Definitions and Interpretation.
As used herein, “Agreement” means these Terms and Conditions for sales of Products (the “Terms”), together with the
applicable Purchase Order, which may be placed in writing, orally, or by electronic mail (“PO”), and the applicable Planned Order Acknowledgement
(“POA”); “Buyer’s Facility” means the facility designated in the applicable Sales Document to receive delivery of Products being shipped by Seller;
“DAP” means Delivered at Place (Buyer’s Facility) per Incoterms 2010; “EXW” means Ex Works (Seller’s Facility) per Incoterms 2010; “Laws” means all
applicable federal, state, local, and foreign laws, codes, rules, regulations, and orders of any United States or foreign governmental authority; “Prices” means
the prices set forth in the Quotation; “Products” means the goods specified in the PO and confirmed in the POA; “Sales Documents” means the PO, the
POA, and the Quotation; “Seller’s Facility” means the facility of Seller or an affiliate of Seller at which Products shall be made available for delivery;
“Transportation Equipment” means all types of equipment used by Seller or Buyer to transport Products, including marine equipment, tank cars, tank
trucks, tank wagons, trucks, vans, and railcars; and “Quotation” means the quotation submitted by Seller for the sale and delivery of the Products to Buyer.
In interpreting the Agreement: (a) the singular includes the plural and vice versa; (b) reference to a document or Law means such document or Law as
amended from time to time; (c) the term “or” is not exclusive; (d) “include” or “including” means including without limiting the generality of any
description preceding such term; (e) headings are for convenience only and do not constitute a part of the Agreement; (f) all references to money refer to
United States currency unless otherwise indicated on the POA; and (g) the terms “herein,” “hereunder,” and derivatives or similar words refer to the entire
All deliveries of Products are subject to the Terms, regardless of whether the Terms are attached to a Sales Document or shipping document or are delivered separately. Buyer shall be deemed to have irrevocably accepted the Terms upon the earliest of (a) delivery of the PO to Seller, (b) acceptance of delivery of a Product, or (c) payment of any amount due for a Product. A PO is accepted by Seller only upon Seller’s issuance of a POA. If there are inconsistencies between (i) the Terms and the terms of a Sales Document, the Terms shall control, or (ii) the terms of Sales Documents, the terms thereof shall control in the following order: (1) POA, (2) Quotation, and (3) PO. If any additional or different terms are contained in the PO or other documentation issued by Buyer (“Proposed Terms”), the Terms shall govern regardless of when the Proposed Terms are received by Seller, unless Seller’s Vice President, Lubricants & Specialty Products agrees in writing to the Proposed Terms; otherwise, Seller rejects all Proposed Terms.
Prices; Taxes; Payment Terms.
Prices are subject to change without notice. Prices do not include, and Buyer shall pay Seller, (a) the federal oil spill liability trust fund fee, which may be added as a separate line item on any invoice, and (b) all taxes assessed or imposed by any municipal, state, federal, or foreign government on the Products, or the manufacture, use or sale of the Products (except income, franchise, and gross receipt taxes), unless Buyer is exempt from any such taxes and has furnished Seller with a valid exemption certificate prior to the first shipment. Buyer shall pay Seller the amount set forth on each invoice or POA, as applicable, by wire transfer in advance of delivery unless Seller has agreed to extend credit to Buyer, in which case Buyer shall pay Seller the amount due on the date set forth in the applicable invoice or POA. Past due amounts will accrue interest at the maximum lawful rate from the payment due date until paid. Seller may set-off against any amount whatsoever owing, or becoming due, to Buyer against any amount owing by Buyer to Seller or any affiliate of Seller.
Seller’s invoices, delivery tickets, and other pertinent documents shall be presumptive evidence of quantities, deliveries, and Prices. Buyer must submit any dispute regarding an invoice in writing with supporting documentation, within thirty (30) days after the invoice date to the following address:
HF SINCLAIR REFINING & MARKETING LLC
Credit Contract Administration
2828 N. Harwood, Suite 1300
Dallas, TX 75201
Seller may require Buyer to pay all or a portion of the Price, or to provide adequate security for payment of the Price, prior to delivery of Products. If Seller makes a delivery of any Products before Buyer’s payment in full of the Price therefor, then Buyer grants to Seller a purchase money security interest in the Products and authorizes Seller to file Uniform Commercial Code financing statements, amendments, and continuation statements and to take all other actions necessary to perfect, maintain, and foreclose on the security interest granted herein.
