EXXONMOBIL GENERAL TERMS AND CONDITIONS OF SALE US Basestocks & Specialties ARTICLE 1. PRICE ADJUSTMENTS Seller may change any price and/or term of payment. Current prices will be specified in writing by the Seller to the Buyer. If Seller should be prevented from continuing or making changes in price and/or term of payment hereunder by act of government authority, Seller may terminate this sale by giving Buyer thirty (30) days prior written notice. ARTICLE 2. TAXES Any tax, excise or governmental charge imposed upon the value added to or the production, sale, storage, use or transportation of any product sold hereunder, or imposed upon crude oil or any other raw materials from which such products are made, which Seller may be required to pay, shall be paid by Buyer to Seller if not included in the purchase price. Buyer shall provide Seller, upon request, with properly completed exemption certificates for any tax from which Buyer claims exemption. Seller may terminate this sale on thirty (30) days written notice if prevented from passing through to Buyer any tax or charge, whether or not of the same class or kind listed above. If Buyer fails to provide the appropriate exemption certificate, Buyer will remain liable for any such taxes. ARTICLE 3. CREDIT; PAYMENT; SECURITY Unless otherwise agreed in writing, all payments shall be Electronic Funds Transfer (EFT) and in United States Dollar currency and payments are due on or before the date specified on the invoice. If credit is extended, Seller at any time may revoke credit or modify the terms and conditions of future extensions of credit. Seller has the right to assess default interest on any amount overdue to Seller at the lesser of 1.5% per month (18% per year) or the maximum amount allowed by law, to be prorated daily, commencing the day after the due date. In the event Buyer shall fail to make timely payment of any monies due and owing to Seller, Seller may set-off, withhold or recoup any payments due under this or any other agreement between the Parties. In addition, in the event Buyer fails to make timely payment, any or all future shipments by Seller to Buyer may be withheld by Seller without waiving any right, power, remedy, or privilege of Seller. Buyer will also be responsible for any charges applied because of any check, debit or electronic transfer not honored. In addition to any other right of set-off or recoupment, which Seller may have under applicable law, Buyer agrees that with respect to any monetary amounts and/or product exchange delivery imbalances due from Buyer or Buyer's Affiliates to Seller or Seller's Affiliates, Seller or Seller's Affiliates may (a) set-off such monetary amounts and/or product exchange delivery imbalances against any monetary amounts and/or product exchange delivery imbalances owing to Buyer or Buyer's Affiliates; and/or (b) recoup such monetary amounts and/or product exchange delivery imbalances from any amounts paid and/or deliveries made to Buyer or Buyer's Affiliates by Seller or Seller's Affiliates. For purposes of set-off or recoupment, any and all agreements between Buyer or Buyer's Affiliates and Seller or Seller's Affiliates, whether written or oral, shall be deemed to be part of an integrated agreement set forth herein. Buyer acknowledges that it has obtained the consent and authorization of Buyer's Affiliates that may be subject to the terms of this paragraph. Furthermore, upon request of Seller, Buyer will obtain the signature of any relevant affiliate of Buyer indicating acceptance of any remedies, including inter alia, the right of cross-affiliate netting, set forth herein. Buyer and Seller agree that to the extent they are engaged in one or more agreements that contain language similar to this paragraph, then such provisions shall be deemed to constitute a master netting agreement, as that term is defined in the United States Bankruptcy Code or any other applicable law. To secure the full and timely payment and performance of all obligations and indebtedness of Buyer to Seller Buyer hereby grants to and creates in favor of Seller a security interest in the Product and Buyer authorizes Seller to file, on one or more occasions, one or more financing statements or other documents evidencing Seller's security interest granted by Buyer and describing the Product or any other collateral which may be pledged to Seller. Buyer agrees to provide Seller with financial statements upon request. If the financial position of Buyer becomes impaired or unsatisfactory to Seller, advance cash payment or satisfactory additional security shall be given by Buyer upon demand by Seller, and Seller s shipments to Buyer may be withheld until such payment or security is received. Requiring the Buyer to make advance cash payments or to provide additional security does not waive any of Seller s rights, powers remedies or privileges. Seller shall not be obligated to release its security interest in the Product or any other collateral until all of Buyer's payment obligations to Seller are satisfied in full. If amounts due hereunder are placed with an outside agency for collection, or if suit is brought for collection, or if collection is pursued by Seller through probate, bankruptcy or other judicial proceedings, then Buyer shall pay all costs of collection, including attorneys fees, in addition to all other amounts due. Effective January 2015 Page 1 of 5
