Terms & Conditions

 

1. General – The provisions of these General Terms and Conditions, unless otherwise stated, shall apply to any contract, purchase order and any other agreement (“Agreement”) involving New World Global, LLC, or any of its affiliated entities (“NWF”). If there is any conflict between the Agreement and the General Terms and Conditions, the latter shall prevail.
2. Term – This agreement shall terminate at the conclusion of the Term. On termination of this Agreement for any reason, the accrued liabilities of the Parties shall continue, notwithstanding such termination. All terms of this Agreement which would, by their nature, persist after termination of this Agreement shall survive such Unless otherwise specified in the Confirmation or Rider, delivery months begin at 7:00 a.m. on the first day of the calendar month and end at 7:00 a.m. on the first day of the following calendar month.
3. Delivery Point, Title & Risk – Buyer agrees to purchase the Product from Seller, and Seller agrees to sell the Product to Seller agrees to deliver the Product to Buyer at the Delivery Point. If the Confirmation or Rider specifies the same Delivery Point and Title Transfer Point, Delivery is complete and title to and risk of loss or damage to the Product passes to the Buyer at the Delivery Point when: (i) Product is loaded into or unloaded from a tank truck, at the outlet flange of the tank truck; (ii) Product is loaded into a railcar, at the outlet flange of the railcar, or if applicable, upon the constructive placement of the railcar by the railroad, or upon the actual placement of the railcar for unloading if the railcar has not been previously constructively placed; (iii) Product has passed the outlet flange of the facility from where the Product originates from and delivered into the delivering pipeline, or, if applicable, as the Product is metered into connecting storage or transportation system, when Product is delivered by pipeline; or (iv) the transfer of Product is entered on the books of the facility, when deliveries are made within a facility or by in-line transfer. Except as otherwise specifically provided in this Agreement, Seller will not be responsible for any aspect of transportation, handling or use of the Product. If the Confirmation or Rider specifies a Title Transfer Point that is different from the Delivery Point, then title to and risk of loss or damage to the Product passes to the Buyer at the Title Transfer Point.

 

If Seller acts as shipper of the Product after the passage of title and risk to the Buyer, Seller will be in control of the Product for the sole purpose of delivering the Product to Buyer as Seller’s consignee.

 

Buyer hereby grants to Seller and Seller hereby retains a security interest in all Product sold hereunder and all proceeds from the sale or other disposition of such Product, until such Product is paid for in full by Buyer. Buyer hereby authorizes Seller and its agents to file any financing statements and other documents necessary to create, perfect, and maintain the perfection of the security interest granted hereunder.

 

4. Product Specifications – All Product delivered under this Agreement will comply with specifications in the following order (with (a) having the highest priority and (c) the lowest):

 

a.the specifications described in the Confirmation or Rider, if any;

 

b.the specifications described in the attached Specifications schedule, if any; and

 

c.the specifications that were previously delivered to the Buyer by the Seller, if

 

For greater certainty, in the event of a conflict, the specifications described in the Confirmation or Rider shall govern. If no specifications have been provided, then all Product delivered under this Agreement will comply with standard industry specifications that apply to such Product, as such standards exist from time to time.

 

5. Measurement of Product Quantity – The quantity of Product delivered will be measured at the location where the Product is loaded into the transportation equipment, using standard industry practice at the time of measurement, (i) in the case of delivery into rail cars, by means of the railcar’s gauging device and applicable outage tables; (ii) in the case of delivery into tank trucks, by means of a weigh scale or metering device at Seller’s option; and (iii) in the case of delivery into pipelines or storage facilities, by meter or other mutually accepted method or device. Unless otherwise specified in the Confirmation or Rider or unless otherwise required by legislation at the receipt or delivery location (as applicable), all volumetric measurements

 

 

contemplated herein will be corrected for temperature to: (i) 60 ºF when measured in Imperial or U.S. units; and

(ii) 15ºC when measured in metric or System International units.

 

6. Taxes, Assessments, and Duties – With the exception of income taxes or any other taxes imposed on Seller’s profits, any tax, duty, charge, royalty, contribution, fee, or other amount (collectively referred to as the “Amounts”), now or hereafter imposed or collected by or for the benefit of any governmental or public body or agency with regard to, in connection with or as a result of the supply or sale of Products shall be paid by Buyer or, at the discretion of Seller, Seller may impose a surcharge on each unit of Product delivered or sold hereunder to offset, ratably among Seller’s customers, any such amounts, and Buyer shall pay the said surcharge to Seller, in addition to any amounts otherwise payable by Buyer hereunder.

 

Without limiting the generality of the foregoing, the Parties acknowledge that the government of the Province of Quebec has created a cap- and-trade system pursuant to which Seller may need to acquire greenhouse gas emission allowances (the “Emission Allowances”) to cover the greenhouse gas emissions attributable to the Products sold hereunder, and the Parties acknowledge that other Provinces or jurisdictions in the United States and Canada may, from time to time, create similar systems. At such time as the cost of the Emission Allowances is known to Seller, Seller will invoice to Buyer and Buyer will pay to Seller, in addition to the price of Products sold hereunder, an amount equivalent to the value of Emission Allowances, where the Product sold is subject to such Emission Allowances and as determined by Seller from time to time, necessary to cover the emissions reasonably attributable to the volume of Products sold to Buyer hereunder, unless such value has otherwise been included in the price of the Products. Upon receipt of the first invoice including said value of Emission Allowances, Buyer shall have ten days to express its disagreement with the value determined by Seller, in which case Buyer shall be entitled to immediately terminate this Agreement by written notice to Seller, without affecting the obligation of Buyer to pay the value of Emission Allowances attributable to the sales of Products made before said termination.

 

All the prices that New World Global, LLC. And New World Fuel, S.A. de C.V., offered in writing by e-mail, letter of intent or any other document, will be a net price, without the taxes applicable. So, in every purchase, the buyer must consider the tax applicable to the product, which will be charged and included in a separate line of the invoice sent to the buyer. For specific questions or additional details to the applicable taxes, we encourage you to contact your tax advisor.

