Common use of Quality Disputes Clause in Contracts

Quality Disputes. (1) SELLER shall provide HECO with a Certificate of Quality of each batch or Marine Shipment of Product Delivered by the SELLER. For Marine Deliveries, such Certificate shall conform to the one provided to SELLER by its supplier of LSFO. Final determination of quality shall be made as otherwise provided herein. (2) The official BTU Content determination shall be as reported in SELLER’s Certificate of Quality, provided that the arithmetic difference between SELLER’s and HECO’s laboratory results is equal to or less than the then existing ASTM reproducibility standard (currently 0.4 MJ/kg, which the Parties shall deem to be equivalent to a fixed standard of 60,000 BTU per Barrel) for test D-4868. If the difference between SELLER’s and HECO’s determinations of BTU Content should fall outside the ASTM reproducibility standard for ASTM test D-4868 the sealed sample in the possession of the Independent Inspector shall be provided to a mutually acceptable independent laboratory for an official determination, which shall be binding upon the Parties. SELLER and HECO shall share equally the costs of independent tests and determinations. (3) If SELLER or HECO has reason to believe that the quality of Product stated for a specific Delivery fails to conform to the Specification in Article IV (Quality) or Attachment A of this Contract, that Party shall as promptly as reasonably possible, but no later than within thirty (30) Days of the later of the date of the completed Certificate of Quality or the date of the final determination of BTU Content, present the other Party with documents supporting such determination and the Parties will confer, in good faith, on the causes for the discrepancy and shall proceed to correct such causes and adjust the quality, if justified, for the Delivery in question. In the event of an unresolved difference between SELLER and HECO, the sealed part of the representative sample in the possession of the Independent Inspector shall be provided to an independent laboratory for an official determination, which shall be final. SELLER and HECO shall share equally the cost for such independent laboratory determination. (4) If the quality of the Product received by HECO fails to conform to the quality Specification in Article IV (Quality) or Attachment A of this Contract, both HECO and SELLER shall attempt to minimize the impact of any quality problem. At HECO’s reasonable discretion, such efforts may include a Specification waiver if the use of the Product will not unreasonably cause harm to HECO. Or, SELLER may attempt to remedy the quality problem by Delivering higher quality Product in a timely manner to produce a Specification quality blend in HECO’s storage tank(s) at HECO’s BPTF or at HECO’s Oahu generating plants. If all such and similar efforts fail to resolve the quality problem, then HECO may return non-Specification Product to SELLER, in which case SELLER shall replace the non-Specification Product by Delivering an equal volume of HECO verified on-Specification Product to HECO in a timely manner. Notwithstanding the preceding, HECO shall always have the right to refuse Delivery of any Product with prior written notice to SELLER or its permitted agents if HECO in good faith shall have reason to believe that the LSFO tendered for Delivery does not meet the Specification. Such Notice shall provide a full explanation of the basis for HECO’s belief that the LSFO so tendered does not meet Contract Specifications, together with appropriate documentation of the testing that determined that it is off-Specification. If SELLER disputes HECO’s analysis, then SELLER shall promptly notify HECO, and the Parties shall proceed to determine the quality in accordance with Section 6.8(b)(3) above. HECO may, at its option, seek other supplies of LSFO if in HECO’s reasonable discretion the Delivery of non-conforming LSFO may not be remedied in time to prevent a possible interruption of HECO’s operations. All costs and expenses of remedying the Delivery of non-conforming LSFO, or arising from non-conforming LSFO (including, without limitation, the testing, transportation, re-refining, and handling costs incurred in returning, replacing or otherwise correcting off-Specification LSFO, the emptying and cleaning of storage tanks containing non-conforming LSFO shall be paid by SELLER. Any remedy of non-conforming LSFO accepted by HECO under this Section 6.8 (Disputes Regarding Quality or Quantity) shall not operate or be construed to remedy any similar non-conforming LSFO or to change the Specification of LSFO acceptable to HECO under the terms of this Contract.

