Sales Terms & Conditions
“Purchase Contract” means collectively the Parties’ written or electronic agreement that authorizes purchase, manufacture (where applicable) and shipment of Goods, including the Seller’s sales confirmation; these Terms and Conditions; Buyer’s purchase order cover; all specifications, exhibits, attachments, referenced documents; and any future written amendments agreed to by the Parties. “Goods” means any materials, equipment or services provided by or on behalf of Seller as stipulated in the Purchase Contract. “Seller” means Resolute Oil, LLC. “Buyer” means the person or entity identified on the purchase order cover. “Party” means Buyer or Seller and “Parties” means Buyer and Seller.
ACCEPTANCE AND TERMS:
Written or electronic affirmation of the Purchase Contract such as by email shall be deemed as Buyer’s acceptance of the Purchase Contract. Buyer’s acceptance of the Purchase Contract is limited to Buyer’s acceptance of all terms and conditions contained therein. If Buyer proposes additional or different terms or conditions, the proposal must be in writing and shall constitute a counteroffer that will be effective only if Seller accepts it in writing. If Seller does not accept Buyer’s counteroffer, the original Purchase Contract shall prevail. Shipment and delivery of Goods shall not constitute acceptance of Buyer’s counteroffer. In the event of conflicts, Purchase Contract documents shall have priority as follows: (1) Seller’s sales confirmation (“Sales Confirmation”), (2) these Terms and Conditions, (3) purchase order cover, (4) Buyer specifications, and (5) other Purchase Contract attachments, exhibits or referenced documents. All prices shall be in U.S. Dollars.
Buyer may terminate the Purchase Contract prior to Goods being loaded for shipment. If termination occurs after Goods have been loaded for shipment, Buyer shall pay to Seller a restocking fee of $250 plus all logistics cost.
All terms of the Purchase Contract, including pricing, shall be deemed proprietary and confidential and Buyer shall not disclose to third parties without Seller’s written consent. This obligation shall survive termination of the Purchase Contract. The confidentiality obligation does not apply to information in the public domain through no fault of Buyer or to information lawfully in Buyer’s possession prior to Purchase Contract date.
All quantity determinations will be corrected to 60 degrees Fahrenheit (60ºF) in accordance with good industry practice. Quantity determinations on vessels will be based on loading shore tank gauges. Quantity determinations on trucks or railcars will be determined by either (i) weight tickets and Certificate of Analysis specific gravity or (ii) shipment vessel gauges and Certificate of Analysis specific gravity.
As its sole warranty, Seller warrants to Buyer that, at the time title to the Goods passes to Buyer (i) the Goods shall conform to the specifications set forth in the Purchase Contract and (ii) title to the Goods shall be free from any security interest, lien or encumbrance. EXCEPT AS SPECIFICALLY SET FORTH IN THE PRECEDING SENTENCE, BUYER ACKNOWLEDGES THAT SELLER HAS NOT MADE, DO NOT MAKE, AND EXPRESSLY DISCLAIM ANY WARRANTIES, REPRESENTATIONS, COVENANTS OR GUARANTEES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, AS TO THE MERCHANITIBILITY, QUANTITY, CONDITION, OR QUALITY OF THE PRODUCT OR ITS SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. Notwithstanding anything to the contrary in the Purchase Contract, this Warranties section is the exclusive remedy available to Buyer or its customer for a warranty claim.
