TotalEnergies Marketing USA, Inc. (“TEMUSA”)
GENERAL TERMS AND CONDITIONS FOR SALES OF LUBRICANTS
Purchases shall be initiated by Buyer by apurchase order sent by Buyer to TEMUSA. Orders will not be deemed to be acceptedand shall not be accepted until acknowledged or confirmed by TEMUSA. Subject to a Force Majeure Event (as defined below), TEMUSA will make commercially reasonable efforts to deliver the products on or before any delivery deadline dates or scheduled dates in the purchase order
The purchase order together with these General Terms and Conditions will constitute the parties' agreement of sale ("Agreement"). If the terms of any invoices, bills of lading or the boilerplate on any purchase orders received from Buyer are contrary to, or in conflict with these General Terms and Conditions for Sales of Lubricants, then the provisions of these General Terms and Conditions for the Sales of Lubricants will control.
1. DELIVERY
Unless otherwise stated in a purchase order or deal sheet, all product sold hereunder is sold FCA TEMUSA’s warehouse location per Incoterms (2020 edition) as published by the International Chamber of Commerce. Title and risk of loss to the product will pass to Buyer when the product is delivered to Buyer’s carrier.
2. CREDIT AND PAYMENT TERMS
2.1 Financial Responsibility. If, in TEMUSA’s sole judgment,Buyer’s financial responsibility or status is unsatisfactory,TEMUSA reserves the right to, (i) offset or deduct against any amounts due to Buyer, (ii) require financial security from Buyer in the form of a letter of credit, parent guaranty, personal guaranty or other form of security, (iii) require advance cash payment for deliveries, (iv) change the payment terms, (v) stop shipments, or (vi) reduce the credit terms. Any credit limit available to Buyer is at the sole discretion of TEMUSA.
2.2 Invoices. Buyer will pay all invoices in full according the payment and credit terms without offset or deduction.
2.3 Collection. If TEMUSA is required to institute proceedings to collect any sum validly due and owing by Buyer, Buyer will reimburse TEMUSA for all collection costs and reasonable attorneys’ fees incurred by TEMUSA.
3. SAFETY AND HEALTH COMMUNICATIONS
TEMUSA will provide Buyer with Safety Data Sheets for the products sold hereunder, which are consistent with the Occupational Safety and Health Administrations Hazard Communications standards. Buyer will disseminate the Safety Data Sheets to all of its employees, contractors, agents and customers who need to know the information with respect to handling, transporting, storing, disposing or using the products.
4. LIMITED WARRANTY
TEMUSA warrants that: (i) TEMUSA has good and marketable title to the products sold hereunder free and clear of liens, claims and encumbrances; (ii) the products conform to the applicable specifications and descriptions; and (iii) the products were manufactured, blended, packages and labeled in accordance with all applicable laws, regulations, permits and industry standards. OTHER THAN THE FOREGOING, TEMUSA MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. TEMUSA MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUITABILITY OF THE PRODUCTS FOR BUYER’S INTENDED USE, APPLICATION, SALE OR MARKETING. BUYER IS SOLELY RESPONSIBLE FOR THE SELECTION OF PRODUCTS AND THE DETERMINATION OF THE SUITABILITY OF THE PRODUCTS FOR USE, SALE, MARKETING OR OTHER APPLICATIONS.
5. LIABILITY AND INDEMNITIES
5.1 Title and Risk of Loss. Buyer assumes all responsibility and liability for injuries caused by the products, or loss or damage to the products from the transportation, handling, storage, sale or use after delivery of the products to Buyer.