Quality Disputes. (1) SELLER The quality of Fuel Delivered by Seller to the Companies’ Nominated truck(s) shall provide HECO with be determined on the basis of a Certificate volumetric weighted average composite of Quality samples drawn by an Independent Inspector or Seller representative from Seller’s Nominated terminal issuing tank(s) after the completion of each batch or Marine Shipment bulk receipt into such terminal tanks in such a manner as to be representative of Product Delivered by the SELLERvolume of the tank inventory from that time until the time of the next bulk receipt. For Marine Deliveries, such Certificate shall conform to the one provided to SELLER by its supplier Such samples of LSFO. Final determination of quality Fuel shall be made as otherwise provided hereindivided into a minimum of two (2) parts one of which shall be sealed and dated and retained by Seller, or an Independent Inspector at the option of Seller, for a period of not less than three (3) months. (2) The official BTU Content determination quality of Fuel Delivered by Seller to the Companies’ Nominated Barge or by Seller to the Harbor terminal piping or by Seller from its Nominated Barge to the Companies’ Nominated terminal shall be determined on the basis of a volumetric weighted average composite of samples drawn by an Independent Inspector or Seller representative from Seller’s Nominated terminal or Refinery issuing tank(s) in such a manner as reported in SELLER’s Certificate to be representative of Qualitythe volume of the tank inventory. Such tank samples of Fuel shall be divided into a minimum of two (2) parts one of which shall be sealed and dated and retained by Seller, provided that or an Independent Inspector at the arithmetic difference between SELLER’s and HECO’s laboratory results is equal to or option of Seller, for a period of not less than three (3) months. The quality of the then existing ASTM reproducibility standard (currently 0.4 MJ/kg, which “vessel composite sample” for Diesel and IFO Delivered by Seller to Companies’ Nominated Barge at Kalaeloa Xxxxxx’x Point Harbor shall also conform to the Parties Specifications in Exhibit A for “Confirmation Test Items”. A “vessel composite sample” shall deem be drawn by an Independent Inspector separately for all Diesel and IFO Delivered by Seller to the Companies’ at this location in such a manner as to be equivalent to a fixed standard representative of 60,000 BTU per Barrel) for test D-4868the volume delivered. If the difference between SELLER’s Companies’ laboratory results of the vessel composite sample result in any items out of Specification, then the Seller will test their vessel composite sample for the full Specification and HECO’s determinations of BTU Content should fall outside the ASTM reproducibility standard for ASTM test D-4868 the remedy any Specification deviation following Section 6.5(b)(4). Such “vessel composite sample” shall be divided into three (3) parts one which will be sealed sample in the possession of and dated and retained by the Independent Inspector shall be provided to for a mutually acceptable independent period of not less than (3) months for any quality discrepancies, one part for Companies’ designated laboratory for an official determination, which shall be binding upon the Parties. SELLER testing and HECO shall share equally the costs of independent tests and determinationsone part for Chevron laboratory for confirmation testing. (3) If SELLER Seller or HECO has the Companies have reason to believe that the quality of Product Fuel stated for a specific Delivery fails to conform to the Specification Specifications in Article IV (Quality) or Attachment A Exhibit A, of this Contract, that Party shall as promptly as reasonably possible, but no later than within thirty five (305) Days of days after the later of the date of the completed Certificate of Quality or the date of the final determination of BTU Contentquality, present the other Party with documents supporting such determination and the Parties will confer, in good faith, on the causes for the discrepancy and shall proceed to correct such causes and adjust the quality, if justified, for the Delivery in question. In the event of an unresolved difference between SELLER Seller and HECOthe Companies, the sealed part of the representative sample in the possession of the Independent Inspector shall be provided to an independent laboratory for an official determination, which shall be final. SELLER Seller and HECO the Companies shall share equally the cost for such independent laboratory determination. (4) If the quality of the Product Fuel received by HECO the Companies fails to conform to the quality Specification Specifications in Article IV (Quality) or Attachment A Exhibit A, of this Contract, both HECO the Companies and SELLER Seller shall attempt to minimize the impact of any quality problem. At HECO’s reasonable discretion, such efforts may include a Specification waiver if the use of the Product will not unreasonably cause harm to HECO. Or, SELLER […] Seller may attempt to remedy the quality problem by Delivering higher quality Product Fuel in a timely manner to produce a Specification quality blend in HECO’s the Companies’ storage tank(s) at HECO’s BPTF or at HECO’s Oahu generating plantsthe Companies’ Receiving Facility. If all such and similar efforts fail to resolve the quality problem, then HECO the Companies may return non-Specification Product Fuel to SELLERSeller, in which case SELLER Seller shall replace the non-Specification Product Fuel by Delivering an equal volume of HECO the Companies’ verified on-Specification Product Fuel to HECO the Companies in a timely manner. Notwithstanding the preceding, HECO the Companies shall always have the right to refuse Delivery of any Product Fuel with prior written notice to SELLER Seller or its permitted agents if HECO the Companies in good faith shall have reason to believe that the LSFO tendered for Delivery Fuel does not meet the Specification. Such Notice shall provide a full explanation of the basis for HECO’s belief that the LSFO so tendered does not meet Contract Specifications, together with appropriate documentation of the testing that determined that it is off-Specification. If SELLER disputes HECO’s analysis, then SELLER shall promptly notify HECO, and the Parties shall proceed to determine the quality in accordance with Section 6.8(b)(3[…] (5) above. HECO may, at its option, seek other supplies of LSFO if in HECO’s All reasonable discretion the Delivery of non-conforming LSFO may not be remedied in time to prevent a possible interruption of HECO’s operations. All costs and expenses of remedying the Delivery of non-conforming LSFOexpenses, or arising from non-conforming LSFO (including, without limitation, the including testing, transportation, re-refining, and handling costs incurred in returning, replacing or otherwise correcting off-Specification LSFO, the emptying and cleaning of storage tanks containing non-conforming LSFO specification Fuel shall be paid by SELLER. Any remedy the responsibility of non-conforming LSFO accepted by HECO under this Section 6.8 (Disputes Regarding Quality or Quantity) shall not operate or be construed to remedy any similar non-conforming LSFO or to change the Specification of LSFO acceptable to HECO under the terms of this ContractSeller.

