Basestock and Waxes General Terms and Conditions of Sale - U.S.

Article

These represent the General Terms and Conditions for the purchase of base stocks and waxes from ExxonMobil Oil Corporation. In the absence of any applicable executed written supply agreement in effect between ExxonMobil Oil Corporation ("Seller") and any buyer of base stocks or waxes products and/or services ("Buyer"), these General Terms and Conditions ("GT&Cs"), together with any Price Letters as otherwise delivered to Buyer and in effect from time to time, constitute Seller's offer, which is expressly conditioned upon Buyer's acceptance of these GT&Cs without modification, and accordingly these GT&Cs shall govern and control all orders for Products and/or Services. Any terms or conditions of any order, any other purchase order, or any other documents that are at variance herewith shall be void and of no effect and these GT&Cs shall constitute the only binding terms and conditions between the parties. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES THAT ARE NOT FULLY SET FORTH HEREIN.

  1. Ordering and Deliveries
    To the extent that base stock monthly quantities are not otherwise specified, shipments shall be made in approximately equal monthly quantities and in accordance with such maximum quantity policy as Seller may have in general effect at time of shipments. If not otherwise specified, Seller shall not be obligated to deliver in any one (1) month more than one-tenth (1/10) of the maximum quantity nor in any one quarter more than one-fourth (1/4) of the maximum quantity purchased in the prior year. Unless otherwise specified, if Buyer purchases less than ninety percent (90%) of the maximum quantity during one quarter, Seller may reduce the maximum obligation during the succeeding quarters to the actual amount purchased during the immediately preceding quarter.

    Buyer agrees to unload conveyances furnished by Seller within the free time as follows: trucks within two (2) hours of receipt of conveyance; railroad cars within seven (7) days of receipt of conveyance and barges within twenty (20) hours of receipt of conveyance, unless otherwise agreed to in writing by the parties. Buyer agrees to pay, upon receipt of invoice, for any demurrage and detention charges related to the use of railroad cars, trucks, and barges beyond the agreed time. Seller reserves the right to charge Buyer for use of tankcars held longer than is specified in writing in the most recent freight notification. Buyer assumes full responsibility for use and condition of cars, trucks, barges while in Buyer’s possession and agrees to (a) compensate Seller for loss or damage to Seller’s property, and (b) indemnify and save Seller harmless from any loss or damage to property other than Sellers’ and from any injuries to persons relating in any way to the use of such car(s), truck(s) and barge(s) while such are in Buyer’s possession. Buyer further agrees to report to Seller promptly any damage which may be sustained by the car(s), truck(s) or barge(s) in Buyer’s possession.

    If Buyer is responsible for the collection of the Product, Buyer (or its appointed carrier) shall ensure that the Means of Transport is clean and dry, suitable for loading and carrying the Product, and complies with the safety standards of ExxonMobil and the standards required by law in the jurisdiction of the designated loading facility for such Means of Transport. If Seller is delivering the product, Buyer shall provide appropriate and safe unloading facilities at the agreed place of delivery, including adequate emergency procedures. In case of non- or incomplete compliance with the above requirements, Seller and/or its Affiliates, and/or its appointed contractor or service provider shall be entitled not to load or unload without any liability under this Agreement or in law to the Buyer to compensate.
  2. Title Transfer and Risk of Loss
    Title to the Product shall transfer from Seller to Buyer simultaneously with the transfer of risks in accordance with Incoterms 2020, as provided on the invoice.

    Title and risk of loss pass to the Buyer at the last permanent flange of the loading facility (at the facility boundary for rail and truck) at the Seller’s source unless otherwise specified in writing by Seller. If Seller is to pay freight, selection of carrier and routing of shipments shall be at Seller’s option.
  3. Price
    All Products are sold to Buyer at Seller's current price list, or the price agreed to in writing, applicable at the place and date of completion of loading, and prices are exclusive of any duties, fees, taxes. The price list can be amended by Seller from time to time and will take effect on the date indicated in the notification. Changes will be notified by e-mail, facsimile, hand-delivered letter or mail.