 

7. Export/Import Compliance – Notwithstanding Section 6 hereof, (i) if Product is imported from the U.S. to Canada, the Party that is the importer of record of the Product (as indicated on the Confirmation or Rider) shall fulfill all applicable import/export requirements, including but not limited to those of any province, state, the CBSA, and S. Customs; and (ii) if Product is imported from Canada to the U.S., the Party that is the exporter of record of the Product (as indicated on the Confirmation or Rider) shall fulfill all applicable import/export requirements, including but not limited to those of any province, state, the CBSA, and U.S. Customs. Such Party shall pay any applicable import duty, “green credit” charge, any tax collected by the CBSA or U.S. Customs in the way of duty, fees, and penalties, or any other applicable fees, fines, penalties, or costs. Both Parties shall exercise commercially reasonable efforts to provide supporting documentation. If the Buyer purports to rely on an exemption from such requirements, then Buyer shall provide evidence in support of such reliance. If Buyer does not provide satisfactory evidence thereof, then Buyer shall indemnify Seller in respect of any amounts Seller pays because of such requirements.

 

8. Deliveries and Under lifting – On a commercially reasonable efforts basis, all deliveries will be made in accordance with the monthly schedule indicated in the Confirmation or Rider at rateable quantities per day (unless otherwise specified in the Confirmation or Rider) during each day of the month and during loading hours agreeable to Seller. Quantities scheduled to be taken in any month which are not taken in such month will not be made available for delivery in any subsequent month, unless the Seller’s consent has been obtained prior to the month in which the quantities were originally scheduled to be delivered. Where Buyer’s liftings are below the scheduled volume in any month, Seller shall have the right to make arrangements to mitigate its losses and this shall include, but not be limited to, selling the under lifted volume to other parties (at Seller’s sole discretion, using commercially reasonable efforts to secure a market rate) and Buyer shall compensate Seller for loss of revenue and all costs of mitigation incurred by Seller, acting reasonably, during any mitigation

 

Any additional destinations must be mutually agreed upon Payment Terms – Pre pay Other Terms – On a monthly basis, if Buyer does not order and/or accept the full amount of contracted railcars, Buyer shall pay to Seller $5,000 USD for each railcar regardless of the reason for non-use (Take or Pay Obligation), unless prior mutually acceptable arrangements have been made

 

9. Rejection and Notice of Defects – Buyer has 72 hours after receipt of the Product to inspect, at its sole cost,and either accept or reject the Product (which may be rejected only if it contains defects or non-conformities). If Buyer retains the Product in its possession for a period of 72 hours after receipt without rejecting it, this will be regarded as Buyer’s irrevocable acceptance of the Product. If the Product is rejected, Notice must be given to Seller so that the Notice will arrive no later than five business days after discovery of the defect or nonconformity in the Product, fully specifying all claimed defects and nonconformities. Seller will have the right to independently test any rejected Product before the transport equipment (e.g. railcar or truck) is offloaded, at which time the Seller may redirect the transport equipment.

 

10. Shrinkage claim procedure: Rail Quantity Shortages: Seller shall not be liable for rail quantity shrinkage when Buyer has failed to: notify Seller of the alleged shortage by telephone immediately upon discovery (followed by prompt written confirmation and supporting documentation); and obtain Seller’s permission to unload the shipment.

Rail Quantity Claims: Claims by Buyer for variance in rail quantity may only be made where the variance exceeds two (2) percent of the individual shipment. Such claims must be made within forty-eight (48) hours from point off-loaded and must be accompanied by supporting documentation. Buyer shall give Seller an immediate opportunity to investigate any such variance.

Measurement: Buyer shall cause Product to be gauged or metered using accurate measuring facilities and techniques which are standard in the industry at the time of measurement upon arrival to the terminal. Meters and temperature probes shall be calibrated according to the latest applicable API or ASTM standards. Measurement calibrations shall be reviewed not less frequently than once every six (6) months. The quantity of Product delivered under this Agreement shall be measured at the location where the Product is into the transportation equipment as in the case of delivery into tank car, by means of a magnetic gauge rod (or if not available, a slip tube gauging device) and applicable outage tables.

 

Shrinkage Calculation instructions:

Step 1:  Shell Capacity (USG) – Inches Out (USG) = Gross Gallons

Start with the shell capacity on a railcar.  There are 3 ways to find this.  1) it is normally included on the outage table or mechanical information available on the public websites (which is where most people get it).  2) Stencilled on the side of the tank car or 3) on the bill of lading

Inches out/outage marker – after measuring the car, use the outage table by cross referencing the gauge reading to determine how many USG to deduct from the capacity.

The outage marker is a simple gauging device which is required on non-pressure cars. It provides a means for visually determining the product level in the car. There are two different types: a graduated marker, which is most common, and a 2% outage marker. Older cars may be equipped with the 2% marker, as the outage requirement was 2% at the time of car construction. The current outage requirement is 1% for all non-TIH products, at stipulated reference temperatures. Outage markers are not used on pressure cars, because there is no way to look inside the tank.

Step 2:  Gross Gallons x Temperature Correction Ctl = Net Gallons at 15 °C

To obtain the Volume Correction factor to 15°C you will need to use the Govt of Canada Temp Coefficient Table by entering the product temperature in °C. Then multiplying the volume correction factor and the gross gallons obtained in Step 1.

Step 3: Net Gallons at 15°C / Net Gallons at Bill of Lading = shrinkage %

Shrinkage over 2% follow the shrinkage Claim Procedure.