Quality Disputes. (1) SELLER . The quality of Fuel sold and Delivered to Hawaiian Electric shall provide HECO with a be determined on the basis of Seller’s Certificate of Quality of each batch or Marine Shipment of Product Delivered the Fuel provided by the SELLERSeller. For Marine Deliveries, such Certificate Each shipment of Fuel to Hawaiian Electric shall conform comply with the Specifications subject to the one provided to SELLER by its supplier of LSFO. Final determination of quality shall be made as otherwise provided hereinSection 4.1. (2) . The official BTU Content determination shall be as reported in SELLERSeller’s Certificate of Quality, provided that the arithmetic difference between SELLERSeller’s and HECOHawaiian Electric’s laboratory results is equal to or less than the then existing ASTM reproducibility standard (currently 0.4 MJ/kg, which the Parties shall deem to be equivalent to a fixed standard of 60,000 BTU per Barrelbarrel) for test D-4868D-240. If the difference between SELLERSeller’s and HECOHawaiian Electric’s determinations of BTU Content should fall outside the ASTM reproducibility standard for ASTM test D-4868 D-240, the sealed sample in the possession of the Independent Inspector shall be provided to a mutually acceptable an independent laboratory for an official determination, which shall be binding upon the Parties. SELLER Seller and HECO Hawaiian Electric shall share equally the costs of independent tests and determinations. (3) . If SELLER Seller or HECO Hawaiian Electric has reason to believe that the quality of Product Fuel stated for a specific Delivery fails to conform to the Specification Specifications in Article IV (Quality) or Attachment A of this Contractthe fuel specifications in Exhibit A, that Party shall as promptly as reasonably possible, but no later than within thirty five (305) Days of days after the later of the date of the completed Certificate of Quality or the date of the final determination of BTU Content, present the other Party with documents supporting such determination and the Parties will confer, in good faith, on the causes for the discrepancy and shall proceed to correct such causes and adjust the quality, if justified, for the Delivery in question. In the event of an unresolved difference between SELLER Seller and HECOHawaiian Electric, the sealed part of the representative sample in the possession of the Independent Inspector shall be provided to an independent laboratory for an official determination, which shall be final. SELLER Seller and HECO Hawaiian Electric shall share equally the cost for such independent laboratory determination. (4) . If the quality of the Product Fuel received by HECO Hawaiian Electric fails to conform to the quality Specification in Article IV (Quality) or Attachment A of this ContractSpecifications, both HECO Hawaiian Electric and SELLER Seller shall attempt to minimize the impact of any quality problem. At HECO’s reasonable discretion, such efforts may include a Specification waiver if the use of the Product will not unreasonably cause harm to HECO[…]. Or, SELLER Seller may attempt to remedy the quality problem by Delivering higher quality Product Fuel in a timely manner to produce a Specification Specifications quality blend in HECOHawaiian Electric’s storage tank(s) at HECOHawaiian Electric’s BPTF or at HECOHawaiian Electric’s Oahu O’ahu generating plants. If all such and similar efforts fail to resolve the quality problem, then HECO Hawaiian Electric may return non-Specification Product Specifications Fuel to SELLERSeller, in which case SELLER Seller shall replace the non-Specification Product Specifications Fuel by Delivering an equal volume of HECO Hawaiian Electric verified on-Specification Product Specifications Fuel to HECO Hawaiian Electric in a timely manner. Notwithstanding the preceding, HECO Hawaiian Electric shall always have the right to refuse Delivery of any Product Fuel with prior written notice to SELLER Seller or its permitted agents if HECO Hawaiian Electric in good faith shall have reason to believe that the LSFO tendered for Delivery Fuel does not meet the SpecificationSpecifications. Such Notice shall provide a full explanation of the basis for HECO’s belief that the LSFO so tendered does not meet Contract Specifications, together with appropriate documentation of the testing that determined that it is off-Specification. If SELLER disputes HECO’s analysis, then SELLER shall promptly notify HECO, and the Parties shall proceed to determine the quality in accordance with Section 6.8(b)(3) above. HECO may, at its option, seek other supplies of LSFO if in HECO’s reasonable discretion the Delivery of non-conforming LSFO may not be remedied in time to prevent a possible interruption of HECO’s operations[…]. 5. All reasonable costs and expenses of remedying the Delivery of non-conforming LSFO, or arising from non-conforming LSFO (including, without limitation, the concerning testing, transportation, re-refining, and handling costs incurred in returning, replacing or otherwise correcting off-Specification LSFO, the emptying and cleaning of storage tanks containing non-conforming LSFO Fuel shall be paid by SELLER. Any remedy for the account of non-conforming LSFO accepted by HECO under this Section 6.8 (Disputes Regarding Quality or Quantity) shall not operate or be construed to remedy any similar non-conforming LSFO or to change the Specification of LSFO acceptable to HECO under the terms of this ContractSeller.

