Common use of Marine Delivery Clause in Contracts

Marine Delivery. (a) Product shall be Delivered in bulk vessel(s) inside customs passing the outboard flange of SELLER’s Delivering vessel’s cargo discharge hose connected to a nominated Discharge Pier at Kalaeloa Harbor, capable of receiving petroleum products. HECO shall not be deemed to warrant the safety of public channels, fairways, approaches thereto, anchorages or other publicly maintained areas either inside or outside the Kalaeloa Harbor area where the Discharge Pier is located. Neither HECO nor SELLER shall be liable for any loss, damage, injury or delay resulting from conditions at the Discharge Pier or Kalaeloa Harbor or any berth, dock, or anchorage not caused by such Party’s gross negligence or which could have been avoided by the exercise of reasonable care on the part of SELLER’s nominated vessel’s master. Product shall be Delivered by SELLER to HECO at a temperature above the pour point of the Product or at the loaded temperature, whichever is higher. Title to Product and the risk of loss of Product Delivered by Marine Delivery shall pass from SELLER to HECO as per Article IX (Title, Custody And Risk Of Loss). (b) SELLER and HECO shall mutually coordinate scheduling Marine Deliveries of Product from SELLER’s nominated vessel. SELLER shall provide HECO with all required Delivery information no later than thirty (30) Days prior to the anticipated Delivery date. SELLER shall provide HECO with a ten (10) Day Delivery window prior to the date of the anticipated Delivery, with vessel’s estimated time of arrival (“ETA”) and will notify HECO of any ETA changes if greater than twelve (12) hours variance to ETA. HECO shall promptly advise SELLER of any scheduling conflicts or other conditions within such ten (10) day window known to HECO that could delay SELLER’s vessel from obtaining access to the appropriate Discharge Pier at Kalaeloa Harbor and commencing deliveries into the pipeline for Delivery to the BPTF. SELLER shall then provide HECO with all required Delivery information no later than fifteen (15) Days prior to the anticipated Delivery date. SELLER shall provide HECO with a three (3) Day window prior to the date of the anticipated Delivery, with vessel’s ETA and will notify HECO of any ETA changes if greater than three (3) hours variance to ETA. If at any time HECO learns of any potential scheduling conflicts or other conditions within such window known to HECO that could delay SELLER’s vessel from obtaining access to the appropriate Discharge Pier at Kalaeloa Harbor and commencing Deliveries into the pipeline for Delivery to the BPTF, HECO will promptly notify SELLER accordingly. SELLER shall be responsible to reserve the appropriate cargo discharge pier at Kalaeloa Harbor on the agreed upon dates through the customary channel in the State of Hawaii Department of Transportation — Harbor’s Division. HECO shall not be responsible for any demurrage, penalties or other fees as a result of any delay of the docking of the vessel and/or unloading of the fuel shipment unless caused by HECO’s failure or inability to accept Deliveries of Product into the BPTF, or as a result of SELLER’s failure to obtain pier reservations in a timely manner unless caused by HECO’s wrongful failure to provide notice of any scheduling conflicts known to HECO that prevent the vessel from obtaining access to the Discharge Pier. Vessels originating from outside of the United States may be subject to customs inspection from the U.S. Coast Guard and/or U.S. Immigration and SELLER shall be solely responsible for coordination with these government agencies. SELLER’s notices and advice may be given to HECO by electronic mail or telephone. (c) SELLER shall be responsible for any dues, fees or other charges imposed on SELLER’s nominated vessel. SELLER shall employ and be responsible for costs of any support vessels, pilots, mooring masters or line handlers required at the Discharge Pier. HECO shall not be responsible for any losses, damages, delays or liabilities resulting from any negligence, incompetence or incapacity of any tug, pilot or line handler required at the Discharge Pier. (d) SELLER agrees to provide HECO a copy of the complete Certificate of Quality issued by a competent testing laboratory on the basis of composite vessel loaded samples taken by an independent inspector at the port of loading that are reflective of the Product to be Delivered to HECO within 48 hours from date of vessel loading. (e) Upon arrival at Kalaeloa Harbor in Hawaii and before Delivery to HECO, an Independent Inspector will collect composite vessel loaded samples to test Product quality. Samples shall be split into three