PETROLEUM SALES GENERAL TERMS AND CONDITIONS
- TITLE; RISK OF LOSS: For deliveries made into trucks supplied by Buyer or Buyer’s representative at a refined products terminal (Terminal”) title and risk of loss shall pass to Buyer as Product passes the last flange connection of the delivery line, or with respect to drummed or packaged Products, upon loading of such Product onto said trucks. For sales delivered Freight on Board (FOB) to Buyer’s destination, title and risk of loss shall pass to Buyer as Product leaves the last flange of the delivery vessel, or with respect to drummed or packaged Products, when such Products are tendered to enable the Buyer to take delivery.
- TAXES: Buyer shall pay, or reimburse Seller for all taxes, duties, and other governmental charges of whatever kind (except for income taxes) imposed on any transaction, sale, purchase, manufacture, distribution, use or delivery of Product hereunder.
- QUANTITY: All quantities of Product shall, unless otherwise agreed, be determined in accordance with the following and adjusted to a standard temperature of sixty (60) degrees Fahrenheit in compliance with applicable A.S.T.M. methods. The term “barrel” as used herein shall mean forty-two (42) U.S. gallons. The term “gallon” as used herein shall mean a U.S. gallon of two hundred thirty-one (231) cubic inches. Any objection or claims as to quantity must be made within ten (10) days of Buyer’s receipt of Seller’s invoice and, if not made within such time, then the quantity shall be conclusively established as the quantity shown on Seller’s invoice.
- SCHEDULING: To the extent flexibility is allowed hereby for time or size of deliveries, the parties shall cooperate to the extent reasonably possible to coordinate period(s) of time(s) for deliveries hereunder; and Buyer shall give reasonable prior notice as to quantities and scheduling desired. Buyer hereby expressly agrees that scheduling of deliveries may be made orally. Seller shall have no responsibility for determining whether or not such communications from Buyer concerning scheduling of deliveries are made by authorized individuals.
- DELIVERY/LOADING: Should Seller arrange and dispatch Product for delivery to Buyer’s destination, the volumes so delivered for Buyer must be full transport loads unless expressly approved by Seller prior to dispatch. With prior approval by Seller, full transport loads may also be split with other product (i.e. Diesel/Gasoline, Gasoline/Diesel) at the request of Buyer. For deliveries at Terminal, Seller shall not be required to make such deliveries unless Buyer’s trucks are in full compliance with all applicable legal requirements, including any required license certificate or registration. Furthermore, Buyer and Buyer’s employees, representatives, contractors, and agents shall strictly comply with all rules and regulations that Seller may establish from time to time regarding the conduct of third parties on Terminal premises. Seller shall have the right to prohibit anyone from entering Terminal premises for any non-compliance of Seller’s or the Terminal’s rules and regulations. Buyer shall provide a list of all trucks utilized for deliveries at Terminal, including truck number, license model, make and tank size, to Seller. Buyer must contact Seller for a Purchase Order Number (“PO #”) prior to each loading at Terminal. At the time that PO # is issued, Seller will provide loading instructions inclusive of Terminal location, supplier name, and loading number. Should Buyer not adhere to these loading instructions for any reason, all costs and damages associated with such noncompliance will be assessed to and paid by Buyer.
- PAYMENT AND CREDIT: All payments made by Buyer shall be due and payable in Abilene, Texas at Seller’s address set forth in this Agreement, and Buyer’s performance in Abilene, Texas, is a material condition. Seller’s duty to perform and Buyer’s right to purchase hereunder are at all times subject to Seller’s approval, and continuing approval, of Buyer’s credit with Seller. No assurance or guarantee is made of Buyer’s credit or continuation thereof; and Seller reserves the right, without limitation, to sell Product on pre-paid, COD, standby letter of credit, or other secured or collaterally assured basis acceptable to Seller. Unless credit is approved and arranged by Buyer with Seller, payment shall be due in full and in cash prior to loading of Product. Without limitation on Seller’s rights and remedies against Buyer, if Buyer fails to promptly pay any amount due hereunder or if Seller needs assurance, or further assurance, of Buyer’s credit worthiness, Seller may cancel this Agreement, demand different payment terms, suspend or recall deliveries or shipments, impose different credit terms, or impose different requirements for collateral assurance of payment. Seller is hereby given an express right of off-set against any amount whatsoever owing or becoming due to Buyer, or any amount owing by or becoming due from Seller or any company that is directly or indirectly subsidiary to, parent of, or affiliated with Seller. Buyer, by execution of this Agreement, gives Seller authorization to check the credit records and make any investigations or inquiries Seller may deem necessary to satisfy Seller as to the credit worthiness of Buyer and its guarantor(s), owner(s), or co-sign(s).