Quality Disputes. (1Any claim by BUYER that any ETI Column or Reagent(s) SELLER shall provide HECO with a Certificate of Quality of each batch or Marine Shipment of Product Delivered by the supplied to BUYER does not satisfy SELLER. For Marine Deliveries, such Certificate shall conform to the one provided to SELLER by its supplier of LSFO. Final determination of quality shall ’s warranties under Section 5.7 must be made as otherwise provided herein. (2) The official BTU Content determination shall be as reported in SELLER’s Certificate of Quality, provided that the arithmetic difference between SELLER’s and HECO’s laboratory results is equal to or less than the then existing ASTM reproducibility standard (currently 0.4 MJ/kg, which the Parties shall deem to be equivalent to a fixed standard of 60,000 BTU per Barrel) for test D-4868. If the difference between SELLER’s and HECO’s determinations of BTU Content should fall outside the ASTM reproducibility standard for ASTM test D-4868 the sealed sample in the possession of the Independent Inspector shall be provided to a mutually acceptable independent laboratory for an official determination, which shall be binding upon the Parties. SELLER and HECO shall share equally the costs of independent tests and determinations. (3) If SELLER or HECO has reason to believe that the quality of Product stated for a specific Delivery fails to conform to the Specification in Article IV (Quality) or Attachment A of this Contract, that Party shall as promptly as reasonably possible, but no later than writing within thirty (30) Days days after discovery by BUYER of the problem, and in no event later than ninety (90) days following BUYER’s receipt of the ETI Column or Reagents in question; provided however that in the case of a latent defect in the column that cannot be reasonably discovered through testing or other reasonable means of inspection or evaluation prior to use thereof, the period of time for submitting a claim pursuant to this section 5.8 shall be thirty (30) days from the date BUYER learns of such latent defect. ETI Columns and Reagent(s) rejected by BUYER shall be returned by BUYER to SELLER at SELLER’s expense, and, at BUYER’s option, SELLER shall replace such ETI Column or Reagent(s) with ETI Column(s) and Reagent(s) meeting the completed Certificate of Quality ETI Column Specifications (or the date of the final determination of BTU ContentReagent Specifications or, present the other Party with documents supporting such determination and the Parties will conferat BUYER’s option, in good faith, on the causes issue a credit for the discrepancy returned ETI Columns and shall proceed to correct such causes and adjust the quality, if justified, for the Delivery in questionReagents. In the event that BUYER claims that any ETI Column or Reagent(s) fail to meet their respective specifications as set forth herein, and SELLER disagrees with BUYER’s findings, unless such failure is apparent on the face of written documentation provided by SELLER with the shipment of such Product, at SELLER’s written request, BUYER shall submit a sample of the contested ETI Column or Reagent to an unresolved difference between unrelated independent laboratory, reasonably acceptable to SELLER and HECO, the sealed part of the representative sample in the possession of the Independent Inspector shall be provided to an independent laboratory for an official determination, which shall be final. SELLER and HECO shall share equally the cost for such independent laboratory determination. (4) If the quality of the Product received by HECO fails to conform to the quality Specification in Article IV (Quality) or Attachment A of this Contract, both HECO and SELLER shall attempt to minimize the impact of any quality problem. At HECO’s reasonable discretion, such efforts may include a Specification waiver if the use of the Product will not unreasonably cause harm to HECO. Or, SELLER may attempt to remedy the quality problem by Delivering higher quality Product in a timely manner to produce a Specification quality blend in HECO’s storage tank(s) at HECO’s BPTF or at HECO’s Oahu generating plants. If all such and similar efforts fail to resolve the quality problem, then HECO may return non-Specification Product to SELLER, in which case SELLER shall replace the non-Specification Product by Delivering an equal volume of HECO verified on-Specification Product to HECO in a timely manner. Notwithstanding the preceding, HECO shall always have the right to refuse Delivery of any Product with prior written notice to SELLER or its permitted agents if HECO in good faith shall have reason to believe that the LSFO tendered for Delivery does not meet