International Materials
I. Analysis
SELLER shall appoint a recognized, international independent surveyor (SGS, or similar) (“Load Surveyor”) to take representative samples of all of the Product at the Loading Port prior to and during loading of the Vessel according to ASTM standards (unless otherwise specified in the Agreement). All such samples shall be combined and thoroughly mixed into one representative homogenous sample (“Composite Sample”).
The Composite Sample shall be split into 3 equal portions, placed in proper containers, sealed and signed for by the Load Surveyor (each is a “Sub-Sample”). One (1) sealed Sub Sample will be couriered to a recognized, independent laboratory (SGS or similar) (“Load Laboratory”), which may be the same as the Load Surveyor, and shall be appointed by SELLER. One (1) sealed Sub-Sample shall be shipped directly (by courier) to the BUYER. One (1) sealed Sub-Sample shall be kept by the Load Surveyor sealed for at least sixty (60) days, to be used solely in case of any quality dispute (the “Referee Sample”).
The Load Laboratory shall test the sealed Sub-Sample it received from Loading Port in accordance with ASTM standards and then issue a Certificate of Quality reporting all test results, including all the parameters shown in ANNEX A.
In the event of a quality dispute, BUYER shall forward to SELLER copies of the BUYER’s appointed independent discharge laboratory results within fifteen (15) days of completion of discharge [OR loading if Product is sold FOB]. If comparison of the Load Laboratory Certificate of Quality and BUYER’s laboratory results show one or more material differences, then the Referee Sample shall be sent to Construction Technology Laboratory (CTL) in Skokie, IL (the “Referee Lab”) for testing in accordance with ASTM standards of those chemical(s) or other properties which had different results (“Disputed Parameters”). The Referee Lab’s result(s) of the Disputed Parameters shall be final for all purposes under this Agreement.
If the Referee Lab’s test results are materially different than the Specifications, BUYER and SELLER shall meet to discuss and agree on a fair settlement to compensate the BUYER, and SELLER shall be responsible for all costs incurred in the testing by the Referee Lab.
If the Referee Lab’s test results determine that the Product delivered is in all material respects consistent with the Specifications, BUYER shall immediately pay in full all sums due under this Agreement, and all costs associated with quality testing will be borne by the BUYER, including but not limited to costs of shipping the Referee Sample to the Referee Lab, costs of testing, and courier costs for sending results.
This shall be the sole and exclusive remedy of the parties with respect to or arising out of quality disputes.
II. Weight
Unless otherwise agreed in the corresponding Trade Confirmation, the Bill of Lading quantity shall be the quantity determined by draft survey performed at loading port by a recognized, independent surveyor (SGS or similar) hired by SELLER. That surveyor shall also issue a certificate of weight (“Certificate of Weight”) with the same quantity shown in the Bill of Lading. The quantity stated on the Bill of Lading shall be final.
III. Vessel Nomination
Unless otherwise provided in the Trade Confirmation, SELLER shall nominate performing vessel (“Vessel”) no later than 5 days prior to Vessel’s Estimated Time of Arrival (“ETA”) at loading port. SELLER has the right to substitute the nominated Vessel within 3 days before Vessel’s ETA at loading port.
BUYER shall confirm/reject SELLER’s Vessel nomination within 24 hours of its presentation. In case of a rejection, BUYER shall provide a valid explanation to support the same. In case BUYER does not confirm/reject the Vessel nomination within the mentioned timeframe, the Vessel will be considered as approved. No Vessel acceptance shall be unreasonably withheld.
IV. Discharge
SELLER shall provide Vessel equipped with cranes. BUYER’s acceptance of the Vessel as per the protocol in item III above shall prevail over any vessel requirements by BUYER or Load Port. BUYER shall provide and pay for crane operators to discharge Vessel at the minimum average rate stated in the Trade Confirmation (“Discharge Rate”) at BUYER’s time, risk and expense. BUYER shall provide and pay for any other equipment such as bulldozers/payloaders, together with operators as needed to aid with discharge of Product and blade cleaning of cargo holds at BUYER’s time, risk and expense.
