IRM LLC and IRM International LLC:† GENERAL TERMS AND CONDITIONS OF SALE (revised 4/4/2016)
ARTICLE 1. PRICE ADJUSTMENTS
Seller may change any price and/or term of payment of this contract. Buyer shall have the right to cancel as to any product to which any increase in price and/or term of payment applies by giving notice to Seller within fifteen (15) days of the date of such change. If Seller should be prevented from continuing or making changes in price and/or term of payment hereunder by act of government authority, Seller may terminate this sale by giving Buyer thirty (30) days prior written notice. If Buyer is offered in any contract year, any product of equal quality, in like quantity, and on similar terms at a lower price than that in effect hereunder, upon satisfactory proof thereof and within thirty (30) days of notification of such an offer, Seller will either: (a) meet such lower price for the undelivered product hereunder; or (b) cancel or modify the offer so as to permit Buyer to accept the offer, and quantity to be purchased will be deducted from the quantity deliverable hereunder.
ARTICLE 2. TAXES
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.
ARTICLE 3. CREDIT; PAYMENT; SECURITY
If credit is extended, Seller at any time may modify the terms and conditions of future extensions of credit. Seller has the right to assess default interest on any amount overdue to Seller at the lesser of 1.5% per month (18% per year) or the maximum amount allowed by law, to be prorated daily, commencing the day after the due date. In the event Buyer shall fail to make timely payment of any monies due and owing to Seller, Seller may set off, withhold or recoup any payments due under this or any other agreement between the Parties. In addition, in the event Buyer fails to make timely payment, any or all future shipments by Seller to Buyer may be withheld by Seller without waiving any right, power, remedy, or privilege of Seller. To secure the full and timely payment and performance of all obligations and indebtedness of Buyer to Seller Buyer hereby grants to and creates in favor of Seller a security interest in the Product and Buyer authorizes Seller to file, on one or more occasions, one or more financing statements or other documents evidencing Seller's security interest granted by Buyer and describing the Product or any other collateral which may be pledged to Seller. If the financial position of Buyer becomes impaired or unsatisfactory to Seller, advance cash payment or satisfactory additional security shall be given by Buyer upon demand by Seller, and Sellerís shipments to Buyer may be withheld until such payment or security is received. Requiring the Buyer to make advance cash payments or to provide additional security does not waive any of Sellerís rights, powers remedies or privileges. 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. If amounts due hereunder are placed with an outside agency for collection, or if suit is brought for collection, or if collection is pursued by Seller through probate, bankruptcy or other judicial proceedings, then Buyer shall pay all costs of collection, including attorneysí fees, in addition to all other amounts due. No remedy of Seller against Buyer is intended to be exclusive, but each remedy shall to the maximum extent allowed by law, be cumulative and in addition to any other remedy referred to herein or otherwise available to Seller. The exercise or beginning to exercise by Seller of any one or more remedies shall not preclude the simultaneous or later exercise by Seller of other remedies. All remedies of Seller shall, to the maximum extent allowed by law, survive any and all terminations of any agreement or agreements between Seller and Buyer. To the maximum extent allowed by law, no delay or failure on the part of Seller in exercising any right, remedy, power, or privilege of Seller shall operate as a waiver thereof. To the maximum extent allowed by law, any security granted by Buyer to Seller is intended to be a purchase money security interest.
ARTICLE 4. SHIPMENTS
To the extent that 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 onetenth (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 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.
ARTICLE 5. TITLE; RISK OF LOSS
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 IRM LLC source unless otherwise specified in writing by IRM LLC. If Seller is to pay freight, selection of carrier and routing of shipments shall be at Sellerís option.
ARTICLE 6. MEASUREMENT
The volume of product transferred to Buyer and subsequent billing for such product will be based on measurements taken at the IRM LLC 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 weigh scale. For marine shipments, the quantity is based on an independent gauger's inspection report.
ARTICLE 7. LIMITED WARRANTY
THE PRODUCTS SOLD HEREUNDER SHALL BE OF MERCHANTABLE QUALITY AND SHALL CONFORM TO SELLERíS CURRENT STANDARD SPECIFICATIONS OR SUCH OTHER SPECIFICATIONS AS SHALL HAVE BEEN MADE EXPRESSLY A PART OF THIS SALE. SELLER MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED, OF FITNESS FOR PARTICULAR USE OR OTHERWISE, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS.