5.2 Buyers’ Indemnification. Buyer will defend, indemnify and hold TEMUSA, its officers, directors, employees, agents and its parent companies, affiliated companies and subsidiaries harmless from and against any demands, claims, suits, actions, judgments, damages, liabilities, losses, costs or expenses, including reasonable attorney’s fees, arising out of, or relating to any bodily injury, disease or death of persons (including Buyer or employees of Buyer) or loss or damage to property (including Buyer’s property) caused by (i) Buyer’s breach of any provision of these General Terms and Conditions, (ii) Buyer’s acts or omissions after delivery of the products to Buyer (and the acts and omissions of its carriers, agents and contractors) in the transportation, handling, storage, sale of the products, or (ii) Buyer’s adviceor warnings to its customers on the proper transportation, handling, storage or use of the products if contrary to, or outside of TEMUSA’s warnings.
5.3 Seller’s Indemnification. Provided that Buyer gives prompt written notice to TEMUSA, TEMUSA will defend, at its expense, indemnify and hold Buyer harmless from and against any demands, claims, suits, actions, judgments, damages, liabilities, losses, costs, or expenses, including reasonable attorney’s fees, founded on an allegation that the products delivered hereunder in their original form infringe any U.S. letters patent in existence on the date the products are delivered.
5.4 Limitation of Liability. EXCEPT AS PROVIDED IN SELLER’S INDEMNIFICATION ABOVE, TEMUSA’S ENTIRE LIABILITY TO BUYER FOR ALL LOSSES, INJURIES, OR DAMAGES FROM ANY CAUSE WHATSOEVER IS LIMITED TO BUYER’S ACTUAL, DIRECT DAMAGES CAPPED AT THE VALUE OF THE PRODUCTS DELIVERED HEREUNDER ON WHICH THE CLAIM IS BASED. IN NO EVENT WILL TEMUSA, ITS OFFICERS, DIRECTORS, SHAREHOLDERS OR EMPLOYEES BE LIABLE TO BUYER UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER BASED IN NEGLIGENCE, STRICT LIABILITY OR CONTRACTS FOR LOST PROFITS, LOST PRODUCTION, LOSS OF BUSINESS OPPORTUNITY OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNTIVE DAMAGES.
6. FORCE MAJEURE
A party will be relieved from liability for non-performance or delay in performance, except for payment for products previously delivered, arising out of causes beyond its control, including strike, lock-out, labor dispute, shortage of labor, fire, explosion, Acts of God, floods, hurricanes, tropical storm, tornado, ice, blizzard, lightning, earthquakes, epidemics, riot, war, terrorism, civil war, sabotage, piracy, embargo, acts of the public enemy, actions of governments, voluntary of involuntary compliance with any law, order, regulation or any governmental authority, failure of equipment normally used by TEMUSA for blending, or unavailability of transportation. In no event will TEMUSA be required to purchase products from an alternative source in order to deliver to Buyer.
7. TRADEMARK/TRADE NAMES
7.1 Limited Grant of Use. TEMUSA hereby grants Buyer permission for Buyer to advertise and/or display TEMUSA’s licensed tradenames, trademarks, or other brand indicia solely in connection with the sale of TotalEnergies branded product. TEMUSAmay, in its discretion, provide Buyer with sales literature, brochures, promotional materials and signage, which may be reasonably available from time to time for the products, all at no charge to Buyer. Buyer will not blend, mix, or commingle any TotalEnergiesproduct with any product sold by another company.
7.2 Use. Buyerwill use the trademarks/trade names of TotalEnergies strictly in accordance with the applicable laws of the locality and in the form stipulated by TEMUSA and will observe any reasonable directions given by TEMUSA as to colors and size of the representation of the trademarks/trade names, included in any accompanying leaflets brochures or other printed and electronic material.Buyerwill not remove or alter any trade names, trademarks, copyright notices, serial numbers, labels, tags or other identifying marks, symbols or legends affixed to any products, documentation, containers or packages. Buyerhereby acknowledges that all the trademarks are and will, notwithstanding all authorizations for use, remain the exclusive property of the relevant entities of TotalEnergiesgroup of companies.