    If Seller is prevented by law, governmental decree, order or regulation from making a change in Price and/ or Terms or continuing Terms already in effect, Seller may terminate this Contract subject to prior written notice.
  4. Invoice and Terms of Payment
    Except as otherwise provided herein, all payments shall be made in United States Dollars by Electronic Funds Transfer (EFT), Automated Clearing House (ACH), Wire, or any other method to which the Parties mutually agree, and paid in accordance with the payment term set forth on Seller’s invoice. Seller may assess default interest on any amount overdue to Seller equal to the lesser of 1.5% per month or the maximum amount allowed by law, to be prorated daily commencing the day after the due date until Seller receives full payment

    Buyer will also be responsible for any charges applied because of any check, debit or electronic transfer not honored. Buyer shall pay all costs, reasonable legal or attorneys’ fees, and collection agency commissions incurred by Seller associated with this Agreement arising from Buyer’s default on any amount due and owing to Seller under this Agreement..
  5. Credit and Security
    Notwithstanding any provision contained herein to the contrary, Seller may, in its sole discretion: (i) revoke credit; (ii) modify any and all terms and conditions of credit; (iii) require payment in advance;
    (iv) require security in an amount and type satisfactory to Seller; and/or (v) withhold Product shipments until receipt of such payment or security; (vi) provide to Seller copies of Buyer's most recent financial statements (audited if available) or such other financial information as shall be satisfactory to Seller in its sole discretion. Seller may accomplish any or all of the foregoing at any time, in its sole discretion, by giving written notice to Buyer, which notice may be provided by mail, or by any other means specified in this Agreement, and which shall be effective immediately upon receipt, unless otherwise specified by Seller. Such action by Seller may not constitute a change in payment terms hereunder. When Buyer takes delivery of any Products sold hereunder, Buyer represents to Seller that Buyer is solvent and able to pay for such Products.

    In addition to any other right of set-off or recoupment, which Seller may have under applicable law, Buyer agrees that with respect to any amounts due from Buyer or Buyer's Affiliates to Seller or Seller's Affiliates, Seller or Seller's Affiliates may: (i) set-off such amounts against any amounts owing to Buyer or Buyer's Affiliates; and/or (ii) recoup such amounts from any amounts paid and/or deliveries made to Buyer or Buyer's Affiliates by Seller or Seller's Affiliates.

    Seller shall not be obligated to release its security interest in the Product or any other collateral until all of Buyer's payment obligations to Seller are satisfied in full.