The Parties acknowledge that this Agreement is a Forward Contract and/or a Swap Agreement as defined in the Bankruptcy Code (11 U.S.C. 101(25), (53B)). In the event a Party hereto (the Defaulting Party ) (i) is the subject of a Bankruptcy, insolvency or other similar proceeding, or (ii) becomes insolvent or incapable of paying its debts as they become due, or (iii) makes a general assignment for the benefit of creditors, the other Party (the Liquidating Party ) shall have the right, exercisable in its sole discretion, to liquidate this Agreement and all other forward contracts, swap agreements or similar safe harbor contracts as defined in the United States Bankruptcy Code then outstanding between the Parties (whether the Liquidating Party is Seller or Buyer thereunder) by closing out all such contracts at the then current market prices so that each contract being liquidated is terminated except for the settlement payment referred to below. The Liquidating Party shall calculate the difference, if any, between the price specified in each contract so liquidated, and the market price for the relevant commodity as of the date of liquidation (as determined by the Liquidating Party in any commercially reasonable manner), and aggregate or net such settlement payments, as appropriate, to a single liquidated amount. Payment of said settlement payment will be due and payable within one (1) Banking Day after reasonable notice of liquidation. Notwithstanding the above, payments for any demurrage, quantity, quality or tax claims not yet determinable shall not be included in such netting, and may be asserted later. No remedy of Seller against Buyer is intended to be exclusive, but each remedy shall to the maximum extent allowed by law, be cumulative and in addition to any other remedy referred to herein or otherwise available to Seller. The exercise or beginning to exercise by Seller of any one or more remedies shall not preclude the simultaneous or later exercise by Seller of other remedies. All remedies of Seller shall, to the maximum extent allowed by law, survive any and all terminations of any agreement or agreements between Seller and Buyer. To the maximum extent allowed by law, no delay or failure on the part of Seller in exercising any right, remedy, power, or privilege of Seller shall operate as a waiver thereof. To the maximum extent allowed by law, any security granted by Buyer to Seller is intended to be a purchase money security interest. ARTICLE 4. BASE STOCK SHIPMENTS To the extent that base stock monthly quantities are not otherwise specified, shipments shall be made in approximately equal monthly quantities and in accordance with such maximum quantity policy as Seller may have in general effect at time of shipments. If not otherwise specified, Seller shall not be obligated to deliver in any one (1) month more than one-tenth (1/10) of the maximum quantity nor in any one quarter more than one-fourth (1/4) of the maximum quantity purchased in the prior year. Unless otherwise specified, if Buyer purchases less than ninety percent (90%) of the maximum quantity during one quarter, Seller may reduce the maximum obligation during the succeeding quarters to the actual amount purchased during the immediately preceding quarter. ARTICLE 5. TITLE; RISK OF LOSS Title and risk of loss pass to the buyer at the last permanent flange of the loading facility (at the facility boundary for rail and truck) at the ExxonMobil source unless otherwise specified in writing by ExxonMobil. If Seller is to pay freight, selection of carrier and routing of shipments shall be at Seller s option. ARTICLE 6. MEASUREMENT / INSPECTION The volume of product transferred to Buyer and subsequent billing for such product will be based on measurements taken at the ExxonMobil source. For railcars, the quantity is calculated following good industry practice based on the API Manual of Petroleum Measurement Standards, Chapters 3, 7, and 8. For trucks, the quantity is measured on a state certified measuring device. For marine shipments, the quantity is based on an independent gauger's inspection report. For truck or rail deliveries, any claim for deficiency in quantity or quality of any Product and/or Service shall be waived unless Buyer, within thirty (30) days after delivery of such Product and/or Service, gives written notice of such claim to Seller at its indicated address; and, where practicable, gives Seller or Seller's Agents an opportunity to inspect such Product and/or Service. Quantity or quality claims for deliveries by marine conveyances are as per the terms set forth in the General Marine Provisions for Basestocks, Waxes and Asphalt Applicable for U.S. Delivery and Loading (hereinafter General Marine Provisions, for the purpose of these General Terms and Conditions of Sale). Any claim of any other kind (not relating to quantity or quality) based on or arising out of any transaction hereunder shall be waived unless Buyer gives written notice to Seller at its indicated address within thirty (30) days after the event, action or inaction to which such claim relates. Quality disputes will be resolved using ASTM D3244 industry standard method. ARTICLE 7. LIMITED WARRANTY THE PRODUCTS SOLD HEREUNDER SHALL MEET SELLER S CURRENT STANDARD SPECIFICATIONS OR SUCH OTHER SPECIFICATIONS AS SHALL HAVE BEEN MADE EXPRESSLY A PART OF THIS SALE. SELLER MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED, OF FITNESS FOR PARTICULAR USE OR OTHERWISE, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS. Effective January 2015 Page 2 of 5