8. EXPORT
8.1 Exporter of Record. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IF THE PRODUCT COVERED BY THIS AGREEEMENT WILL BE EXPORTED FROM THE UNITED STATES OF AMERICA, EACH US BUYER WILL BE THE “EXPORTER OF “RECORD” AS THAT TERM IS USED BY CUSTOMS AND BORDER PROTECTION (“CBP”) AND/OR THE US BUREAU OF INDUSTRY AND SECURITY (“BIS”) AND BUYER WILL COMPLY WITH ALL REGULATIONS (INCLUDING THOSE RELATED TO REPORTING, FILING AND RECORD KEEPING OF CBP AND/OR THE BIS. IF BUYER IS A NON-US ENTITY, THEN TEMUSA WILL BE THE “EXPORTER OF RECORD” AND HAVE THE FOREGOING OBLIGATIONS.
8.2 Free Trade Agreements. Forall product sold which is blended by TEMUSA and which is eligible and qualified under a Free Trade Agreement between the US and another country,TEMUSAwilluse commercially reasonable efforts to provide Buyer with a properly completed and valid Certificate of Origin for such Free Trade Agreement,if requested in writing by Buyer; provided, however that TEMUSA has no obligation to provide such Certificates.
8.3 Restrictions on Product. Buyer will not deliver any product to be exported or transshipped to or through any country on which economic sanctions have been imposed by the United States or the United Nations, nor any product to be sold to a person in or from a country on which such sanctions are imposed.
9. TAXES
9.1 Buyer’s Taxes. Buyerwill pay any and all taxes, duties, value added tax, fees, or other charges imposed or assessed by governmental or regulatory bodies with respect to product delivered under these General Terms and Conditions, the taxable incident of which occurs at the time of transfer or after transfer of title to the product to Buyer,except that Buyerwill reimburse TEMUSA for all US federal, state, and local sales, use, gross receipt, and other excise taxes or fees which are imposed by law on TEMUSA.
9.2 Exemptions. In the event Buyer is exempt from paying US excise taxes, then Buyerwill execute appropriate exemption certificates and provideTEMUSA with such certificates and other necessary documents to verify such exemption with respect to the US federal and state excise taxes, as the law and regulations permit or require. If Buyer fails to promptly supply such exemption certificates and other verifying documents, it shall be deemed to not be exempt from the US federal and state excise taxes and shall be responsible for any taxes accruing by virtue of such non-exemption.
10. MISCELLANEOUS
10.1 Preference. These General Terms and Conditions will govern and prevail over any terms and conditions attached to Buyer’s purchase orders, shipping orders, delivery orders, e-commerce or electronic terms and conditions or other writing between the parties, and such documents will be null and void.
10.2 No Waiver. No waiver by either party of any obligation, performance, breach or default hereunder or of its failure to enforce any of the provision of these General Terms and Conditions will limit or waive the right of such party to enforce these General Terms and Conditions and compel strict compliance with each and every provision.
10.3 Jurisdiction. ANY ACTION AGAINST TEMUSA UNDER THESE GENERAL TERMS AND CONDITIONS MUST BE BROUGHT WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. These General Terms & Conditions and any actions or claims arising out of or related to them shall be governed by and construed in accordance with the laws of the State of Texas, without regard to any choice-of-law rules that might require the application of another jurisdiction’s laws. Any action arising out of or related to these General Terms & Conditions or the sale of product by TEMUSA shall be brought exclusively in the state or federal courts in Harris County, Texas. The parties expressly agree to exclusive jurisdiction in those courts and waive any defense based on personal jurisdiction, forum non conveniens, or similar principle. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY AND CONSENT TO TRIAL BEFORE A JUDGE. WITHOUT LIMITING THE FOREGOING IN ANY WAY, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, AND THE UNIDROIT PRINCIPLES OF INTERENATIONAL COMMERCIAL CONTRACTS WILL NOT APPLY TO OR GOVERN ANY AGREEMENT MADE PURSUANT TO THESE GENERAL TERMS AND CONDITIONS.
10.4 Assignment. Buyer will not assign or transfer this any agreement made under these General Terms and Conditions without the prior written consent of TEMUSA.Any such transfer or assignment will be void. This agreement will be binding on successors and assigns of the parties.