    As to each and every shipment of product or goods to Buyer by Seller, if full payment is not received in the time period specified by the invoice, Seller may repossess the Product in lieu of payment.
  6. Taxes, Duties, Fees and Assessments
    Any tax, excise or governmental charge imposed upon the value added to or the production, sale, storage, use or transportation of any product sold hereunder, or imposed upon crude oil or any other raw materials from which such products are made, which Seller may be required to pay, shall be paid by Buyer to Seller if not included in the purchase price. Buyer shall provide Seller, upon request, with properly completed exemption certificates for any tax from which Buyer claims exemption. Seller may terminate this sale on thirty (30) days written notice if prevented from passing through to Buyer any tax or charge, whether or not of the same class or kind listed above. If Buyer fails to provide the appropriate exemption certificate, Buyer will remain liable for any such taxes.
  7. Relationship / Independent Contractor
    Both Parties hereto, in the performance of their respective obligations hereunder, are separate business entities and are acting in an individual capacity and not as employees, partners, joint venturers, fiduciaries, associates or agents of one another, and neither has the power to bind or obligate the other, except as may otherwise be provided herein. The employees or agents of one Party shall not be deemed or construed to be the employees or agents of the other Party for any purpose whatsoever.
  8. Trademarks
    A Party shall not, without the prior written consent of the other Party, use the name or any trade name or registered trademark of the other Party or any Affiliate.
  9. Warranties
    Limited Warranty. SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR OTHERWISE WITH RESPECT TO PRODUCT, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS, EXCEPT THAT PRODUCT SOLD HEREUNDER SHALL CONFORM IN ALL MATERIAL RESPECTS TO THE SPECIFICATIONS SET FORTH IN SELLER'S PRODUCT DATA SHEET FOR THAT PRODUCT AS OF THE DATE OF SHIPMENT OR SUCH OTHER SPECIFICATIONS EXPRESSLY MADE A PART OF THIS AGREEMENT. THERE ARE NO OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES.
  10. Limitation of Liability
    Defective or nonconforming products shall be replaced by Seller without additional charges, or in lieu thereof, at Seller’s option, Seller may refund the purchase price upon return of the products at Seller’s expense. NOTWITHSTANDING THE ABOVE AND REGARDLESS OF THE CIRCUMSTANCES, SELLER’S TOTAL LIABILITY TO BUYER FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER, WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF PRODUCT IN RESPECT TO WHICH SUCH CAUSE AROSE. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES. Any cause of action that Buyer may have against Seller which may arise under this contract must be commenced within one (1) year after the cause of action has accrued. The remedies set forth in this Limitation of Liability section are EXCLUSIVE and no other remedy or remedies are available to Buyer.
  11. Indemnities
    Each Party shall indemnify and hold the other Party, its officers, directors, employees and agents and its Affiliates harmless against any and all losses, damages, costs, expenses (including reasonable attorneys' fees) or any other liability, which any of them may incur or for which any of them may become liable, arising out of the wrongful or negligent acts or omissions of or alleged violations of law by Party or its officers, directors, employees or agents in connection herewith. Notwithstanding the foregoing, neither Party shall be responsible for any claims, losses, damages, costs or expenses arising from the other Party’s act of willful misconduct or gross negligence in the performance of this contract. An indemnifying Party shall be provided with reasonable notice and opportunity to defend in the event any claim or demand is made on, or a proceeding is commenced against, the other Party or its officers, directors, employees, agents or Affiliates (each an "indemnified person").
  12. Safety and Health Indemnity
    Seller shall furnish to Buyer Safety Data Sheets, including warnings and safety and health information concerning the products and/or the containers for such products sold hereunder. Buyer agrees to communicate such information to all persons Buyer can reasonably foresee may be exposed to or may handle such materials or containers, including but not limited to Buyer’s employees, agents, contractors or customers. If Buyer fails to communicate such warnings and information, Buyer agrees to defend and indemnify Seller against any and all liability arising out of or in any way connected with such failure; provided however, that if Seller has contributed to such liability, Buyer’s indemnity to Seller shall be reduced by the proportion in which Seller contributed. Seller will provide Buyer with reasonable notice and opportunity to defend in the event any claim or demand is made on Seller as to which such indemnity relates.
  13. Specification Changes; Product Discontinuance
    Seller may at its discretion (a) change or alter the quality or specifications of any of the products offered, or (b) discontinue the manufacture of any such products, or (c) discontinue the manufacture of any products at a particular manufacturing or blending facility. If specifications for any products offered are specifically set forth, Seller shall give Buyer thirty (30) days written notice of any proposed change. If such proposed change would, in the opinion of Buyer, materially affect the performance of such products, Buyer may terminate this sale as to such products. Seller shall give Buyer sixty (60) days written notice of discontinuance of the manufacture of any product(s) covered hereunder and the offer shall terminate as to such product(s) at the end of such period. If Seller elects at its option to discontinue the manufacturing of any products at a particular location or blending facility, and Seller is unable to provide comparable product to Buyer from another facility, then Seller may terminate this sale as to such products by giving Buyer sixty (60) days written notice of such termination.
  14. Measurement
    The volume of product transferred to Buyer and subsequent billing for such product will be based on measurements taken at the Seller source. For railcars, the quantity is calculated following good industry practice based on the API Manual of Petroleum Measurement Standards, Chapters 3, 7, and 8. For trucks, the quantity is measured on a state certified measuring device. For marine shipments, the quantity is based on an independent gauger's inspection report..
  15. Claims
    For truck or rail deliveries, any claim for deficiency in quantity or quality of any Product shall be waived unless Buyer, within thirty (30) days after delivery of such Product, gives written notice of such claim to Seller at its indicated address; and, where practicable, gives Seller or Seller's Agents an opportunity to inspect such Product. Quantity or quality claims for deliveries by marine conveyances are as per the terms set forth in the Basestock and Waxes Marine Provisions (hereinafter “Marine Provisions,” for the purpose of these General Terms and Conditions of Sale). Any claim of any other kind (not relating to quantity or quality) based on or arising out of any transaction hereunder shall be waived unless Buyer gives written notice to Seller at its indicated address within thirty (30) days after the event, action or inaction to which such claim relates. Quality disputes will be resolved using ASTM D3244 industry standard method.
  16. Force Majeure
    A. A. No liability shall result to any Party from delay in performance or non-performance in whole or in part under this Agreement (except for payment obligations) where the delay or failure results from any causes beyond its reasonable control, including, but not limited to: (1) acts of God, flood, war, fire, terrorist activity or threat thereof, employee/worker strikes, transportation failure, breakdowns, equipment failure, acts of the public enemy, sabotage, diminishment or failure of power, telecommunications, data systems, or networks, shortage or inability to obtain Product or raw material for Product, or good-faith compliance with any governmental order or request (whether valid or invalid) made by any governmental authority or person purporting to act therefor; and/or (2) when the supply of Product or any constituent thereof or any facility of production, manufacture, storage, transportation, distribution or delivery contemplated by Seller, its Affiliates and/or Seller's Agents is interrupted, unavailable or inadequate for any cause whatsoever which is not within the reasonable control of Seller, its Affiliates and/or Seller's Agent. The party invoking the force majeure will (i) immediately notify the other party as soon as reasonably practicable, (ii) make commercially reasonable efforts to mitigate the impact of the cause of non-performance and remedy the same, and (iii) resume performance under this Agreement as soon as this cause has gone, the other party being released from its contractual obligations until such time. Notwithstanding any other notice requirement in this Agreement, actual notice (e.g., phone, email, letter) to a counterparty of a delay or failure described in this provision will constitute effective notice for purposes of this provision.

