Exxon Mobil Corporation General Terms and Conditions for the Sale of Lubricant Products and Services

  1. BINDING NATURE: In the absence of any applicable executed written lubricants supply agreement in effect between ExxonMobil Oil Corporation ("Seller") and any buyer of lubricant products and/or services ("Buyer"), these General Terms and Conditions ("GT&Cs"), together with Schedule A (Products and Prices) attached hereto or 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.  
  2. OTHER DEFINITIONS: The following words and expressions shall have the following meanings:
    Affiliate” means with respect to Seller: (1) Exxon Mobil Corporation or its successor- in-interest; (2) any parent corporation, partnership, or other entity which now or hereafter owns or controls, directly or indirectly through one or more intermediaries, more than fifty percent (50%) of the ownership interest having the right to vote for or appoint directors of Exxon Mobil Corporation or its successor-in- interest (“Seller's Parent Company”); and (3) any corporation, partnership, or other entity, regardless of where situated, more than fifty percent (50%) of whose ownership interest having the right to vote for or appoint directors is now or hereafter owned or controlled, directly or indirectly, through one or more intermediaries, by Exxon Mobil Corporation or its successor-in-interest or by Seller's Parent Company.

    Affiliate” means with respect to Buyer: (1) Buyer or its successor-in-interest; (2) any parent corporation, partnership, or other entity which now or hereafter owns or controls, directly or indirectly through one or more intermediaries, more than fifty percent (50%) of the ownership interest having the right to vote for or appoint members of the board of directors or other governing body of Buyer or its successor- in-interest (“Buyer's Parent Company”); and (3) any corporation, partnership, or other entity, regardless of where situated, more than fifty percent (50%) of whose ownership interest having the right to vote for or appoint members of the board of directors or other governing body is now or hereafter owned or controlled, directly or indirectly, through one or more intermediaries, by Buyer or its successor-in-interest or by Buyer's Parent Company.

    Agent(s)” in the case of Seller means the servants or employees of Seller, and/or any distributor or supplier authorized by Seller.

    Agent(s)” in the case of Buyer means any party authorized by Buyer to place orders for Product and/or Services with Seller on behalf of Buyer; and/or to take delivery of Product; to receive and/or settle Seller's invoices; and/or to manage Product inventory; and/or to transfer Product sold and delivered by Seller to Buyer.

    Product” or "Products" means lubricating oils, greases, and other lubricating products, to be sold by Seller and purchased by Buyer hereunder.

    "Service" or "Services" means services to be provided or sold by Seller and purchased by Buyer hereunder.
  3. PRICES: Unless delivered via authorized distributor, in which case the price shall be the price as of the date of delivery, Seller’s price for any Product and/or Service ordered directly from Seller is the Seller's price in effect on the date of order by Buyer or Buyer's Agent, and at the place from which ordered, regardless of when such Product and/or Service is actually loaded, shipped, or delivered; however, if Buyer requests a delivery date that is more than fourteen (14) calendar days later than the date of order, then the price shall be the price in effect as of the requested date of delivery, regardless of when such Product and/or Service is actually ordered, loaded, shipped, or delivered. Seller’s price for any Product and/or Service ordered through, and delivered by, an authorized distributor of Seller is the Seller's price in effect on the date of delivery by such distributor. Unless noted otherwise, all prices are prior to all taxes and duties and are subject to change without advance notice. The quantity or volume of bulk Product transferred from Seller to Buyer and subsequent billing for such Product shall be based on measurements taken at Seller's source point (whether operated by Seller or Seller's authorized distributor) using good industry practices based on API measurement standards.
  4. PAYMENT TERMS. Except as otherwise provided herein, all payments shall be made in United States Dollars by Electronic Funds Transfer (EFT), Automated Clearing House (ACH) or any other method to which the Parties mutually agree in writing, net thirty (30) days from the date printed on the invoice or in accordance with another payment term set forth on Seller’s invoice. Without prejudice to the other rights of Seller, if Customer Buyer does not pay in full by the due date, then Seller reserves the right to charge interest on the outstanding amount at the lesser rate of 1.5% per month, or the maximum rate, if any, allowable under applicable local law. The interest charge will be calculated daily from the due date until Seller receives full payment. Seller reserves the right to adjust the rate when there is material change in local market conditions. Buyer will also be responsible for any charges applied because of any check, debit or electronic transfer not honored.
  5. TAXES: Any tax (except income taxes), excise or other governmental charge that now or in the future may be imposed, increased or levied upon the production, value added, sale, transportation, storage, handling, delivery, use or disposal of Products and/or Services sold hereunder or imposed upon crude oil or any other raw material from which such Products are made, that Seller may be required to pay, shall be paid by Buyer to Seller in addition to the purchase price. Buyer shall provide Seller, on request, with properly completed exemption certificates for any tax from which Buyer claims exemption. If Buyer fails to provide the appropriate exemption certificate, Buyer will remain liable for any such taxes.

