Xxxxxx Petroleum Company Propane Sales Agreement
A Division of Chevron U.S.A. Inc.
X.X. Xxx 0000, Xxxxx, XX 00000 * Phone (000) 000-0000
Prepare in original and five copies
Purchaser Confirming Arrangements Made With
Empire Gas Corporation Xxxxx Xxxxx
Address Arrangements Made By Date
X.X. Xxx 000 R. E. Siedell August 23, 1995
City, State, Zip Xxxxxx Xx. Xxxxxxxxx Xx.
Xxxxxxx, XX 00000 25076
1. Term: Xxxxxx will sell the following during period from September
01, 1995 ( ) Expires on__________________
(X) Until May 31, 1996 and continuing month to month thereafter
unless and until canceled at the end of any month by either party giving
the other not less than 60 days written notice prior to the proposed
termination date.
Product
Approx. Unit Meas. Del. Price
Vol. of Basis Location Method
(net @ Measure (see 2) (see 2) Cents/
60 Gallon
degrees
F)
-------------------------------------------------------------------------
Propane GPA See Gallons T Pascagoula, MS T Posted
Specifications Attch. price at
A time of
lifting
-------------------------------------------------------------------------
2. Measurement/Delivery Method V - Volumetric per API Tables 23 and 24
(see above) or 23A and 24A or 5A and 6A
T. Trucks Other M - Mass per GPA 8182
____________ O - Origin D - Destination
____________
C. Tank Cars ____________
____________
______
-------------------------------------------------------------------------
3. Product: (X) Stenched ( ) Unstenched
-------------------------------------------------------------------------
WARNING
It is important that you periodically remind your customers and employees
that even though ethyl mercaptan has been recognized as the best available
odorant for propane, no odorant is effective 100% of the time. The odor
of the gas may, under some circumstances, be reduced or lost if put into a
tank that is new or that has been exposed to the air for extended periods.
Electronic gas detectors (that emit a shrill sound in the presence of gas)
should be recommended to your customers as an additional safety measure for
detecting leaks. Your customers should be familiar with the smell of the
odorant and their ability to smell it. Inform them that colds, allergies,
smoking, alcohol, age, competing odors and simply "getting used to" the
odor can cause them not to detect escaping gas. Familiarize yourself, your
employees and your customers with the potential limitations of the odorant
and the alleged phenomenon of "odor fade". Xxxxxx'x Odorization Bulletins,
Safety Guide and other safety materials are available to help with this
familiarization. If you need additional information or materials to
properly educate your employees and customers, please contact the NPGA,
your state organization, or Xxxxxx Petroleum Company.
------------------------------------------------------------------------
4. Seller send statements, invoices and shipping documentation to:
Xx. Xxxx Xxxxx
Empire Gas Corporation
X.X. Xxx 000
Xxxxxxx, XX 00000
------------------------------------------------------------------------
5. Terms of Payment:
1% EFT 14 days.
------------------------------------------------------------------------
6. Special Provisions:
------------------------------------------------------------------------
7. In addition to the above terms and conditions, the General Provisions of
this Product Sales Agreement and all Attachments are incorporated herein
by reference and made a part of this Agreement. If you are in agreement
with the foregoing terms and conditions including the indemnity
provision, please so indicate by signing below and returning one copy of
the Agreement to Xxxxxx.
------------------------------------------------------------------------
Accepted and Agreed to: Xxxxxx Petroleum Company
Empire Gas Corporation A Division of Chevron U.S.A. Inc.
By /s/ Xxxx Xxxxxxx By /s/ R.E. Siedell
Title V.P. Date Title
9/5/95 District Manager
------------------------------------------------------------------------
Distribution: Buyer for File Distribution Section, Tulsa
Buyer for acceptance and Marketing Department, Tulsa
return to Xxxxxx'x Tulsa Retained by Originator
Office
Accounting Division, Tulsa
GENERAL PROVISIONS PROPANE SALES
1. DELIVERIES
A. When delivery is point of origin, delivery shall be deemed to have
been completed:
1. To tank tricks when the product has actually been delivered into
the trust;
2. To tank cars when the carrier accepts the same for shipment;
3. To pipelines upon metering of the product;
B. When delivery is point of destination, delivery shall be deemed to
have been completed:
1. From tank trucks when truck has been placed at buyer's facilities
for unloading;
2. From tank cars when carrier delivers same at the destination;
C. Seller shall not be liable to Buyer for quantity or quality of
product, after completion of delivery. Buyer agrees that the
handling, care or use of product shall thereafter be at Buyer's
sole risk and expense.
2. MEASUREMENT - Measurement shall be done in the manner customarily
utilized at the point of delivery in accordance with one of the
following alternatives.
A. On all deliveries into/out of tank cars, the quantity shall be
determined by official tank car capacity tables, meters with no
vapor return, or by weighing, in accordance with GPA Publication
8162,8173 and all revisions thereof.
B. On all deliveries into/out of transport and tank truck equipment,
quantities shall be determined by meter with no vapor return, slip
tube, rotary gauging device or weighing, in accordance with GPA
Publication 8162, all appropriate GPA and API standards and all
revisions thereof.
C. On all deliveries into/out of pipeline, quantity shall be
determined by turbine or positive displacement pipeline meter in
accordance with API Manual of Petroleum Measurement Standards.
D. All quantities shall be corrected to 60 degrees Fahrenheit and
equilibrium vapor pressure at 60 degrees Fahrenheit.
E. Volume and compressibility correction factors shall be determined
from referenced API tables or computer programs used to generate
these tables.
3. PASSAGE OF TITLE AND WARRANTY OF TITLE - Title to the product and risk
of loss shall pass to Buyer upon delivery. Seller warrants to Buyer
that it has title to the product(s) delivered by it hereunder and the
right to deliver same, and agrees to indemnify, defend and hold the
Buyer harmless from and gains any loss, claim or demand by reason of
any failure of such title or breach of this warranty. SELLER MAKES NO
OTHER WARRANTY WITH RESPECT TO THE PRODUCT OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
A PARTICULAR PURPOSE.
4. TAXES - Any tax, fee, or other exaction, now or hereafter, levied or
assessed by any governmental authority upon, or as a result of the
transaction herein provided for, or the goods or source materials
thereof which ar the subject matter of this Agreement, shall, if
payable by Seller, be paid by Buyer on demand by Seller. Any personal
property taxes levied or assessed by any governmental authority upon
the products covered by this Agreement shall be paid by the party
having title thereto at the time of such assessment. Buyer shall
furnish Seller proper exemption certificate where tax exemption is
claimed on any product(s) delivered hereunder.
5. GOVERNMENT REGULATIONS & LAW - Seller warrants that the product it
delivers hereunder will be produced and delivered in full compliance
with all applicable federal and state laws and regulations and all
Presidential Proclamations which may be applicable. This agreement
shall be subject to the jurisdiction of, governed by and construed in
accordance with the laws of the State of Oklahoma including the
Uniform Commercial Code. Seller agrees to comply with the provisions
contained in Exhibit "A" if attached hereto, to the extent that such
provisions are legally applicable to Seller.
6. FORCE MAJEURE - If either party is rendered unable, wholly or in part,
to perform its obligations under this Agreement (other than to make
payments due hereunder) due to force majeure, defined herein as any
cause or causes beyond its control, then in any such event, it is
agreed that the affected party shall give prompt notice and full
particulars of such force majeure to the other party. The obligations
of the affected party shall be suspended for the duration of such
inability to perform but for no longer period and such cause shall, so
far as possible, be remedied with all reasonable dispatch.
7. ASSIGNMENT - This Agreement shall extend to and be binding upon the
parties thereto, their heirs, successors and assigns; but it is
expressly agreed that neither party shall voluntarily assign this
Agreement without the prior written consent to the other.
8. NOTICE - Any notice hereunder shall be in writing and shall be
delivered personally, by mail, by fax, by telex, or by telegram to the
address set forth on the attached agreement, unless changed by notice.
such notice shall be deemed to have been given on the date of the
delivery thereof.
9. WAIVER - The waiver by either party of the breach of any provision
hereof by the other party shall not be a waiver of the breach of any
other provision or provisions hereof or of any subsequent or
continuing breach of such provision or provisions.
10. ALTERATIONS - No oral promises, agreements or warranties shall be
deemed a part hereof, nor shall nay alteration or amendment of this
Agreement, or waiver of any of its provisions, be binding upon either
party hereto unless the same be in writing, signed by the party
charged.
11. INVOICES AND TERMS OF PAYMENT - Invoices will be prepared by Seller
and transmitted to the Buyer from time to time during the month.
Unless otherwise specified, payment is due within ten (10) days after
receipt of invoice. If payment is not made within the time allowed
under this Agreement, then Seller may charge interest on the unpaid
balance at the lesser of 11/2% per month or the highest rate permitted
by Oklahoma law and Seller shall be entitled to recover its reasonable
costs of collection, including attorney's fee.
12. FINANCIAL RESPONSIBILITY - If in the judgment of Seller the financial
responsibility of Buyer becomes impaired or unsatisfactory, advance
cash payments or acceptable security (including, but not limited to a
letter of credit form a financial institution acceptable to Seller)
may be required by Seller, and if Buyer fails to provide such, Seller
may without waiving any rights or remedies, withhold further
deliveries until such payment or security is received. Buyer's duty
to provide the hereinabove credit assurance shall be a condition
precedent to Seller's obligation to perform under this agreement.
13. CONFLICTS OF INTEREST - No director, employee or agent of either party
shall give or receive any commission, fee, rebate, gift or
entertainment of significant cost or value in connection with this
Agreement. Any representative(s) authorized by either party may audit
the applicable records of the other party solely for the purpose of
determining whether there has been compliance with this paragraph.
14. AUDIT - Each party and its authorized representatives shall have
access to the accounting records and other documents maintained by the
other party which relate to the product being sold to the other party
under this Agreement and shall have the right to audit such records
once a year a any reasonable time or times during the term of this
Agreement and for two years after the year in which this Agreement
terminates. Neither party shall make claim on the other for any
adjustment after said two-year period.
15. TANK CARS - If Seller's tank cars are used and they are not unloaded
and returned to railroad, Buyer shall be liable to Seller for rental
at the rate of $50.00 for each day or fraction thereof in excess of 7
days. Tank cars shall not be diverted without Seller's written
consent.
16. QUALITY - All products delivered under this Agreement shall meet the
latest GPA specifications for that product and contain no deleterious
substances. Product delivered under this agreement shall not contain
concentrations of any contaminations that may make it or its
components commercially unacceptable in general industry application.
Any requirements of buyer pertaining to potential contaminants and/or
specific hydrocarbon composition not listed in the product
specification must be identified by buyer and allowable concentrations
agreed to in writing by both parties prior to delivery.
17. SHORTAGE OF PRODUCTS - Due to uncertainties in the supply/demand
situation, Xxxxxx may not have sufficient supplies of product to be
delivered hereunder to meet the full requirements of all of its
customers, contract or otherwise. whenever that situation exists,
Xxxxxx shall have, in addition to any other rights Xxxxxx may have
under this Agreement, the right to reduce deliveries of such product
on any basis which in Xxxxxx'x opinion is equitable, allowing for such
priorities to such priorities to such classes of customers as Xxxxxx
xxxxx appropriate. If any such reduction occurs, Buyer shall have the
option to terminate this Agreement as to any or all products by
fifteen (15) day's notice, given within thirty (3) days of the notice
of reduction.