 

11. Buy/Sell and Exchange Balancing – The terms of this Section 11 shall only apply to this Agreement if substantially similar volumes are intended to be bought and sold or exchanged under this Agreement:

 

a. Each Party shall be responsible for maintaining the volumes bought and sold or exchanged in balance on a month-to-month basis, as near as reasonably

b.If, for any reason (including events of force majeure), a Party complies with the requirements of Section 11a) but fails to deliver or accept delivery of the contractually specified volume during any month (an “Imbalance Month”), then the Party that delivered the lesser volume during the Imbalance Month (the “Underdelivering Party”) shall deliver to the other Party a volume of Product equal to the difference between (i) the volume delivered by the Underdelivering Party during the Imbalance Month, and (ii) the volume delivered by the other Party during the Imbalance Month (such difference being the “Imbalance Volume”). The Imbalance Volume shall be delivered as soon after the Imbalance Month as is reasonably practicable it being understood that the Parties shall endeavor to cause the Imbalance Volumes confirmed by the 20th day of the Imbalance Month to be delivered during the second calendar month after the Imbalance Month, except to the extent prevented by a new or continued event of force

c. When a Party fails to deliver or accept delivery of the contractually specified volume during an Imbalance Month due to an event of force majeure, if the Imbalance Volume has not been delivered before the end of the second calendar month after the Imbalance Month, and if no other resolution of the Imbalance Volumes has been agreed between the Parties, during the third month after the Imbalance Month, the Underdelivering Party shall deliver, and the other Party shall take, an amount of Product equal to the Imbalance Volume, and such delivery shall be of the same type of Product, at the same location and (except as provided in Section 11d) below) at the same price as the Product received by the Underdelivering Party during the Imbalance

d.To the extent that an Imbalance Volume is delivered after the Imbalance Month, and except as provided in the Confirmation or Rider: (i) if the price specified in this Agreement is a fixed price or formula price based on the price of Product on a date or during a specified range of dates (e.g. “April 12, 2016,” or “April 12 – 19, 2016”), the price of the Imbalance Volumes shall be equal to such price without regard to the month of actual delivery; and (ii) if the price specified in the Agreement is a formula price based on the price of Product on a date or during a range of dates that is not tied to a specific date or range of dates (e.g. “bill of lading date”, “month of delivery”, “NYMEX trade month” or “calendar month average”), the price for the Imbalance Volumes will be calculated according to such formula for the actual month the Imbalance is

 

e.The foregoing notwithstanding, the obligation of either Party to deliver or take an Imbalance Volume less than 1000 barrels (or equivalent) at the end of this Agreement shall be

 

12. Equal Daily Deliveries – For pricing purposes only, unless otherwise specified in the Confirmation or Rider, all Product delivered hereunder during any calendar month shall be considered to have been delivered in equal daily quantities during such
13. Terms of Payment – Buyer agrees to make payment against Seller’s invoice for the Product purchased and other fees, charges and taxes as applicable to Seller in the currency specified in the Confirmation or Rider in immediately available funds. Payment is due on or before the date specified in the Confirmation or Rider. If payment due date is on a Saturday or bank holiday other than Monday, payment shall be due on the preceding banking day. If payment due date is on a Sunday or a Monday bank holiday, payment shall be due on the succeeding banking day. Payment shall be deemed to be made on the date good funds are credited to Seller’s account at Seller’s designated bank. In addition:

a. If Buyer fails to pay all or any part of the invoiced amount when due, interest shall accrue monthly and be payable on the unpaid amount (except for any portion thereof which is subsequently determined to be overstated) at the lower of (i) the prime rate at Seller’s bank plus 2% per annum and (ii) the maximum amount allowable by applicable law. Any interest which remains unpaid shall be added to the principal amount then outstanding. If Buyer fails to pay when due any amount owing as set forth in an invoice rendered by Seller, other than such portion thereof as it in good faith disputes in writing, or if Buyer fails to provide a Performance Assurance when required by Seller, and if either of such failures continues for five days following delivery by Seller of written notice of such default, Seller may suspend deliveries If such failure to pay or provide a Performance Assurance continues for ten additional days, Seller may terminate this Agreement. Such suspension or termination shall be without prejudice to Seller’s right to claim for damages for loss of profit which it would have obtained during the period of suspension or to the end of the original Contract Period if the Agreement is terminated early as above provided.

b.Any overpayment/underpayment in funds will be returned or collected within fifteen (15) days following reconciliation and true up with respective

c. If Seller has not received notice of a dispute in respect of an invoice within ninety days of the date it was rendered, then such invoice shall be deemed for all purposes to be

d. In the event either Party fails to make timely payment of any monies due to the other Party hereunder, the other Party may offset such unpaid amount against monies owed to such Party under this Agreement or any other

e.Demurrages caused or resulting from a period of P., Buyer will be liable for this cost. Seller will justify the cost of this using/demonstrating the third parties involved documentation.

14. Set-Off – In the event the party fails to make a timely (i) payment of any monies due and owing to the party, then the non-defaulting party may, as its option and in its discretion, to the extent permitted by law, set off any obligations owed by the non-defaulting party to the non-defaulting party to the defaulting party under this Agreement or any other agreement, whether matured, unmatured, contingent, or otherwise, against the amounts owed by the defaulting party under this Agreement or any other oral or agreement between the parties or their In such event, the obligations of the non-defaulting party shall be deemed satisfied and discharge to the extent of such set-off satisfied the full obligation owing. The right of set-off forth herein shall be cumulative of and in addition to any common law or other contractual right of set-off. In an obligation is unascertained, the non-defaulting party may in good faith estimate such obligation and set-off payment or volume amount in respect of the estimate, subject to the non-defaulting party accounting to the defaulting party when the obligation is ascertained.
15. Rail Car Provisions – This Section 15 only applies to transactions involving Product that is on a railcar at the Delivery                                                                                                                                                            a.Buyer will not divert Seller’s railcars or consign them to any other routing or to any other destination than that set out in the bill of lading instructions without obtaining prior written or faxed consent of an authorized representative of the Seller. All diversion charges, additional freight charges and any other costs or expenses incurred, sustained or paid by Seller resulting from such diversion shall be for the account of