composites, and one shall be delivered to and tested by SELLER, one shall be delivered to and tested by HECO, and one shall be preserved by the Independent Inspector. Testing of samples will take place at an analytical laboratory of each Party’s choosing. (f) All samples, measurements and determinations referenced in this Section 6.7 (Marine Delivery) shall be drawn, taken and made, respectively, under the supervision of the Independent Inspector. SELLER and HECO shall share equally the cost of independent inspections. (g) In order to reduce the likelihood of SELLER’s Marine Delivery resulting in quality problems arising in the receiving tank(s) at HECO’s BPTF, SELLER agrees to test a volumetric weighted average composite of samples of the relevant marine cargo of Product, or component thereof (“Precautionary Sample”). The Precautionary Sample shall be drawn under the supervision of the Independent Inspector from SELLER’s vessel’s tanks in such a manner as to be representative of the relevant cargo after the arrival of the vessel at Kalaeloa Harbor, but prior to commencement of the Marine Delivery, SELLER agrees that should its laboratory, or a laboratory mutually acceptable to SELLER and HECO, testing of the Precautionary Sample indicate a potential quality problem, including but not limited to, a quality as determined which materially differs from that specified on the port of loading quality document or does not conform to the quality specification limits in Article IV (Quality), the vessel operator shall not be instructed to commence Delivery of its cargo to HECO’s BPTF until such time as the loaded Product or component thereof is determined to meet the port of loading quality specifications or is otherwise in conformity with the specification limits in Article IV (Quality). Attachment C lists the testing to be performed on Precautionary Sample. (h) The quality and BTU Content of the Product Delivered by Marine Delivery shall be determined on the basis of a volumetric weighted average composite of samples drawn by the Independent Inspector from the vessel’s tank(s) in such a manner as to be representative of the entire Marine Delivery (“Vessel Tank Final Sample”). (i) The Vessel Tank Final Sample shall be divided into a minimum of three (3) parts as follows: (1) One part shall be provided to SELLER’s laboratory for analysis to determine quality and BTU Content per Barrel. (2) One part shall be provided to HECO for the purpose of verifying SELLER’s determinations. (3) At least one part shall be sealed and provided to the Independent Inspector to be retained for a period of not less than three (3) Months. (j) SELLER agrees to provide HECO and the Independent Inspector with the Certificate of Quality issued by a competent testing laboratory on the basis of the composite vessel loaded samples representing the Vessel Tank Final Sample and will make reasonable good faith efforts to provide this Certificate of Quality no later than twenty-four (24) hours after SELLER’s laboratory determines the Product Delivered by Marine Delivery is in conformance with the specification limits in Article IV (Quality). If the completed Certificate of Quality is not available within said 24-hour period, SELLER will advise HECO and the independent Inspector, within said 24-hour period, will provide the final determination of API gravity, flash point, sulfur content and sediment and water representing the Vessel Tank Final Sample. (k) HECO shall have the right to perform laboratory analyses in order to verify the results of SELLER’s laboratory analyses; provided however, that such verification analyses shall be performed in a timely manner. SELLER and HECO will make reasonable good faith efforts to evaluate BTU Content and exchange results within three (3) working days of SELLER’s laboratory determining the Product Delivered by Marine Delivery is in conformance with the specification limits in Article IV (Quality). (l) Quantities of the Product Delivered via a Marine Delivery hereunder shall be determined at the time of each Marine Delivery by gauging HECO’s tank(s) immediately before and after pumping under the supervision of the Independent Inspector. If there is Reverse Line Displacement involved in a Marine Delivery, then the Quantities may be further adjusted in accordance with Paragraph 6.6(l), as appropriate. (m) Quantities of Product sold and Delivered by SELLER and purchased and received by HECO hereunder shall be calculated in accordance with the current measurement standards adopted by industry, ASTM, API and other recognized standard-setting bodies as are applicable in the opinion of the Independent Inspector and shall be expressed in G.S.V., U.S. Barrels @ 60 DF.