18. BRAND NAMES - Unless otherwise specifically agreed, Buyer shall not
represent or permit any other person to represent, that the product
delivered hereunder is the product of Xxxxxx. All products delivered
to Buyer hereunder shall be used or sold under Buyer's own brand names
or under brand names approved by Xxxxxx, and Buyer shall not authorize
or permit said product to be used or sold under any other brand names.
19. CONDUCT OF BUYER'S BUSINESS - Buyer in the performance of this
Agreement is engaged in an independent business and nothing herein
contained shall be construed as giving Xxxxxx any right to control
Buyer in any way in its performance of its business. Xxxxxx has no
right to exercise control over any Buyer's employees. All employees
of Buyer shall be entirely under the control and direction of Buyer
who shall be responsible for their actions. and omissions
20. INDEMNITY - If Xxxxxx provides adequate documentation of the
odorization required by this contract, buyer agrees to define and hold
Xxxxxx harmless from all expenses (including attorney's fees) or
liability arising from any claims of whatever kind due to injuries or
damages which occur after delivery to Buyer in connection with the
transportation, use or handling of product covered hereunder. BUYER'S
INDEMNITY OBLIGATION SHALL BE APPLICABLE EVEN IF SUCH DAMAGES ARE
DETERMINED TO HAVE BEEN PARTLY CAUSED BY THE FAULT OF SELLER OR IF
LIABILITY WITHOUT FAULT IS IMPOSED ON SELLER, THE ONLY EXCEPTION TO
SUCH OBLIGATION BEING WHERE THE FAULT OF SELLER IS DETERMINED TO BE
THE SOLE CAUSE OF SUCH DAMAGES.
21. PRICES - Prices hereunder may be changed at any time by Xxxxxx upon
notice given either electronically (i.e. fax, DTN or phone) or by U.S.
Mail, effective when sent. If any such notice shall increase Xxxxxx'x
price to Buyer at any shipping point or destination above Xxxxxx'x
price for such product or freight in effect during the elapsed portion
of the calendar year in which Xxxxxx'x notice is effective, Buyer may
by written notice to Xxxxxx given and effective within fifteen (15)
days the date of Xxxxxx'x notice, terminate this contract with respect
to such shipping ponit or destination.
22. ODORIZATION - Unless otherwise specifically agreed in writing, Buyer
hereby requests that the propane sold hereunder be odorize with not
less than 1.0 lb. of ethyl mercaptan per 10,000 gallons. Buyer
warrants that compliance with its request will satisfy all applicable
legal requirements.
23. PRODUCT HAZARDS - Buyer acknowledges receipt of Xxxxxx'x Safety
Bulletin for odorized propane and is knowledgeable of the hazards or
risks in handling or using the product. Buyer agrees that Buyer shall
inform its employees, contractors and customers of any hazards or
risks associated with the product. Xxxxxx will make available to
Buyer Warning Decals that are intended to be placed on consumer tanks
or equipment and copies of its Safety Guide. Buyer agrees to supply
its customers with these materials or other reasonably equivalent
safety material to warn them of the potential hazards or risks in
using odorized propane.
24. INCIDENT - Buyer shall notify Xxxxxx as soon as possible after it
becomes aware of any fires or explosions occurring at locations
propane purchase hereunder is used. Buyer will inform Xxxxxx if said
product is involved and will fully cooperate with Xxxxxx in obtaining
a propane sample and any other investigation Xxxxxx xxxxx necessary.
Buyers Initials __________
ATTACHMENT A TO
PROPANE SALES AGREEMENT NO. 25076
1. TRADEMARK. Buyer acknowledges that the CHEVRON and WARRENGAS
Trademarks are valuable property rights belonging to Chevron
Corporation and its subsidiaries, including Chevron U.S.A. inc. and
that any use thereof by Buyer in connection with this agreement is
solely for the purposes of advertising products obtained from such
subsidiaries. Upon termination of this agreement, Buyer agrees that
it will make no further use of such trademarks or any other xxxx, name
or designs confusingly similar therewith.
2. QUANTITY. During the term hereof, Buyer agreed to buy the product
herein specified in monthly quantities of not less than the minimum
set forth below and Xxxxxx agrees to sell said quantities to Buyer.
Buyer shall purchase such entities as evenly as possible during each
month. If during any period of this agreement the quantity of product
Xxxxxx is obligate to deliver to Buyer is prescribed by government
rules, regulations or orders, then the quantity of product covered by
this agreement shall be the quantity so prescribed for such period and
Buyer agrees to buy and Xxxxxx agrees to sell such Quantity.
VOLUME (IN THOUSAND OF GALLONS)
EST. VOL. EST. VOL.
April 36 October 36
May 36 November 45
June 18 December 45
July 18 January 54
August 27 February 45
September 36 March 36
For the purpose of determining compliance with the above quantity schedule,
purchase of product shall be allocated to the month in which shipment is
made. Should either party fail to comply in any amount with the above
schedule, the other party may elect to terminate this agreement by mailing
notice of such termination on or before the 20th day of the succeeding
month. If the Buyer fails to purchase 100% of the above specified minimum
monthly quantities during any month or months and Xxxxxx does not elect to
terminate this agreement, Xxxxxx shall not be obligated hereunder to sell
to Buyer in any of the succeeding six months more than one and one half
times the average monthly quantity which Buyer actually purchased during
the preceding six-month period.
When delivery is into tank trucks furnished by Buyer, the delivery ticket
showing the quantity delivered shall be signed by the loader as the agent
of Xxxxxx and by the truck driver as the agent of the Buyer; such
quantities shall be conclusively presumed to have been delivered to Buyer.
On or before the 1st day of each month Buyer shall inform Xxxxxx of
quantities required during such month, delivery dates, and when applicable,
destinations of each shipment. Xxxxxx shall not be obligated to ship less
than a tank car or tank truck load.
3. Method of Delivery: _X_ By tank truck furnished by Buyer.
By tank truck furnished by Xxxxxx.
By tank truck furnished by _____ with a
capacity of _____ gallons each.
PRICE INFORMATION
Prices in effect as of August 24, 1995
Sales based on (X) Shipping point price or ( ) Destination price
SHIPPING OR
PRICING PRICE IN FREIGHT
POINTS DESTINATIONS PRODUCTS CENTS/GALLONS CHARGES
--------------------------------------------------------------------------
Pascagoula, Various Propane 33.75 N/A
MS
------------------------
Xxxxxx Petroleum Company Propane Sales Agreement
A Division of Chevron U.S.A. Inc.
X.X. Xxx 0000, Xxxxx, XX 00000 * Phone (000) 000-0000
Prepare in original and five copies
-----------------------------------------------------------------------------
Purchaser Confirming Arrangements Made With
Empire Gas Corporation Xxxxx Xxxxx
-----------------------------------------------------------------------------
Address Arrangements Made By Date
X.X. Xxx 000 R. E. Siedell August 24, 1995
-----------------------------------------------------------------------------
City, State, Zip Xxxxxx Xx. Xxxxxxxxx Xx.
Xxxxxxx, XX 00000 25078
-----------------------------------------------------------------------------
1. Term: Xxxxxx will sell the following during period from September 01,
1995 |_| Expires on__________________
|X| Until May 31, 1996 and continuing month to month thereafter unless
and until canceled at the end of any month by either party giving the
other not less than 60 days written notice prior to the proposed
termination date.
-----------------------------------------------------------------------------
Product
Approx. Vol. Unit of Meas. Del. Price
(net @ Measure Basis Location Method Cents/
60(degree)F) (see 2) (see 2) Gallon
-----------------------------------------------------------------------------
Propane GPA See Attch. Gallons T Greenville, MS T Posted
Specifications A price
at time
of
lifting
-----------------------------------------------------------------------------
2. Measurement/Delivery Method (see above) V - Volumetric per API Tables 23
T. Trucks__________ Other _____________ and 24 or 23A and 24A or 5A
C. Tank______________________________ and 6A
M - Mass per GPA 8182
O - OriD - Destination
-----------------------------------------------------------------------------
3. Product: |X| |_| Unstenched
-----------------------------------------------------------------------------
WARNING
It is important that you periodically remind your customers and employees
that even though ethyl mercaptan has been recognized as the best available
odorant for propane, no odorant is effective 100% of the time. the odor of
the gas may, under some circumstances, be reduced or lost if put into a
tank that is new or that has been exposed to the air for extended periods.
Electronic gas detectors (that emit a shrill sound in the presence of gas)
should be recommended to your customers as an additional safety measure
for detecting leaks. Your customers should be familiar with the smell of
the odorant and their ability to smell it. Inform them that colds,
allergies, smoking, alcohol, age, competing odors and simply "getting used
to" the odor can cause them not to detect escaping gas. Familiarize
yourself, your employees and your customers with the potential limitations
of the odorant and the alleged phenomenon of "odor fade". Xxxxxx'x
Odorization Bulletins, Safety Guide and other safety materials are
available to help with this familiarization. If you need additional
information or materials to properly educate your employees and customers,
please contact the NPGA, your state organization, or Xxxxxx Petroleum
Company.
-----------------------------------------------------------------------------
4. Seller send statements, invoices and shipping documentation to:
Xx. Xxxx Xxxxx
Empire Gas Corporation
X.X. Xxx 000
Xxxxxxx, XX 00000
-----------------------------------------------------------------------------
5. Terms of Payment:
1% EFT 14 days.
-----------------------------------------------------------------------------
6. Special Provisions:
-----------------------------------------------------------------------------
7. In addition to the above terms and conditions, the General Provisions of
this Product Sales Agreement and all Attachments are incorporated herein
by reference and made a part of this Agreement. If you are in agreement
with the foregoing terms and conditions including the indemnity provision,
please so indicate by signing below and returning one copy of the
Agreement to Xxxxxx.
-----------------------------------------------------------------------------
Accepted and Agreed to: Xxxxxx Petroleum Company
Empire Gas Corporation A Division of Chevron U.S.A. Inc.
-----------------------------------------------------------------------------
By /s/ Xxxx Xxxxxxx By /s/ R.E. Siedell
-----------------------------------------------------------------------------
Title V.P. Date Title
9/05/95 District Manager
-----------------------------------------------------------------------------
Distribution: Buyer for File Distribution Section, Tulsa
Buyer for acceptance Marketing Department, Tulsa
and return to Xxxxxx Retained by Originator
Accounting Division, Tulsa
GENERAL PROVISIONS PROPANE SALES
1. DELIVERIES
A. When delivery is point of origin, delivery shall be deemed to have
been completed:
1. To tank tricks when the product has actually been delivered into
the trust;
2. To tank cars when the carrier accepts the same for shipment;
3. To pipelines upon metering of the product;
B. When delivery is point of destination, delivery shall be deemed to
have been completed:
1. From tank trucks when truck has been placed at buyer's facilities
for unloading;
2. From tank cars when carrier delivers same at the destination;
C. Seller shall not be liable to Buyer for quantity or quality of product,
after completion of delivery. Buyer agrees that the handling, care or
use of product shall thereafter be at Buyer's sole risk and expense.