 

b. Unless otherwise specified in the Confirmation or Rider, Seller will allow Buyer a period of five days for offloading those railcars commencing at: (i) 12:01 a.m., at the unloading location, of the first morning following notification to the Buyer (or the Buyer’s consignee) by the delivering railroad that a railcar is available for placement, or (ii) if notification is not given by the delivering railroad, such time as the railcar is delivered to the Buyer’s (or the Buyer’s consignee’s) off-loading facilities. Upon expiration of such five day period, the Buyer will pay the Seller the detention charge specified in the Confirmation or Rider until such time as the railcar has been returned to the delivering railroad or otherwise placed in accordance with written instruction of the

c.Without limiting any of the other provisions of this Agreement, Buyer shall:

d. be liable to Seller for all loss, costs, and damages whatsoever which Seller may sustain, pay or incur, including without limitation, railcar rental costs payable to the railcar owner during the period a railcar is under repair or other charges payable to the railcar owner in the event of irreparable damage by Buyer to a railcar; and

e. defend, indemnify, and hold harmless Seller from and against all manner of actions, claims, or other proceedings (including inquiries), losses, costs, fines, penalties and expenses (including legal fees), on account of injury or death of persons (including without limitation employees of Buyer and Seller) and/or damage to property, including without limitation, the railcars, which may be brought against Seller or which Seller may sustain, pay or incur, arising prior to the redelivery of the rail car to Seller, except to the extent that such claim, loss, costs, damages, injury, death, fine, penalty or expense results from the negligence or willful misconduct of Seller, its employees, contractors or

 

16. Financial Information and Performance Assurance – Buyer will deliver to Seller such financial statements and other information as Seller may reasonably request from time to time with respect to Buyer’s credit. All costs relating to Performance Assurance will be for the account of the Buyer. All purchases and sales pursuant to this Agreement are, and shall remain, subject to the approval of the Seller’s credit department. If (i) sufficient credit for the transactions contemplated by this Agreement is not approved by Seller’s credit department by five days before the first delivery date of Product hereunder; (ii) subsequent to such approval, Buyer exceeds the credit limit granted by Seller; or (iii) Seller has reasonable grounds for insecurity as to Buyer’s creditworthiness or performance hereunder, Seller may in its sole discretion demand Performance Assurance from Buyer prior to delivering Product as contemplated

 

17. Audit – At any time up to twelve months following a month in which payment was due hereunder, either Party shall have the right, at its sole cost and expense, upon not less than fifteen days’ written notice, to have a third- party auditor (to be approved by both Parties, acting reasonably) audit the relevant books, accounts, and records directly related to an invoice of the other Party to verify the accuracy of such invoice. All information that an auditor acquires shall be kept strictly confidential. An auditor may be required to enter into a confidentiality agreement if it is deemed necessary by the Party being

 

18. Force Majeure – No delay, failure or omission by either Party in the performance of any obligation of this Agreement will be deemed a breach of this Agreement, nor create any liability for damages if such delay, failure or omissions arises from any Force Majeure event. A Party will not be entitled to rely on this provision unless as soon as practicable after the Force Majeure is discovered by the Party required to give notice, such notice is given to the other Party specifying the cause of the delay or non-performance and unless that Party attempts to rectify as soon as possible such cause, except that (i) the settlement of labor disputes or strikes will be at the discretion of the Party so affected; (ii) Seller will not be obligated to purchase alternate replacement Product to supply to Buyer; and (iii) neither Party will be required to mitigate by agreeing to an alternative mode of transportation or alternative Delivery Point. The term of this Agreement will not be extended because of the Force Majeure event. Quantities of the Product deliverable during the Force Majeure period may be cancelled at the Seller’s option. Seller will allocate available Product among all its customers and itself in a fair and equitable Currency fluctuations, changes in interest rates or banking charges or practices affecting a Party will not excuse that Party from performance of its obligations under this Agreement. This provision will not excuse the Buyer from its obligation to pay for Product that has been delivered under this Agreement.

 

Whenever deliveries or receipts of Product are reduced by reason of Force Majeure, the party affected by the event of Force Majeure shall allocate its available capacity between the other party and third parties on a pro rata basis, based on the ratio of the quantity obligation under this Agreement to similarly contracted quantity obligations with third parties at the respective receipt and Delivery Points. Under no circumstances may such availability be allocated based on price.

 

19. Hardship clause– If, due to a change of circumstances and not limited to, change of law, political, financial, legal circumstances, economic meltdown, personal, or technological change or any other circumstance which affects the ability of either party to perform its obligation under the contract which could not have been foreseen before starting or during the contract, performance becomes excessively costly for a party which didn’t accept to bear the related risk, then this party may request its contracting party to re-negotiate the contract. The requesting party shall keep performing its obligations throughout this new round of

If the requested party refuses to renegotiate the contract or if the parties fail to reach a new agreement, then they may either jointly decide to terminate the contract on mutually acceptable effective date and conditions, or Seller will have the right to terminate the contract.

20. Safety Data Sheet – Seller has provided to Buyer and by taking delivery of Product under the terms of this Agreement Buyer acknowledges receipt of Seller’s current Safety Data Sheet(s) concerning the properties of and safe handling procedures of the Product. Buyer acknowledges that the Product is a hazardous material and represents and warrants that it is familiar with the properties of and safe handling procedures for the storage, handling, transportation and use of the Buyer will inform its customers of those safe handling procedures of the Product.
21. Price Escalation – Any increase in Seller’s cost of supplying the Product caused by any level of governmental law, regulation, tax or other burden imposed after the date of this Agreement on the ownership, storage, processing, production, transportation, distribution, use or sale of the Product covered by this Agreement will be added to the price under this
22. Event of Default – An event of default will be deemed to occur if a Party to this Agreement should (i) become the subject of bankruptcy or other insolvency proceedings, or proceedings for the appointment of a receiver, trustee, or similar official, (ii) become generally unable to pay its debts as they become due, or (iii) make a general assignment for the benefit of If an event of default occurs, the other Party to this agreement may withhold shipments or pickups without notice. At any time after an event of default, the other Party to the Agreement shall have the right, at its sole discretion, to terminate this Agreement immediately. Upon termination, the Parties shall have no further rights or obligations with respect to this Agreement, except for the payment of accrued liabilities.