the Specification. Such Notice shall provide a full explanation of the basis for HECO’s belief that the LSFO so tendered does not meet Contract Specifications, together with appropriate documentation of the testing that determined that it is off-Specification. If SELLER disputes HECO’s analysis, then SELLER shall promptly notify HECOBUYER, and the Parties check assays of such laboratory shall proceed to determine be accepted by the quality in accordance with Section 6.8(b)(3) abovetwo parties as final and binding. HECO may, at its option, seek other supplies The cost of LSFO if in HECO’s reasonable discretion such analysis made by the Delivery of non-conforming LSFO may not be remedied in time to prevent a possible interruption of HECO’s operations. All costs and expenses of remedying the Delivery of non-conforming LSFO, or arising from non-conforming LSFO (including, without limitation, the testing, transportation, re-refininglaboratory, and handling costs incurred in returning, replacing the cost of disposal of disputed ETI Column or otherwise correcting off-Specification LSFO, Reagent shall promptly be borne by the emptying and cleaning of storage tanks containing non-conforming LSFO shall be paid party whose position is not substantiated by SELLER. Any remedy of non-conforming LSFO accepted by HECO under this Section 6.8 (Disputes Regarding Quality or Quantity) shall not operate or be construed to remedy any similar non-conforming LSFO or to change the Specification of LSFO acceptable to HECO under the terms of this Contractindependent laboratory.

Quality Disputes. (1) SELLER shall provide HECO with a Certificate of Quality of each batch or Marine Shipment The quality of Product Delivered by the SELLER. For Marine Deliveries, such Certificate shall conform SELLER to the one provided Companies’ Nominated Truck(s) or in SELLER’s Nominated Trucks to SELLER by its supplier of LSFO. Final determination of quality the Companies’ Site Locations shall be made determined on the basis of a volumetric weighted average composite of samples drawn by an Independent Inspector or SELLER representative from SELLER’s Nominated Terminal issuing tank(s) after the completion of each bulk receipt into such terminal tanks in such a manner as otherwise provided hereinto be representative of the volume of the tank inventory from that time until the time of the next bulk receipt. Such samples of Product shall be divided into a minimum of two (2) parts one of which shall be sealed and dated and retained by SELLER, or an Independent Inspector at the option of SELLER, for a period of not less than three (3) months. (2) The official BTU Content determination quality of Product Delivered by SELLER to the Companies’ Nominated Barge or by SELLER to the Harbor terminal piping or by SELLER from its Nominated Barge to the Companies’ Nominated Terminal shall be as reported in determined on the basis of a volumetric weighted average composite of samples drawn by an Independent Inspector or SELLER representative from SELLER’s Certificate of Quality, provided that the arithmetic difference between SELLER’s and HECO’s laboratory results is equal to or less than the then existing ASTM reproducibility standard (currently 0.4 MJ/kg, which the Parties shall deem Nominated Terminal issuing tank(s) in such a manner as to be equivalent to a fixed standard of 60,000 BTU per Barrel) for test D-4868. If the difference between SELLER’s and HECO’s determinations of BTU Content should fall outside the ASTM reproducibility standard for ASTM test D-4868 the sealed sample in the possession representative of the Independent Inspector volume of the tank inventory. Such tank samples of Product shall be provided to divided into a mutually acceptable independent laboratory for an official determination, minimum of two (2) parts one of which shall be binding upon sealed and dated and retained by SELLER, or an Independent Inspector at the Parties. SELLER and HECO shall share equally the costs option of independent tests and determinationsSELLER, for a period of not less than three (3) months. (3) If SELLER or HECO has the Companies have reason to believe that the quality of Product stated for a specific Delivery fails to conform to the Specification Specifications in Article IV (Quality) Attachments B, C, D or Attachment A E, of this Contract, that Party shall as promptly as reasonably possible, but no later than within thirty five (305) Days of after the later of the date of the completed Certificate of Quality or the date of the final determination of BTU Contentquality, present the other Party with documents supporting such determination and the Parties will confer, in good faith, on the causes