2. MEASUREMENT - Measurement shall be done in the manner customarily utilized
at the point of delivery in accordance with one of the following
alternatives.
A. On all deliveries into/out of tank cars, the quantity shall be
determined by official tank car capacity tables, meters with no vapor
return, or by weighing, in accordance with GPA Publication 8162,8173
and all revisions thereof.
B. On all deliveries into/out of transport and tank truck equipment,
quantities shall be determined by meter with no vapor return, slip
tube, rotary gauging device or weighing, in accordance with GPA
Publication 8162, all appropriate GPA and API standards and all
revisions thereof.
C. On all deliveries into/out of pipeline, quantity shall be determined
by turbine or positive displacement pipeline meter in accordance with
API Manual of Petroleum Measurement Standards.
D. All quantities shall be corrected to 60 degrees Fahrenheit and
equilibrium vapor pressure at 60 degrees Fahrenheit.
E. Volume and compressibility correction factors shall be determined from
referenced API tables or computer programs used to generate these
tables.
3. PASSAGE OF TITLE AND WARRANTY OF TITLE - Title to the product and risk of
loss shall pass to Buyer upon delivery. Seller warrants to Buyer that it
has title to the product(s) delivered by it hereunder and the right to
deliver same, and agrees to indemnify, defend and hold the Buyer harmless
from and gains any loss, claim or demand by reason of any failure of such
title or breach of this warranty. SELLER MAKES NO OTHER WARRANTY WITH
RESPECT TO THE PRODUCT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
4. TAXES - Any tax, fee, or other exaction, now or hereafter, levied or
assessed by any governmental authority upon, or as a result of the
transaction herein provided for, or the goods or source materials thereof
which ar the subject matter of this Agreement, shall, if payable by
Seller, be paid by Buyer on demand by Seller. Any personal property taxes
levied or assessed by any governmental authority upon the products covered
by this Agreement shall be paid by the party having title thereto at the
time of such assessment. Buyer shall furnish Seller proper exemption
certificate where tax exemption is claimed on any product(s) delivered
hereunder.
5. GOVERNMENT REGULATIONS & LAW - Seller warrants that the product it
delivers hereunder will be produced and delivered in full compliance
with all applicable federal and state laws and regulations and all
Presidential Proclamations which may be applicable. This agreement shall
be subject to the jurisdiction of, governed by and construed in
accordance with the laws of the State of Oklahoma including the Uniform
Commercial Code. Seller agrees to comply with the provisions contained
in Exhibit "A" if attached hereto, to the extent that such provisions
are legally applicable to Seller.
6. FORCE MAJEURE - If either party is rendered unable, wholly or in part,
to perform its obligations under this Agreement (other than to make
payments due hereunder) due to force majeure, defined herein as any
cause or causes beyond its control, then in any such event, it is agreed
that the affected party shall give prompt notice and full particulars of
such force majeure to the other party. The obligations of the affected
party shall be suspended for the duration of such inability to perform
but for no longer period and such cause shall, so far as possible, be
remedied with all reasonable dispatch.
7. ASSIGNMENT - This Agreement shall extend to and be binding upon the
parties thereto, their heirs, successors and assigns; but it is
expressly agreed that neither party shall voluntarily assign this
Agreement without the prior written consent to the other.
8. NOTICE - Any notice hereunder shall be in writing and shall be delivered
personally, by mail, by fax, by telex, or by telegram to the address set
forth on the attached agreement, unless changed by notice. such notice
shall be deemed to have been given on the date of the delivery thereof.
9. WAIVER - The waiver by either party of the breach of any provision
hereof by the other party shall not be a waiver of the breach of any
other provision or provisions hereof or of any subsequent or continuing
breach of such provision or provisions.
10.ALTERATIONS - No oral promises, agreements or warranties shall be deemed
a part hereof, nor shall nay alteration or amendment of this Agreement,
or waiver of any of its provisions, be binding upon either party hereto
unless the same be in writing, signed by the party charged.
11.INVOICES AND TERMS OF PAYMENT - Invoices will be prepared by Seller and
transmitted to the Buyer from time to time during the month. Unless
otherwise specified, payment is due within ten (10) days after receipt
of invoice. If payment is not made within the time allowed under this
Agreement, then Seller may charge interest on the unpaid balance at the
lesser of 1 1/2% per month or the highest rate permitted by Oklahoma law
and Seller shall be entitled to recover its reasonable costs of
collection, including attorney's fee.
00.XXXXXXXXX RESPONSIBILITY - If in the judgment of Seller the financial
responsibility of Buyer becomes impaired or unsatisfactory, advance cash
payments or acceptable security (including, but not limited to a letter
of credit form a financial institution acceptable to Seller) may be
required by Seller, and if Buyer fails to provide such, Seller may
without waiving any rights or remedies, withhold further deliveries
until such payment or security is received. Buyer's duty to provide the
hereinabove credit assurance shall be a condition precedent to Seller's
obligation to perform under this agreement.
13.CONFLICTS OF INTEREST - No director, employee or agent of either party
shall give or receive any commission, fee, rebate, gift or entertainment
of significant cost or value in connection with this Agreement. Any
representative(s) authorized by either party may audit the applicable
records of the other party solely for the purpose of determining whether
there has been compliance with this paragraph.
14.AUDIT - Each party and its authorized representatives shall have access
to the accounting records and other documents maintained by the other
party which relate to the product being sold to the other party under
this Agreement and shall have the right to audit such records once a year
a any reasonable time or times during the term of this Agreement and for
two years after the year in which this Agreement terminates. Neither party
shall make claim on the other for any adjustment after said two-year
period.
15.TANK CARS - If Seller's tank cars are used and they are not unloaded and
returned to railroad, Buyer shall be liable to Seller for rental at the
rate of $50.00 for each day or fraction thereof in excess of 7 days. Tank
cars shall not be diverted without Seller's written consent.
16.QUALITY - All products delivered under this Agreement shall meet the
latest GPA specifications for that product and contain no deleterious
substances. Product delivered under this agreement shall not contain
concentrations of any contaminations that may make it or its components
commercially unacceptable in general industry application. Any
requirements of buyer pertaining to potential contaminants and/or
specific hydrocarbon composition not listed in the product specification
must be identified by buyer and allowable concentrations agreed to in
writing by both parties prior to delivery.
17.SHORTAGE OF PRODUCTS - Due to uncertainties in the supply/demand
situation, Xxxxxx may not have sufficient supplies of product to be
delivered hereunder to meet the full requirements of all of its
customers, contract or otherwise. whenever that situation exists, Xxxxxx
shall have, in addition to any other rights Xxxxxx may have under this
Agreement, the right to reduce deliveries of such product on any basis
which in Xxxxxx'x opinion is equitable, allowing for such priorities to
such priorities to such classes of customers as Xxxxxx xxxxx
appropriate. If any such reduction occurs, Buyer shall have the option
to terminate this Agreement as to any or all products by fifteen (15)
day's notice, given within thirty (3) days of the notice of reduction.
18.BRAND NAMES - Unless otherwise specifically agreed, Buyer shall not
represent or permit any other person to represent, that the product
delivered hereunder is the product of Xxxxxx. All products delivered to
Buyer hereunder shall be used or sold under Buyer's own brand names or
under brand names approved by Xxxxxx, and Buyer shall not authorize or
permit said product to be used or sold under any other brand names.
19.CONDUCT OF BUYER'S BUSINESS - Buyer in the performance of this Agreement
is engaged in an independent business and nothing herein contained shall
be construed as giving Xxxxxx any right to control Buyer in any way in
its performance of its business. Xxxxxx has no right to exercise control
over any Buyer's employees. All employees of Buyer shall be entirely
under the control and direction of Buyer who shall be responsible for
their actions. and omissions
20.INDEMNITY - If Xxxxxx provides adequate documentation of the odorization
required by this contract, buyer agrees to define and hold Xxxxxx
harmless from all expenses (including attorney's fees) or liability
arising from any claims of whatever kind due to injuries or damages
which occur after delivery to Buyer in connection with the
transportation, use or handling of product covered hereunder. BUYER'S
INDEMNITY OBLIGATION SHALL BE APPLICABLE EVEN IF SUCH DAMAGES ARE
DETERMINED TO HAVE BEEN PARTLY CAUSED BY THE FAULT OF SELLER OR IF
LIABILITY WITHOUT FAULT IS IMPOSED ON SELLER, THE ONLY EXCEPTION TO SUCH
OBLIGATION BEING WHERE THE FAULT OF SELLER IS DETERMINED TO BE THE SOLE
CAUSE OF SUCH DAMAGES.
21.PRICES - Prices hereunder may be changed at any time by Xxxxxx upon
notice given either electronically (i.e. fax, DTN or phone) or by U.S.
Mail, effective when sent. If any such notice shall increase Xxxxxx'x
price to Buyer at any shipping point or destination above Xxxxxx'x price
for such product or freight in effect during the elapsed portion of the
calendar year in which Xxxxxx'x notice is effective, Buyer may by
written notice to Xxxxxx given and effective within fifteen (15) days
the date of Xxxxxx'x notice, terminate this contract with respect to
such shipping ponit or destination.
22.ODORIZATION - Unless otherwise specifically agreed in writing, Buyer
hereby requests that the propane sold hereunder be odorize with not less
than 1.0 lb. of ethyl mercaptan per 10,000 gallons. Buyer warrants that
compliance with its request will satisfy all applicable legal
requirements.
23.PRODUCT HAZARDS - Buyer acknowledges receipt of Xxxxxx'x Safety Bulletin
for odorized propane and is knowledge- able of the hazards or risks in
handling or using the product. Buyer agrees that Buyer shall inform its
employees, contractors and customers of any hazards or risks associated
with the product. Xxxxxx will make available to Buyer Warning Decals
that are intended to be placed on consumer tanks or equipment and copies
of its Safety Guide. Buyer agrees to supply its customers with these
materials or other reasonably equivalent safety material to warn them of
the potential hazards or risks in using odorized propane.
24.INCIDENT - Buyer shall notify Xxxxxx as soon as possible after it becomes
aware of any fires or explosions occurring at locations propane purchase
hereunder is used. Buyer will inform Xxxxxx if said product is involved
and will fully cooperate with Xxxxxx in obtaining a propane sample and any
other investigation Xxxxxx xxxxx necessary.
Buyers Initials __________
ATTACHMENT A TO
PROPANE SALES AGREEMENT NO. 25078
1. TRADEMARK. Buyer acknowledges that the CHEVRON and WARRENGAS Trademarks
are valuable property rights belonging to Chevron Corporation and its
subsidiaries, including Chevron U.S.A. inc. and that any use thereof by
Buyer in connection with this agreement is solely for the purposes of
advertising products obtained from such subsidiaries. Upon termination of
this agreement, Buyer agrees that it will make no further use of such
trademarks or any other xxxx, name or designs confusingly similar
therewith.
