STANDARD TERMS AND CONDITIONS – KOTZEBUE RETAIL HEATING FUEL SALES
1. Definitions.
a. “Seller” means Vitus Energy LLC.
b. “Buyer” means the buyer of the Product who is agreeing to these Standard Terms and Conditions.
c. “Product” means heating fuel or Diesel as defined in ASTM D975, D396, or D1655.
2. Payment and Taxes. Payment for the Product is due in advance of delivery. There shall be added to the price of each Product, and Buyer shall pay, any and all taxes, now or hereafter imposed by any governmental authority or any tribal authority in respect to or measured by the Product delivered hereunder or by the manufacture, storage, delivery, receipt, exchange or inspection thereof. If Buyer claims an exemption, Buyer shall provide Seller with copies of the applicable tax certificates establishing such exemption.
3. Delivery.
a. Buyer represents and warrants that Buyer owns or is lawfully in possession and control of the real property where delivery is to take place. Buyer authorizes Seller and its employees, agents, and contractors to come onto that real property, whether Buyer is present or not, for the purpose of making delivery. Buyer shall take all steps necessary to ensure the safety of persons making the delivery while they are on the property. If Seller believes in its sole discretion that conditions on the property pose any risk of harm to the persons making the delivery, the delivery equipment, or the environment, then Seller may cancel the order and provide a refund of the purchase price, or may refuse to proceed with delivery until such conditions have been remedied.
b. Buyer represents and warrants that the tank into which the Product is to be delivered (the “Tank”) has sufficient unused capacity to accommodate the volume of Product to be delivered; that the Tank and the Tank base or stand are structurally adequate to safely support the Tank when filled to capacity; and that the Tank and all pipes, valves and other equipment related to the Tank are in good condition and comply with all applicable federal, state, and local laws and regulations.
c. Seller may require that Buyer or Buyer’s designee be present at delivery, and any designee will be deemed to have full authority to act for Buyer with respect to the delivery. Seller may require that Buyer or Buyer’s designee sign a meter ticket, receipt, or other proof of delivery of Product, but Buyer is obligated to pay for all delivered Product whether or not Seller requires or obtains such a signature. Buyer acknowledges and agrees that Seller may contract with one or more subcontractors to deliver Product.
4. Title and Risk of Loss. Ownership, title, and risk of loss to Product shall pass to Buyer upon delivery. Without limiting the preceding sentence, Seller is not responsible for theft of Product after it is delivered to Buyer.
5. Warranties. Seller warrants that the Product delivered shall conform to at least one of the above-referenced ASTM specifications for the Product. SELLER MAKES NO FUTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND OTHER WARRANTIES OF WHATEVER KIND ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED EXCEPT AS MAY BE REQUIRED BY LAW. Buyer’s sole and exclusive remedy in the event of any breach of warranty shall be as provided for in the following paragraph.
6. Claims and Exclusive Remedy. Any claim by Buyer against Seller relating to the Product or the delivery thereof is conclusively waived unless notice of such claim is given to Seller within TWENTY (20) days of the time of delivery. Buyer’s exclusive remedy in the event of any such claim shall be, at Seller’s option, replacement or other cure of the defective Product or performance, or return of so much of the purchase price as has actually been paid by Buyer and removal of any defective Product. As used in this paragraph, “claim” includes without limitation any claim for breach of warranty (including without limitation any warranty as to the quality of the Product), failure to deliver Product ordered, or shortage in quantity.
7. Pollution. Buyer shall comply with all federal, state, and local laws and regulations relating to oil spills and water, air, and land pollution. Buyer shall be responsible for all liability and damages, if any, that may result from any spill, leak, venting, or other escape or accidental discharge of Product in connection with the delivery of any Product purchased by Buyer; PROVIDED, however, that Buyer shall not be responsible for damages resulting from any escape or accidental discharge caused solely by Seller’s reckless misconduct.
8. Security Interest.
a. As security for full and timely performance and payment by Buyer of all indebtedness, liabilities and obligations of Buyer to Seller, whether now existing or later arising, including without limitation payment of all amounts owed by Buyer to Seller in connection with the purchase of Product by Buyer, Buyer grants Seller a security interest in the following property of Buyer (collectively, “Collateral”):
All Product and all other petroleum products in which Buyer has or hereafter acquires an interest, wherever located, and however commingled; and
All cash and non-cash proceeds (including without limitation accounts receivable) or the foregoing, and all products of any of the foregoing.
b. Seller is authorized to file a financing statement (“UCC-1”) without Buyer’s signature in order to perfect Seller’s security interest in the Collateral.
9. Default. Buyer shall be in default if Buyer fails to pay for the Product or fails to perform, keep, or observe any other term, provision, condition or covenant contained in these Standard Terms and Conditions, if such failure continues for ten (10) days after the giving of written notice thereof. In the event of default, Seller may pursue any and all other rights or remedies provided in these Standard Terms and Conditions or by law.