for the discrepancy and shall proceed to correct such causes and adjust the quality, if justified, for the Delivery in question. In the event of an unresolved difference between SELLER and HECOthe Companies, the sealed part of the representative sample in the possession of the Independent Inspector shall be provided to an independent laboratory for an official determination, which shall be final. SELLER and HECO the Companies shall share equally the cost for such independent laboratory determination. (4) If the quality of the Product received by HECO the Companies fails to conform to the quality Specification Specifications in Article IV (Quality) Attachments B, C, D or Attachment A E, of this Contract, both HECO the Companies and SELLER shall attempt to minimize the impact of any quality problem. At HECO’s the Companies’ reasonable discretion, such efforts may include a Specification waiver if the use of the Product will not unreasonably cause harm to HECOthe Companies. Or, SELLER may attempt to remedy the quality problem by Delivering higher quality Product in a timely manner to produce a Specification quality blend in HECO’s the Companies’ storage tank(s) at HECO’s BPTF or at HECO’s Oahu generating plantsthe Companies’ Receiving Facility. If all such and similar efforts fail to resolve the quality problem, then HECO the Companies may return non-Specification Product to SELLER, in which case SELLER shall replace the non-Specification Product by Delivering an equal volume of HECO the Companies’ verified on-Specification Product to HECO the Companies in a timely manner. Notwithstanding the preceding, HECO the Companies shall always have the right to refuse Delivery of any Product with prior written notice to SELLER or its permitted agents if HECO the Companies in good faith shall have reason to believe that the LSFO tendered for Delivery Product does not meet the Specification. Such Notice shall provide a full explanation of the basis for HECO’s belief that the LSFO so tendered does not meet Contract Specifications, together with appropriate documentation of the testing that determined that it is off-Specification. If SELLER disputes HECO’s analysis, then SELLER shall promptly notify HECO, and the Parties shall proceed to determine the quality in accordance with Section 6.8(b)(3) above. HECO The Companies may, at its option, seek other supplies of LSFO Product if in HECO’s the Companies’ reasonable discretion the Delivery of non-conforming LSFO Product may not be remedied in time to prevent a possible interruption of HECO’s their operations. All costs and expenses of remedying the Delivery of non-conforming LSFOProduct, or arising from non-conforming LSFO Product (including, without limitation, the testing, transportation, re-refining, and handling costs incurred in returning, replacing or otherwise correcting off-Specification LSFOProduct, the emptying and cleaning of storage tanks containing non-conforming LSFO Product) shall be paid by SELLER. Any remedy of non-conforming LSFO Product accepted by HECO the Companies under this Section 6.8 (Disputes Regarding Quality or Quantity) shall not operate or be construed to remedy any similar non-conforming LSFO Product or to change the Specification of LSFO Product acceptable to HECO the Companies under the terms of this Contract. (5) SELLER shall be solely responsible for all reasonable costs and expenses, including testing, transportation, re-refining, and handling costs incurred by the Companies in returning, replacing or otherwise correcting off-specification Product.

Quality Disputes. (1) SELLER The quality of Product sold and Delivered to Hawaiian Electric shall provide HECO with a be determined on the basis of Seller’s Certificate of Quality of each batch or Marine Shipment the LSFO and Diesel provided by the Seller. Each shipment of Product Delivered by to Hawaiian Electric shall comply with the SELLER. For Marine Deliveries, such Certificate shall conform Specification subject to the one provided to SELLER by its supplier of LSFO. Final determination of quality shall be made as otherwise provided hereinSection 4.1. (2) The official BTU Content determination shall be as reported in SELLERSeller’s Certificate of Quality, provided that the arithmetic difference between SELLERSeller’s and HECOHawaiian Electric’s laboratory results is equal to or less than the then existing ASTM reproducibility standard (currently 0.4 MJ/kg, which the Parties parties shall deem to be equivalent to a fixed standard of 60,000 BTU per Barrelbarrel) for test D-4868D-240. If the difference between SELLERSeller’s and HECOHawaiian Electric’s determinations of BTU Content should fall outside the ASTM reproducibility