TERMS AND CONDITIONS OF SALE JACOBUS ENERGY, LLC ("Company")
Rev. January 25, 2019
1. Products and Services. Subject to these terms and conditions of sale (these “Terms and Conditions”), Company will provide to you (“Customer”) fuel and related products (the “Products”) and related services (the “Services”) as mutually agreed upon by Company and Customer. Customer agrees to provide to Company all documents and information that Company deems reasonably necessary to provide the Products and the Services and may reasonably request from time to time.
2. Payments. Except as otherwise provided in an agreement signed by Company, Customer shall pay Company the amounts invoiced for the Products and Services within ten (10) days from the date of such invoice. If Customer fails to pay Company all amounts invoiced in accordance herewith, Company, in its sole discretion and in addition other rights and remedies available to it, may assess against Customer interest on the outstanding principal balance due to Company, calculated at the rate of one percent (1%) per month, or at the highest rate of interest allowed by law, whichever is less, until the outstanding principal balance due to Company is paid in full.
3. Compliance with Legal Requirements. Company and Customer each shall comply with all applicable federal, state and local laws, ordinances, rules and regulations to the extent the same govern or affect the use, transport, dispense, storage, handling, release and labeling, as applicable, of the Products and the Services. Company may decline to deliver the Products into any transportation or storage equipment of Customer that is reasonably determined by Company to not be in compliance with any applicable federal, state and local law, ordinance, rule and regulation. In the event Company so declines, Company shall bear no liability to Customer whatsoever.
4. Insurance. During the term of the business relationship of the parties, each of the parties shall procure and maintain insurance coverage in such amounts as is usual and customary for the industry in which such party operates. Each of the parties shall provide the other party at least ten (10) days’ prior written notice of cancellation, termination, expiration or lapse thereof.
5. Proprietary Rights; Confidential Information.
(b) Proprietary Rights. Customer acknowledges Company’s exclusive rights as owner in all copyrights, trademarks, service marks, trade names, trade dress and other intellectual property rights relating to the Products and the Services (collectively, the “Rights”). Customer further acknowledges that it has no right, title or interest in the Rights and agrees not to challenge the validity or enforceability of the Rights or their ownership by Company.
(c) Confidential Information. The term “Confidential Information” shall mean all non-Trade Secret (as hereinafter defined) information of, about or related to the disclosing party or provided to the disclosing party by its customers that are not known generally to the public or the disclosing party’s competitors. The term “Trade Secret” shall have the meaning set forth under applicable law. No Trade Secret shall be used or disclosed, directly or indirectly, by the receiving party. No Confidential Information shall be used, directly or indirectly, by the receiving party for any purpose other than in accordance with these Terms and Conditions. No Confidential Information shall be disclosed to any person other than the receiving party’s employees or authorized representatives who have a need to know such Confidential Information to provide the Products and the Services and who are subject to a non-disclosure obligation comparable in scope to this Paragraph 5(c). The receiving party shall be responsible for any breach by its employees and/or representatives of the non-disclosure obligations hereunder. Nothing herein shall be construed to limit or supersede any statutory or other protection of Trade Secrets. Confidential Information will not include, and the obligations set forth herein shall not apply to, any information which: (i) is, or becomes, generally available to the public without breach hereof; (ii) becomes available to the receiving party in good faith from a third party who discloses such information without violating any obligation of confidentiality or secrecy relating to the information disclosed; or (iii) is independently developed by the receiving party without use of any Confidential Information. Nothing herein will be construed to prohibit Company’s use, for any purpose, of statistical information or data obtained during the provision of the Products and the Services, as long as such statistical information or data are not identifiably relating solely to Customer.
(d) Injunctive Relief. Each party agrees that money damages may not be an adequate remedy in the event of any breach by it, its employees and/or representatives of the provisions of Paragraph 5 hereof, and that the other party shall be entitled to seek equitable relief, including injunction and specific performance, in addition to all other remedies available to such other party at law or in equity or hereunder.