Unless otherwise stated in the Trade Confirmation, Notice of Readiness (“NOR”) at Discharge Port can be tendered any time day or night Sundays and holidays included (“SHINC”), upon Vessel’s arrival at Discharge Port’s pilot station, whether in berth or not (“WIBON”), whether in port or not (“WIPON”), whether granted free pratique or not (“WIFPON”), whether customs cleared or not (“WICCON”).
BUYER guarantees safe port/ safe berth and all approaches and all available at Vessel’s arrival at Discharge Port. Laytime shall commence 12 hours after Vessel tenders NOR, WIBON, WIPON, WIFPON and WICCON, unless discharge sooner commenced.
Stevedores damages to be settled directly between stevedores and Owners. BUYER to assist as necessary to ensure any such damages and any time lost as a result thereof are settled expeditiously prior Vessel concluding the discharge.
V. Demurrage and Despatch
BUYER shall pay demurrage, at the agreed demurrage rate as per Trade Confirmation per day (“Demurrage Rate”), for all laytime used which exceeds the allowed time. Unless otherwise stated in the Trade Confirmation, Despatch shall be paid on a similar basis at half the Demurrage Rate for the time by which allowed time exceeds laytime. All time waiting for berth shall be for BUYER’s account. If discharge operation of Vessel is stopped or delayed for any reason except fault of the Vessel, including but not limited to environmental issues (i.e. dust), port congestion, lack of shore labor or shore equipment, laytime shall run without interruption and all time shall count at the indicated Demurrage Rate, from the stoppage until resumption of full work. If the Vessel is requested to leave the berth by port authorities due to any of the above, laytime shall run without interruption and all time and cost to leave, stay away from and return to berth shall be for BUYER’s account until the resumption of full work. Once a Vessel is on demurrage, it shall always be considered on demurrage and all time shall count at the indicated daily Demurrage Rate.
SELLER shall forward the laytime calculations to BUYER as quickly as possible upon completion of discharge. BUYER shall reply with acceptance or proposed changes within thirty (30) days of sending calculations from SELLER failing which SELLER’s calculations are deemed accepted. In any event, all outstanding amounts shall be settled and paid within sixty (60) days of completion of discharge.
VI. Draft
The pricing of this MSA is based on BUYER’s guarantee of an arrival draft at berth and all approaches to one safe port, one safe berth Discharge Port as indicated in the Trade Confirmation. If the draft at Discharge Port is reduced prior Vessel completes loading, BUYER and SELLER shall meet to discuss a revision to the pricing that reflects the new conditions, provided BUYER still guarantees one safe berth, one safe port, always afloat at berth and all approaches.
BUYER shall be responsible for any damages or extra costs and any dead freight resulting from a reduction in the draft at Discharge Port after the Vessel has been loaded, including but not limited to lightering costs.
VII. Disclaimer for Petcoke Sales
BUYER acknowledges that, notwithstanding anything to the contrary herein, the Product is a by-product of oil refining and that SELLER’s supplier may, from time to time determine, in its sole discretion, to: (i) not produce the Product; (ii) produce products other than the Product; (iii) produce quantities of the Product that could change any volumes in this MSA or respective Trade Confirmation; or (iv) produce the Product with quality specifications different from those set forth in the MSA or respective Trade Confirmation.
VIII. Warranties
BUYER represents that it is familiar with the characteristics, qualities, and uses of the Product and has the sole responsibility for selection of suitable product for its uses. SELLER warrants that the Product conforms to the descriptions set forth in this Agreement under “Quality” and that SELLER has title to the Product at the time of delivery. BUYER assumes all risk of use of the Product, either alone or in combination with other materials. EXCEPT AS SET FORTH IN THIS PARAGRAPH, SELLER OTHERWISE MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT.
IX. Limitation on Claims and Damages
Neither SELLER nor BUYER shall be liable for any special, punitive, exemplary, indirect or consequential damages and/or loss of profits, loss of production or losses arising from shutdown of plants or inability to perform sales or any other contract(s) arising out of or in connection with the performance, non-performance or any breach of its obligations hereunder or otherwise. SELLER shall not be liable in any event, whether for failure or delay in making delivery or for breach of warranty or otherwise, in an amount exceeding the value at loading port of the Product in respect of which claim is made.
If BUYER asserts a claim, BUYER shall provide written notice of the same to SELLER. No claim may be asserted by BUYER after 30 days from transfer of title from SELLER to BUYER.