standard for ASTM test D-4868 D-240, the sealed sample in the possession of the Independent Inspector shall be provided to a mutually acceptable an independent laboratory for an official determination, which shall be binding upon the Partiesparties. SELLER Seller and HECO Hawaiian Electric shall share equally the costs of independent tests and determinations. (3) If SELLER Seller or HECO Hawaiian Electric has reason to believe that the quality of Product stated for a specific Delivery fails to conform to the Specification in Article IV (Quality) or the fuel specifications in Attachment A of this ContractB from the RFP, that Party shall as promptly as reasonably possible, but no later than within thirty five (305) Days of days after the later of the date of the completed Certificate of Quality or the date of the final determination of BTU Content, present the other Party with documents supporting such determination and the Parties will confer, in good faith, on the causes for the discrepancy and shall proceed to correct such causes and adjust the quality, if justified, for the Delivery in question. In the event of an unresolved difference between SELLER Seller and HECOHawaiian Electric, the sealed part of the representative sample in the possession of the Independent Inspector shall be provided to an independent laboratory for an official determination, which shall be final. SELLER Seller and HECO Hawaiian Electric shall share equally the cost for such independent laboratory determination. (4) If the quality of the Product received by HECO Hawaiian Electric fails to conform to the quality Specification in Article IV (Quality) or the fuel specifications in Attachment A of this ContractB from the RFP, both HECO Hawaiian Electric and SELLER Seller shall attempt to minimize the impact of any quality problem. At HECOHawaiian Electric’s reasonable discretion, such efforts may include (i) a Specification waiver if the use of the Product will not unreasonably cause harm to HECOHawaiian Electric. Or, SELLER Seller may attempt to remedy the quality problem by Delivering higher quality Product in a timely manner to produce a Specification quality blend in HECOHawaiian Electric’s storage tank(s) at HECO’s BPTF or at HECOHawaiian Electric’s Oahu O‘ahu generating plants. If all such and similar efforts fail to resolve the quality problem, then HECO Hawaiian Electric may return non-Specification the non- conforming Product to SELLERSeller, in which case SELLER Seller shall replace the non-Specification Product by Delivering an equal volume of HECO Hawaiian Electric verified on-Specification Product to HECO Hawaiian Electric in a timely manner. Notwithstanding the preceding, HECO Hawaiian Electric shall always have the right to refuse Delivery of any Product with prior written notice to SELLER Seller or its permitted agents if HECO Hawaiian Electric in good faith shall have reason to believe that the LSFO tendered for Delivery Product does not meet the Specification. Such Notice shall provide a full explanation of the basis for HECO’s belief that the LSFO so tendered does not meet Contract Specifications, together with appropriate documentation of the testing that determined that it is off-Specification. If SELLER disputes HECO’s analysis, then SELLER shall promptly notify HECO, and the Parties shall proceed to determine the quality in accordance with Section 6.8(b)(3) above. HECO Hawaiian Electric may, at its option, seek other supplies of LSFO Product if in HECOHawaiian Electric’s reasonable discretion the Delivery of non-conforming LSFO Product may not be remedied in time to prevent a possible interruption of HECOHawaiian Electric’s operations. All costs and expenses of remedying the Delivery of non-conforming LSFOProduct, or arising from non-non- conforming LSFO Product (including, without limitation, the testing, transportation, re-refining, and handling costs incurred in returning, replacing or otherwise correcting offnon-Specification LSFOconforming Product, the emptying and cleaning of storage tanks containing non-conforming LSFO Product) shall be paid by SELLERSeller. Any remedy of non-conforming LSFO Product accepted by HECO Hawaiian Electric under this Section 6.8 (Disputes Regarding Quality or Quantity) shall not operate or be construed to remedy any similar non-conforming LSFO Product or to change the Specification of LSFO Product acceptable to HECO Hawaiian Electric under the terms of this Contract. (5) Seller shall be solely responsible for all reasonable costs and expenses, including testing, transportation, re-refining, and handling costs incurred by Hawaiian Electric in returning, replacing or otherwise correcting non-conforming Product .