    B. Seller shall not be obligated to purchase or obtain Product, or feedstock to make Product, to replace deliveries omitted or curtailed hereunder as a result of any circumstances described in Sub-Section A above and any such deficiencies shall be cancelled with no liability to either Party. The occurrence of circumstances described in Sub-Section A above shall not relieve Buyer for non-performance of its obligation to pay in full for Products received.
  17. Allocation
    If there is, or Seller believes in its sole judgment that there may be, a shortage of supplies of Product, for whatever reason, including a force majeure event (as set forth above in Section 16), so that Seller is or may be unable to meet the demands of some or all of its and other customers, then Seller may allocate to and among its customers such quantities of Product as Seller determines in the exercise of its sole business judgment it has available for distribution to all customers from any given terminal or point of supply, provided that Seller’s plan of allocation shall not unreasonably discriminate between Buyer and Seller’s other customers who are supplied by the same terminal or point of supply. Seller shall not be required to make up any deliveries or quantities omitted pursuant to Seller’s right to allocate Products, nor shall Seller be liable for any damages or losses in connection with such omitted deliveries or quantities. In all situations of perceived or actual supply shortages, Seller may join or comply with any voluntary or non-mandatory price, supply, allocation or delivery restriction systems or programs designed and/or supported by any governmental authority, without any liability whatsoever to Buyer.
  18. Business Standards and Compliance with the Law
    Both parties shall establish and maintain appropriate business standards, procedures and controls to avoid any real or apparent impropriety that might adversely affect or conflict with the interests of the other party or any of their respective Affiliates. In addition, upon request, each Party shall make known to the other its current policies on ethics and conflicts of interest and other policies, and shall be expected to conduct its activities in compliance with its own policies.

    Both parties agree to comply with all applicable laws, statutes and regulations. Nothing in this GTC shall be interpreted or applied so as to require either party to do, or refrain from doing, anything which would constitute a violation, or result in a loss of economic benefit under the United States Anti-Boycott and/or other Export Laws and Regulations and/or any other applicable United States, national, regional or local legislations. Buyer agrees to indemnify and hold Seller harmless against all losses, claims, causes of action, penalties and liability arising out of Buyer’s failure to comply with all applicable all applicable laws, ordinances, regulations, rules and orders.
  19. Export Compliance
    Buyer acknowledges that the technology, goods, software, services, or commodities provided under the under any contract of which these General Terms and Conditions are a part, may be subject to laws or regulations restricting their export, re-export, transfer or release to certain governments, legal entities, or individuals or to certain destinations, or both, including those laws and regulations administered by the U.S. Department of Commerce (Bureau of Industry and Security) and the U.S. Department of the Treasury (Office of Foreign Assets Control).

    With respect to any export, re-export, transfer or release otherwise permitted under the Agreement Buyer shall comply, and shall cause any of its Affiliates, contractors, or any reseller of Products to comply, with all applicable U.S. government requirements, including export and re-export controls expressed in the U.S. Export Administration Regulations, prohibitions on transactions with or transfers to the governments of, parties located in or operated from, or nationals of countries subject to comprehensive U.S. economic sanctions and prohibitions on transactions with or transfers to entities or individuals identified on the U.S. government’s List of Specially Designated Nationals and Blocked Persons (Treasury Department) and Denied Persons List and Entity List (Commerce Department). Notwithstanding any other provision of the Agreement, the parties are not required to take or refrain from taking any action, or furnishing any information, prohibited or penalized under the laws of the U.S.