2. QUANTITY. During the term hereof, Buyer agreed to buy the product herein
specified in monthly quantities of not less than the minimum set forth
below and Xxxxxx agrees to sell said quantities to Buyer. Buyer shall
purchase such entities as evenly as possible during each month. If during
any period of this agreement the quantity of product Xxxxxx is obligate
to deliver to Buyer is prescribed by government rules, regulations or
orders, then the quantity of product covered by this agreement shall be
the quantity so prescribed for such period and Buyer agrees to buy and
Xxxxxx agrees to sell such Quantity.
VOLUME (IN THOUSAND OF GALLONS)
EST. VOL. EST. VOL.
April 0 October 320
-------- -------- --------- --------
May 0 November 400
-------- -------- --------- --------
June 0 December 420
-------- -------- --------- --------
July 0 January 520
-------- -------- --------- --------
August 0 February 400
-------- -------- --------- --------
September 0 March 350
-------- -------- --------- --------
For the purpose of determining compliance with the above quantity schedule,
purchase of product shall be allocated to the month in which shipment is
made. Should either party fail to comply in any amount with the above
schedule, the other party may elect to terminate this agreement by mailing
notice of such termination on or before the 20th day of the succeeding
month. If the Buyer fails to purchase 100% of the above specified minimum
monthly quantities during any month or months and Xxxxxx does not elect to
terminate this agreement, Xxxxxx shall not be obligated hereunder to sell
to Buyer in any of the succeeding six months more than one and one half
times the average monthly quantity which Buyer actually purchased during
the preceding six-month period.
When delivery is into tank trucks furnished by Buyer, the delivery ticket
showing the quantity delivered shall be signed by the loader as the agent
of Xxxxxx and by the truck driver as the agent of the Buyer; such
quantities shall be conclusively presumed to have been delivered to Buyer.
On or before the 1st day of each month Buyer shall inform Xxxxxx of
quantities required during such month, delivery dates, and when applicable,
destinations of each shipment. Xxxxxx shall not be obligated to ship less
than a tank car or tank truck load.
3. Method of Delivery X By tank truck furnished by Buyer.
XX By tank truck furnished by Xxxxxx.
_________ By tank truck furnished by ____________
with a capacity of __________ gallons
each.
PRICE INFORMATION
Prices in effect as of August 24, 1995
Sales based on |X| Shipping point price or |_| Destination price
SHIPPING OR PRICE IN FREIGHT
PRICING POINTS DESTINATIONS PRODUCTS CENTS/GALLONS CHARGES
----------------- ------------ -------- ------------- -------
* Greenville, MS Various Propane 37.25 n/a
** Greenville, MS Various Propane 37.25 As applicable
based upon
destinations
------------------------
Xxxxxx Petroleum Company Propane Sales Agreement
A Division of Chevron U.S.A. Inc.
X.X. Xxx 0000, Xxxxx, XX 00000 * Phone (000) 000-0000
Prepare in original and five copies
Purchaser Confirming Arrangements Made With
Empire Gas Corporation Xxxxx Xxxxx
Address Arrangements Made By Date
X.X. Xxx 000 R. E. Siedell August 24, 1995
City, State, Zip Xxxxxx Xx. Xxxxxxxxx Xx.
Xxxxxxx, XX 00000 25079
1. Term: Xxxxxx will sell the following during period from September 01,
1995 ( ) Expires on__________________
(X) Until May 31, 1996 and continuing month to month thereafter
unless and until canceled at the end of any month by either party giving
the other not less than 60 days written notice prior to the proposed
termination date.
Product
Approx. Unit Meas. Del. Price
Vol. of Basis Method Cents/
(net @ Measure (See 2) Location (see 2) Gallon
60
degrees F)
-------------------------------------------------------------------------
Propane GPA See Gallons T Xxxxxx Bridge, T Posted
Specifications Attch. Xxxxxx, price at
A Napoleonville, T time of
Norco, lifting
Riverside, T
Tebone, Toca,
LA
-------------------------------------------------------------------------
2. Measurement/Delivery Method V - Volumetric per API Tables 23 and
(see above) 24 or 23A and 24A or 5A and 6A
T. Trucks Other M - Mass per GPA 8182
____________ O - Origin D - Destination
____________
C. Tank Cars
____________
____________
-------------------------------------------------------------------------
3. Product: (X) Stenched ( ) Unstenched
-------------------------------------------------------------------------
WARNING
It is important that you periodically remind your customers and employees
that even though ethyl mercaptan has been recognized as the best available
odorant for propane, no odorant is effective 100% of the time. the odor of
the gas may, under some circumstances, be reduced or lost if put into a
tank that is new or that has been exposed to the air for extended periods.
Electronic gas detectors (that emit a shrill sound in the presence of gas)
should be recommended to your customers as an additional safety measure
for detecting leaks. Your customers should be familiar with the smell of
the odorant and their ability to smell it. Inform them that colds,
allergies, smoking, alcohol, age, competing odors and simply "getting used
to" the odor can cause them not to detect escaping gas. Familiarize
yourself, your employees and your customers with the potential limitations
of the odorant and the alleged phenomenon of "odor fade". Xxxxxx'x
Odorization Bulletins, Safety Guide and other safety materials are
available to help with this familiarization. If you need additional
information or materials to properly educate your employees and customers,
please contact the NPGA, your state organization, or Xxxxxx Petroleum
Company.
------------------------------------------------------------------------
4. Seller send statements, invoices and shipping documentation to:
Xx. Xxxx Xxxxx
Empire Gas Corporation
X.X. Xxx 000
Xxxxxxx, XX 00000
------------------------------------------------------------------------
5. Terms of Payment:
1% EFT 14 days.
------------------------------------------------------------------------
6. Special Provisions:
1. This Agreement cancels and supersedes Xxxxxx'x PSA 59146 dated
September 01, 1994.
------------------------------------------------------------------------
7. In addition to the above terms and conditions, the General Provisions
of this Product Sales Agreement and all Attachments are incorporated
herein by reference and made a part of this Agreement. If you are in
agreement with the foregoing terms and conditions including the
indemnity provision, please so indicate by signing below and returning
one copy of the Agreement to Xxxxxx.
Accepted and Agreed to: Xxxxxx Petroleum Company
Empire Gas Corporation A Division of Chevron U.S.A. Inc.
By /s/ Xxxx Xxxxxxx By /s/ R.E. Siedell
Title V.P. Date Title
9/05/95 District Manager
Distribution: Buyer for File Distribution Section, Tulsa
Buyer for acceptance and Marketing Department, Tulsa
return to Xxxxxx'x Tulsa Retained by Originator
Office
Accounting Division, Tulsa
GENERAL PROVISIONS PROPANE SALES
1. DELIVERIES
A. When delivery is point of origin, delivery shall be deemed to have
been completed:
1. To tank tricks when the product has actually been delivered into
the trust;
2. To tank cars when the carrier accepts the same for shipment;
3. To pipelines upon metering of the product;
B. When delivery is point of destination, delivery shall be deemed to
have been completed:
1. From tank trucks when truck has been placed at buyer's facilities
for unloading;
2. From tank cars when carrier delivers same at the destination;
C. Seller shall not be liable to Buyer for quantity or quality of
product, after completion of delivery. Buyer agrees that the
handling, care or use of product shall thereafter be at Buyer's
sole risk and expense.
2. MEASUREMENT - Measurement shall be done in the manner customarily
utilized at the point of delivery in accordance with one of the
following alternatives.
A. On all deliveries into/out of tank cars, the quantity shall be
determined by official tank car capacity tables, meters with no
vapor return, or by weighing, in accordance with GPA Publication
8162,8173 and all revisions thereof.
B. On all deliveries into/out of transport and tank truck equipment,
quantities shall be determined by meter with no vapor return, slip
tube, rotary gauging device or weighing, in accordance with GPA
Publication 8162, all appropriate GPA and API standards and all
revisions thereof.
C. On all deliveries into/out of pipeline, quantity shall be
determined by turbine or positive displacement pipeline meter in
accordance with API Manual of Petroleum Measurement Standards.
D. All quantities shall be corrected to 60 degrees Fahrenheit and
equilibrium vapor pressure at 60 degrees Fahrenheit.
E. Volume and compressibility correction factors shall be determined
from referenced API tables or computer programs used to generate
these tables.
3. PASSAGE OF TITLE AND WARRANTY OF TITLE - Title to the product and risk
of loss shall pass to Buyer upon delivery. Seller warrants to Buyer
that it has title to the product(s) delivered by it hereunder and the
right to deliver same, and agrees to indemnify, defend and hold the
Buyer harmless from and gains any loss, claim or demand by reason of
any failure of such title or breach of this warranty. SELLER MAKES NO
OTHER WARRANTY WITH RESPECT TO THE PRODUCT OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
A PARTICULAR PURPOSE.
4. TAXES - Any tax, fee, or other exaction, now or hereafter, levied or
assessed by any governmental authority upon, or as a result of the
transaction herein provided for, or the goods or source materials
thereof which ar the subject matter of this Agreement, shall, if
payable by Seller, be paid by Buyer on demand by Seller. Any personal
property taxes levied or assessed by any governmental authority upon
the products covered by this Agreement shall be paid by the party
having title thereto at the time of such assessment. Buyer shall
furnish Seller proper exemption certificate where tax exemption is
claimed on any product(s) delivered hereunder.
5. GOVERNMENT REGULATIONS & LAW - Seller warrants that the product it
delivers hereunder will be produced and delivered in full compliance
with all applicable federal and state laws and regulations and all
Presidential Proclamations which may be applicable. This agreement
shall be subject to the jurisdiction of, governed by and construed in
accordance with the laws of the State of Oklahoma including the
Uniform Commercial Code. Seller agrees to comply with the provisions
contained in Exhibit "A" if attached hereto, to the extent that such
provisions are legally applicable to Seller.
6. FORCE MAJEURE - If either party is rendered unable, wholly or in part,
to perform its obligations under this Agreement (other than to make
payments due hereunder) due to force majeure, defined herein as any
cause or causes beyond its control, then in any such event, it is
agreed that the affected party shall give prompt notice and full
particulars of such force majeure to the other party. The obligations
of the affected party shall be suspended for the duration of such
inability to perform but for no longer period and such cause shall, so
far as possible, be remedied with all reasonable dispatch.
7. ASSIGNMENT - This Agreement shall extend to and be binding upon the
parties thereto, their heirs, successors and assigns; but it is
expressly agreed that neither party shall voluntarily assign this
Agreement without the prior written consent to the other.
8. NOTICE - Any notice hereunder shall be in writing and shall be
delivered personally, by mail, by fax, by telex, or by telegram to the
address set forth on the attached agreement, unless changed by notice.
such notice shall be deemed to have been given on the date of the
delivery thereof.
9. WAIVER - The waiver by either party of the breach of any provision
hereof by the other party shall not be a waiver of the breach of any
other provision or provisions hereof or of any subsequent or
continuing breach of such provision or provisions.
10. ALTERATIONS - No oral promises, agreements or warranties shall be
deemed a part hereof, nor shall nay alteration or amendment of this
Agreement, or waiver of any of its provisions, be binding upon either
party hereto unless the same be in writing, signed by the party
charged.