    B. Limitation of Liability. Seller shall replace defective or nonconforming Product without additional charge as soon as practicable after written notice thereof; or, in lieu of replacing Product, Seller may, at its discretion, refund the purchase price upon return of such Product 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. The remedies set forth in this Limitation of Liability section are EXCLUSIVE and no other remedy or remedies are available to Buyer. Buyer and Seller agree that the remedies contained herein are adequate remedies.
  7. INSPECTION/CLAIM: Any claim for deficiency in quantity or quality of any Product and/or Service shall be waived unless Buyer, within thirty (30) days after delivery of such Product and/or Service, 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 and/or Service. 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. Notwithstanding any provision to the contrary contained herein, any cause of action that Buyer may have against Seller that arises in connection with the sale of Product or provision of a Service hereunder must be commenced within two (2) years of Buyer's receipt of the Product or Service in respect of which such cause of action arose.
  8. INDEMNIFICATION: Each Party shall indemnify and hold the other Party, its officers, directors, employees and agents (including without limitation a Party's 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 (including without limitation a Party’s Agents) in connection herewith.
  9. SAFETY, HEALTH AND RELATED INDEMNITY: Seller shall furnish to Buyer Material Safety Data Sheets as required by applicable law, including warnings and safety and health information concerning Products. Buyer agrees to disseminate such information so as to give warning of possible hazards to persons whom Buyer can reasonably foresee may be exposed to such possible hazards, including, but not limited to, Buyer’s employees, agents, contractors and customers. Buyer shall instruct its employees, agents, contractors and customers on the safe handling, use, selling, storing, transportation and disposal practices for the Products. IF BUYER FAILS TO DISSEMINATE SUCH WARNINGS AND INFORMATION, BUYER AGREES TO DEFEND AND INDEMNIFY SELLER, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (INCLUDING WITHOUT LIMITATION SELLER'S AGENTS) AND ITS AFFILIATES AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OR ANY OTHER LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH FAILURE, INCLUDING BUT NOT LIMITED TO LIABILITY FOR PERSONAL INJURY, SICKNESS, DEATH AND/OR PROPERTY DAMAGE OR LOSS. PROVIDED, HOWEVER, THAT WHERE SUCH LOSS, DAMAGE, COST, EXPENSE OR OTHER LIABILITY IS THE RESULT OF THE JOINT NEGLIGENCE OR MISCONDUCT OF THE PARTIES HERETO, BUYER’S INDEMNITY TO SELLER SHALL BE REDUCED BY SELLER'S SHARE OF SUCH JOINT NEGLIGENCE OR MISCONDUCT.
  10. PROCEDURE FOR INDEMNIFICATION: An indemnifying Party hereunder 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") in respect of which the indemnifying Party has agreed to provide indemnification hereunder; provided that

    A. Failure to provide reasonable notice to an indemnifying Party will not relieve the indemnifying Party of any liability it may have to any indemnified person, except to the extent the indemnifying Party demonstrates that the defense of such claim, demand or proceeding is prejudiced by the failure to give reasonable notice;

    B. The indemnifying Party's right to assume the defense shall be subject to its election, by notice to the other Party and the indemnified person(s), to assume the defense with retention of lawyers reasonably satisfactory to the other Party unless: (1) the indemnified person or persons are also parties to the proceeding and determine in good faith that joint representation would be inappropriate; or (2) the indemnifying Party fails to provide, promptly upon request, reasonable assurance to the indemnified person or persons of the indemnifying Party's financial capacity to defend the claim, demand or proceeding and provide indemnification hereunder;