    The sales of Products under any contract of which these General Terms and Conditions are a part, unless otherwise indicated, constitute domestic sales within the United States. In the event that Buyer elects to export, re-export, transfer or release Product, Buyer assumes sole responsibility and undertakes to determine any export license requirements, to obtain any required export license or other official authorization, and to carry out any customs and export formalities for the export of such Product in accordance with the requirements of the Export Administration Regulations for routed export transactions. Buyer shall be deemed the "U.S. Principal Party in Interest" or "Exporter" for all purposes under applicable law.
  20. Confidentiality
    Each Party shall treat as proprietary and confidential any information disclosed to it by the other Party and identified as such, including the contents hereof and the transactions contemplated hereby, and except as necessary for the performance thereof, or as required by law, shall make no disclosures with respect to such matters without the express written consent of the other Party. For purposes of this clause, Seller shall include any affiliate of ExxonMobil Oil Corporation.

    For the avoidance of doubt, all communications regarding price or price-related information provided by Seller to Buyer are subject to the confidentiality obligations herein and Buyer shall make no disclosure of the same (whether in whole or in part) to any third parties, including any media and price reporting services.
  21. Waiver
    No remedy referred to herein is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available to a Party at law or in equity. The exercise or beginning to exercise by a Party of any one or more of such remedies shall not preclude the simultaneous or later exercise by a Party of any or all such other remedies. All remedies hereunder survive any and all termination of any other agreement or agreements between Buyer and Seller. No delay or failure on the part of a Party in exercising any right, remedy, power or privilege shall operate as a waiver thereof or of any other right, remedy, power or privilege of a Party hereunder or under any instrument or instruments or contract or contracts evidencing any obligations of one Party to the other Party.
  22. Assignment
    Seller may, upon written notice to Buyer but without its consent, assign the Agreement to any party including Affiliate as defined herein. The Assignee will thereafter be solely liable for the performance of the obligations hereunder. The Agreement shall not be assigned in whole or in part by Buyer without the consent of Seller, which consent shall not be unreasonably withheld.
  23. Governing Law and Dispute resolution
    A. Governing Law:
    The validity, interpretation and construction of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas, U.S.A., without regard to its conflict of laws principles.
    B. Dispute Resolution: Seller and Buyer shall use reasonable efforts to resolve any dispute arising out of or relating to these GT&Cs through good faith negotiations. Each Party shall nominate a representative with authority to resolve a dispute to meet at a mutually agreed upon location to negotiate a resolution. If for any reason no satisfactory settlement has been reached by consultation among the Parties after thirty (30) calendar days of receipt by a Party of a Notice of Claim (counting the day of receipt as the first day of the thirty (30) day period), then either Party may provide the other Party with a Notice of Mediation, which shall include a written statement of claim and demand for settlement. This Sub-Section B does not apply to the any of the “Payment” and “Price” provisions herein. The following principles shall apply in respect of any mediation hereunder:
         1. Mediation shall commence within thirty (30) calendar days of receipt of the Notice of Mediation.
         2. Mediation shall be before a sole mediator appointed by the American Arbitration Association (“AAA”) and the Parties desire that any mediator appointed hereunder be an individual with judicial experience or one who has been a member of the bar for at least twenty-five (25) years.
         3. Unless otherwise agreed in writing, the formal mediation proceedings before the mediator shall last no longer than two (2) days.
         4. Each Party shall include among its representatives in the mediation proceeding, an individual authorized to settle the matter in dispute.
         5. The filing fee required to be paid to AAA and all other costs of mediation, including any fees to be paid to the mediator, shall be borne equally by the Parties. Each Party shall be responsible for any attorney’s fees it may incur.
    C. Venue. The mediation shall take place in the State of Texas, Harris County, unless the Seller and Buyer otherwise agree in writing. Upon conclusion of an unsuccessful mediation, the Parties will be free to pursue any and all legal remedies.
  24. Right to Audit
    Buyer will at all times during normal business hours permit Seller or an independent third party appointed by Seller to have access to persons, correspondence, books, administrative and other documents to verify whether Buyer has complied with its obligations under this GTC. Buyer will save the correspondence, books, administrative and other documents for at least 3 years after the termination of the GTC, and for any further period required by law. Seller will only carry out this inspection for the purposes indicated above and will observe strict confidentiality in this respect.
  25. Severability
    Each of the Articles in this agreement is independent and severable and shall not, in the event of any declaration of invalidity, affect the construction or effect of any other Articles in this agreement.