- WARRANTIES AND DISCLAIMER: Seller warrants that it will convey good title to the Product sold and delivered hereunder, and that all such Product shall be in compliance with the specifications, if any, referred to in the applicable purchase order. The foregoing warranties are exclusive of all other warranties, whether written, oral or implied, and except for the foregoing, SELLER MAKES NO WARRANTIES OF ANY KIND AS TO PRODUCT SOLD AND/OR DELIVERED TO BUYER, EXPRESS AND/OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (A) ANY WARRANTIES AS TO PRODUCT QUALITY, COMPOSITION, CHARACTERISTICS, ENVIRONMENTAL OR HUMAN SAFETY OR HAZARD OR HEALTH AFFECTS, PERFORMANCE OR LIKE MATTERS; and/or (B) ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
- ACCEPTANCE: Solely as a means of early identification of any possible problems or disputes, and not in limitation of Seller’s rights hereunder, Buyer shall sample and test all shipments of Product in order to determine conformity at the time of delivery; and if Buyer determines nonconformity, Buyer shall: (a) immediately notify Seller of non-conformity; and (b) not use or resell or otherwise transfer the same unless Seller gives Buyer written notice to proceed with use, resale or transfer. Any use, resale, or transfer of product by Buyer shall be deemed as Buyer’s irrevocable acceptance thereof. In the event that a dispute arises as to the conformity of Product, a conformity determination shall be made by an independent inspector to be employed at the equally shared expense of the parties. Acceptance shall be deemed to have irrevocably occurred when the governing sample of the product, as determined by the independent inspector, for the purpose of conformity determination has been found by the independent inspector to conform to the specifications set forth in the applicable purchase order.
- FORCE MAJEURE: Seller shall be excused from its performance hereunder if performance has been prohibited or delayed by any foreseeable or unforeseeable cause(s) beyond the reasonable control of Seller including, but not limited to: acts of nature; labor disputes; strikes or threats of strike; fire; explosion; earthquake; storm; flood; landslide; avalanche; drought or other adverse weather condition; interruption or delay in transportation; war; insurrection; riot; pandemic; laws, regulations, orders, proclamations, instructions or requests of any government or governmental entity; judgments or orders of any court; inability to obtain, on reasonably acceptable terms, any public or private license, permit or other authorization; curtailment or suspension of activities to remedy or avoid an actual or alleged, present or prospective, enforcement of federal, state or local environmental standards; unavoidable casualties; shortage of labor, equipment, fuel, material, parts, supplies, or services; refinery or terminal breakdown; failure of mechanical or chemical function of equipment used for manufacturing, handling or delivering Product; or any disabling cause, whether similar or dissimilar to the foregoing enumeration.
- LIMITATION OF REMEDIES AND LIABILITY: BUYER’S EXCLUSIVE REMEDY FOR ANY AND ALL LOSSES OR DAMAGES THAT ARE, IN ANY WAY, CAUSED BY, ARISE OR RESULT FROM, THE AGREEMENT AND/OR SELLER’S SALE OR DELIVERY OF PRODUCT, ANY FAILURE OR DELAY IN DELIVERY OF PRODUCT, OR ACTIVITIES ASSOCIATED WITH ANY SUCH SALE OR DELIVERY OF PRODUCT, INCLUDING BUT NOT LIMITED TO, ANY CLAIM FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, NEGLIGENCE AND/OR STRICT LIABILITY, IS EXPRESSLY LIMITED TO REPLACEMENT OF ANY PRODUCT WHICH DID NOT CONFORM TO THE SPECIFICATIONS SET FORTH IN THE APPLICABLE PURCHASE ORDER AT THE TIME OF DELIVERY TO BUYER. SELLER SHALL NOT BE LIABLE FOR ANY LOST PROFITS, ECONOMIC LOSS, OR ANY OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL, PUNITIVE AND/OR EXEMPLARY DAMAGES WHETHER ARISING UNDER WARRANTY, FAILURE OF ESSENTIAL PURPOSE, CONTRACT, GUARANTEE, TORT, NEGLIGENCE, STRICT LIABILITY, VIOLATION OF LAW, OR OTHERWISE.