The Parties hereby agree that it is their mutual intent that each transaction completed pursuant to this Agreement:

(i) be an “eligible financial contract” for the purpose of the Companies Creditors Arrangement Act, RSC 1985, c C-36, as amended, the Winding-Up and Restructuring Act, RSC 1985, c W-11, as amended, and the Bankruptcy and Insolvency Act, RSC 1985, c B-3, as amended; and (ii) if one of the Parties is organized in the United States, be a “Forward Contract” as defined in the US bankruptcy code (11 USC Sec 101(25)).

23. Warranty – The Seller warrants good title to all Product delivered hereunder and warrants that such Product shall be free from all royalties, liens, and encumbrances. The sole liability of Seller to Buyer for a breach of warranty will be to replace any Product subject to such breach or refund the purchase price of such Product. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES AGREE THAT ALL WARRANTIES IN RESPECT OF QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF THE PRODUCT, WHETHER EXPRESS OR IMPLIED (INCLUDING WARRANTIES IMPOSED BY STATUTE), ARE HEREBY EXCLUDED AND DISCLAIMED

 

24. Mutual Indemnification – To the extent permitted by Law, the Parties agree as follows:                          a. Indemnification of Buyer – Seller hereby agrees to defend, indemnify and hold harmless Buyer, its respective affiliates and related companies, and the partners, officers, directors, members, employees and representatives of any of the foregoing from and against any and all liabilities, claims, liens, damages, fines, or penalties, losses, judgments, costs and expenses (including attorney’s fees and court costs), of whatever kind or nature and to the extent arising out of, in connection with or resulting from

• any breach of this Agreement or the performance of its obligations under this Agreement by Seller,
• the negligence of Seller, or (iii) the willful misconduct of                                                                  b.Indemnification of Seller – Buyer hereby agrees to defend, indemnify and hold harmless Seller, its respective affiliates and related companies, and the partners, officers, directors, members, employees and representatives of any of the foregoing from and against any and all liabilities, claims, liens, damages, fines, or penalties, losses, judgments, costs and expenses (including attorney’s fees and court costs), of whatever kind or nature and to the extent arising out of, in connection with or resulting from

• any breach of this Agreement or the performance of its obligations under this Agreement by Buyer,
• the negligence of Buyer, or (iii) the willful misconduct of

 

25. LIMITATION OF LIABILITY – EXCEPT FOR AND WITHOUT REGARD TO DAMAGES THAT MAY BE AWARDED TO A NON-AFFILIATED THIRD PARTY AGAINST A PARTY TO THIS AGREEMENT (INCLUDING DAMAGES THAT ARISE IN RESPECT OF INDEMNIFICATION PROVISIONS SET FORTH HEREIN), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR PROSPECTIVE PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF VALUE, LOSS OF PRODUCTION, LOSS OF FINANCIAL ADVANTAGE, LOSS OF PROFIT, OR BUSINESS INTERRUPTIONS) HOWEVER IT MAY BECAUSED, BUT SHALL BE LIMITED TO ACTUALDAMAGES ONLY.
26. Emergency Response– If Seller is required by law or requested by Buyer to respond to an emergency involving the Product downstream of the Delivery Point and does not respond, Buyer will: (a) reimburse Seller for all reasonable costs incurred by Seller in providing such response (b)(i)be liable to Seller for all losses, costs and damages whatsoever which Seller may suffer, sustain, pay or incur, (ii) defend, indemnify and hold harmless Seller in accordance with the Claims arising from the emergency response that are brought against and/or suffered by Seller, (iii) release and forever discharge Seller, in respect of any damage, personal injury or other claims whatsoever in law or in equity which Buyer may have; arising as a result of the acts or omissions of Seller, its employees, contractors or agents, in responding to the emergency, except to the extent same arises as a result of the negligence of the Seller, its employees, contractors or

 

27. Subrogation – To the extent payment is made by an indemnifying Party at any time pursuant to this Agreement, such indemnifying Party shall be subrogated to the indemnified Party’s rights and may receive an assignment of rights of recovery for a lessor

 

28. Insurance – Both Parties acknowledge and agree that neither Party is insuring the Product or property of the other Buyer agrees to procure and maintain and cause its carriers to procure and maintain insurance coverage (i) in compliance with the requirements of the laws and regulations of the jurisdiction(s) in which delivery of the Product will occur with respect to the receipt of Product hereunder and/or any activities related thereto and (ii) in compliance with the requirements of any loading facilities at which delivery of the Product will occur.

 

29. Necessary Documents – Upon request, each Party agrees to furnish all substantiating documents incident to the transactions contemplated in this Agreement, including a Delivery Ticket for each volume delivered and an invoice for any month in which sums are

 

30. Government Regulations – The terms, provisions, and activities undertaken pursuant to this Agreement shall be subject to all applicable laws, orders and regulations of all governmental

 