    C. If the indemnifying Party assumes the defense, no compromise or settlement of the claim, demand or proceeding may be effected by the indemnifying Party without the written consent of each indemnified person (which consent shall not be unreasonably withheld or delayed) unless: (1) there is no finding or admission of any violation of legal requirements or any violation of the rights of any person and no effect on any other claims that may be made against such indemnified person; and (2) the sole relief provided is monetary damages that are paid in full by the indemnifying Party; and

    D. Notwithstanding the foregoing, if a Party determines in good faith that there is a reasonable possibility that a claim, demand or proceeding may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, such Party may by written notice to the indemnifying Party assume the exclusive right to defend, compromise or settle the claim, demand or proceeding, but the indemnifying Party will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent (which shall not be unreasonably withheld or delayed).
    A. No liability shall result to any Party from delay in performance or non-performance in whole or in part of such Party's obligations hereunder caused by circumstances reasonably beyond the control of such Party including, but not limited to: (1) acts of God, fire, flood, acts or threats of war, sabotage, terrorist activity, or acts of the public enemy, employee/worker strikes, transportation failure, breakdowns, equipment failure, 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); 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.

    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.
    A. 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, 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.

    B. In the event of uncertainties in the supply/demand situation affecting Products and/or Services, or the unavailability of sufficient Products and/or Services, which in Seller’s sole opinion may prevent Seller from supplying, on an economically viable basis, the contractual volumes necessary to meet the requirements for all or some of its customers of Products and/or Services, Seller may allocate, limit and/or cease the supply of Products and Services on any basis which Seller believes is fair and reasonable under the circumstances.
  13. TITLE/RISK OF LOSS: For any Product that Seller sells under an arrangement where the Product is delivered by an authorized distributor of Seller, title to the Product and all risk of loss or damage pass to Buyer on delivery to Buyer’s facility. For any Product that Seller sells directly to Buyer: (1) when Buyer arranges and pays for transportation, then title to the Product and all risk of loss or damage pass to Buyer at Seller’s facility upon loading for delivery into the carrier or Buyer’s transport; and (2) when Seller arranges and pays for transportation, title to the Product and all risk of loss or damage pass to Buyer on delivery at Buyer’s facility. If Seller is to pay freight, selection of carrier and routing of shipments shall be determined by Seller.
  14. COMPLIANCE WITH LAWS: In performing its obligations hereunder, Seller, at its expense, shall comply with, and assure that any Products sold hereunder comply with, all applicable federal, state, and local laws, regulations or ordinances. In performing its obligations hereunder, Buyer, at its expense, shall comply with, and ensure that any Products purchased 
    hereunder are used in compliance with, all applicable federal, state, and local laws, regulations, and ordinances.
    A. Governing Law. The validity, interpretation and construction of these GT&Cs 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; provided that, any litigation arising out of or relating to these GT&C’s, shall be subject to the sole and exclusive jurisdiction of the courts of Harris County, Texas.
  16. CESSATION OR SUSPENSION OF OPERATIONS: Notwithstanding any provision to the contrary contained herein, if either Party suspends or ceases the operation of any facility that produces or consumes Product, each Party shall have the right, upon at least fifteen (15) days prior written notice, to suspend (in case of suspension of operation) or terminate (in case of cessation of operation) performance, relating to the affected operations under these terms and conditions. Neither Party shall have any liability to the other with respect to deficiencies 
    in Product deliveries or receipts due to any such cause; however, any outstanding balances owed to Seller by Buyer shall be paid within thirty (30) days of said suspension or termination.
  17. EXPORT COMPLIANCE: The sale of Product hereunder, unless otherwise indicated, constitutes domestic sales within the United States. Buyer agrees that it shall not export any Product or knowingly resell Product to any person or entity who intends to export such Product outside of the United States. If Buyer nonetheless violates this Section 17 and exports any Product, Buyer assumes sole responsibility to determine any export license requirements, to obtain any required export license or other official authorization, and to carry out any customs formalities for the export of such Product and Seller shall be entitled to exercise any and all rights and remedies it may have against Buyer for such breach. Buyer shall be deemed the "U.S. Principal Party in Interest" or "Exporter" for all purposes under applicable law.
  18. COPYRIGHTS/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 of the other Party in any advertising or communications to the public in any format except as necessary to perform its obligations hereunder, nor shall a Party make publicity releases or announcements regarding this Agreement. Each Party shall cause its employees and Agents to comply with these requirements.
  19. RELATIONSHIP OF PARTIES: 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.
  20. 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. 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. No such action by Seller shall 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.
  21. RIGHT OF SET-OFF: 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.
    A. Default: Except as otherwise provided herein, if either Party fails to perform any of its obligations hereunder, at the non-defaulting Party's option and without demand, notice or legal process, the non-defaulting Party may exercise any and all of its rights and/or remedies hereunder and/or under any security agreement entered into in connection herewith and/or 
    under applicable law, including without limitation, (i) suspending its performance hereunder, (ii) terminating any transaction subject to these GT&Cs with immediate effect, (iii) accelerating any and all payment obligations hereunder such that all amounts owed shall become immediately due and payable and/or (iv) exercising its rights against collateral and applying the proceeds against amounts due and owing hereunder. The defaulting Party shall pay all costs, reasonable attorneys’ fees, and collection agency commissions incurred by the non-defaulting Party in responding to such default.