11. INVOICES AND TERMS OF PAYMENT - Invoices will be prepared by Seller
and transmitted to the Buyer from time to time during the month.
Unless otherwise specified, payment is due within ten (10) days after
receipt of invoice. If payment is not made within the time allowed
under this Agreement, then Seller may charge interest on the unpaid
balance at the lesser of 11/2% per month or the highest rate permitted
by Oklahoma law and Seller shall be entitled to recover its reasonable
costs of collection, including attorney's fee.
12. FINANCIAL RESPONSIBILITY - If in the judgment of Seller the financial
responsibility of Buyer becomes impaired or unsatisfactory, advance
cash payments or acceptable security (including, but not limited to a
letter of credit form a financial institution acceptable to Seller)
may be required by Seller, and if Buyer fails to provide such, Seller
may without waiving any rights or remedies, withhold further
deliveries until such payment or security is received. Buyer's duty
to provide the hereinabove credit assurance shall be a condition
precedent to Seller's obligation to perform under this agreement.
13. CONFLICTS OF INTEREST - No director, employee or agent of either party
shall give or receive any commission, fee, rebate, gift or
entertainment of significant cost or value in connection with this
Agreement. Any representative(s) authorized by either party may audit
the applicable records of the other party solely for the purpose of
determining whether there has been compliance with this paragraph.
14. AUDIT - Each party and its authorized representatives shall have
access to the accounting records and other documents maintained by the
other party which relate to the product being sold to the other party
under this Agreement and shall have the right to audit such records
once a year a any reasonable time or times during the term of this
Agreement and for two years after the year in which this Agreement
terminates. Neither party shall make claim on the other for any
adjustment after said two-year period.
15. TANK CARS - If Seller's tank cars are used and they are not unloaded
and returned to railroad, Buyer shall be liable to Seller for rental
at the rate of $50.00 for each day or fraction thereof in excess of 7
days. Tank cars shall not be diverted without Seller's written
consent.
16. QUALITY - All products delivered under this Agreement shall meet the
latest GPA specifications for that product and contain no deleterious
substances. Product delivered under this agreement shall not contain
concentrations of any contaminations that may make it or its
components commercially unacceptable in general industry application.
Any requirements of buyer pertaining to potential contaminants and/or
specific hydrocarbon composition not listed in the product
specification must be identified by buyer and allowable concentrations
agreed to in writing by both parties prior to delivery.
17. SHORTAGE OF PRODUCTS - Due to uncertainties in the supply/demand
situation, Xxxxxx may not have sufficient supplies of product to be
delivered hereunder to meet the full requirements of all of its
customers, contract or otherwise. whenever that situation exists,
Xxxxxx shall have, in addition to any other rights Xxxxxx may have
under this Agreement, the right to reduce deliveries of such product
on any basis which in Xxxxxx'x opinion is equitable, allowing for such
priorities to such priorities to such classes of customers as Xxxxxx
xxxxx appropriate. If any such reduction occurs, Buyer shall have the
option to terminate this Agreement as to any or all products by
fifteen (15) day's notice, given within thirty (3) days of the notice
of reduction.
18. BRAND NAMES - Unless otherwise specifically agreed, Buyer shall not
represent or permit any other person to represent, that the product
delivered hereunder is the product of Xxxxxx. All products delivered
to Buyer hereunder shall be used or sold under Buyer's own brand names
or under brand names approved by Xxxxxx, and Buyer shall not authorize
or permit said product to be used or sold under any other brand names.
19. CONDUCT OF BUYER'S BUSINESS - Buyer in the performance of this
Agreement is engaged in an independent business and nothing herein
contained shall be construed as giving Xxxxxx any right to control
Buyer in any way in its performance of its business. Xxxxxx has no
right to exercise control over any Buyer's employees. All employees
of Buyer shall be entirely under the control and direction of Buyer
who shall be responsible for their actions. and omissions
20. INDEMNITY - If Xxxxxx provides adequate documentation of the
odorization required by this contract, buyer agrees to define and hold
Xxxxxx harmless from all expenses (including attorney's fees) or
liability arising from any claims of whatever kind due to injuries or
damages which occur after delivery to Buyer in connection with the
transportation, use or handling of product covered hereunder. BUYER'S
INDEMNITY OBLIGATION SHALL BE APPLICABLE EVEN IF SUCH DAMAGES ARE
DETERMINED TO HAVE BEEN PARTLY CAUSED BY THE FAULT OF SELLER OR IF
LIABILITY WITHOUT FAULT IS IMPOSED ON SELLER, THE ONLY EXCEPTION TO
SUCH OBLIGATION BEING WHERE THE FAULT OF SELLER IS DETERMINED TO BE
THE SOLE CAUSE OF SUCH DAMAGES.
21. PRICES - Prices hereunder may be changed at any time by Xxxxxx upon
notice given either electronically (i.e. fax, DTN or phone) or by U.S.
Mail, effective when sent. If any such notice shall increase Xxxxxx'x
price to Buyer at any shipping point or destination above Xxxxxx'x
price for such product or freight in effect during the elapsed portion
of the calendar year in which Xxxxxx'x notice is effective, Buyer may
by written notice to Xxxxxx given and effective within fifteen (15)
days the date of Xxxxxx'x notice, terminate this contract with respect
to such shipping ponit or destination.
22. ODORIZATION - Unless otherwise specifically agreed in writing, Buyer
hereby requests that the propane sold hereunder be odorize with not
less than 1.0 lb. of ethyl mercaptan per 10,000 gallons. Buyer
warrants that compliance with its request will satisfy all applicable
legal requirements.
23. PRODUCT HAZARDS - Buyer acknowledges receipt of Xxxxxx'x Safety
Bulletin for odorized propane and is knowledgeable of the hazards or
risks in handling or using the product. Buyer agrees that Buyer shall
inform its employees, contractors and customers of any hazards or
risks associated with the product. Xxxxxx will make available to
Buyer Warning Decals that are intended to be placed on consumer tanks
or equipment and copies of its Safety Guide. Buyer agrees to supply
its customers with these materials or other reasonably equivalent
safety material to warn them of the potential hazards or risks in
using odorized propane.
24. INCIDENT - Buyer shall notify Xxxxxx as soon as possible after it
becomes aware of any fires or explosions occurring at locations
propane purchase hereunder is used. Buyer will inform Xxxxxx if said
product is involved and will fully cooperate with Xxxxxx in obtaining
a propane sample and any other investigation Xxxxxx xxxxx necessary.
Buyers Initials __________
ATTACHMENT A TO
PROPANE SALES AGREEMENT NO. 25079
1. TRADEMARK. Buyer acknowledges that the CHEVRON and WARRENGAS
Trademarks are valuable property rights belonging to Chevron
Corporation and its subsidiaries, including Chevron U.S.A. inc. and
that any use thereof by Buyer in connection with this agreement is
solely for the purposes of advertising products obtained from such
subsidiaries. Upon termination of this agreement, Buyer agrees that
it will make no further use of such trademarks or any other xxxx, name
or designs confusingly similar therewith.
2. QUANTITY. During the term hereof, Buyer agreed to buy the product
herein specified in monthly quantities of not less than the minimum
set forth below and Xxxxxx agrees to sell said quantities to Buyer.
Buyer shall purchase such entities as evenly as possible during each
month. If during any period of this agreement the quantity of product
Xxxxxx is obligate to deliver to Buyer is prescribed by government
rules, regulations or orders, then the quantity of product covered by
this agreement shall be the quantity so prescribed for such period and
Buyer agrees to buy and Xxxxxx agrees to sell such Quantity.
VOLUME (IN THOUSAND OF GALLONS)
EST. VOL. EST. VOL.
April 120 October 150
May 130 November 210
June 90 December 200
July 130 January 240
August 200 February 180
September 170 March 170
For the purpose of determining compliance with the above quantity schedule,
purchase of product shall be allocated to the month in which shipment is
made. Should either party fail to comply in any amount with the above
schedule, the other party may elect to terminate this agreement by mailing
notice of such termination on or before the 20th day of the succeeding
month. If the Buyer fails to purchase 100% of the above specified minimum
monthly quantities during any month or months and Xxxxxx does not elect to
terminate this agreement, Xxxxxx shall not be obligated hereunder to sell
to Buyer in any of the succeeding six months more than one and one half
times the average monthly quantity which Buyer actually purchased during
the preceding six-month period.
When delivery is into tank trucks furnished by Buyer, the delivery ticket
showing the quantity delivered shall be signed by the loader as the agent
of Xxxxxx and by the truck driver as the agent of the Buyer; such
quantities shall be conclusively presumed to have been delivered to Buyer.
On or before the 1st day of each month Buyer shall inform Xxxxxx of
quantities required during such month, delivery dates, and when applicable,
destinations of each shipment. Xxxxxx shall not be obligated to ship less
than a tank car or tank truck load.
3. Method of Delivery: X By tank truck furnished by Buyer.
By tank truck furnished by Xxxxxx.
By tank truck furnished by _____ with
a capacity of _____ gallons each.
PRICE INFORMATION
Prices in effect as of August 24 , 19 95
Sales based on (X) Shipping point price or ( ) Destination price
SHIPPING OR
PRICING PRICE IN FREIGHT
POINTS DESTINATIONS PRODUCTS CENTS/GALLONS CHARGES
Xxxxxx Bridge, LA Various Propane 32.25 N/A
Eunice, LA Various Propane * N/A
Napoleonville, LA Various Propane 31.75 N/A
Norco, LA Various Propane 31.75 N/A
Riverside, LA Various Propane 31.75 N/A
Tebone, LA Various Propane 31.75 N/A
Toca, LA Various Propane 31.75 N/A
* Not available at present
------------------------
Xxxxxx Petroleum Company Propane Sales Agreement
A Division of Chevron U.S.A. Inc.
X.X. Xxx 0000, Xxxxx, XX 00000 * Phone (000) 000-0000
Prepare in original and five copies
Purchaser Confirming Arrangements Made With
Empire Gas Corporation Xx. Xxxx Xxxxxxx
Address Arrangements Made By Date
X.X. Xxx 000 Xxxx Xxxxxx 8/01/95
City, State, Zip Xxxxxx No. Purchaser
Lebanon, MO 65536 23064 No.
-------------------------------------------------------------------------
1. Term: Xxxxxx will sell the following during period from August 1,
1995 ( ) Expires on__________________
(X) Until December 31, 1995 and continuing month to month thereafter
unless and until canceled at the end of any month by either party giving
the other not less than 60 days written notice prior to the proposed
termination date.
Product
Product Approx. Unit Meas. Del. Price
Description Vol. of Basis Method Cents/
and (net @ Measure (See 2) Location (see 2) Gallon
Specifications 60
degrees F)
-------------------------------------------------------------------------
Propane per GPA 2500 B Fashing, TX; El T Posted
Specifications BPM Paso, TX; O Price
at
Mont Belvieu, Date of
TX; Xxxxxxxx, XX X Xxxxxxx
Xxxxxx, XX X
XX-00000 AR-
03000 NM-30000 D
-------------------------------------------------------------------------
2. Measurement/Delivery Method V - Volumetric per API Tables 23 and
(see above) 24 or 23A and 24A or 5A and 6A
T. Trucks Other M - Mass per GPA 8182
O - Origin D - Destination
C. Tank Cars
_____________
---------------------------------------------------------------------------
3. Product: (X) Stenched ( ) Unstenched
---------------------------------------------------------------------------
WARNING
It is important that you periodically remind your customers and employees
that even though ethyl mercaptan has been recognized as the best available
odorant for propane, no odorant is effective 100% of the time. the odor of
the gas may, under some circumstances, be reduced or lost if put into a tank
that is new or that has been exposed to the air for extended periods.