- INDEMNITY: Buyer shall indemnify and defend and hold harmless Seller as to any breach of this Agreement by Buyer and from any liability and/or remedy, of whatever nature or kind, to which Seller might become subject to directly or indirectly resulting from Buyer’s use, misuse, transportation or disposal of Product purchased hereunder, including but not limited to liability for environmental violations and employee or consumer health or safety. These indemnity, defense, and hold harmless obligations shall apply without regard to fault on the part of the Buyer and shall survive termination of this Agreement.
- INSURANCE: At all times during the term of this Agreement, Buyer shall maintain, at its sole cost and expense, insurance: (a) as required by applicable Laws; (b) sufficient to cover its indemnification obligations herein; and (c) to meet the requirements of each delivery at Buyer’s destination or at Terminal, as applicable. All such insurance shall include waivers of subrogation in favor of Seller, or if Buyer is self-insured, Buyer shall waive all subrogation rights. Buyer shall require all of its contractors and agents to carry such insurance to the extent their performance on behalf of Buyer is in connection with Buyer’s performance of this Agreement. There shall be no material change in, or cancellation of the insurance policies required herein without at least thirty (30) days prior written notice to Seller.
- COMPLIANCE WITH LAWS: Buyer shall comply with all applicable laws, regulations, rules, and orders (collectively, “Laws”) pertaining to its operations and performance under this Agreement, and Buyer’s indemnity obligations shall include any failure to do so. If Buyer fails to comply with any such Laws, then Seller shall have the right to suspend deliveries or terminate this Agreement, in addition to all other remedies that Seller may have.
- GOVERNING LAW, FORUM AND CLAIMS: The rights and duties of the parties hereto and the validity, construction, enforcement, and interpretation of this Agreement, shall be construed under and governed by the laws of the State of Texas. The venue or forum for any legal action arising out of or or relating to this Agreement, the breach thereof or transactions between the parties shall be in the federal or state courts situated in Taylor County, Texas and the parties specifically waive any right to a venue that either might otherwise have in any other location. If legal proceedings are asserted or instituted by Seller against Buyer arising from this Agreement or to enforce Seller’s rights or remedies under this Agreement or otherwise related hereto, Seller shall be entitled to recover from Buyer all court costs, reasonable attorney’s fees and expenses incurred by Seller incident to such proceedings.
- WAIVERS: Waiver by Seller of a breach by Buyer of any provision of this Agreement shall not be deemed a waiver of future compliance therewith. No delay or failure on Seller’s part to enforce any right or claim which it may have hereunder shall constitute a waiver on Seller’s part of such right of claim.
- NON-EXCLUSIVE; NO PARTNERSHIP; NO JOINT VENTURE: This is a non-exclusive agreement with no contractual restriction on Seller’s ability to sell Products to anyone in any manner. Notwithstanding any other provision of this Agreement, Seller reserves a discretionary right to sell Product anywhere by any means it elects. The parties to this Agreement are independent contractors. Nothing herein contained shall constitute a partnership between or joint venture by the parties hereto or constitute any party the agent of the other. Except as otherwise specifically provided herein, no party is authorized to act as agent of or otherwise represent, the other party to this Agreement.
- ASSIGNMENT: Buyer shall not assign this Agreement or any part hereof without the express written consent of Seller.
- MISCELLANEOUS: This Agreement constitutes the entire agreement of the parties and shall control over any notice, request, acknowledgment, or other communication required or permitted by or pertaining hereto. This Agreement may not be amended, modified, or supplemented except by an instrument in writing signed by all parties hereto. All notices required hereunder shall be in writing and delivered to the other party at the address listed herein. Any such notice, request or other communication shall be by certified mail or nationally recognized courier or messenger service with confirmed delivery, or by personal service and shall be deemed served upon receipt.
THIS AGREEMENT IS AN OFFER OF SALE BY SELLER. IF BUYER DOES NOT ACCEPT THIS OFFER BY EXECUTION OF THIS AGREEMENT WITHOUT ALTERATION HEREOF OR ADDITION HERETO, BUYER SHALL BE DEEMED TO HAVE ACCEPTED THIS OFFER BY ORDERING, PURCHASING OR TAKING DELIVERY OF PRODUCT FROM SELLER. ANY ACCEPTANCE IS EXPRESSLY LIMITED TO THESE GENERAL TERMS AND CONDITIONS. Without limitation on Seller’s rights, no term in Buyer’s purchase order or any other document, correspondence or communication from Buyer which conflicts with the terms of this Agreement is, or shall be, accepted by Seller except in a separate writing executed by an officer of Seller. Headings are provided for convenience, and Seller’s rights and remedies hereunder are in addition to and not in lieu of Seller’s other rights and remedies