Common use of Propane Clause in Contracts

Propane. For Transactions where propane is the Product, the following provisions shall govern the Transactions, as applicable. (i) If the Product is sold as odorized propane, the Product shall be delivered by the Seller at the Delivery Location with odorant levels meeting at least the minimum standards under Applicable Law. Upon request, Seller shall provide documentation of test that confirms the odorized propane meets the minimum standards under Applicable Law, including testing as applicable. The Seller shall have no further responsibility to ensure that any odorized propane remains properly odorized after its delivery at the Delivery Location, except as may be provided in (iii) below, and the Buyer will monitor and maintain the odorant at or above proper levels after receipt at the Delivery Location as required by Applicable Law. (ii) Buyer may test any odorized propane delivered by the Seller at the Delivery Location(s). The Buyer may elect not to accept delivery of such propane at the Delivery Location(s) until such propane has been odorized pursuant to the specification in the Transaction or to Applicable Law if no specification is included in the Transaction. (iii) Buyer may, prior to unloading of the odorized propane and in no case greater than five Business Days after the odorized propane’s arrival at the agreed upon destination set forth in the Confirmation, obtain samples of the odorized propane from an appropriate location on the rail cars, tank truck, barge or ship, as applicable, and/or the loading/unloading facilities connected to such means of transport in a manner consistent with applicable industry testing and sampling standards. If the Buyer elects to obtain such samples of the odorized propane, the Buyer will (a) be responsible for arranging for analysis of such samples, by a qualified laboratory or testing organization, all at the Buyer’s expense and (b) provide reasonable Notice to the Seller of the time of the sample collecting. Each party will be entitled to have its representatives present during all loadings, unloadings, tests and measurements involving delivery of odorized propane. If Buyer fails to (a) obtain samples, (b) provide Notice of the testing or (c) provide Notice of any alleged Off-spec Product based on the sampling within the greater of the referenced five Business Days or the minimum time period required by Applicable Law, along with supporting test results and information and documentation (collectively the “Product Rejection Notice”), the Seller shall have no liability for any defect in the quality of odorized propane, and the odorized propane will be deemed accepted. Measurement, sampling and analysis will be conducted in accordance with the industry standards applicable to the sampling methodology used. All such standards are incorporated herein for all purposes, including all revisions of those standards adopted and in effect during the term of this Contract. If the Buyer timely rejects odorized propane pursuant to the procedure set forth above, the Buyer will retain possession of such odorized propane without unloading the odorized propane until the Seller has had the opportunity to inspect and test the odorized propane; provided, however, the Buyer will not be obligated to retain such odorized propane beyond ten Days following the Product Rejection Notice. If the rejected odorized propane is unloaded by the Buyer prior to the expiration of the ten Day period, then Seller shall have no liability for any defect in the quality of odorized propane, and the odorized propane will be deemed accepted. If the Seller does not take possession of the rejected odorized propane within the referenced ten Day period, the Buyer will be entitled to dispose of the rejected odorized propane at the Seller’s cost and expense (provided such costs and expenses are reasonably incurred). If it is established that the delivered odorized propane is properly odorized pursuant to the specification in the Transaction or Applicable Law if no specification is included in the Transaction, Buyer shall be responsible for damages resulting from its wrongful rejection. (iv) IF PERMITTED BY APPLICABLE LAW AND IF REQUESTED IN WRITING BY BUYER, PROPANE SOLD AND DELIVERED HEREUNDER MAY BE UNODORIZED, OR (A) IF