Electronic gas detectors (that emit a shrill sound in the presence of gas)
should be recommended to your customers as an additional safety measure for
detecting leaks. Your customers should be familiar with the smell of the
odorant and their ability to smell it. Inform them that colds, allergies,
smoking, alcohol, age, competing odors and simply "getting used to" the odor
can cause them not to detect escaping gas. Familiarize yourself, your
employees and your customers with the potential limitations of the odorant
and the alleged phenomenon of "odor fade". Xxxxxx'x Odorization Bulletins,
Safety Guide and other safety materials are available to help with this
familiarization. If you need additional information or materials to properly
educate your employees and customers, please contact the NPGA, your state
organization, or Xxxxxx Petroleum Company.
---------------------------------------------------------------------------
4. Seller send statements, invoices and shipping documentation to:
Same as above.
---------------------------------------------------------------------------
5. Terms of Payment:
1% 10 Days, Net 15 Days
---------------------------------------------------------------------------
6. Special Provisions:
I. This Sales Agreement cancels and supercedes XX Xx. 00000 dated
6/01/86.
II. Thee will be a 2.00 cpg surcharge on any trucks loaded with less
than 3500 gallons.
III. Texas odorization fee will be billed as mandated by Texas law
unless proper exemption forms are provided.
---------------------------------------------------------------------------
7. In addition to the above terms and conditions, the General Provisions of
this Product Sales Agreement and all Attachments are incorporated herein
by reference and made a part of this Agreement. If you are in agreement
with the foregoing terms and conditions including the indemnity
provision, please so indicate by signing below and returning one copy of
the Agreement to Xxxxxx.
Accepted and Agreed to: Xxxxxx Petroleum Company
Empire Gas Corporation A Division of Chevron U.S.A. Inc.
By /s/ Xxxx Xxxxxxx By /s/ M.T. Xxxxxx
Title Xxxx Xxxxxxx Date Title M.T. Xxxxxx, Manager
Vice President 8/31/ Southwest District
95
Distribution: Buyer for File Distribution Section, Tulsa
Buyer for acceptance and Marketing Department, Tulsa
return to Xxxxxx'x Tulsa Retained by Originator
Office
Accounting Division, Tulsa
GENERAL PROVISIONS PROPANE SALES
1. DELIVERIES
A. When delivery is point of origin, delivery shall be deemed to have
been completed:
1. To tank tricks when the product has actually been delivered into
the trust;
2. To tank cars when the carrier accepts the same for shipment;
3. To pipelines upon metering of the product;
B. When delivery is point of destination, delivery shall be deemed to
have been completed:
1. From tank trucks when truck has been placed at buyer's facilities
for unloading;
2. From tank cars when carrier delivers same at the destination;
C. Seller shall not be liable to Buyer for quantity or quality of
product, after completion of delivery. Buyer agrees that the
handling, care or use of product shall thereafter be at Buyer's
sole risk and expense.
2. MEASUREMENT - Measurement shall be done in the manner customarily
utilized at the point of delivery in accordance with one of the
following alternatives.
A. On all deliveries into/out of tank cars, the quantity shall be
determined by official tank car capacity tables, meters with no
vapor return, or by weighing, in accordance with GPA Publication
8162,8173 and all revisions thereof.
B. On all deliveries into/out of transport and tank truck equipment,
quantities shall be determined by meter with no vapor return, slip
tube, rotary gauging device or weighing, in accordance with GPA
Publication 8162, all appropriate GPA and API standards and all
revisions thereof.
C. On all deliveries into/out of pipeline, quantity shall be
determined by turbine or positive displacement pipeline meter in
accordance with API Manual of Petroleum Measurement Standards.
D. All quantities shall be corrected to 60 degrees Fahrenheit and
equilibrium vapor pressure at 60 degrees Fahrenheit.
E. Volume and compressibility correction factors shall be determined
from referenced API tables or computer programs used to generate
these tables.
3. PASSAGE OF TITLE AND WARRANTY OF TITLE - Title to the product and risk
of loss shall pass to Buyer upon delivery. Seller warrants to Buyer
that it has title to the product(s) delivered by it hereunder and the
right to deliver same, and agrees to indemnify, defend and hold the
Buyer harmless from and gains any loss, claim or demand by reason of
any failure of such title or breach of this warranty. SELLER MAKES NO
OTHER WARRANTY WITH RESPECT TO THE PRODUCT OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
A PARTICULAR PURPOSE.
4. TAXES - Any tax, fee, or other exaction, now or hereafter, levied or
assessed by any governmental authority upon, or as a result of the
transaction herein provided for, or the goods or source materials
thereof which ar the subject matter of this Agreement, shall, if
payable by Seller, be paid by Buyer on demand by Seller. Any personal
property taxes levied or assessed by any governmental authority upon
the products covered by this Agreement shall be paid by the party
having title thereto at the time of such assessment. Buyer shall
furnish Seller proper exemption certificate where tax exemption is
claimed on any product(s) delivered hereunder.
5. GOVERNMENT REGULATIONS & LAW - Seller warrants that the product it
delivers hereunder will be produced and delivered in full compliance
with all applicable federal and state laws and regulations and all
Presidential Proclamations which may be applicable. This agreement
shall be subject to the jurisdiction of, governed by and construed in
accordance with the laws of the State of Oklahoma including the
Uniform Commercial Code. Seller agrees to comply with the provisions
contained in Exhibit "A" if attached hereto, to the extent that such
provisions are legally applicable to Seller.
6. FORCE MAJEURE - If either party is rendered unable, wholly or in part,
to perform its obligations under this Agreement (other than to make
payments due hereunder) due to force majeure, defined herein as any
cause or causes beyond its control, then in any such event, it is
agreed that the affected party shall give prompt notice and full
particulars of such force majeure to the other party. The obligations
of the affected party shall be suspended for the duration of such
inability to perform but for no longer period and such cause shall, so
far as possible, be remedied with all reasonable dispatch.
7. ASSIGNMENT - This Agreement shall extend to and be binding upon the
parties thereto, their heirs, successors and assigns; but it is
expressly agreed that neither party shall voluntarily assign this
Agreement without the prior written consent to the other.
8. NOTICE - Any notice hereunder shall be in writing and shall be
delivered personally, by mail, by fax, by telex, or by telegram to the
address set forth on the attached agreement, unless changed by notice.
such notice shall be deemed to have been given on the date of the
delivery thereof.
9. WAIVER - The waiver by either party of the breach of any provision
hereof by the other party shall not be a waiver of the breach of any
other provision or provisions hereof or of any subsequent or
continuing breach of such provision or provisions.
10. ALTERATIONS - No oral promises, agreements or warranties shall be
deemed a part hereof, nor shall nay alteration or amendment of this
Agreement, or waiver of any of its provisions, be binding upon either
party hereto unless the same be in writing, signed by the party
charged.
11. INVOICES AND TERMS OF PAYMENT - Invoices will be prepared by Seller
and transmitted to the Buyer from time to time during the month.
Unless otherwise specified, payment is due within ten (10) days after
receipt of invoice. If payment is not made within the time allowed
under this Agreement, then Seller may charge interest on the unpaid
balance at the lesser of 11/2% per month or the highest rate permitted
by Oklahoma law and Seller shall be entitled to recover its reasonable
costs of collection, including attorney's fee.
12. FINANCIAL RESPONSIBILITY - If in the judgment of Seller the financial
responsibility of Buyer becomes impaired or unsatisfactory, advance
cash payments or acceptable security (including, but not limited to a
letter of credit form a financial institution acceptable to Seller)
may be required by Seller, and if Buyer fails to provide such, Seller
may without waiving any rights or remedies, withhold further
deliveries until such payment or security is received. Buyer's duty
to provide the hereinabove credit assurance shall be a condition
precedent to Seller's obligation to perform under this agreement.
13. CONFLICTS OF INTEREST - No director, employee or agent of either party
shall give or receive any commission, fee, rebate, gift or
entertainment of significant cost or value in connection with this
Agreement. Any representative(s) authorized by either party may audit
the applicable records of the other party solely for the purpose of
determining whether there has been compliance with this paragraph.
14. AUDIT - Each party and its authorized representatives shall have
access to the accounting records and other documents maintained by the
other party which relate to the product being sold to the other party
under this Agreement and shall have the right to audit such records
once a year a any reasonable time or times during the term of this
Agreement and for two years after the year in which this Agreement
terminates. Neither party shall make claim on the other for any
adjustment after said two-year period.
15. TANK CARS - If Seller's tank cars are used and they are not unloaded
and returned to railroad, Buyer shall be liable to Seller for rental
at the rate of $50.00 for each day or fraction thereof in excess of 7
days. Tank cars shall not be diverted without Seller's written
consent.
16. QUALITY - All products delivered under this Agreement shall meet the
latest GPA specifications for that product and contain no deleterious
substances. Product delivered under this agreement shall not contain
concentrations of any contaminations that may make it or its
components commercially unacceptable in general industry application.
Any requirements of buyer pertaining to potential contaminants and/or
specific hydrocarbon composition not listed in the product
specification must be identified by buyer and allowable concentrations
agreed to in writing by both parties prior to delivery.
17. SHORTAGE OF PRODUCTS - Due to uncertainties in the supply/demand
situation, Xxxxxx may not have sufficient supplies of product to be
delivered hereunder to meet the full requirements of all of its
customers, contract or otherwise. whenever that situation exists,
Xxxxxx shall have, in addition to any other rights Xxxxxx may have
under this Agreement, the right to reduce deliveries of such product
on any basis which in Xxxxxx'x opinion is equitable, allowing for such
priorities to such priorities to such classes of customers as Xxxxxx
xxxxx appropriate. If any such reduction occurs, Buyer shall have the
option to terminate this Agreement as to any or all products by
fifteen (15) day's notice, given within thirty (3) days of the notice
of reduction.
18. BRAND NAMES - Unless otherwise specifically agreed, Buyer shall not
represent or permit any other person to represent, that the product
delivered hereunder is the product of Xxxxxx. All products delivered
to Buyer hereunder shall be used or sold under Buyer's own brand names
or under brand names approved by Xxxxxx, and Buyer shall not authorize
or permit said product to be used or sold under any other brand names.