Notwithstanding the foregoing, in the event of any claim related to or arising with respect to the quality of the Product, the remedy and protocol set forth in the Analysis Section herein shall be BUYER’s sole and exclusive remedy.
X. Taxes
All existing and future export duties, taxes, charges and fees levied by the government of the country of export on the cargo and freight relating to the Product sold pursuant to this Agreement shall be paid by the SELLER. All existing and future import duties, taxes, charges and fees levied by the government of the country of import on the cargo and freight relating to the Product sold/purchased pursuant to this Agreement shall be paid by the BUYER.
XI. Impairment of BUYER’s Credit
If, in SELLER’s reasonable judgment, BUYER’s ability to pay the purchase price for the Product or any additional charges hereunder shall appear subject to reasonable doubt or if BUYER’s general creditworthiness shall be materially impaired, SELLER may, without prejudice to any other remedy, (a) stop any goods in transit and defer any further deliveries under this Agreement or any other contract or require cash in advance of any delivery until SELLER has been satisfied of BUYER’s ability to pay or creditworthiness, as the case may be, or (b) terminate any or all contracts between BUYER and SELLER.
XII. BUYER’s Acts or Omissions
If SELLER’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of BUYER or its agents, subcontractors, consultants or employees, SELLER shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by BUYER, in each case, to the extent arising directly or indirectly from such prevention or delay.
XIII. Late Payments
A service charge of 2 % per month, or the maximum rate permitted by law, if that is less, shall be added to all payments after the date on which they are due. BUYER shall reimburse SELLER for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these terms or at law (which SELLER does not waive by the exercise of any rights hereunder), SELLER shall be entitled to suspend the delivery of any Product if BUYER fails to pay any amounts when due hereunder or under any other agreement between the parties and such failure continues for fifteen (15) days following written notice thereof.
XIV. New or Changed Regulations
SELLER is entering into this Agreement in reliance on the laws, rules, regulations, decrees, impositions, concessions, and other arrangements of all governmental instrumentalities (collectively, “Regulations”), being proposed, considered, and/or in effect on the date hereof which affect the transaction covered and the Product sold hereunder including, without limitation, the production, gathering, manufacture, supply, transportation, and delivery of such Product. In the event that any of the Regulations are changed or new Regulations become effective during the term of this Agreement, and such changed or new Regulation (a) is not covered by another provision of this Agreement and (b) adversely affects SELLER or SELLER’s suppliers, SELLER shall have the option to increase the price of the product or amend other terms in this Agreement affected by such changed or new Regulation. SELLER may exercise such option at any time after such changed or new Regulation is promulgated by notice to BUYER setting forth the new price and/or amended terms and the effective date thereof (“New Effective Date”). Within fifteen (15) business days after receipt of SELLER’s notice, BUYER may declare its intention to terminate this Agreement by notice to SELLER. If within fifteen (15) business days of receipt of BUYER’s notice of intention to terminate SELLER does not give BUYER notice that SELLER waives the new price and/or amended terms, this Agreement shall terminate on the forty-fifth (45) day following SELLER’s receipt of BUYER’s notice of intention to terminate. If BUYER does not timely declare its intention to terminate within fifteen (15) days after receipt of SELLER’s notice, the new price and/or amended terms shall apply to all products delivered on or after the New Effective Date.
XV. Interpretation
The ICC International Commercial Terms 2010, abbreviated as INCOTERMS 2010, as amended shall apply to this Agreement. In case of conflict between the Applicable Law, as set forth below in clause XV, and INCOTERMS 2010, the parties must apply INCOTERMS 2010.
XVI. Title and Risk
Risk and title shall both pass from SELLER to BUYER at the place and time established by the INCOTERMS 2010 delivery term applicable to this Agreement for transfer of risk.
XVII. Indemnification
BUYER shall indemnify SELLER, SELLER’s affiliates, and employees, officers, directors, and other representatives from, and hold each harmless from and against any and all, actions, suits, proceedings, demands, causes of action, and claims, in connection therewith and promptly upon demand, pay or reimburse each of them for all costs losses, liabilities, damages or expenses of any kind or nature whatsoever, including without limitations the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending, or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to SELLER’s supply and/or BUYER’s or its agent’s or servant’s purchase, resale, receipt, use or transportation of the Product delivered hereunder, including, exposure thereto, unless the same be due to the sole negligence of SELLER.