(a) Termination Upon Material Breach. Except as provided in Paragraph 6(b), below, and subject to Paragraph 6(d), below, in the event of a material breach of these Terms and Conditions, the non-breaching party may terminate the Services without further liability to the non-breaching party (other than to make payments hereunder) upon at least thirty (30) days’ prior written notice of termination to the other party (said notice to be given within thirty (30) days of the first instance of such material breach otherwise all instances of such material breach shall be deemed waived by the non-breaching party, and to describe, with as much particularity as possible, the alleged material breach); provided, however, that upon cure of the alleged breach within thirty (30) days from the date of notice, the non-breaching party’s right of termination for the breach alleged will expire and its notice of termination will be null and void. In the event that a cure requires more than thirty (30) days to complete, it will be deemed sufficient if the party against whom breach is alleged promptly and diligently pursues a cure and immediately gives written notice to the non-breaching party of the cure being implemented and the expected date by which the cure will be complete; provided, however, that unless the notice of termination is waived in writing by the non-breaching party, an alleged breach must be cured within one-hundred twenty (120) days from the date of the original notice of breach or the Services shall terminate.
(b) Failure to Make Payment. Subject to Paragraph 6(d), below, if Customer fails to pay any of the amounts when due Company, Company, in its sole discretion, without liability to Company, immediately may terminate the Services or suspend performance of the Services until all past-due amounts and interest accrued thereon have been paid to Company. Following receipt by Company of all past-due amounts and interest accrued thereon, Company will have a reasonable period in which to determine whether to reinstate performance of the Services. In the event Company determines not to reinstate performance of the Services, Company shall bear no liability to Customer whatsoever.
(c) Upon Insolvency. Notwithstanding Paragraph 6(b), above, and subject to Paragraph 6(d), below, either party may terminate the Services without further liability, immediately upon written notice to the other party in the event the other party: (i) becomes insolvent or takes or fails to take any action which constitutes an admission of inability to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, files a petition in bankruptcy, petition or applies to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial portion of its assets, (iii) commences any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect, (iv) has filed against it any such petition or application in which an order for relief is entered or which remains undismissed for a period of sixty (60) days or more, or (v) indicates its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of custodian, receiver or trustee for itself or a substantial portion of its assets, or suffers any such custodianship, receivership or trusteeship to continue undischarged for a period of sixty (60) days or more.
(d) Consequences of Termination. Upon termination of the Services, for any reason, Customer shall pay Company for all Products and Services provided by Company. Notwithstanding anything to the contrary contained herein, either party’s right to terminate the Services is in addition to, and not exclusive of, all other remedies available to such party at law or in equity.
7. Indemnification; Limited Warranty; Disclaimer and Limitation of Liability
(a) Indemnity. To the fullest extent permitted by law, and subject to the limitations provided in Paragraph 7(d), below, each party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party, its affiliates and their officers, employees, agents and representatives (the “Indemnified Party”) from and against any and all losses, liabilities, claims, suits, judgments, damages, costs and expenses, including reasonable attorneys’ fees and costs associated therewith, which may accrue against, be charged to, incurred by, or be recoverable from, the Indemnified Party relating to, arising out of, or resulting from any negligence of the Indemnifying Party, its officers, employees, agents, representatives and invitees. Prompt notice in writing of any claim made or suit initiated for which indemnification may be sought under this Paragraph 7(a) must be given by the party seeking indemnification to the Indemnifying Party. The Indemnifying Party will have the right to participate in the defense and settlement of every such claim or suit to the extent of its own interest.
(b) Limited Warranty. Company warrants that: (i) the Products delivered shall meet the specifications therefor as required by applicable law or regulation; and (ii) title to the Products delivered is free and clear of all security interests, liens, claims, charges or encumbrances. In the event of any alleged breach of this limited warranty, Customer shall notify Company in writing within fifteen (15) days of transfer of title of the Product, and any claim shall be deemed waived by Customer if not made in writing within such fifteen (15) days. Title transfers when the Product passes out of the nozzle of the Company’s (or its subcontractors’) delivery vehicle or equipment. Notwithstanding anything contained in these Terms and Conditions to the contrary, the sole and exclusive remedy of Customer under this limited warranty shall be replacement of the Products without charge to Customer. This limited warranty shall be void and unenforceable, and Company shall have no obligation to Customer under this limited warranty, in the event Customer: (i) uses, combines or comingles the Products with other products; or (ii) fails to comply with all applicable federal, state and local laws, ordinances, rules and regulations regarding the use, transport, dispense, storage and handling, as applicable, of the Products.