10. Limitation of Liability. Without limiting paragraph 5 of these Standard Terms and Conditions:
a. Seller’s liability for any shortage in quantity, defects in quality or specifications, delivery of Product other than specified, failure to deliver Product ordered, breach of warranty, or any other breach in the performance of any delivery of Product shall not exceed the difference between the cost of cover and the price for which Seller agreed to sell the Product to Buyer. As used in the preceding sentence, the “cost of cover” is the actual price paid by Buyer by making in good faith and without unreasonable delay a reasonable purchase of Product, for delivery by barge, in substitution for the Product due from Supplier, but not including Buyer’s overhead or administrative costs.
b. Seller’s liability for ALL claimS of any nature whatsoever arising out of or relating to THESE STANDARD TERMS AND CONDITIONS, THE PRODUCT, OR SELLER’S SALE OR DELIVERY OF PRODUCT TO BUYER, INCLUDING WITHOUT LIMITATION ALL CLAIMS FOR BReACH OF THESES STANDARD TERMS AND CONDITIONS, NEGLIGENCE, OR STRICT LIABILITY, shall not exceed IN THE AGGREGATE the price to be paid FROM BUYER to Seller for the product. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH ANY CLAIM, INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OF INCOME EARNING CAPACITY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Measurement. Quantity shall be measured in units of volume identified by Seller unless otherwise required by law. Measurement of quantity delivered shall be conclusively determined by the meter reading from the tank truck used to make the delivery.
12. Hazardous Nature of Product. Buyer represents and warrants that it is knowledgeable and aware that the Product delivered hereunder is hazardous material and that Buyer is sophisticated and knowledgeable with respect to (i) the hazards and risks associated with such Product, and (ii) the handling, receipt, transportation, storage and use of such Product. Buyer shall also transmit to Buyer's customers any health and safety warnings and notices received from Seller promptly after such are furnished to Buyer by Seller, but Seller shall not have any obligation to provide such warnings or notices.
13. Force Majeure. The Seller shall not be liable for failure to perform this contract in whole or in part if such failure is due to strikes, work stoppages or slowdowns, local labor shortages, accidents, fire, storms, flood, late break-up or early freeze-up, riots, war, failure of equipment, delays in transportation, shortages in cars, shortages of fuel, power or materials, laws, regulations or requirements of any government or government agency, acts of God, or other contingencies beyond the reasonable control of the Seller. Without limiting the preceding sentence, the time for Seller to make delivery hereunder shall be extended during any period in which delivery shall be delayed or prevented by reason of any of the foregoing causes. If any delivery hereunder shall be so delayed or prevented for more than thirty (30) days beyond the stated delivery period, Seller or Buyer may terminate this contract with respect to such delivery upon written notice.
14. Waiver. The failure of a party to insist on the strict performance of any provision of these Standard Terms and Conditions or to exercise any right, power or remedy upon a breach hereof shall not constitute a waiver of any provision of these Standard Terms and Conditions or limit the party’s rights thereafter to enforce any provision or exercise any right, unless such waiver is evidenced in writing and executed by the party.
15. No Third Party Beneficiaries. Neither these Standard Terms and Conditions nor the transaction contemplated by them is entered into for the benefit of any entity other than the specific parties hereto.
16. Construing of Standard Terms and Conditions. These Standard Terms and Conditions shall be construed according to the fair intent of the parties and not for or against either party
17. Law and Venue; Waiver of Jury Trial. These Standard Terms and Conditions are governed by the laws of the State of Alaska. In any dispute arising out of or relating to these Standard Terms and Conditions or any transaction contemplated herein, jurisdiction and venue shall lie exclusively in the courts at Anchorage, Alaska. Buyer irrevocably waives all rights to a trial by jury in any action, proceeding, or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to these Standard Terms and Conditions or any transaction contemplated herein. The prevailing party in any action shall be entitled to an award of its attorney fees and costs.
18. Notice. All notices required or permitted to be given under these Standard Terms and Conditions shall be in writing and (i) delivered personally to the designated officer of the party to whom directed; or (ii) sent by registered or certified United States mail, postage prepaid, return receipt requested; or (iii) sent by telegram, telex, or cablegram, with all necessary charges fully prepaid, confirmation of delivery requested.
19. Integration and Modification. These Standard Terms and Conditions, together with the quantity and price terms separately agreed to by Buyer, constitute the entire understanding of the parties with respect to the subject matter herein and supersede any prior oral or written representations or agreements concerning the same. Buyer warrants that it is not relying on any representations other than those contained in these Standard Terms and Conditions. No modification of these Standard Terms and Conditions or of the agreed quantity and price terms shall be binding unless such modification is in writing and executed by both parties subsequent to the date hereof.