BUYER KNOWINGLY ACCEPTS UNDER-ODORIZED PROPANE AT THE DELIVERY LOCATION OR (B) FAILS TO INSPECT AND TEST ODORIZED PROPANE AND PROVIDE APPROPRIATE DOCUMENTATION TO SELLER UNDER (ii) AND (iii) ABOVE, UPON RECEIPT, BUYER SHALL ASSUME FULL RESPONSIBILITY AND LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF THE TRANSPORTATION, USE AND SALE OF SUCH PROPANE, AS WELL AS ANY LIABILITY ARISING FROM OR ON ACCOUNT OF CLAIMS OF PERSONAL INJURY, DEATH OR PROPERTY DAMAGE. BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER WILL NOT USE SUCH UNODORIZED PROPANE FOR FUEL OR RESELL IT FOR FUEL WITHOUT ADDING AN ODORIZING AGENT IN CONFORMANCE WITH APPLICABLE LAW. (v) IF BUYER (A) FAILS TO INSPECT AND TEST ANY ODORIZED PROPANE IN ACCORDANCE WITH (ii) AND (iii) ABOVE, (B) FAILS TO MAINTAIN ANY AND ALL DOCUMENTATION RELATED TO THE INSPECTING AND TESTING OF ODORIZED PROPANE OR (C) BLENDS ANY ODORIZED PROPANE AFTER ITS DELIVERY AT THE DELIVERY LOCATION, THEN BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER AND ITS RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS AND AGENTS HARMLESS FROM ANY AND ALL CLAIMS AS WELL AS ANY LIABILITY ARISING FROM OR ON ACCOUNT OF CLAIMS OF PERSONAL INJURY, DEATH OR PROPERTY DAMAGE INVOLVING LACK OF OR INADEQUATE WARNING MATERIALS, IMPROPER AMOUNTS, USE OR TYPE OF ODORANT, “ODORANT FADING,” LACK OF WARNING ON SUPPLEMENTAL WARNING SYSTEMS (SUCH AS GAS DETECTORS) AND IMPROPER TRAINING OR MONITORING OF BUYER'S WARNING OR TRAINING PROGRAMS RESPECTING ODORIZATION THAT ARE INCURRED AS A RESULT OF OR ARISING FROM SUCH PROPANE, EXCEPT TO THE EXTENT THE CLAIMS AROSE AS A RESULT OF THE GROSS NEGLIGENCE OR INTENTIONAL ACTS OF SELLER, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS OR AGENTS; PROVIDED, HOWEVER, IF SELLER FAILS TO PROVIDE THE DOCUMENTATION REQUIRED UNDER (i) ABOVE, TO BUYER, BUYER SHALL NOT HAVE ANY INDEMNITY OBLIGATIONS HEREUNDER. (vi) Buyer acknowledges that Seller does not have the ability to convey safety or warning information to Buyer’s customers. Accordingly, Buyer will inform its customers of the hazards of propane. Seller authorizes Buyer to copy any such information for distribution to its customers.

Propane. For Transactions where propane is the Product, the following provisions shall govern the Transactions, as applicable. (i) If the Product is sold as odorized propane, the Product shall be delivered by the Seller at the Delivery Location with odorant levels meeting at least the minimum standards under Applicable Law. Upon request, Seller shall provide documentation of test that confirms the odorized propane meets the minimum standards under Applicable Law, including testing as applicable. The Seller shall have no further responsibility to ensure that any odorized propane remains properly odorized after its delivery at the Delivery Location, except as may be provided in (iii) below, and the Buyer will monitor and maintain the odorant at or above proper levels after receipt at the Delivery Location as required by Applicable Law. (ii) Buyer may test any odorized propane delivered by the Seller at the Delivery Location(s). The Buyer may elect not to accept delivery of such propane at the Delivery Location(s) until such propane has been odorized pursuant to the specification in the Transaction or to Applicable Law if no specification is included in the Transaction. (iii) Buyer may, prior to unloading of the odorized propane and in no case greater than five Business Days after the odorized propane’s arrival at the agreed upon destination set forth in the Confirmation, obtain samples of the odorized propane from an appropriate location on the rail cars, tank truck, barge or ship, as applicable, and/or the loading/unloading facilities connected to such means of transport in a manner consistent with applicable industry testing and sampling standards. If the Buyer elects to obtain such samples of the odorized propane, the Buyer will (a) be responsible for arranging for analysis of such samples, by a qualified laboratory or testing organization, all at the Buyer’s expense and (b) provide reasonable Notice to the Seller of the time of the sample collecting. Each party will be entitled to have its representatives present during all loadings, unloadings, tests and measurements involving delivery of odorized propane. If