31. Governing Law – This Agreement will be interpreted and governed in accordance with the laws of the state of Texas and the federal laws of the United States of America applicable therein (excluding any conflicts of law rule or principle that would otherwise refer construction or interpretation of the Agreement to the substantive law of another jurisdiction), and the Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the state of
32. Confidentiality – This Agreement will not be disclosed in whole or in part by either Party to any third party without obtaining prior written consent of the other Party, unless such disclosure is required by law, is necessary to obtain regulatory approval or reporting, or for obtaining any necessary financing.
33. Assignment and Successors – The Seller, at its own discretion, may assign this Agreement in the event that the Buyer is in default of any payment required under this Agreement, or any other material term of this Agreement. In all other cases, neither Party may assign this Agreement, any money due hereunder, nor any claim arising in connection herewith, without prior written consent of the other Party, which consent shall not be unreasonably This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.
34. Severability – If any provision of this Agreement is held illegal, invalid or unenforceable for any reason whatsoever, the legality, validity or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired
35. Headings – Headings used in this Agreement are used for convenience of reference only and do not form a part of this
36. Waiver – No waiver by either Party with respect to any breach of or any right under this Agreement, and no course of dealing or performance, will be deemed to constitute a continuing waiver of any other breach or of any right, unless such waivers are expressed in writing executed by authorized representatives of the Parties
37. Entire Agreement – This Agreement constitutes the entire and exclusive agreement between the Parties with respect to this transaction and all representations, offers and undertakings of the Parties made prior to the effective date of this Agreement, whether oral or in writing are merged in it. Unless expressly provided otherwise in this Agreement, each Party objects to and will not be bound by any past or future terms or conditions or representations not set forth in this Agreement, including any additional or inconsistent terms shown on the other Party’s confirmation, shipping documents or invoices, and any additions to the provisions of this Agreement included in those documents are null and void.
38. Amendments in Writing – Any amendment of this Agreement must be in writing executed by the authorized representatives of the Parties
39. Notice – Any notice required or permitted to be given under this Agreement will be validly given if in writing and delivered, sent by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy (including email) or sent by prepaid registered mail, addressed to the applicable Party at its address indicated on the Confirmation or Rider or to such other address as any Party may specify by notice in writing to the Any notice delivered on a business day will be deemed conclusively to have been effectively given on the date notice was delivered and any notice given by facsimile or other electronic communication method will be deemed conclusively to have been given on the date of such transmission. Any notice sent by prepaid registered mail will be deemed conclusively to have been effectively given when received.
40. Time of the Essence – Time is of the essence in this
41. Definitions – The terms set out in this Section 41 shall carry the following meanings throughout the Agreement unless specified otherwise:
42. “Agreement” means these General Terms and Conditions, the Confirmation or Rider, and any additional schedules attached to these General Terms and Conditions or the Confirmation or Rider;

a.“Amounts” has the meaning ascribed thereto in Section 6;

b.“Buyer” means the Party receiving product or having obligation to receive Product;

c.“CBSA” means the Canadian Border Services Agency;

d. “Confirmation or Rider” means the confirmation of agreement, rider, or other document to which the General Terms and Conditions are attached or into which they are incorporated, and any schedules thereto;

e. CONSTRUCTIVE PLACEMENT (CP): “Constructive placement” is a process that occurs internally within the railroad transportation When a railcar, whether loaded or empty, is offered to a customer and the customer cannot or declines to have the railroad spot the car, the railroad will manually code this car as if the railcar has been spotted on the customer’s track. This procedure enables the transportation system to begin the process of applying assessorial charges such as demurrage or storage, if applicable. In the event a railcar is not placed due to railroad convenience or error, railcars will not be constructively placed into customers account.

f.“Delivery Point” means the location specified in the Confirmation or Rider for delivery of the Product by the Seller to the Buyer Free on Board (“FOB”);

g.“Delivery Ticket” means a shipping/loading document or documents stating the type and quality of product delivered, the volume delivered and method of measurement, the corrected specific gravity, temperature, and S&W content;

h.“Emission Allowances” has the meaning ascribed thereto in Section 6;

i.“Force Majeure” means events that are beyond a Party’s reasonable control, including without limitation: acts of God, war, accident, fire, storm, flood, earthquake or explosion, acts of, or compliance with requests of any level of government or any agency thereof, strike, lock-out, disputes with workmen, transportation embargoes, or failure or delays, normal source of supply for the Product, or delays in delivery of any inventory or material, including, without limitation, crude oil, natural gas, natural gasoline, supplies, raw materials and ingredients necessary in the production of the Product, or any other cause or causes whether or not similar to the foregoing events that are unforeseen or beyond such Party’s reasonable control, but for greater certainty, a shift in the market price for the Product, a lack of finances, or a loss or reduction of Buyer’s markets for the Product for any reason will be deemed not to be a Force Majeure event;

j.“Imbalance Month” has the meaning ascribed thereto in Section 11;

k.“Imbalance Volume” has the meaning ascribed thereto in Section 11;

l.“Party” means either Buyer or Seller, and “Parties” means both of them;

m.“Performance Assurance” means security in the form, amount, and term specified by Seller, including, but not limited to, a standby irrevocable letter of credit, a prepayment, or a guarantee by an entity acceptable to Seller;

n.“Product” means the substance(s) bought and sold pursuant to this Agreement, as described in the Confirmation or Rider;

o.“Sanction Laws” means all Applicable Laws concerning sanctioned and/or embargoed countries, entities and individuals administered or enforced by the US government, the United Nations Security Council, the Mexican government and/or the Canadian government;

p.“Seller” means the party delivering Product or having an obligation to deliver Product;

q.“Term” means, as applicable:

r.the time between the start and end dates as specified in the Confirmation or Rider, inclusive of both dates; or

s. the term specified in the Confirmation or Rider;

t. “Title Transfer Point” means the location specified in the Confirmation or Rider for transfer of title of the Product from Seller to Buyer; and

u.“Underdelivering Party” has the meaning ascribed thereto in Section 11.

v.“Mexican Territory” means the definitions established by articles 42 and 43 of the Political Constitution of the Mexican United States.

w.“North American Territory” means the cities located in the United States of America and Canada.