Marine Delivery. (a) Product Marine Deliveries shall be Delivered in bulk vessel(s) inside customs passing the outboard flange of made by SELLER from SELLER’s Delivering vessel’s cargo discharge hose connected to a nominated Discharge Pier at Kalaeloa Harbor's vessel and may include LSFO, capable of receiving petroleum products. HECO shall not be deemed to warrant the safety of public channels, fairways, approaches thereto, anchorages blending stocks or other publicly maintained areas either inside or outside the Kalaeloa Harbor area where the Discharge Pier is located. Neither HECO nor SELLER shall be liable for any losscomponents of Product originating at SELLERis Hawaii Refinery, damage, injury or delay resulting from conditions through SELLERis pipelines to BUYER at the Discharge Pier or Kalaeloa Harbor or any berth, dock, or anchorage not caused by such Party’s gross negligence or which could have been avoided by the exercise of reasonable care on the part of SELLER’s nominated vessel’s master. Product shall be Delivered by SELLER to HECO at a temperature above the pour point of the Product or at the loaded temperature, whichever is higherBUYER's BPTF. Title to Product and the risk of loss of Product Delivered by Marine Delivery shall pass from SELLER to HECO BUYER as per Article IX (Title, Custody And Risk Of Loss). (b) SELLER and HECO shall mutually coordinate scheduling Marine Deliveries of Product from SELLER’s nominated vesselSection 7.7. SELLER shall provide HECO with all required Delivery information no later than thirty (30) Days prior to the anticipated Delivery date. SELLER shall provide HECO with a ten (10) Day Delivery window prior to the date of the anticipated Delivery, with vessel’s estimated time of arrival (“ETA”) and will notify HECO of any ETA changes if greater than twelve (12) hours variance to ETA. HECO shall promptly advise SELLER of any scheduling conflicts or other conditions within such ten (10) day window known to HECO that could delay SELLER’s vessel from obtaining access to the appropriate Discharge Pier at Kalaeloa Harbor and commencing deliveries into the pipeline for Delivery to the BPTF. SELLER shall then provide HECO with all required Delivery information no later than fifteen (15) Days prior to the anticipated Delivery date. SELLER shall provide HECO with a three (3) Day window prior to the date of the anticipated Delivery, with vessel’s ETA and will notify HECO of any ETA changes if greater than three (3) hours variance to ETA. If at any time HECO learns of any potential scheduling conflicts or other conditions within such window known to HECO that could delay SELLER’s vessel from obtaining access to the appropriate Discharge Pier at Kalaeloa Harbor and commencing Deliveries into the pipeline for Delivery to the BPTF, HECO will promptly notify SELLER accordingly. SELLER shall be responsible to reserve the appropriate cargo discharge pier at Kalaeloa Harbor on the agreed upon dates through the customary channel in the State of Hawaii Department of Transportation — Harbor’s Division. HECO shall not be responsible for any demurrage, penalties or other fees as a result of any delay of the docking of the vessel and/or unloading of the fuel shipment unless caused by HECO’s failure or inability to accept Deliveries of Product into the BPTF, or as a result of SELLER’s failure to obtain pier reservations in a timely manner unless caused by HECO’s wrongful failure to provide notice of any scheduling conflicts known to HECO that prevent the vessel from obtaining access to the Discharge Pier. Vessels originating from outside of the United States may be subject to customs inspection from the U.S. Coast Guard and/or U.S. Immigration and SELLER shall be solely responsible for coordination with these government agencies. SELLER’s notices and advice may be given to HECO by electronic mail or telephone. (c) SELLER shall be responsible for any dues, fees or other charges imposed on SELLER’s nominated vessel. SELLER shall employ and be responsible for costs of any support vessels, pilots, mooring masters or line handlers required at the Discharge Pier. HECO shall not be responsible for any losses, damages, delays or liabilities resulting from any negligence, incompetence or incapacity of any tug, pilot or line handler required at the Discharge Pier. (d) SELLER agrees to provide HECO BUYER or the Independent Inspector, prior to commencing a Marine Delivery of Product or any component thereof from SELLER's vessel, a copy of the complete Certificate of Quality issued by a competent testing laboratory on the basis of composite vessel loaded samples taken by an independent inspector at the SELLER's port of loading that are reflective quality document showing the quality of the Product to be Delivered to HECO within 48 hours from date of vessel loading. (e) Upon arrival at Kalaeloa Harbor in Hawaii and before Delivery to HECO, an Independent Inspector will collect composite vessel loaded samples to test Product qualityor component thereof. Samples shall be split into three composites, and one