ARTICLE 8. LIMITATION OF LIABILITY Defective or nonconforming products shall be replaced by Seller without additional charges, or in lieu thereof, at Seller s option, Seller may refund the purchase price upon return of the products at Seller s expense. NOTWITHSTANDING THE ABOVE, REGARDLESS OF THE CIRCUMSTANCES, SELLER S TOTAL LIABILITY TO BUYER FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER, WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT TO WHICH SUCH CAUSE AROSE. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES. Any cause of action that Buyer may have against Seller which may arise under this contract must be commenced within one (1) year after the cause of action has accrued. The remedies set forth in this Limitation of Liability section are EXCLUSIVE and no other remedy or remedies are available to Buyer. Buyer and Seller agree that the remedies contained herein are adequate remedies. ARTICLE 9. INDEMNIFICATION Each Party shall indemnify and hold the other Party, its officers, directors, employees and agents and its Affiliates harmless against any and all losses, damages, costs, expenses (including reasonable attorneys' fees) or any other liability, which any of them may incur or for which any of them may become liable, arising out of the wrongful or negligent acts or omissions of or alleged violations of law by Party or its officers, directors, employees or agents in connection herewith. Notwithstanding the foregoing, neither Party shall be responsible for any claims, losses, damages, costs or expenses arising from the other Party s act of willful misconduct or gross negligence in the performance of this contract. An indemnifying Party shall be provided with reasonable notice and opportunity to defend in the event any claim or demand is made on, or a proceeding is commenced against, the other Party or its officers, directors, employees, agents or Affiliates (each an "indemnified person"). ARTICLE 10. SAFETY AND HEALTH INDEMNITY Seller shall furnish to Buyer Material Safety Data Sheets, including warnings and safety and health information concerning the products and/or the containers for such products sold hereunder. Buyer agrees to communicate such information to all persons Buyer can reasonably foresee may be exposed to or may handle such materials or containers, including but not limited to Buyer s employees, agents, contractors or customers. If Buyer fails to communicate such warnings and information, Buyer agrees to defend and indemnify Seller against any and all liability arising out of or in any way connected with such failure; provided however, that if Seller has contributed to such liability, Buyer s indemnity to Seller shall be reduced by the proportion in which Seller contributed. Seller will provide Buyer with reasonable notice and opportunity to defend in the event any claim or demand is made on Seller as to which such indemnity relates. ARTICLE 11. CARS, TRUCKS AND BARGES Buyer agrees to unload conveyances furnished by Seller within the free time as follows: trucks within two (2) hours of receipt of conveyance; railroad cars within seven (7) days of receipt of conveyance and barges within twenty (20) hours of receipt of conveyance, unless otherwise agreed to in writing by the parties. Buyer agrees to pay, upon receipt of invoice, for any demurrage and detention charges related to the use of railroad cars, trucks, and barges beyond the agreed time. Seller reserves the right to charge Buyer for use of tankcars held longer than is specified in writing in the most recent freight notification. Buyer assumes full responsibility for use and condition of cars, trucks, barges while in Buyer s possession and agrees to (a) compensate Seller for loss or damage to Seller s property, and (b) indemnify and save Seller harmless from any loss or damage to property other than Sellers and from any injuries to persons relating in any way to the use of such car(s), truck(s) and barge(s) while such are in Buyer s possession. Buyer further agrees to report to Seller promptly any damage which may be sustained by the car(s), truck(s) or barge(s) in Buyer s possession. ARTICLE 12. SPECIFICATION CHANGES; PRODUCT DISCONTINUANCE Seller may at its discretion (a) change or alter the quality or specifications of any of the products offered, or (b) discontinue the manufacture of any such products, or (c) discontinue the manufacture of any products at a particular manufacturing or blending facility. If specifications for any products offered are specifically set forth, Seller shall give Buyer thirty (30) days written notice of any proposed change. If such proposed change would, in the opinion of Buyer, materially affect the performance of such products, Buyer may terminate this sale as to such products. Seller shall give Buyer sixty (60) days written notice of discontinuance of the manufacture of any product(s) covered hereunder and the offer shall terminate as to such product(s) at the end of such period. If Seller elects at its option to discontinue the manufacturing of any products at a particular location or blending facility, and Seller is unable to provide comparable product to Buyer from another facility, then Seller may terminate this sale as to such products by giving Buyer sixty (60) days written notice of such termination. Effective January 2015 Page 3 of 5