XVIII. Representations and Warranties
Each party is a company duly organized, validly existing and in good standing under the laws of its country of incorporation.
Each party affirms that it (a) has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder, and (b) has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder.
The execution and delivery of this Agreement and the performance of such party’s obligations hereunder (a) do not conflict with or violate any requirement of applicable laws or regulations, and (b) do not conflict with, or constitute a default under, any contractual obligation of such party.
XIX. Arbitration
The parties will make every effort to settle in an amicable way any dispute in connection with the interpretation of this Agreement. If the parties do not reach a settlement within a period of 60 days, then, upon notice by any party to the other, any unresolved dispute shall be settled by arbitration administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with the provisions of its International Arbitration Rules.
Each party shall select an arbitrator within ten days of commencement of the arbitration who shall serve as a neutral arbitrator and the two designated arbitrators shall select a third neutral arbitrator. If the two arbitrators cannot agree on selection of a third arbitrator within twenty (20) days of their appointment, the ICDR shall select such arbitrator in accordance with the terms of this Agreement.
The arbitration shall be conducted in accordance with the then existing rules of the ICDR. In the event that the amount in question is less than USD$250,000.00, the arbitration shall be conducted under the International Expedited Procedures of the ICDR.
The arbitration shall be conducted in Miami, Florida, United States.
The Applicable Law shall be applied in any arbitration proceeding, without regard to the principles of conflict of laws.
The language of the arbitration shall be English.
Except as may be required by law, neither party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both of the parties.
Notwithstanding anything in the foregoing to the contrary, the parties agree that either party shall have the right to file with any court of competent jurisdiction, whether in law or in equity, a suit, claim, reintegration action, or any other action seeking a similar remedy, and to prosecute such suit, claim or action as necessary to assert and/or execute a lien and/or recover possession of any SELLER property or other chattel in which the SELLER holds or claims title to, including the Product, which has been taken or detained by the BUYER or any third party. The filing and prosecution of any such suit or action in a court of law or equity shall not be deemed incompatible with, or a waiver of, this agreement to arbitrate.
Furthermore, in case of payment default by the BUYER, SELLER may at its own discretion have the right to file with any court of competent jurisdiction, whether in law or in equity, a suit, claim, or any other action seeking a similar remedy in order to enforce an outstanding payment collection and/or any other remedy available under local law to secure payment of the purchase price of the Product, without the need to first arbitrate the matter in advance of the mentioned filing. Such payment collection action shall be governed by the local law of the place where SELLER files the collection claim or by the Applicable Law as set forth below in clause XV, at SELLER’s option.
Additionally, to the extent BUYER may, in any jurisdiction, claim for itself or its assets immunity from suits, executions, liens (whether in aid of execution, before ruling or otherwise) or other legal process, BUYER hereby agrees not to claim and waives such immunity to the fullest extent permitted by the laws of that jurisdiction, intending in particular, but without limiting the generality of the foregoing, that this waiver shall apply in any proceedings occurring in the BUYER’s place of domicile, BUYER’s principal place of business, and/or the United States of America.
XX. Applicable Law
This Agreement shall be governed exclusively by the laws of the State of New York, USA (“Applicable Law”), and the federal maritime laws of the United States excluding their conflict of law provisions or choice of law rules which would otherwise result in the application of the laws of another jurisdiction and expressly excluding the application of the U.N. Convention on Contracts for the International Sale of Goods.
Notwithstanding the above, in case of payment default by BUYER, the parties agree that SELLER may at its own discretion file with any court of competent jurisdiction, whether in law or in equity, a suit, claim, or any other action seeking a similar remedy to enforce any of its rights to collect and/or to secure payment of the purchase price of the Product, including collection procedures and any other available procedures under local law, without the need to first arbitrate the matter in advance of the mentioned filing. Such payment collection action shall be governed by the local law of the place where SELLER files the collection claim or by the Applicable Law as set forth in this clause, at SELLER’s option.
XXI. Product Resale
It is understood that the Product delivered under this Agreement shall be consumed exclusively by the BUYER in its own production operations. BUYER shall not resell the Product without prior written consent of the SELLER.