    B. Termination: In addition to a case where a party terminates any transaction subject to these GT&Cs pursuant to Sub-Section A hereof, a Party may, upon at least thirty (30) calendar days’ prior written notice to the other Party, unilaterally and with or without cause, terminate any further obligations it may have hereunder; provided that in no event shall any such termination by either Party remove Buyer’s obligation to pay in full for Products received.
  23. GENERAL:
    A. Assignment: Buyer shall not assign any of its rights or obligations hereunder without Seller’s prior written consent. Any attempted assignment by Buyer without such consent shall be void and of no effect. Seller may assign any or all of its rights and obligations hereunder to any Affiliate of Seller without consent of Buyer. Upon any expiration, termination, assignment, or transfer hereof or upon any transfer of interest in any amount owing from one Party to the other Party, all payment obligations hereunder becomes immediately due and payable.

    B. Business Standards: Buyer shall establish and maintain precautions to prevent its employees, agents or representatives from making, providing, or offering gifts, entertainment, payments, loans, or other consideration to employees, agents, or representatives of Seller for the purpose of influencing those persons to act contrary to the best interests of Seller. This obligation shall apply to the activities of the employees of Buyer in their relations with the employees of Seller and their families and/or third parties. 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.

    C. Confidentiality: Each Party shall treat as proprietary and confidential any proprietary or confidential information disclosed to it by the other Party and identified by the other Party as proprietary or confidential, including the contents hereof and the transactions contemplated hereby, and except as necessary for the performance thereof, shall make no disclosures with respect to such matters without the express written consent of the other Party. Notwithstanding the foregoing, a Party may make disclosures to the extent they are required by applicable law, provided the disclosing Party provides the non-disclosing Party with as much notice as reasonably possible, and takes all reasonable steps to preserve confidentiality as permitted by law. A Party may also make disclosures, on a need to know basis, to its Affiliates, subsidiaries or its professional representatives, consultants, lenders or investors provided such Affiliate, subsidiary, professional representative, consultant, lender or investor, as the case may be, agrees in writing to treat the disclosed information as proprietary and confidential.

    D. Insurance: The Parties understand that Seller self-insures for liability insurance coverage where permitted by law, and that the election to self-insure does not alter or reduce the legal responsibilities of the contracting Parties to one another or to third parties. Seller will provide its standard letter of self-insurance upon request by Buyer.

    E. Severability: Should any provision hereof be finally determined to be inconsistent with or contrary to applicable law, such provision shall be deemed amended or omitted to conform therewith without affecting any other provision hereof or the validity hereof.

    F. 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.

    G. Buyback: If applicable, the selection of distributor(s) for delivery of Products to Buyer pursuant hereto will be at Seller's sole discretion and will remain at Seller's sole discretion unless waived by written notice from Seller. Buyer shall not solicit for delivery of Products from any distributor not assigned by Seller.