ARTICLE 8. LIMITATION OF LIABILITY
Defective or nonconforming products shall be replaced by Seller without additional charges, or in lieu thereof, at Sellerís option, Seller may refund the purchase price upon return of the products at Sellerís expense. NOTWITHSTANDING THE ABOVE REGARDLESS OF THE CIRCUMSTANCES, SELLERíS 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 THE PRODUCTS IN RESPECT TO WHICH SUCH CAUSE AROSE. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, 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.
ARTICLE 9. SAFETY AND HEALTH INDEMNITY
Seller shall furnish to Buyer Material 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 Buyerís 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, Buyerís 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.
ARTICLE 10. CARS, TRUCKS AND BARGES
Buyer agrees to unload railroad cars, trucks and barges furnished by Seller within the free time specified by Tariffs on file with applicable regulatory bodies. Buyer agrees to pay directly to the common carrier upon receipt of invoice therefore, for any charges resulting from its failure in this regard. Sellerís current charges for tank cars assigned to Buyerís use are thirty ($30.00) dollars per day for tank cars held longer than seven (7) days from constructive placement. These charges are subject to change. Buyer assumes full responsibility for use and condition of cars, trucks, barges while in Buyerís possession and agrees to (a) compensate Seller for loss or damage to Sellerís property, and (b) indemnify and save Seller harmless from any loss or damage to property other than Sellersí 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 Buyerís 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 Buyerís possession.
ARTICLE 11. 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.
ARTICLE 12. FAILURE IN PERFORMANCE
(a) No liability shall result to either Seller or Buyer from delay in performance or non-performance in whole or in part caused by circumstances reasonably beyond the control of the party affected, including, but not limited to, acts of God,fire, flood, war, explosion, breakdown or labor trouble; embargoes or other import or export restrictions; shortage or inability to obtain energy, equipment, transportation, product deliverable hereunder, crude petroleum or other feedstock from which said product is derived; or good faith compliance with any regulation, direction or request (whether valid or invalid) made by any governmental authority or person purporting to act therefore.
(b) Regardless of the occurrence or non-occurrence of any of the causes set forth in paragraph (a) above, if for any reason, supplies of any product deliverable hereunder or of crude petroleum or other feedstock from which such product is derived from any of Sellerís existing sources are curtailed or cutoff or are inadequate to meet Sellerís own requirements and its obligations to its customers, Sellerís obligation hereunder during such period of curtailment, cessation or inadequacy shall at its option be reduced to the extent necessary in Sellerís sole judgment to allocate among Sellerís own requirements and its customers (whether under contract or not), such product as received and as may be available in the ordinary and usual course of Sellerís business from any such existing sources of supply at the location(s) from which deliveries hereunder are normally shipped.
(c) Seller shall not be obligated to purchase or otherwise obtain other supplies of such product, crude petroleum or other feedstock from which such product is derived to make up inadequate supplies or to replace the supplies so curtailed or cut off. Seller shall not be obligated to make up deliveries omitted or curtailed hereunder and any such deficiencies in deliveries shall be canceled from the contract with no liability to either party therefore.
(d) For the purpose of this Article, Seller shall refer to IRM LLC.
ARTICLE 13. COMPLIANCE WITH LAWS AND REGULATIONS
Buyer agrees to indemnify and hold Seller harmless against all losses, claims, causes of action, penalties and liability arising out of Buyerís failure to comply with all applicable Federal, State and Local laws, ordinances, regulations, rules and orders. Buyer undertakes to determine any export license requirements, to obtain any export license or other official authorization, and to carry out any customs formalities for the export of product.
ARTICLE 14. MISCELLANEOUS
This contract shall not be assigned in whole or in part by Buyer or Seller without the written consent of the other Party, except that Seller may, upon written notice to Buyer, assign its obligation hereunder to any corporation, subsidiary of or affiliated with Seller. No waiver by either Party of any breach of any of the terms and conditions herein contained shall be construed as a waiver of any succeeding breach of the same or any other term or condition. The entire contract is contained herein and there are no oral understandings, representations or warranties affecting it. No modification of this contract shall be of any force or effect unless such modification is in writing and signed by the Party to be bound thereby; and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing terms or conditions at variance with those set forth hereon. This contract cancels and supersedes any prior written contract between parties covering the sale and purchase of the Product described. This contract shall be construed and enforced under the laws of the State of New York.