XXII. Force Majeure
Neither SELLER nor BUYER shall be responsible for any failure to fulfill their respective obligations, in whole or in part, under this Agreement if fulfillment has been prevented by Force Majeure, and the affected party shall be relieved of liability for failing to perform, wholly or in part, from the inception of such event of Force Majeure and during the continuance thereof. The foregoing right shall not be construed to limit or restrict either party’s right to invoke any other subsequent Force Majeure event (even if the other, subsequent Force Majeure event relates to events or circumstances similar or identical to the events or circumstances underlying the subject Force Majeure event) or other Force Majeure event which occurs during all or any portion of the subject Force Majeure event. For purposes hereof, “Force Majeure” means any circumstances whatsoever that are beyond the reasonable control of and unforeseeable to SELLER or BUYER, as the case may be, including without prejudice to the generality of the foregoing, but not limited to:
(i) compliance with any order, demand or request of any governmental authority;
(ii) any strike, lockout or labor dispute – except those involving the employees or agents of the party seeking the protection of this clause;
(iii) adverse weather, perils of the sea, or embargoes;
(iv) fires, earthquakes, lightning, floods, explosions, storms, and other acts of natural calamity or acts of God;
(v) accidents at, closing of, or restrictions upon the use of mooring facilities, docks, ports, pipelines, harbors or other navigational or transportation mechanisms;
(vi) disruptions, breakdowns, explosions or accidents which may have a materially adverse effect on storage facilities, refineries, storage facilities, vessels, lightering equipment or other facilities; and
(vii) acts of war, hostilities (whether declared or undeclared), civil commotion, blockades, terrorism, sabotage or acts of the public enemy;
Provided, however, that nothing contained herein shall relieve either party of any of its obligations to make payments due to the other party under this Agreement, which obligations are absolute.
The party seeking relief under this Section (“Affected Party”) shall advise the other party in writing as soon as practicable of the circumstances causing the failure to fulfill its obligations and shall thereafter provide such information as is available regarding the progress and possible cessation of those circumstances, including, to the extent feasible, the details and the expected duration of the Force Majeure event. The Affected Party shall notify the other party when the Force Majeure event is terminated. Performance of obligations under this Agreement shall be resumed as soon as reasonably possible after such circumstances have ceased.
The Affected Party shall use all reasonable efforts to, and the other party shall use all reasonable efforts to assist the Affected Party in its efforts to, (i) attempt to prevent a Force Majeure and (ii) mitigate the effects of any Force Majeure.
In the event that either party sends a proper notice of an event of Force Majeure and such event of Force Majeure is not remedied within 90 days from the date that notice of such event is given, and so long as such event is continuing, either party may terminate this Agreement by written notice to the other party, and neither party shall have any further liability to the other in respect of this Agreement except for the rights and remedies previously accrued under this Agreement.
If the Agreement sets forth a prepayment requirement, then in the event of a Force Majeure, as defined herein, SELLER shall immediately reimburse BUYER, on a pro rata basis, any and all amounts prepaid by BUYER if the Agreement is terminated due to the Force Majeure and pursuant to the terms and conditions of this Section.
XXIII. Compliance
BUYER warrants that:
(a) neither the purchase of the Product nor its use or resale will violate any law or other provision, including without limitation, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto (including, without limitation, the International Emergency Economic Powers Act, as amended), Iran Sanctions Act, CISADA or any similar law or regulation with respect to Iran or any other country, the Sudan Accountability and Divestment Act (the “OFAC Sanctions Laws”) or the USA Patriot Act (collectively, with the OFAC Sanctions Laws, the “Foreign Activities Laws”).
(b) neither BUYER nor any related entity is (i) a Person (an “OFAC-Listed Person”) described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”) or in section 1 of the Anti-Terrorism Order or (ii) a department, agency or instrumentality of, or is otherwise controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to OFAC Sanctions Laws (each OFAC Listed Person and each other Person, entity, organization, foreign country or regime described in clause (ii), a “Blocked Person”).
(c) neither BUYER nor any related entity has been notified that its name appears or may in the future appear on a state list of Persons that engage in investment in or other commercial activities in Iran or any other country that is subject to OFAC Sanctions Laws.