Buyer fails to (a) obtain samples, (b) provide Notice of the testing or (c) provide Notice of any alleged Off-spec Product based on the sampling within the greater of the referenced five Business Days or the minimum time period required by Applicable Law, along with supporting test results and information and documentation (collectively the “Product Rejection Notice”), the Seller shall have no liability for any defect in the quality of odorized propane, and the odorized propane will be deemed accepted. Measurement, sampling and analysis will be conducted in accordance with the industry standards applicable to the sampling methodology used. All such standards are incorporated herein for all purposes, including all revisions of those standards adopted and in effect during the term of this Contract. If the Buyer timely rejects odorized propane pursuant to the procedure set forth above, the Buyer will retain possession of such odorized propane without unloading the odorized propane until the Seller has had the opportunity to inspect and test the odorized propane; provided, however, the Buyer will not be obligated to retain such odorized propane beyond ten Days following the Product Rejection Notice. If the rejected odorized propane is unloaded by the Buyer prior to the expiration of the ten Day period, then Seller shall have no liability for any defect in the quality of odorized propane, and the odorized propane will be deemed accepted. If the Seller does not take possession of the rejected odorized propane within the referenced ten Day period, the Buyer will be entitled to dispose of the rejected odorized propane at the Seller’s cost and expense (provided such costs and expenses are reasonably incurred). If it is established that the delivered odorized propane is properly odorized pursuant to the specification in the Transaction or Applicable Law if no specification is included in the Transaction, Buyer shall be responsible for damages resulting from its wrongful rejection. (iv) IF PERMITTED BY APPLICABLE LAW AND IF REQUESTED IN WRITING BY BUYER, PROPANE SOLD AND DELIVERED HEREUNDER MAY BE UNODORIZED, OR (A) IF BUYER KNOWINGLY ACCEPTS UNDER-ODORIZED PROPANE AT THE DELIVERY LOCATION OR (B) FAILS TO INSPECT AND TEST ODORIZED PROPANE AND PROVIDE APPROPRIATE DOCUMENTATION TO SELLER UNDER (ii) AND and (iii) ABOVE, UPON RECEIPT, BUYER SHALL ASSUME FULL RESPONSIBILITY AND LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF THE TRANSPORTATION, USE AND SALE OF SUCH PROPANE, AS WELL AS ANY LIABILITY ARISING FROM OR ON ACCOUNT OF CLAIMS OF PERSONAL INJURY, DEATH OR PROPERTY DAMAGE. BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER WILL NOT USE SUCH UNODORIZED PROPANE FOR FUEL OR RESELL IT FOR FUEL WITHOUT ADDING AN ODORIZING AGENT IN CONFORMANCE WITH APPLICABLE LAW. (v) IF BUYER (A) FAILS TO INSPECT AND TEST ANY ODORIZED PROPANE IN ACCORDANCE WITH (ii) AND (iii) ABOVE, (B) FAILS TO MAINTAIN ANY AND ALL DOCUMENTATION RELATED TO THE INSPECTING AND TESTING OF ODORIZED PROPANE OR (C) BLENDS ANY ODORIZED PROPANE AFTER ITS DELIVERY AT THE DELIVERY LOCATION, THEN BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER AND ITS RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS AND AGENTS HARMLESS FROM ANY AND ALL CLAIMS AS WELL AS ANY LIABILITY ARISING FROM OR ON ACCOUNT OF CLAIMS OF PERSONAL INJURY, DEATH OR PROPERTY DAMAGE INVOLVING LACK OF OR INADEQUATE WARNING MATERIALS, IMPROPER AMOUNTS, USE OR TYPE OF ODORANT, “ODORANT FADING,” LACK OF WARNING ON SUPPLEMENTAL WARNING SYSTEMS (SUCH AS GAS DETECTORS) AND IMPROPER TRAINING OR MONITORING OF BUYER'S WARNING OR TRAINING PROGRAMS RESPECTING ODORIZATION THAT ARE INCURRED AS A RESULT OF OR ARISING FROM SUCH PROPANE, EXCEPT TO THE EXTENT THE CLAIMS AROSE AS A RESULT OF THE GROSS NEGLIGENCE OR INTENTIONAL ACTS OF SELLER, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS OR AGENTS; PROVIDED, HOWEVER, IF SELLER FAILS TO PROVIDE THE DOCUMENTATION REQUIRED UNDER (i) ABOVE, TO BUYER, BUYER SHALL NOT HAVE ANY INDEMNITY OBLIGATIONS HEREUNDER. (vi) Buyer acknowledges that Seller does not have the ability to convey safety or warning information to Buyer’s customers. Accordingly, Buyer will inform its customers of the hazards of propane. Seller authorizes Buyer to copy any such information for distribution to its customers.