LIMITATION ON LIABILITY:
Except as specified herein to the contrary, neither Party shall be liable for special, incidental, indirect, consequential, punitive or exemplary damages of any type including lost revenue or profit. Under no circumstances, in contract, tort or otherwise, shall Seller’s total liability in connection with any Purchase Contract exceed the amount received by Seller pursuant thereto
A force majeure delay shall mean any delay caused by an act of God; acts of government; war or acts of the public enemy; fire; unforeseeably severe weather or floods; strikes; riots; or other unforeseeable causes beyond the reasonable control of the Party affected, provided that any such delay is not caused, in whole or in part, by the acts or omissions of the Party so delayed and further provided that such Party is unable to make up for such delay with reasonable diligence and speed. Upon providing notice of a force majeure event to Buyer, Seller shall be relieved of its obligation, from the onset of the force majeure event, to make delivery of Goods to the extent and for the duration of the force majeure event, and shall not be deemed to have failed in such obligations to Buyer during such occurrence or event. For the duration of the force majeure event, the Seller may allocate available supply of Goods among customers or terminate the Purchase Contract if the force majeure event lasts more than 60 days. Under no circumstances shall Seller be obligated to cure deficiencies in deliveries of Goods caused by a force majeure event
The Purchase Contract shall constitute the entire agreement between the Parties and shall supersede all prior and contemporaneous proposals, negotiations and counterproposals. The Parties intend for the Purchase Contract to be a final expression of their agreement and a complete and exclusive statement of the terms and conditions thereof. Prior dealings between the Parties or usage of trade (whether before or after the date of the Purchase Contract) shall not be relevant to supplement or explain any term used in the Purchase Contract. The invalidity, in whole or in part, of any of the provisions of the Purchase Contract shall not affect the remainder of such provisions or any other sections of the Purchase Contract, and the affected provision or portion will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the economic intentions of the Parties as evidenced from the provisions of the Purchase Contract. Nothing in the Purchase Contract shall be construed as creating any direct or beneficial right in or on behalf of any third party
COMPLIANCE WITH LAW AND STANDARDS:
Seller certifies that unless specifically exempted, all Goods furnished under the Purchase Contract shall be manufactured, processed, delivered and/or sold in compliance with all applicable laws, acts, rules, orders and regulations, including, but not limited to, the following laws (1) the Civil Rights Act of 1964, as amended; (2) the US Equal Pay Act, as amended; (3) the Age Discrimination in Employment Act, as amended; (4) Executive Order 11246 and 11141 (Title 41, Chapter 60, Code of Federal Regulations); (5) the Vietnam Era Readjustment Act of 1974, as amended; (6) the Federal Rehabilitation Act of 1973, as amended; and (7) Executive Order 11758 (Title 20, Chapter 6, Part 741, Code of Federal Regulations), and all regulations, rules, and orders thereunder and later amendments. If the Purchase Contract exceeds $10,000, Seller certifies it is in compliance with requirements for non-segregated facilities in 41 C.F.R. Chapter 60-1.8. Seller shall comply with all laws dealing with improper or illegal payments, gifts or gratuities, and Seller shall not pay, promise to pay or authorize payment of money or anything of value directly or indirectly to any person for the purpose of illegally or improperly inducing a decision or obtaining or retaining business in connection with the Purchase Contract
TITLE AND RISK OF LOSS:
Seller warrants to Buyer that it has good title to Goods and the right to deliver the same. With respect to water vessel deliveries, title to Goods and all risk of loss shall be transferred as Goods pass the flange connecting the vessel’s housing with the terminal’s lines. With respect to all other deliveries, title to Goods and all risk of loss shall be transferred as Goods pass the supplier’s terminal flange at point of origin connecting with the delivering vehicle
A Party’s failure to exercise or enforce any right in the Purchase Contract, or any other right or privilege under law, or a Party’s waiver of any breach by the other, shall not constitute a waiver or modification of any terms, conditions, privileges or rights whether of the same or similar type, unless the Party gives such waiver in writing
INSPECTION AND TESTING OF GOODS:
Buyer shall inspect and test the Goods or witness testing of the Goods at Buyer’s premises prior to off-loading of the Goods. Any inspection or testing will be in accordance with the Purchase Contract specifications and all other terms of the Purchase Contract. Acceptance or rejection of the Goods shall be made prior to offloading of Goods into the custody of Buyer, except as otherwise provided in the Purchase Contract. Failure of Buyer to inspect and accept or reject Goods relieves Seller from responsibility for such Goods and Buyer shall be deemed to have accepted the Goods. In the event of a discrepancy between test results of Buyer and Seller, an independent, nationally-recognized laboratory, mutually agreed upon by the Parties, shall test a sample of the Goods and the results of such test shall be final and binding upon the Parties
