permitted by law.
29. Pollution Prevention and
Responsibility
In the event that
any petroleum product is spilled or otherwise escapes during the loading or
discharging of any Receiving Vessel in the performance of this Agreement, the
Buyer shall take such measures as are necessary to protect against or mitigate
any resulting pollution damage or as required by any governmental
authorities. In the event such incident
is the result of any defect in the Receiving Vessel or its equipment or any
fault or act of neglect of the master, crew, agent or representative, the party
owning or chartering the Receiving Vessel agrees to cause the Receiving Vessel
to assume any and all responsibility for penalties, cleanup expenses, and cost
that may be incurred as a result of such incident. The party owning, chartering or hiring the responsible
party to reimburse, indemnify and defend the non-responsible party from any and
all claims, losses, liabilities, damages, suits, penalties or expenses of any
nature arising out of such incident.
29. Tortuous Acts
Buyer agrees to
indemnify and hold harmless the Seller from any claims resulting from petroleum
spills, environmental damages, accidents or any other tortuous behavior
resulting from the actions or failure to act of Buyer or any of Buyer’s
employees or agents. Buyer agrees to
obtain an endorsement of its liability insurance policies to add Seller as
additional insured and to give Seller written evidence of such policy
endorsements.
30. Vessel Seaworthiness
Buyer represents
that that the Receiving Vessel is seaworthy, safe and in good condition and is
capable of receiving the Product without leakage or spillage. Should the Receiving Vessel fail to comply
with the foregoing representation, Seller may suspend the delivery of the
Product until such time as Seller has received evidence satisfactory , in its
sole discretion, that the Receiving Vessel adequately complies with these
representations. If the Receiving Vessel
is unable to comply with such requirements, Buyer shall be deemed in breach of
the Agreement and Seller may declare a default thereunder and terminate the
Agreement.
CONFIDENTIALITY
30. Confidential Information
(a) The Parties hereby agree that at all times
during the term of the Agreement, to hold in the strictest confidence, and to
not disclose confidential information as defined herein to anyone without
express written authorization of the Parties.
(b) Confidential
information shall mean any trade secrets or the Parties private information,
including but not limited to, knowledge of the Parties business operations,
business records, manufacturing techniques, processes, formulas, customer
lists, inventions, experimental developments, research projects, operational
methods, cost, pricing, financial data, business plans and proposals, data and
information the Parties receive in confidence from any other party, or any
secret or confidential matters of the Parties. The Parties shall not use any
confidential information to its own benefit or to the detriment of the other
during the term of this Agreement. The Parties state and certify that this
Agreement does not and will not breach any agreement that either Party has to
anyone concerning confidential information belonging to others.
(c) The
Parties hereby agree that the terms of the Agreement and the samples taken by
Seller pursuant to Section 14. above and any related tests of such samples are
deemed propriety to Seller and shall not be disclosed to any third party by
Buyer, its agents, employees or representatives unless agreed to in writing by seller,
or as required by applicable law, regulations, rule or order of any competent
court or governmental authority having jurisdiction.
MISCELLANEOUS
31. Miscellaneous
(a) Severability
- If any provision of the Agreement is determined to be invalid, void or
unenforceable by any court having valid jurisdiction, such determination shall
not render invalid, void, or render unenforceable any other provision,
agreement or covenant of the Agreement.
(b) Waiver
- No waiver of or failure to enforce any breach of or performance required by
the Agreement shall be deemed to constitute a waiver of any other or subsequent
breach or required performance under the Agreement.
(c) Amendment
- No amendment or modification of any of the terms of the Agreement shall
be enforceable unless reduced to writing and executed by both Parties.