Except as otherwise agreed in writing signed by the parties, an obligation of Buyer to pay any amount to Seller under the terms of this Agreement shall not be discharged until Seller has actually received funds equal to the amount owed pursuant to such terms. Buyer acknowledges and agrees that payments made by Buyer, but not actually received by Seller, shall have no effect on any of Buyer’s obligations to pay Seller any amounts owed to Seller under the terms of this Agreement. Buyer further acknowledges and agrees that Buyer is solely responsible for verifying the authenticity and legitimacy of each invoice and payment request it receives purporting to be from Seller prior to initiating any payment pursuant thereto, including the accuracy of any bank account or other payment details stated therein. [If Buyer has any doubts or suspicions regarding the authenticity of an invoice or payment request it receives purporting to be from Seller, Buyer should immediately contact Seller by calling the Seller at the phone number identified in the POA.] Notwithstanding anything to the contrary, Buyer agrees that Seller is not responsible for, and therefore that Seller shall not be liable in any way for, damages or losses incurred by Buyer arising out of or relating to Buyer’s failure to accurately verify the authenticity and legitimacy of each invoice and payment request it receives purporting to be from Seller, including all terms and details therein, prior to making any payment.
Shipment; Title; Risk of Loss.
The shipping terms are stated in the PO, the POA, or the Quotation, as applicable. When the delivery point is origin, the sale is made EXW and title and risk of loss, damage, destruction, or deterioration of Products transfer to Buyer at Seller’s Facility: (a) at the outlet flange of Seller’s permanent delivery equipment for tank deliveries, or (b) upon loading into the Transportation Equipment for deliveries in drums or packages, as applicable. When the delivery point is destination, the sale is made DAP and title and risk of loss, damage, destruction, or deterioration of Products transfer to Buyer at Buyer’s Facility: (i) for deliveries in bulk, upon constructive or actual placement of a rail tank car containing Products at Buyer’s Facility or at the outlet flange of a tank truck, or (ii) upon unloading from the Transportation Equipment for deliveries of drums or packages, as applicable. A detention charge shall be assessed on any Transportation Equipment of Seller held for unloading beyond seven days (or the number of days specified in the written contract between Buyer and Seller) and shall be added to the applicable invoice. If a Product requires heating to facilitate unloading at Buyer’s Facility, Buyer shall supply the necessary steam. Where the sale is made EXW for delivery into Transportation Equipment furnished or supplied by Buyer, Buyer shall cause the same to be clean and ready for filling subject to inspection and acceptance or rejection by Seller.
Seller warrants that upon delivery, the Products shall meet Seller’s specifications, except that the foregoing limited warranty shall not cover claims on any Products (a) after loading by Seller into Transportation Equipment supplied by Buyer, or (b) if the claim arises from the failure of Buyer to comply with its obligations hereunder, in which case the Products are sold “AS IS.” SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, INCLUDING BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR PARTICULAR USE OR PURPOSE, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS.
Nonconformities; Remedies; Liability Disclaimer.
Buyer shall inspect the Products prior to unloading the Products (which inspection shall be completed by Buyer within two (2) business days after the Products arrive at Buyer’s Facility) and immediately notify Seller orally of any nonconformities in the quality or quantity of the Products, which oral notice shall be confirmed in writing within three (3) business days after the oral notice is given. Within a reasonable period of time after receipt of such notification, at Seller’s option, Seller shall correct or replace such nonconforming Products or credit Buyer for the Price of such nonconforming Products, except that if Seller disputes Buyer’s claims, the parties shall enter into dispute resolution negotiations. Except as provided in this Section, in no event shall Seller be liable to Buyer or any third party for any special, indirect, incidental, consequential, exemplary or punitive damages whether based on breach of warranty, contract, strict liability, negligence or any other legal theory of recovery, or in any other manner arising out of this Agreement, the transactions contemplated hereby or otherwise, including, but not limited to, lost profits or loss of use or service.
Confidentiality; No Rights to Marks.
Buyer shall not disclose in any manner the terms of a Sales Document or any other confidential, proprietary or non-public information disclosed by or regarding Seller and the Products (including Prices) (“Confidential Information”) to any third party without the express written consent of Seller, except that if Buyer is required by Law to produce Confidential Information, Buyer shall give Seller prompt written notice of such legal process and shall reasonably cooperate with Seller in seeking a protective order or other appropriate protection. If a protective order or other appropriate protection is not obtained, or if Seller waives its right to seek a protective order or other appropriate protection, Buyer shall (a) furnish only that portion of the Confidential Information that, upon the advice of Buyer’s legal counsel, it is legally required to disclose, and (b) exercise reasonable efforts to obtain assurance that confidential treatment shall be afforded such Confidential Information. Buyer acquires no interest in and shall not use the name, trademarks, or brands of Seller or its affiliates in the resale of Products. Seller shall be entitled to injunctive relief to enforce Buyer’s obligations under this Section without the obligation of posting a bond, cash, or other security.
Compliance with Laws.