All changes to the Purchase Contract must be in writing and mutually agreed by the Parties
APPLICABLE LAW AND VENUE:
The Purchase Contract shall be governed and interpreted in accordance with the laws of the State of Texas, US, including its provisions of the Uniform Commercial Code, without reference to principles of conflict of laws. The Parties exclude the application of the Convention on International Sale of Goods to the Purchase Contract. Venue for all judicial, administrative, regulatory or arbitration proceedings shall be in Houston, Harris County, Texas and each Party consents to personal jurisdiction in such venue
Prior to delivery of Goods, Buyer shall furnish Seller with the appropriate tax exemption certificates with respect to all federal, state or local taxes, levies, duties, fees and the like (collectively “taxes”) for which Buyer is permitted or required by applicable law to claim exemption. In the event Buyer does not furnish exemption certificates then Buyer shall be responsible for and shall pay to Seller at the time any payment is or becomes due, the full amount of taxes imposed on, with respect to or measured by the Goods, the transaction as between the Parties or the storage, delivery, receipt, purchase, sale, or inspection of the Goods. If Seller is aware of the application of or exemption from a specific tax on the Goods, it shall notify Buyer of the application or exemption and cooperate with the execution of exemption certificates, if necessary
In the event the Goods require an export license, Buyer shall promptly advise Seller in writing about all such requirements, and provide assistance with and deliver any pertinent information and/or documentation. Buyer assumes all liability for failure to notify Seller of license requirements and shall defend, indemnify, and hold Seller harmless for any claims arising out of, related to, or in connection with Buyer’s failure to comply with its export license obligations
BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER, ITS AFFILIATES, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, MEMBERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITIES OF EVERY KIND, INCLUDING ATTORNEY’S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR LOSS OR DAMAGE TO ANY PROPERTY (INCLUDING WITHOUT LIMITATION, CLAIMS FOR ENVIRONMENTAL DAMAGE AND RESULTING FROM THE RELEASE, LEAK OR SPILLAGE OF GOODS), ANY CIVIL OR CRIMINAL FINES OR PENALTIES, RELATING TO THE PERFORMANCE OF THE PURCHASE CONTRACT OR ARISING IN CONNECTION WITH THE GOODS
If any action at law or in equity is necessary to enforce the provisions of the Purchase Contract, the prevailing party shall be reimbursed by the other party for all reasonable attorneys’ fees, costs, and necessary disbursements incurred by the prevailing party in enforcing the Purchase Contract, in addition to any and all other relief to which such prevailing party may be entitled
In relation to this Purchase Contract, Buyer shall not, and shall ensure that its officers, directors, and personnel, shall not, offer, pay, arrange for another person to pay, or agree to pay any payment, gift, or other thing of value of any nature to: (i) any officials, employees, or agents of any governmental authority or government instrumentality; (ii) any political party; (iii) any candidate for political office; or (iv) any other person, including a legislative, administrative, or judicial office (including any person exercising a public function for a public agency, a public enterprise, or a public international organization); when such payment, gift, or other consideration would violate applicable laws or the principles set forth in the United States Foreign Corrupt Practices Act (“FCPA”) or other anti-bribery or anti-corruption laws applicable to either Party
WAIVER OF JURY TRIAL:
Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or related to the Purchase Contract
Buyer represents and warrants that Buyer is not designated on, or otherwise associated with any party designated on, any of the U.S. government restricted parties lists including, without limitation, the BIS Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List
Buyer represents and warrants that it is aware of, understands, and has been advised by legal counsel on U.S. anti-boycott laws including both those promulgated by the U.S. Department of Commerce and by the U.S. Department of Treasury (collectively the “U.S. Anti-Boycott Laws”) and that U.S. persons and certain foreign companies and affiliates of U.S. persons, are prohibited from complying with foreign boycotts, and further represents and warrants that Buyer will not violate any of the U.S. Anti-Boycott law
THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS, PRINCIPLES OF CONFLICTS OF LAWS, OR OTHER INTERNATIONAL TREATY, RULE OR ACCORD THAT WOULD OTHERWISE REFER THE MATTER TO THE LAWS OF ANOTHER JURISDICTION SHALL NOT APPLY.