 

42. Odorization – This Section 42 is applicable only if the Product contemplated in the Agreement is propane. Unless otherwise expressly directed by Buyer or Seller in writing, Product delivered hereunder shall be odorized in accordance with applicable federal and provincial statutory and regulatory requirements. It is understood and recognized by Buyer that the odorant can fade over a period or fade if subjected to certain metals or conditions of metals and may, therefore, be Seller shall have no further responsibility to ensure that the Product remains properly odorized after the Delivery Point. Buyer agrees to indemnify and save Seller harmless from all claims, demands, loss or damage directly or indirectly from Buyer’s failure to monitor and maintain odorant at or above said levels or to so notify its buyer. Any request by Buyer for delivery by Seller of unodorized Product shall require prior written consent and the Buyer agrees to indemnify and hold harmless the Seller for all loss, damage, claims or expenses resulting from the failure to odorize the Product

43.         Propane Education and Research Council (PERC) – This Section 43 is applicable only if the Product contemplated in the Agreement is propane. The Buyer shall be responsible for the payment of all applicable federal and state propane education fees, including without limitation Propane Education and Research Council (PERC) assessment fees on shipments of odorized propane into the United States and any applicable state fees for imports among states. Unless the Parties agree otherwise in writing:

 

a. if the Buyer is the importer of record, the Buyer shall pay such fees directly to the PERC Council and/or to the state authorities and shall provide evidence of such payment to the Seller upon request; or

 

b. if the Seller is the importer of record, the Buyer shall pay such fees to the

 

44.         Compliance Units – This Section 44 is applicable only if the Products contemplated in the Agreement are renewable fuels. The Buyer shall either:

a.transfer to the Seller (by providing appropriate transfer documentation and meeting any other transfer requirements) sufficient compliance units commensurate with the volume of Product purchased and sold pursuant to this Agreement to meet the requirements of the Federal Renewable Fuels Regulations pursuant to the Canadian Environmental Protection Act, 1999 or of any similar legislation; or

 

b.fully reimburse the Seller upon the Seller’s purchase of such compliance

 

45. Refined Petroleum Products – This Section 45 is applicable only if the Products contemplated in the Agreement are Refined Petroleum Products. Before the Seller delivers the Products to the Buyer, this party must have prepaid the correspondent amount of the order. The parties established that this agreement is held according to the good practices and good faith.

 

46. Superfund Excise Tax on chemicals – This Section 46 is applicable only if the Products contemplated in the Agreement are taxable chemicals or taxable substances according with the Internal Revenue Code (“IRC”) Sections 4661 and 4671. In the invoice of the purchase, the Seller will charge and include in a separate line the rate applicable to the Superfund Excise Tax on Chemicals. Rates will be determined by product type and grade and range. Certain exceptions to the Superfund chemicals excise tax may apply. Additionally, certain credits or refunds may be available.

 

47. Corruption Clause- Buyer and Seller each warrant and undertake to the other that in connection with the Agreement and its performance thereof, they will each, respectively, comply with all applicable laws, regulations, rules and requirements of the Mexican, S., or any other relevant jurisdiction applicable to such Party relating to anti-bribery, anti-corruption or antimony laundering and that each shall respectively take no action which would subject the other to fines or penalties under such laws, regulations, rules or requirements.

Buyer and Seller, its representatives and affiliates are obligated to comply with the provisions of (i) Mexican Federal Law for the Prevention and Identification of Operations with Illicit Resources (“Anti-Money Laundering Law”) and all other anti-money laundering and terrorist financing laws that apply to them.

Buyer and Seller agree that they will not, and will cause their agents, employees, officers, directors, shareholders, partners, subsidiaries, affiliates, and representatives associated with or acting on behalf of them (collectively, the “Representatives”), not to, directly or indirectly through a third-party intermediary, interact in any manner with any Covered Person under FCPA and the Mexican National Anti-Corruption System (jointly referred to as “Anti-bribery Laws”).

For purposes of this General Terms and Conditions, the term “Covered Person” by FCPA and the Mexican National Anti-Corruption System includes any employee, agent or representative of a government outside of the United States, and any political party, party official or candidate outside of the United States. A Covered Person may also include royalty, legislators, representatives of state-owned enterprises (including sovereign wealth funds), and employees of public international organizations (including but not limited to the United Nations, International Monetary Fund, World Bank and other international agencies and organizations), regardless of rank or position, and any individuals acting on behalf of a Covered Person.

The activities that Buyer and Seller will carry out in accordance with the General Terms and Conditions hereunder, shall be performed, and shall monitor that such are being performed, in strict compliance of the applicable legal regulations, committing to avoid at all times that such activities fall within any of the assumptions referred to in the Anti-Bribery Laws and Anti-Money Laundering Law.

Buyer and Seller each represent, warrant and undertake to the other Party that they shall not, in connection with the Agreement and its performance thereof, directly or indirectly, pay, offer give or promise to pay or authorize the payment of monies or other things of value, or produced any unfair advantage in favor of the other Party, in violation of any laws, regulations, rules or requirements of any relevant jurisdiction applicable to such Party relating to anti-bribery, anti-corruption or anti-money laundering, to:

1. a Covered Person
2. any other person, individual or entity at the suggestion, request or direction or for the benefit of the Covered

Buyer and Seller shall in connection with the Agreement:

1. abide the principles of transparency, honesty and impartiality and
2. shall report to each other any corruption act related to the Agreement by any Party’s Representatives, they are aware of or that is being under investigation or any applicable authority.
3. comply with all applicable export control, customs, tax and foreign trade regulations, including without limitation, applicable Mexican, U.S and any other applicable sanctions, embargoes and other laws, regulations, government orders and policies controlling the transmission or shipment of goods and
4. make their best efforts in order to prevent illicit acts that their Representatives may
5. take appropriate measures to prevent any form of fraud, as well as the smuggling, manufacture, trafficking and carrying of weapons and ammunition, narcotics.
6. take appropriate measures to prevent the illegal acquisition and smuggling of hydrocarbons, petroleum products and petrochemicals and other similar ones.

Buyer and Seller each represent, warrant and undertake to the other that they will conduct their business in line with free and fair competition and in accordance with all applicable competition and antitrust laws and that all resources used will be of lawful origin.