(c) Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND CUSTOMER AGREE THAT THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 7(b), ABOVE, IS THE EXCLUSIVE WARRANTY GIVEN BY COMPANY AND COMPANY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL IMPLIED WARRANTIES FOR THE PRODUCTS AND THE SERVICES SOLD, DELIVERED OR USED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR INTENDED USE OR FOR A PARTICULAR PURPOSE. NO REPRESENTATION, WARRANTY OR OTHER AFFIRMATION OF FACT, WHETHER MADE BY COMPANY OR OTHERWISE WILL BE DEEMED TO BE A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF COMPANY. EACH PARTY ALSO WAIVES ANY LIABILITY OF THE OTHER PARTY IN NEGLIGENCE, TORT AND STRICT LIABILITY ARISING FROM ANY ACT OR OMISSION OF THE OTHER PARTY IN THE PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS AND CONDITIONS, EXCEPT AND TO THE EXTENT THAT SUCH LIABILITY IS EXPRESSLY PROVIDED FOR HEREIN.
(d) Limitation of Damages. A PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUES, LOST PROFITS OR LOST PROSPECTIVE ECONOMIC ADVANTAGE ARISING FROM ANY ACT OR OMISSION IN PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS AND CONDITIONS, EVEN IF THE PARTY AT FAULT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF, AND EACH PARTY HEREBY RELEASES AND WAIVES ANY CLAIM AGAINST THE OTHER PARTY REGARDING SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S LIABILITY IN CONNECTION WITH THE PRODUCTS AND THE SERVICES PROVIDED HEREUNDER EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO COMPANY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST DATE ON WHICH THE CIRCUMSTANCES RESULTING IN DAMAGES OCCURRED.
8. Force Majeure. Except for any obligation to make payments hereunder, each party will be excused from performing its obligations hereunder to the extent that such failure is caused by a strike, labor dispute, riot, rebellion, insurrection, invasion, war, action or interference of government, regulatory, administrative or judicial authorities, acts of God or any other cause (whether similar or dissimilar to the foregoing) which is beyond the control of such party. The party which is unable to perform its obligations hereunder will use commercially reasonable efforts to remove such cause of non-performance; upon removal thereof, such party will resume within a reasonable period the performance of its obligations hereunder. In the event Company experiences reductions in the supply of the Products, Company may reduce the volume of the Product to be provided without breach of its obligations hereunder or liability to Customer.
9. Independent Contractor. The relationship between Company and Customer will be that of independent contractors for all purposes, and in no event shall persons employed by either party be held or construed to be employees of the other. Each of Company and Customer will be solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including, withholding of appropriate payroll taxes), workers compensation, disability benefits and the like.
10. Subcontractors. Company may engage subcontractors to provide, in whole or in part, any of the Products or the Services hereunder.
11. Entire Agreement. These Terms and Conditions constitute the entire agreement between Company and Customer concerning the subject matter hereof and supersedes all prior communications, representations, warranties and covenants (whether oral or written) between Company and Customer concerning the subject matter hereof. None of these Terms and Conditions may be added to, modified, superseded or otherwise altered except by a written agreement signed by authorized signatories of Company and Customer. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ANY TERMS AND CONDITIONS APPEARING ON ANY AGREEMENT, DOCUMENT OR INSTRUMENT OF CUSTOMER, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE ORDER, ACKNOWLEDGMENT OR WEBSITE OF CUSTOMER, ARE REJECTED IN THEIR ENTIRETY BY COMPANY AND CUSTOMER AND SHALL HAVE NO EFFECT ON THESE TERMS AND CONDITIONS.
12. Miscellaneous. The provisions of these Terms and Conditions concerning warranties, indemnities, proprietary rights, confidentiality, governing law and jurisdiction shall remain in effect after the expiration or termination of Services. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, heirs, successors and assigns. Customer may not assign or otherwise transfer its rights, interests or obligations under these Terms and Conditions without the prior written consent of Company (which consent may be withheld in Company’s reasonable discretion). Except as otherwise provided for hereunder, no waiver of any term, provision or condition of these Terms and Conditions whether by conduct or otherwise, in any one or more instances, shall be construed as a further or continuing waiver of any such term, provision or condition. Company and Customer agree that, if any provision of these Terms and Conditions shall, under any circumstances, be deemed invalid or inoperative, these Terms and Conditions shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of Company and Customer shall be construed and enforced accordingly.
13. Governing Law; Jurisdiction. THESE TERMS AND CONDITIONS AND THE PROVISION OF THE PRODUCTS AND PERFORMANCE OF THE SERVICES AND ALL DISPUTES ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. EACH OF COMPANY AND CUSTOMER CONSENTS TO THE EXCLUSIVE JURISDICTION OF FEDERAL AND STATE COURTS LOCATED IN THE STATE OF WISCONSIN, COUNTY OF MILWAUKEE, IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.