ARTICLE 13. FAILURE IN PERFORMANCE (a) No liability shall result to either Seller or Buyer from delay in performance or non-performance in whole or in part caused by circumstances reasonably beyond the control of the party affected, including, but not limited to, acts of God, fire, flood, war, explosion, breakdown or labor trouble; embargoes or other import or export restrictions; shortage or inability to obtain energy, equipment, transportation, product deliverable hereunder, crude petroleum or other feedstock from which said product is derived; or good faith compliance with any regulation, direction or request (whether valid or invalid) made by any governmental authority or person purporting to act therefore. (b) Regardless of the occurrence or non-occurrence of any of the causes set forth in paragraph (a) above, if for any reason, supplies of any product deliverable hereunder or of crude petroleum or other feedstock from which such product is derived from any of Seller s existing sources are curtailed or cutoff or are inadequate to meet Seller s own requirements and its obligations to its customers, Seller s obligation hereunder during such period of curtailment, cessation or inadequacy shall at its option be reduced to the extent necessary in Seller s sole judgment to allocate among Seller s own requirements and its customers (whether under contract or not), such product as received and as may be available in the ordinary and usual course of Seller s business from any such existing sources of supply at the location(s) from which deliveries hereunder are normally shipped. (c) Seller shall not be obligated to purchase or otherwise obtain other supplies of such product, crude petroleum or other feedstock from which such product is derived to make up inadequate supplies or to replace the supplies so curtailed or cut off. Seller shall not be obligated to make up deliveries omitted or curtailed hereunder and any such deficiencies in deliveries shall be canceled from the contract with no liability to either party therefore. (d) For the purpose of this Article, Seller shall refer to ExxonMobil Oil Corporation. ARTICLE 14. COMPLIANCE WITH LAWS AND REGULATIONS Buyer shall comply with all applicable laws and regulations and Buyer agrees to indemnify and hold Seller harmless against all losses, claims, causes of action, penalties and liability arising out of Buyer s failure to comply with all applicable Federal, State and Local laws, ordinances, regulations, rules and orders. Buyer undertakes to determine any export license requirements, to obtain any export license or other official authorization, and to carry out any customs formalities for the export of product. ARTICLE 15. EXPORT COMPLIANCE This sale of Product, unless otherwise indicated, constitutes domestic sales within the United States. In the event that Buyer exports product, Buyer assumes sole responsibility to determine any export license requirements, to obtain any required export license or other official authorization, and to carry out any customs formalities for the export of such Product and Seller shall be entitled to exercise any and all rights and remedies it may have against Buyer for such breach. Buyer shall be deemed the "U.S. Principal Party in Interest" or "Exporter" for all purposes under applicable law. ARTICLE 16. BUSINESS STANDARDS Buyer shall establish and maintain precautions to prevent its employees, agents or representatives from making, providing, or offering gifts, entertainment, payments, loans, or other consideration to employees, agents, or representatives of Seller or to any other party, for the purpose of influencing those persons. This obligation shall apply to the activities of the employees of Buyer in their relations with the employees of Seller and their families and/or third parties. In addition, upon request, each Party shall make known to the other its current policies on ethics and conflicts of interest and other policies, and shall be expected to conduct its activities in compliance with its own policies. ARTICLE 17. CONFIDENTIALITY Each Party shall treat as proprietary and confidential any proprietary or confidential information disclosed to it by the other Party and identified by the other Party as proprietary or confidential, including the contents hereof and the transactions contemplated hereby, and except as necessary for the performance thereof, or as required by law, shall make no disclosures with respect to such matters without the express written consent of the other Party. For purposes of this clause, Seller shall include any affiliate of ExxonMobil Oil Corporation. ARTICLE 18. MISCELLANEOUS This contract shall not be assigned in whole or in part by Buyer or Seller without the written consent of the other Party, except that Seller may, upon written notice to Buyer, assign its obligation hereunder to any corporation, subsidiary of or affiliated with Seller. No waiver by either Party of any breach of any of the terms and conditions herein contained shall be construed as a waiver of any succeeding breach of the same or any other term or condition. The entire contract is contained herein and there are no oral understandings, representations or warranties affecting it. Should any provision of the General Terms and Conditions of Sale be determined to be inconsistent with or contrary to applicable law, such provision will be deemed amended or omitted to conform without affecting any other provision or the validity of the General Effective January 2015 Page 4 of 5
Terms and Conditions of Sale. All marine vessel sales are also subject to the General Marine Provisions.. If a discrepancy occurs between the General Marine Provisions and these General Terms and Conditions of Sale, then these General Terms and Conditions of Sale will govern. No modification of this contract shall be of any force or effect unless such modification is in writing and signed by the Party to be bound thereby; and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing terms or conditions at variance with those set forth hereon. This contract cancels and supersedes any prior written contract between parties covering the sale and purchase of the Product described. This contract shall be construed and enforced under the laws of the State of Texas to the exclusion of any conflicts of law rules which would refer the matter to another jurisdiction. The Parties agree that the courts of Harris County, Texas will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this contract. Effective January 2015 Page 5 of 5