(d) to the actual knowledge of any responsible officer of the BUYER after making due inquiry, neither BUYER nor any related entity (i) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. BUYER has taken reasonable measures appropriate to the circumstances (in any event at least as required by applicable law), to ensure that BUYER and each related entity is in compliance with all applicable Anti-Money Laundering Laws.
(e) no part of the proceeds from use or the resale of the Product hereunder by BUYER will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, or any commercial counterparty, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended and the BUYER has taken reasonable measures appropriate to the circumstances (in any event at least as required by applicable law), to ensure that the BUYER and each subsidiary is in compliance with all applicable anti-corruption laws and regulations.
(f) the Product will not be sold to or traded with, directly or indirectly, any person, entity, agency or nation in violation of any applicable law, regulation or directive of the United States or any international organization.
In the event of a breach of any of these warranties by BUYER, SELLER may both terminate this Agreement and recover from BUYER all damages and costs, including attorneys’ fees, penalties and fees incurred by it.
XXIV. Amendment
No amendment of this Agreement shall be valid unless it is in writing and signed by both parties.
XXV. Waiver
No waiver of any provision of this Agreement by either party shall prevent such party from asserting such provisions in the event of a continuing or a subsequent breach by the other party. No waiver of any provision of this Agreement is effective unless explicitly set forth in writing and signed by both parties. No failure to exercise or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
XXVI. Term & Termination
The term of this Agreement shall commence on the Effective Date and shall end on the date upon which all obligations hereunder have been fulfilled (“Term”).
In addition to any remedies that may be provided under these terms or the law, SELLER may terminate this Agreement with immediate effect upon written notice to BUYER, if BUYER: (a) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after BUYER’s receipt of written notice of non-payment; (b) has not otherwise performed or complied with any of these terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Furthermore, this Agreement may be terminated, in writing, by mutual consent of the SELLER and BUYER.
Termination of this Agreement by either party pursuant to the provisions hereof or pursuant to applicable law shall not relieve either party of any obligation or deprive it of any right arising prior to termination.
XXVII. Assignment
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and consented assigns as set forth herein. Neither party may assign its rights or delegate its duties hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempt or delegation without such consent shall be ineffective.
XXVIII. Validity
If any provision or portion of this Agreement shall be held invalid or unenforceable, such provision or portion of this Agreement shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect.
XXIX. Notices
Notices and documents under this Agreement shall be made and deemed duly given only when delivered in writing, electronically or otherwise, to the Trader and/or sales representative in charge of the business transaction(s) documented under this Agreement, or such other representative as may be specified by a party from time to time.
XXX. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one instrument. Electronic signatures or scanned copies of signed originals shall be valid and acceptable evidence of this Agreement.
XXXI. Relationship between the Parties
This Agreement does not create any partnership, joint venture or similar business relationship between the parties. Neither party is, nor shall be deemed, as a legal representative of the other party and neither party can assume or create any obligation, representation, warranty or guarantee, express or implied, on behalf of the other party for any purpose.
XXXII. Third Party Beneficiary
Except as may be expressly provided or incorporated by reference herein, including, without limitation, the indemnification provisions hereof, no provision of this Agreement is intended, nor shall it be interpreted, to provide or create any third-party beneficiary rights or any other rights of any kind in any customer, affiliate, stockholder, partner, member, director, officer or employee of any party hereto or any other person or entity.
XXXIII. Confidentiality
It is hereby agreed that the terms of this Contract, including, without limitation, the price payable, any information relating to the Party’s trade, processes, contracts or arrangements involved in the party’s business, are confidential and that except for the purpose of enforcing this Contract, neither Party shall disclose any of the terms of this Contract to any third party other than to an Affiliate of a Party, unless such disclosure is required by applicable Law, or unless prior written approval has been obtained from the other Party for the relevant disclosure.
XXXIV. Entire Agreement
The Agreement, together with these General Terms and Conditions, any riders, schedules, Annexes or exhibits hereto, constitutes the entire final agreement between SELLER and BUYER with respect to the purchase and sale described herein and supersedes all prior agreements, arrangements and stipulations in respect of the same subject, including the terms and conditions of any Purchase Order issued by BUYER. It is agreed that prior negotiations, representations, or understandings do not add to or modify the terms herein.