Buyer shall comply with all Laws relating to the use, handling, transportation, and disposal of the Products. Without limiting the generality of the foregoing, Buyer shall (a) not export, re-export, or otherwise transfer, directly or indirectly, the Products in violation of Law, (b) be responsible for obtaining any necessary government authorization required to ensure compliance with Law, and (c) contact the U.S. Departments of Commerce, State and Treasury and applicable foreign government authorities to the extent Buyer needs guidance as to applicable licensing requirements and other restrictions to meet its obligations hereunder.
Buyer warrants that Buyer and its employees, contractors, and agents have not offered, promised, made, or facilitated the making of, payments to foreign government officials or officials of a public international organization as are prohibited by the U.S. Foreign Corrupt Practices Act in connection with the Products or otherwise.
Buyer shall indemnify, hold harmless, and if requested by Seller, defend, Seller, its affiliates, and their respective successors, assigns, employees, officers, directors, shareholders, members, partners, contractors, and consultants (as applicable, the “Indemnified Party”) from and against all losses, costs, expenses, liabilities, damages, fines, or penalties, including court costs, reasonable attorneys’ and professionals’ fees and expenses and other litigation or settlement expenses (collectively “Losses”) sustained or incurred by the Indemnified Party, including in connection with a claim, demand, or action made by a third party against the Indemnified Party, to the extent arising from (a) failure of Buyer to perform any obligation of Buyer under the Agreement, and (b) unloading and use of the Products, including injuries to person or property.
Delivery dates are estimates only. Seller shall attempt to notify Buyer of anticipated delivery delays, but Seller shall not be in default due to any such delays. If a curtailment, shortage, or cessation in Seller’s existing or contemplated availability of raw materials or of Products, regardless of the cause therefor, renders Seller unable to comply with any of its obligations to Buyer and other customers to whom it is bound by then existing contracts, Seller may, in its sole discretion, withhold, suspend, or reduce sales and deliveries hereunder, or allocate sales and deliveries to Buyer and other customers without liability.
Hazardous Substances; Assumption of Risk.
The material used to produce the Products includes crude oil or its byproducts that contain or that may be found to contain substances hazardous to the health and safety of persons and property. Buyer assumes all risk relating to the Products at the time of transfer of risk of loss and shall undertake and assume full responsibility to maintain, observe, and communicate adequately to Buyer’s agents, employees, customers, and contractors any and all health and safety warnings, procedures, standards, rules, and regulations supplied to Buyer by a governmental authority, or by Seller as part of Buyer’s obtaining, using, processing, handling, testing, storing, shipping, or reselling of a Product.
Neither party shall be liable to the other when its performance is delayed or prevented by fire, explosion, storm, flood, extreme heat or cold, electrical blackout, war, rebellion, insurrection, riot, strike or other labor disturbances, breakage or accident to machinery, perils of navigation, or for delay or failure in performance when its supplies or facilities of production, manufacture, transportation, or distribution, which otherwise would be available, are impaired through compliance with the order of any governmental authority or acting authority, or when such delay or failure is due to any cause whatsoever reasonably beyond its control, whether or not similar to the causes listed herein, except that the foregoing shall not release a party from any obligation to timely make a payment required hereunder.
All notices and other communications that are required or permit¬ted to be given under the Agreement shall be in writing and delivered in person or by electronic mail, facsimile, overnight courier, or certified mail, postage prepaid, return receipt requested, to the receiving party at the address shown on the POA, or to such other address as such party may have given to the other by notice pursuant to this Section. Notices and other communications shall be deemed given on the date of delivery, in the case of personal delivery, electronic mail, or facsimile, or on the delivery or refusal date, as specified on the return receipt in the case of certified mail or on the tracking report in the case of overnight courier.
Governing Law and Forum.
The Agreement shall be governed and enforced in accordance with the Laws of the State of Texas, without regard to its conflict of laws principles. Any litigation with respect to the Agreement shall be brought in the appropriate courts located in Dallas County, Texas, and Buyer irrevocably submits to such personal jurisdiction and venue. The United Nations Convention on Contracts for the International Sale of Goods is excluded from application to the Agreement.
If Seller is required to take any action to enforce the terms of the Agreement, Seller shall be entitled to reasonable attorneys’, consultants’, expert witnesses’, and other professionals’ fees and costs, costs of collection, and interest at the statutory rate on any unpaid amount from the date due.
Amendments; No Buyer Assignment; Severability.
The Agreement (a) may be amended or cancelled only in writing signed by Buyer and Seller’s Vice President, Lubricants & Specialty Products, and (b) may not be assigned by Buyer without Seller’s prior consent, and any attempt to assign it without such consent shall be void. If any of the provisions herein shall for any reason be held void or unenforceable, the remaining provisions shall remain in full force and effect.