shall be delivered to and tested by SELLER, one shall be delivered to and tested by HECO, and one shall be preserved by the Independent Inspector. Testing of samples will take place at an analytical laboratory of each Party’s choosing. (f) All samples, measurements and determinations referenced in this Section 6.7 (Marine Delivery) 7.6 shall be drawn, taken and made, respectively, under the supervision of the Independent Inspector. SELLER and HECO BUYER shall share equally the cost of independent inspections. (g) . In order to reduce the likelihood of SELLER’s 's Marine Delivery resulting in quality problems arising in the receiving tank(s) at HECO’s BUYER's BPTF, SELLER agrees to test a volumetric weighted average composite of samples of the relevant marine cargo of Product, or component thereof (“"Precautionary Sample”"). The Precautionary Sample shall be drawn under the supervision of the Independent Inspector from SELLER’s 's vessel’s 's tanks in such a manner as to be representative of the relevant cargo after the arrival of the vessel at Kalaeloa HarborBarbers Point, but prior to commencement of the Marine Delivery, . SELLER agrees that should its laboratory, or a laboratory mutually acceptable to SELLER and HECO, testing of the Precautionary Sample indicate a potential quality problem, including but not limited to, a quality as determined which materially differs from that specified on the port of loading quality document or does not conform to the quality specification limits in Article IV (Quality)IV, the vessel operator shall not be instructed to commence Delivery of its cargo to HECO’s BUYER's BPTF until such time as the loaded Product or component thereof is determined to meet the port of loading quality specifications or is otherwise in conformity with the specification limits in Article IV (Quality)IV. Attachment C lists the testing to be performed on Precautionary Sample. (h) The quality and BTU Content of the Product Delivered by Marine Delivery shall be determined on the basis of a volumetric weighted average composite of samples drawn by the Independent Inspector from the vessel’s receiving tank(s) at BUYER's BPTF in such a manner as to be representative of the entire Marine Delivery (“Vessel "Receiving Tank Final Sample”"). (i) . The Vessel Receiving Tank Final Sample shall be divided into a minimum of three (3) parts as follows: (1) . One part shall be provided to SELLER’s 's laboratory for analysis to determine quality and BTU Content per Barrelbarrel. (2) . One part shall be provided to HECO BUYER for the purpose of verifying SELLER’s 's determinations. (3) . At least one part shall be sealed and provided to the Independent Inspector to be retained for a period of not less than three (3) Months. (j) . SELLER agrees to provide HECO BUYER and the Independent Inspector with the Certificate of Quality issued by a competent testing laboratory on the basis of the composite vessel loaded samples representing the Vessel Receiving Tank Final Sample and will make reasonable good faith efforts to provide this Certificate of Quality no later than twenty-twenty four (24) hours after SELLER’s 's laboratory determines the Product Delivered by Marine Delivery is in conformance with the specification limits in Article IV (Quality)IV. If the completed Certificate of Quality is not available within said 24-hour period, SELLER will advise HECO BUYER and the independent Independent Inspector, within said 24-hour period, will provide the final determination of API gravity, flash point, sulfur content and sediment and & water representing the Vessel Receiving Tank Final Sample. (k) HECO . BUYER shall have the right to perform laboratory analyses in order to verify the results of SELLER’s 's laboratory analyses; provided however, that such verification analyses shall be performed in a timely manner. SELLER and HECO BUYER will make reasonable good faith efforts to evaluate BTU Content and exchange results within three (3) working days of SELLER’s 's laboratory determining the Product Delivered by Marine Delivery is in conformance with the specification limits in Article IV (Quality). (l) IV. Quantities of the Product Delivered via a Marine Delivery hereunder shall be determined at the time of each Marine Delivery by gauging HECO’s BUYER's tank(s) immediately before and after pumping under the supervision of the Independent Inspector. If there is Should BUYER elect to perform a Reverse Line Displacement involved in a Marine DeliveryDisplacement, then the Quantities may be further adjusted in accordance with Paragraph 6.6(l), as appropriate. (m) Quantities total quantity of Product sold and Delivered by SELLER and purchased and received by HECO hereunder to BUYER shall be calculated in accordance with reduced by reference to the current measurement standards adopted by industry, ASTM, API and other recognized standard-setting bodies as are applicable rise in the opinion of the Independent Inspector and shall be expressed in G.S.V.SELLER's tank(s) receiving SELLER's Pipeline Fill, U.S. Barrels @ 60 DF.determined