Quality Disputes. (1) SELLER The quality of the Product sold and Delivered by Seller to the Companies shall provide HECO with a be as stated on Seller’s Certificate of Quality for such Product. The quality of the Product in the Companies’ nominated truck or in Seller’s nominated truck delivered to the Companies’ Receiving Facilities shall be determined on the basis of a volumetric weighted average composite of samples drawn by the Independent Inspector or Seller representative from Seller’s nominated terminal issuing tank(s) after the completion of each batch or Marine Shipment bulk receipt into such terminal tanks in such a manner as to be representative of the volume of the tank inventory from that time until the time of the next bulk receipt. Such samples of the Product Delivered by the SELLER. For Marine Deliveries, such Certificate shall conform to the one provided to SELLER by its supplier of LSFO. Final determination of quality shall be made as otherwise provided hereindivided into a minimum of two (2) parts one of which shall be sealed and dated and retained by Seller, or an Independent Inspector at the option of Seller, for a period of forty five (45) Days. (2) The official BTU Content determination quality of the Product sold and Delivered by Seller to the Companies shall be as reported in SELLERstated on Seller’s Certificate of Quality, provided that Quality for such Product. The quality of the arithmetic difference between SELLER’s and HECO’s laboratory results is equal to or less than the then existing ASTM reproducibility standard (currently 0.4 MJ/kg, which the Parties shall deem to be equivalent to a fixed standard of 60,000 BTU per Barrel) for test D-4868. If the difference between SELLER’s and HECO’s determinations of BTU Content should fall outside the ASTM reproducibility standard for ASTM test D-4868 the sealed sample Product in the possession Companies’ nominated barge, the harbor terminal piping, or from Seller’s nominated barge to the Companies’ nominated terminal shall be determined on the basis of a volumetric weighted average composite of samples drawn by the Independent Inspector or Seller representative from Seller’s nominated terminal issuing tank(s) in such a manner as to be representative of the volume of the tank inventory. Such tank samples of the Product shall be provided to divided into a mutually acceptable independent laboratory for an official determinationminimum of two (2) parts, one of which shall be binding upon sealed and dated and retained by Seller (or an Independent Inspector at the Parties. SELLER and HECO shall share equally the costs option of independent tests and determinationsSeller) for a period of forty five (45) Days. (3) If SELLER or HECO has the Companies have reason to believe that the quality of the Product stated for in a specific Delivery fails to conform to the Specification Specifications as provided in Article IV (Quality) or Attachment A of this Contract), that Party shall as promptly as reasonably possiblethe Companies shall, but no later than within thirty five (305) Days of after the later of the date of the completed Certificate of Quality is received by the Companies or the date of the final Companies receipt of the Companies’ determination of BTU Contentquality, present the other Party Seller with documents documentation supporting such determination and the Parties will confer, in good faith, on the causes for the discrepancy. If the discrepancy and is attributable to Seller, Seller shall proceed to correct such causes and adjust the quality, if justified, quality for the Delivery in question. In the event of an unresolved difference between SELLER Seller and HECOthe Companies as to the quality of the Product, the sealed part sample of the representative sample Product in question that is in the possession of the Independent Inspector shall be provided to an independent laboratory for an official determinationindependent determination of quality (“Independent Determination”), which Independent Determination shall be finalbinding on the Parties. SELLER and HECO Seller shall share equally be solely responsible for the cost for such independent laboratory determination. (4) If Independent Determination in the event that it is determined that the quality of the Product received by HECO fails to in question does not conform to the quality Specification in Article IV (Quality) or Attachment A of this Contract, both HECO and SELLER shall attempt to minimize the impact of any quality problem. At HECO’s reasonable discretion, such efforts may include a Specification waiver if the use of the Product will not unreasonably cause harm to HECO. Or, SELLER may attempt to remedy the quality problem by Delivering higher quality Product in a timely manner to produce a Specification quality blend in HECO’s storage tank(s) at HECO’s BPTF or at HECO’s Oahu generating plants. If all such and similar efforts fail to resolve the quality problem, then HECO may return non-Specification Product to SELLER, in which case SELLER shall replace the non-Specification Product by Delivering an equal volume of HECO verified on-Specification Product to HECO in a timely manner. Notwithstanding the preceding, HECO shall always have the right to refuse Delivery of any Product with prior written notice to SELLER or its permitted agents if HECO in good faith shall have reason to believe that the LSFO tendered for Delivery does not meet the Specification. Such Notice shall provide a full explanation of the basis for HECO’s belief that the LSFO so tendered does not meet Contract Specifications, together with appropriate documentation of the testing that determined that it is off-Specification. If SELLER disputes HECO’s analysis, then SELLER shall promptly notify HECO, and the Parties shall proceed to determine the quality in accordance with Section 6.8(b)(3) above. HECO may, at its option, seek other supplies of LSFO if in HECO’s reasonable discretion the Delivery of non-conforming LSFO may not be remedied in time to prevent a possible interruption of HECO’s operations. All costs and expenses of remedying the Delivery of non-conforming LSFO, or arising from non-conforming LSFO (including, without limitation, the testing, transportation, re-refining, and handling costs incurred in returning, replacing or otherwise correcting off-Specification LSFO, the emptying and cleaning of storage tanks containing non-conforming LSFO shall be paid by SELLER. Any remedy of non-conforming LSFO accepted by HECO under this Section 6.8 (Disputes Regarding Quality or Quantity) shall not operate or be construed to remedy any similar non-conforming LSFO or to change the Specification of LSFO acceptable to HECO under the terms of this Contract.