10.5 Invalidity. If any part of these General Terms and Conditions are invalidated for any reason by a court of competent jurisdiction, such invalidationwill not affect the validity of the rest of the General Terms and Conditions or any other part thereof.
10.6 Conflict of Interest. Each party shall exercise reasonable care and diligence to prevent any actions or conditions that could result in a conflict with the other party’s best interests. This obligation shall apply to each party’s activities in its relations with the other party’s employees, representatives and their families, as well as their vendors, contractors, or consultants. Each party’s efforts in this regard shall include, but not be limited to, establishing precautions to prevent is employees or agents from making, receiving, providing, or offering substantial gifts, entertainment, payments, loans or other considerations for the purpose of influencing individuals to act contrary to the other party’s best interests.
10.7 Captions and Headings. The headings and captions to each of the various sections in these General Terms and Conditions are included for convenience or reference only and shall have no effect on, or be deemed as part of, the text.
10.8 Definitions and Interpretation. All references to “product” or “products” in these General Terms and Conditions refer to TotalEnergies branded lubricant products to be sold hereunder. The singular will include the plural and the plural will include the singular and any gender will include all other genders, all as the meaning and context requires. The word “Include” and its derivatives mean “including but not limited to” and its corresponding derivative expressions.
10.9 Compliance with Economic Sanctions and Export Controls.
i) For purposes of the Agreement, the term “Sanctions Regulations” means any law, regulation, embargo or another restrictive measure (economic, financial, trade, etc.) relating to economic sanctions and export controls applicable to the Parties, which is enacted, administered, imposed, implemented and/or enforced from time to time by any Competent Authority with jurisdiction over the Parties and the Product(s) (or Services), including the European Union, France, any other Member state of the European Union and the United States of America.
ii) The parties must perform the Agreement in compliance with Sanctions Regulations that apply to the parties and the products as defined above. If either party is unable to perform the Agreement due to a conflict of law, the provisions specified under subsection (viii) shall apply.
iii) The Buyer undertakes not to, directly or indirectly, distribute, sell, supply, export, reexport or otherwise transfer the products purchased from TEMUSA in violation of Sanctions Regulations.
iv) Moreover, the Buyer undertakes and warrants that it will not, directly or indirectly, distribute, sell, supply, export, re-export or otherwise transfer the products purchased from TEMUSA in Russia and/or for use in Russia.
v) The Buyer undertakes to implement adequate procedures to comply with Sanctions Regulations and detect possible non-compliant activities of third parties, including potential resellers, and apply such procedures to transactions involving the products purchased from TEMUSA.
vi) In the event of any breach of subsections (ii), (iii), (iv), or (v) by the Buyer, TEMUSA shall have the right to suspend the performance of this Agreement and/or terminate it. In such event, the Buyer shall not be entitled to any compensation rights provided for by this Agreement.
vii) Throughout the performance of the Agreement, the Buyer undertakes to inform TEMUSA forthwith and by written notice of any information likely to impact the declarations or commitments covered by subsections (ii), (iii), (iv), and (v) including regarding the activities of third parties that may frustrate the same sections. The Buyer shall make available to TEMUSA information relating to compliance with its obligations under subsections (ii), (iii), (iv), and (v) within two weeks from TEMUSA's written request for such information.
viii) Neither party shall be obliged to perform any obligation under the Agreement if this would not be compliant with, in violation of, inconsistent with, or expose a party (the “Affected Party”) to punitive measures under the Sanctions Regulations. In this event, the Affected Party shall, as soon as reasonably practicable, give written notice to the other Party of its inability to perform the Agreement. The Affected Party may either (a) suspend the performance of the affected obligations under the Agreement until the Affected Party may lawfully discharge such obligation or (b) terminate the Agreement where the Affected Party may not lawfully discharge such obligation, without possibility for the other party to claim any compensation rights provided for by the present Agreement