19. CONDUCT OF BUYER'S BUSINESS - Buyer in the performance of this
Agreement is engaged in an independent business and nothing herein
contained shall be construed as giving Xxxxxx any right to control
Buyer in any way in its performance of its business. Xxxxxx has no
right to exercise control over any Buyer's employees. All employees
of Buyer shall be entirely under the control and direction of Buyer
who shall be responsible for their actions. and omissions
20. INDEMNITY - If Xxxxxx provides adequate documentation of the
odorization required by this contract, buyer agrees to define and hold
Xxxxxx harmless from all expenses (including attorney's fees) or
liability arising from any claims of whatever kind due to injuries or
damages which occur after delivery to Buyer in connection with the
transportation, use or handling of product covered hereunder. BUYER'S
INDEMNITY OBLIGATION SHALL BE APPLICABLE EVEN IF SUCH DAMAGES ARE
DETERMINED TO HAVE BEEN PARTLY CAUSED BY THE FAULT OF SELLER OR IF
LIABILITY WITHOUT FAULT IS IMPOSED ON SELLER, THE ONLY EXCEPTION TO
SUCH OBLIGATION BEING WHERE THE FAULT OF SELLER IS DETERMINED TO BE
THE SOLE CAUSE OF SUCH DAMAGES.
21. PRICES - Prices hereunder may be changed at any time by Xxxxxx upon
notice given either electronically (i.e. fax, DTN or phone) or by U.S.
Mail, effective when sent. If any such notice shall increase Xxxxxx'x
price to Buyer at any shipping point or destination above Xxxxxx'x
price for such product or freight in effect during the elapsed portion
of the calendar year in which Xxxxxx'x notice is effective, Buyer may
by written notice to Xxxxxx given and effective within fifteen (15)
days the date of Xxxxxx'x notice, terminate this contract with respect
to such shipping ponit or destination.
22. ODORIZATION - Unless otherwise specifically agreed in writing, Buyer
hereby requests that the propane sold hereunder be odorize with not
less than 1.0 lb. of ethyl mercaptan per 10,000 gallons. Buyer
warrants that compliance with its request will satisfy all applicable
legal requirements.
23. PRODUCT HAZARDS - Buyer acknowledges receipt of Xxxxxx'x Safety
Bulletin for odorized propane and is knowledgeable of the hazards or
risks in handling or using the product. Buyer agrees that Buyer shall
inform its employees, contractors and customers of any hazards or
risks associated with the product. Xxxxxx will make available to
Buyer Warning Decals that are intended to be placed on consumer tanks
or equipment and copies of its Safety Guide. Buyer agrees to supply
its customers with these materials or other reasonably equivalent
safety material to warn them of the potential hazards or risks in
using odorized propane.
24. INCIDENT - Buyer shall notify Xxxxxx as soon as possible after it
becomes aware of any fires or explosions occurring at locations
propane purchase hereunder is used. Buyer will inform Xxxxxx if said
product is involved and will fully cooperate with Xxxxxx in obtaining
a propane sample and any other investigation Xxxxxx xxxxx necessary.
Buyers Initials __________
------------------------
Xxxxxx Petroleum Company Propane Sales Agreement
A Division of Chevron U.S.A. Inc.
X.X. Xxx 0000, Xxxxx, XX 00000 * Phone (000) 000-0000
Prepare in original and five copies
Purchaser Confirming Arrangements Made With
Empire Gas Corporation Xxxxx Xxxxx
Address Arrangements Made By Date 5/1/96
X.X. Xxx 000 X. X. Xxxxxx
City, State, Zip Xxxxxx No. 00000 Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
1. Term: Xxxxxx will sell the following during period from MAY 1, 1996
( ) Expires on__________________
(X) Until April 30, 1997 and continuing month to month thereafter
unless and until canceled at the end of any month by either party giving
the other not less than 60 days written notice prior to the proposed
termination date.
Product
Product Approx. Unit Meas. Del. Price
Description Vol. of Basis Method Cents/
and (net @ Measure (See 2) Location (see 2) /Gallon
Specifications 60
degrees F)
---------------------------------------------------------------------------
COMMERCIAL * ** T FLORIDA BASE T *
PROPANE
*SEE ATTACHMENT A
**SEE GENERAL *SEE GENERAL
PROVISIONS PROVISIONS
PROPANE (2) PROPANE SALES (21)
---------------------------------------------------------------------------
2. Measurement/Delivery Method V - Volumetric per API Tables 23 and 24
(see above) or 23A and 24A or 5A and 6A
T. Trucks Other M - Mass per GPA 8182
O - Origin D - Destination
C. Tank Cars
---------------------------------------------------------------------------
3. Product: (X) Stenched ( ) Unstenched
---------------------------------------------------------------------------
WARNING
It is important that you periodically remind your customers and employees
that even though ethyl mercaptan has been recognized as the best available
odorant for propane, no odorant is effective 100% of the time. the odor of
the gas may, under some circumstances, be reduced or lost if put into a tank
that is new or that has been exposed to the air for extended periods.
Electronic gas detectors (that emit a shrill sound in the presence of gas)
should be recommended to your customers as an additional safety measure for
detecting leaks. Your customers should be familiar with the smell of the
odorant and their ability to smell it. Inform them that colds, allergies,
smoking, alcohol, age, competing odors and simply "getting used to" the odor
can cause them not to detect escaping gas. Familiarize yourself, your
employees and your customers with the potential limitations of the odorant
and the alleged phenomenon of "odor fade". Xxxxxx'x Odorization Bulletins,
Safety Guide and other safety materials are available to help with this
familiarization. If you need additional information or materials to properly
educate your employees and customers, please contact the NPGA, your state
organization, or Xxxxxx Petroleum Company.
---------------------------------------------------------------------------
4. Seller send statements, invoices and shipping documentation to:
Empire Gas Corporation
Xxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
---------------------------------------------------------------------------
5. Terms of Payment:
1% EFT 14 days.
---------------------------------------------------------------------------
6. Special Provisions:
---------------------------------------------------------------------------
7. In addition to the above terms and conditions, the General Provisions of
this Product Sales Agreement and all Attachments are incorporated herein
by reference and made a part of this Agreement. If you are in agreement
with the foregoing terms and conditions including the indemnity
provision, please so indicate by signing below and returning one copy of
the Agreement to Xxxxxx.
Accepted and Agreed to: Xxxxxx Petroleum Company
Empire Gas Corporation A Division of Chevron U.S.A. Inc.
By /s/ Xxxx Xxxxxxx By /s/ Xxxx X. Xxxxxx
Title Vice President Date Title
5/13/96 Southeast District Manager 4/16/96
Distribution: Buyer for File Distribution Section, Tulsa
Buyer for acceptance and Marketing Department, Tulsa
return to Xxxxxx'x Tulsa Retained by Originator
Office
Accounting Division, Tulsa
GENERAL PROVISIONS PROPANE SALES
1. DELIVERIES
A. When delivery is point of origin, delivery shall be deemed to have
been completed:
1. To tank tricks when the product has actually been delivered into
the trust;
2. To tank cars when the carrier accepts the same for shipment;
3. To pipelines upon metering of the product;
B. When delivery is point of destination, delivery shall be deemed to
have been completed:
1. From tank trucks when truck has been placed at buyer's facilities
for unloading;
2. From tank cars when carrier delivers same at the destination;
C. Seller shall not be liable to Buyer for quantity or quality of
product, after completion of delivery. Buyer agrees that the
handling, care or use of product shall thereafter be at Buyer's
sole risk and expense.
2. MEASUREMENT - Measurement shall be done in the manner customarily
utilized at the point of delivery in accordance with one of the
following alternatives.
A. On all deliveries into/out of tank cars, the quantity shall be
determined by official tank car capacity tables, meters with no
vapor return, or by weighing, in accordance with GPA Publication
8162,8173 and all revisions thereof.
B. On all deliveries into/out of transport and tank truck equipment,
quantities shall be determined by meter with no vapor return, slip
tube, rotary gauging device or weighing, in accordance with GPA
Publication 8162, all appropriate GPA and API standards and all
revisions thereof.
C. On all deliveries into/out of pipeline, quantity shall be
determined by turbine or positive displacement pipeline meter in
accordance with API Manual of Petroleum Measurement Standards.
D. All quantities shall be corrected to 60 degrees Fahrenheit and
equilibrium vapor pressure at 60 degrees Fahrenheit.
E. Volume and compressibility correction factors shall be determined
from referenced API tables or computer programs used to generate
these tables.
3. PASSAGE OF TITLE AND WARRANTY OF TITLE - Title to the product and risk
of loss shall pass to Buyer upon delivery. Seller warrants to Buyer
that it has title to the product(s) delivered by it hereunder and the
right to deliver same, and agrees to indemnify, defend and hold the
Buyer harmless from and gains any loss, claim or demand by reason of
any failure of such title or breach of this warranty. SELLER MAKES NO
OTHER WARRANTY WITH RESPECT TO THE PRODUCT OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
A PARTICULAR PURPOSE.
4. TAXES - Any tax, fee, or other exaction, now or hereafter, levied or
assessed by any governmental authority upon, or as a result of the
transaction herein provided for, or the goods or source materials
thereof which ar the subject matter of this Agreement, shall, if
payable by Seller, be paid by Buyer on demand by Seller. Any personal
property taxes levied or assessed by any governmental authority upon
the products covered by this Agreement shall be paid by the party
having title thereto at the time of such assessment. Buyer shall
furnish Seller proper exemption certificate where tax exemption is
claimed on any product(s) delivered hereunder.
5. GOVERNMENT REGULATIONS & LAW - Seller warrants that the product it
delivers hereunder will be produced and delivered in full compliance
with all applicable federal and state laws and regulations and all
Presidential Proclamations which may be applicable. This agreement
shall be subject to the jurisdiction of, governed by and construed in
accordance with the laws of the State of Oklahoma including the
Uniform Commercial Code. Seller agrees to comply with the provisions
contained in Exhibit "A" if attached hereto, to the extent that such
provisions are legally applicable to Seller.
6. FORCE MAJEURE - If either party is rendered unable, wholly or in part,
to perform its obligations under this Agreement (other than to make
payments due hereunder) due to force majeure, defined herein as any
cause or causes beyond its control, then in any such event, it is
agreed that the affected party shall give prompt notice and full
particulars of such force majeure to the other party. The obligations
of the affected party shall be suspended for the duration of such
inability to perform but for no longer period and such cause shall, so
far as possible, be remedied with all reasonable dispatch.
7. ASSIGNMENT - This Agreement shall extend to and be binding upon the
parties thereto, their heirs, successors and assigns; but it is
expressly agreed that neither party shall voluntarily assign this
Agreement without the prior written consent to the other.
8. NOTICE - Any notice hereunder shall be in writing and shall be
delivered personally, by mail, by fax, by telex, or by telegram to the
address set forth on the attached agreement, unless changed by notice.
such notice shall be deemed to have been given on the date of the
delivery thereof.
9. WAIVER - The waiver by either party of the breach of any provision
hereof by the other party shall not be a waiver of the breach of any
other provision or provisions hereof or of any subsequent or
continuing breach of such provision or provisions.
10. ALTERATIONS - No oral promises, agreements or warranties shall be
deemed a part hereof, nor shall nay alteration or amendment of this
Agreement, or waiver of any of its provisions, be binding upon either
party hereto unless the same be in writing, signed by the party
charged.
11. INVOICES AND TERMS OF PAYMENT - Invoices will be prepared by Seller
and transmitted to the Buyer from time to time during the month.