Buyer and Seller acknowledge that it is its obligation to notify in writing to the other party, in a timely manner, and in any event, no later than 24 (twenty-four) hours after any identification or suspicion of an event, act and/or illegal act that takes that could give rise to any of the cases of illegality established in the Anti-Bribery Laws and Anti- Money Laundering Law.

Notwithstanding anything to the contrary herein, nothing in the Agreement shall be interpreted or applied so as to induce or require a Party or any of its Affiliates to take, or to refrain from taking, any action in connection with the Agreement that is inconsistent with or would be in violation of US, Mexican, or any laws, regulations, or requirements applicable to such Party which relate to anti-money laundering, foreign trade or export controls, sanctions, embargoes or international boycotts of any kind.

 

48. Indemnity Clause- BUYER AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW AND REGARDLESS OF THE PRESENCE OR  ABSENCE OF INSURANCE, TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS SELLER AND ITS AFFILIATES AND THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS AND OWNERS OF, FROM, AND AGAINST ANY AND ALL CLAIMS, WHETHER PERSONAL INJURY DAMAGES, ENVIRONMENTAL DAMAGES (INCLUDING DISCHARGES, SPILLS, LEAKS OR RELEASES OR PRODUCTS OR OTHER MATERIALS), AND DAMAGES OR LOSSES OF ANY PROPERTY (INCLUDING DAMAGE TO, LOSS OF OR LOSS OF USE OF ANY TANK CAR OR PART ON A TANK CAR), ARISING OUT OF OR IN ANY MANNER RELATED TO THE USE OF ANY TANK CARS OWNED OR LEASED BY SELLER OR ITS AFFILIATES (EACH, A “SELLER TANK CAR”) FOR TRANSPORTATION OR DELIVERY OF PRODUCT IN CONNECTION WITH THE PSA, INCLUDING THE PRESENCE OF ANY SELLER TANK CAR IN MEXICO, EXCEPT TO THE EXTENT (A) SUCH CLAIMS ARE CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR (B) A RAILROAD HAS ASSUMED FULL RESPONSIBILITY FOR SUCH CLAIMS.

For the avoidance of doubt, the above indemnity is in addition to, and not in lieu of.

49. New or Changed applicable laws. If at any time after the Agreement is entered into, any Applicable Laws are changed or any new Applicable Laws come into effect at any time during the pendency of the Agreement, and if the impact of such new or changed Applicable Laws will materially and adversely impact Seller, then Seller shall have the option, by written notice to Buyer, to request a good faith renegotiation of the affected provisions of the Agreement so as to eliminate or minimize as much as possible the impact of such new or changed Applicable Laws on Seller. If Buyer fails or refuses to negotiate with Seller in good faith, or if the Parties are unable to agree upon changes to the Agreement, within fifteen (15) days after Buyer’s receipt of Seller’s notice under this Section, Seller shall have the right to terminate the Agreement immediately at the end of such fifteen (15) day period, in such scenario the Seller has no liability. Any Product sold prior to such termination shall be sold in accordance with the Agreement without adjustment regarding such new or changed Applicable Laws.

50. Sanctions and destination restrictions.

 

a) Sanctions. Buyer and Seller each warrants that its performance under the Agreement will comply with all Sanctions Laws.

The Parties agree to communicate immediately to the American, Mexican or Canadian authorities any circumstance that may be interpreted as a breach of the Sanctions Laws regarding their activities.

 

b) Destination Restrictions.

 

i) The Parties agree that the Product purchased and sold under the Agreement shall not, directly or indirectly, be acquired from, sold, transferred or delivered to or through any Person, country or territory in contravention of any Sanctions Laws.

 

1. ii) Buyer shall, upon the request of Seller, provide Seller with appropriate documentation for the purposes of verifying the final destination and ultimate consignee of any delivery hereunder. Such documentation shall be so provided within thirty (30) days of the date of discharge of the shipment or within such lesser period if necessary, to enable Seller to comply with any governmental requirement or request. The obligations of Buyer to comply with such requirement shall not be affected by any sale or disposal of the Product in question by Buyer.

 

c) Special Remedies. If Buyer fails, or Seller has reasonable grounds for believing that Buyer will fail, to comply with any of Buyer’s obligations in this Section 48. a), Seller shall have the right (without prejudice to any other rights and/or remedies Seller may have under the Agreement) to terminate the Agreement, suspend further deliveries under the Agreement and/or dispose of any undelivered Product under the Agreement in such manner as Seller deems appropriate.

 

51. Default interest rate applicable to sales. If the Buyer fails to pay an outstanding payable by (i) the date of payment indicated on the invoice or (ii) on the date of payment indicated on the purchase order, sales contract or any other document in which payment for the sale made has been agreed, default interest shall accrue monthly on the unpaid sum from the due date up to the date of actual payment by the latest interest rate. The latest interest rate is determined by using the most recent published JP Morgan Chase Prime Rate plus 1%. The published rate is available at https://www.jpmorganchase.com/about/our-business/historical-prime-rate
    NWF will invoice the Buyer monthly with the interest charge calculated for each month, the interest charge will continue to accrue until the unpaid sum is received. Such invoice will be sent via e-mail to the Buyer at the end of each month. The Buyer agrees to pay such interest within 5 days of the date of invoice.
52. Jurisdiction By the case the place of delivery of the product is stablished in Mexican Territory, the Parties accept and agree to the exclusive jurisdiction of the applicable courts of Houston, Texas. Each of the Parties hereby expressly waives their right to trial by jury in respect of any suit, action or proceeding relating to this Agreement

By the case the place of delivery is stablished in North American Territory, the Parties accept and agree to the exclusive jurisdiction of the applicable courts of Houston, Texas. Each of the Parties hereby expressly waives their right to trial by jury in respect of any suit, action or proceeding relating to this Agreement.

 

53. Terms and conditions validity. This terms and conditions will be valid according to the time of the agreement. Any change to this terms and conditions would be available at the web site newworldfuel.com without any other requirement.