Unless otherwise specified, payment is due within ten (10) days after
receipt of invoice. If payment is not made within the time allowed
under this Agreement, then Seller may charge interest on the unpaid
balance at the lesser of 11/2% per month or the highest rate permitted
by Oklahoma law and Seller shall be entitled to recover its reasonable
costs of collection, including attorney's fee.
12. FINANCIAL RESPONSIBILITY - If in the judgment of Seller the financial
responsibility of Buyer becomes impaired or unsatisfactory, advance
cash payments or acceptable security (including, but not limited to a
letter of credit form a financial institution acceptable to Seller)
may be required by Seller, and if Buyer fails to provide such, Seller
may without waiving any rights or remedies, withhold further
deliveries until such payment or security is received. Buyer's duty
to provide the hereinabove credit assurance shall be a condition
precedent to Seller's obligation to perform under this agreement.
13. CONFLICTS OF INTEREST - No director, employee or agent of either party
shall give or receive any commission, fee, rebate, gift or
entertainment of significant cost or value in connection with this
Agreement. Any representative(s) authorized by either party may audit
the applicable records of the other party solely for the purpose of
determining whether there has been compliance with this paragraph.
14. AUDIT - Each party and its authorized representatives shall have
access to the accounting records and other documents maintained by the
other party which relate to the product being sold to the other party
under this Agreement and shall have the right to audit such records
once a year a any reasonable time or times during the term of this
Agreement and for two years after the year in which this Agreement
terminates. Neither party shall make claim on the other for any
adjustment after said two-year period.
15. TANK CARS - If Seller's tank cars are used and they are not unloaded
and returned to railroad, Buyer shall be liable to Seller for rental
at the rate of $50.00 for each day or fraction thereof in excess of 7
days. Tank cars shall not be diverted without Seller's written
consent.
16. QUALITY - All products delivered under this Agreement shall meet the
latest GPA specifications for that product and contain no deleterious
substances. Product delivered under this agreement shall not contain
concentrations of any contaminations that may make it or its
components commercially unacceptable in general industry application.
Any requirements of buyer pertaining to potential contaminants and/or
specific hydrocarbon composition not listed in the product
specification must be identified by buyer and allowable concentrations
agreed to in writing by both parties prior to delivery.
17. SHORTAGE OF PRODUCTS - Due to uncertainties in the supply/demand
situation, Xxxxxx may not have sufficient supplies of product to be
delivered hereunder to meet the full requirements of all of its
customers, contract or otherwise. whenever that situation exists,
Xxxxxx shall have, in addition to any other rights Xxxxxx may have
under this Agreement, the right to reduce deliveries of such product
on any basis which in Xxxxxx'x opinion is equitable, allowing for such
priorities to such priorities to such classes of customers as Xxxxxx
xxxxx appropriate. If any such reduction occurs, Buyer shall have the
option to terminate this Agreement as to any or all products by
fifteen (15) day's notice, given within thirty (3) days of the notice
of reduction.
18. BRAND NAMES - Unless otherwise specifically agreed, Buyer shall not
represent or permit any other person to represent, that the product
delivered hereunder is the product of Xxxxxx. All products delivered
to Buyer hereunder shall be used or sold under Buyer's own brand names
or under brand names approved by Xxxxxx, and Buyer shall not authorize
or permit said product to be used or sold under any other brand names.
19. CONDUCT OF BUYER'S BUSINESS - Buyer in the performance of this
Agreement is engaged in an independent business and nothing herein
contained shall be construed as giving Xxxxxx any right to control
Buyer in any way in its performance of its business. Xxxxxx has no
right to exercise control over any Buyer's employees. All employees
of Buyer shall be entirely under the control and direction of Buyer
who shall be responsible for their actions. and omissions
20. INDEMNITY - If Xxxxxx provides adequate documentation of the
odorization required by this contract, buyer agrees to define and hold
Xxxxxx harmless from all expenses (including attorney's fees) or
liability arising from any claims of whatever kind due to injuries or
damages which occur after delivery to Buyer in connection with the
transportation, use or handling of product covered hereunder. BUYER'S
INDEMNITY OBLIGATION SHALL BE APPLICABLE EVEN IF SUCH DAMAGES ARE
DETERMINED TO HAVE BEEN PARTLY CAUSED BY THE FAULT OF SELLER OR IF
LIABILITY WITHOUT FAULT IS IMPOSED ON SELLER, THE ONLY EXCEPTION TO
SUCH OBLIGATION BEING WHERE THE FAULT OF SELLER IS DETERMINED TO BE
THE SOLE CAUSE OF SUCH DAMAGES.
21. PRICES - Prices hereunder may be changed at any time by Xxxxxx upon
notice given either electronically (i.e. fax, DTN or phone) or by U.S.
Mail, effective when sent. If any such notice shall increase Xxxxxx'x
price to Buyer at any shipping point or destination above Xxxxxx'x
price for such product or freight in effect during the elapsed portion
of the calendar year in which Xxxxxx'x notice is effective, Buyer may
by written notice to Xxxxxx given and effective within fifteen (15)
days the date of Xxxxxx'x notice, terminate this contract with respect
to such shipping ponit or destination.
22. ODORIZATION - Unless otherwise specifically agreed in writing, Buyer
hereby requests that the propane sold hereunder be odorize with not
less than 1.0 lb. of ethyl mercaptan per 10,000 gallons. Buyer
warrants that compliance with its request will satisfy all applicable
legal requirements.
23. PRODUCT HAZARDS - Buyer acknowledges receipt of Xxxxxx'x Safety
Bulletin for odorized propane and is knowledgeable of the hazards or
risks in handling or using the product. Buyer agrees that Buyer shall
inform its employees, contractors and customers of any hazards or
risks associated with the product. Xxxxxx will make available to
Buyer Warning Decals that are intended to be placed on consumer tanks
or equipment and copies of its Safety Guide. Buyer agrees to supply
its customers with these materials or other reasonably equivalent
safety material to warn them of the potential hazards or risks in
using odorized propane.
24. INCIDENT - Buyer shall notify Xxxxxx as soon as possible after it
becomes aware of any fires or explosions occurring at locations
propane purchase hereunder is used. Buyer will inform Xxxxxx if said
product is involved and will fully cooperate with Xxxxxx in obtaining
a propane sample and any other investigation Xxxxxx xxxxx necessary.
Buyers Initials __________
ATTACHMENT A TO
PROPANE SALES AGREEMENT NO. 27023
DATED: MAY 1, 1996
1. TRADEMARK. Buyer acknowledges that the CHEVRON and WARRENGAS
Trademarks are valuable property rights belonging to Chevron
Corporation and its subsidiaries, including Chevron U.S.A. inc. and
that any use thereof by Buyer in connection with this agreement is
solely for the purposes of advertising products obtained from such
subsidiaries. Upon termination of this agreement, Buyer agrees that
it will make no further use of such trademarks or any other xxxx, name
or designs confusingly similar therewith.
2. QUANTITY. During the term hereof, Buyer agreed to buy the product
herein specified in monthly quantities of not less than the minimum
set forth below and Xxxxxx agrees to sell said quantities to Buyer.
Buyer shall purchase such entities as evenly as possible during each
month. If during any period of this agreement the quantity of product
Xxxxxx is obligate to deliver to Buyer is prescribed by government
rules, regulations or orders, then the quantity of product covered by
this agreement shall be the quantity so prescribed for such period and
Buyer agrees to buy and Xxxxxx agrees to sell such Quantity.
VOLUME (IN THOUSAND OF GALLONS)
MINIMUM MAXIMUM MINIMUM MAXIMUM
April 468 572 October 429 525
May 399 487 November 560 684
June 416 509 December 750 916
July 370 452 January 812 992
August 346 422 February 616 752
September 376 460 March 533 651
For the purpose of determining compliance with the above quantity schedule,
purchase of product shall be allocated to the month in which shipment is
made. Should either party fail to comply in any amount with the above
schedule, the other party may elect to terminate this agreement by mailing
notice of such termination on or before the 20th day of the succeeding
month. If the Buyer fails to purchase 100% of the above specified minimum
monthly quantities during any month or months and Xxxxxx does not elect to
terminate this agreement, Xxxxxx shall not be obligated hereunder to sell
to Buyer in any of the succeeding six months more than one and one half
times the average monthly quantity which Buyer actually purchased during
the preceding six-month period.
When delivery is into tank trucks furnished by Buyer, the delivery ticket
showing the quantity delivered shall be signed by the loader as the agent
of Xxxxxx and by the truck driver as the agent of the Buyer; such
quantities shall be conclusively presumed to have been delivered to Buyer.
On or before the 1st day of each month Buyer shall inform Xxxxxx of
quantities required during such month, delivery dates, and when applicable,
destinations of each shipment. Xxxxxx shall not be obligated to ship less
than a tank car or tank truck load.
3. Method of Delivery: XXXXXXXXXX By tank truck furnished by Buyer.
XXXXXXXXXX By tank truck furnished by Xxxxxx.
By tank truck furnished by
with a
capacity of gallons each.
PRICE INFORMATION
Prices in effect as of APRIL 16 , 19 96
Sales based on (X) Shipping point price or ( ) Destination price
PRICING PRICE IN FREIGHT
POINTS DESTINATIONS PRODUCTS CENTS/GALLONS CHARGES
FLORIDA BASE * COMMERCIAL * N/A
PROPANE
*SEE ATTACHMENT
XX. 0 XXXXX 0/0/00
XXXXXXXXXX XX. 0
XX XXX 00000
DATED: MAY 1, 1996
SHIPPING DESTINATION DESTINATION* FREIGHT
POINT PRICE ALLOWANCE
Tampa Arcadia 49.319 3.054
Tampa Ft. Xxxxx 49.648 3.889
Tampa Ft. Xxxxxx 49.695 4.790
Tampa Indiantown 49.648 5.263
Tampa N. Ft. Xxxxx 49.648 3.790
Tampa Okeechobee 49.648 4.325
Tampa Orlando 49.084 2.960
Tampa Palmetto 49.084 1.730
Tampa Plymouth 48.990 3.330
Tampa Pt. St. Luice 49.789 4.830
Tampa S. Ft. Xxxxx 49.648 4.489
Pt. Ever. Boca Raton 49.836 1.344
Pt. Ever. Davie 49.836 1.331
Pt. Ever. Deerfield 49.836 1.343
Pt. Ever. Delray Beach 49.836 1.532
Pt. Ever. Green Acres 49.789 1.704
Pt. Ever. Hollywood 49.836 1.181
Pt. Ever. Indiantown 49.648 2.577
Pt. Ever. Medley 49.977 1.532
Pt. Ever. Miami 49.977 1.477
Pt. Ever. Pompano Beach 49.836 1.331
Pt. Ever. South Bay 49.695 2.333
Pt. Ever. West Palm Beach 49.789 1.806
Xxxx Arcadia 49.319 3.530
Xxxx Ft. Xxxxxx 49.695 3.650
Xxxx Indiantown 49.648 4.300
Xxxx Okeechobee 49.648 3.400
Xxxx Xxxxxxx 49.084 1.245
Xxxx Plymouth 48.990 1.540
Xxxx Pt. St. Lucie 49.789 4.210
Freight allowance subject to change.
*Prices as of 4/16/96 and are subject to change.
