These terms and conditions apply to the sales of Products and are referred to below as the ‘Agreement’, and the term ‘Products’ refers to the chemical products sold by ALTIVIA Petrochemicals, LLC  ALTIVIA Ketones and Additives LLC, ALTIVIA Specialty Chemicals LLC, or ALTIVIA Oxides LLC  (‘Seller” or “ALTIVIA”).

1. Payment. Payment terms are subject to change by Seller at any time at the discretion of Sellers Credit Department, in the event that Buyer’s credit rating is changed, or Buyer fails to make timely payments. In the event that Seller does not receive payment when due, it shall impose a late payment charge not to exceed the maximum amount allowed by law. If account is placed for collection or suit filed thereon, Seller will be entitled to attorney fees and court costs. PAYMENTS TENDERED IN FULL SETTLEMENT OF A DISPUTED AMOUNT MUT BE CLEARLY LABELED AS SUCH AND SENT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO: COMMERCIAL CREDIT MANAGER, ALTIVIA 1100 LOUISIANA, SUITE 4800, HOUSTON TEXAS 77002.  Seller may set off amounts owed by Buyer to Seller or its subsidiaries or affiliates against amounts owed by it to Buyer.
2. Taxes. Buyer will pay, and indemnify Seller for, all taxes, fees, duties, environmental levies, and other charges (whether imposed on manufacture, processing, use, purchase, sale, resale, delivery, receipt, title transfer, inspection, removal from storage, measurement or passage through a measurement device, receipt of payment, or other activity, and regardless of when imposed) relating to Products, or their raw materials or feedstock’s. The sole exception to this obligation are taxes based on Seller’s net income or worth.
3. Delivery. All sales shall be FOB the ALTIVIA facility from which the Products are being shipped from (“Ship From”). Title and risk of loss shall pass to Buyer at the “Ship From” location. Seller shall allow for standard demurrage (the time including weekend and holidays that Product is held at destination) for unloading of Product. Demurrage shall be the period of time (a) starting the day/hour the loaded container is placed at destination; and (b) ending on the day/hour the empty container is released by Buyer.  Any Demurrage (detention periods) exceeding the Demurrage allowance shall be billed to Buyer at the rates set forth herein.

Demurrage Allowances and Charges:

Equipment Type	Demurrage Allowance	Detention Charges
Barges	8.0 Hours	$75/Hour
Railcars	7 days	$150/day for 30 days, $1,000/day after 30 days
Trucks	2.5 Hours	At Carrier’s rate
Iso-Tanks	2 days	At Carrier’s rate

In the event that Buyer prior to releasing the container to common carriers or Seller, fails to remove all or any portion of Product from the container, there shall be no credit for the Product remaining in the container, and Buyer shall be billed and pay for any additional transportation and disposal charges associated with this remaining Product.

4. Quantity and Inspection. Shipped quantities shall be determined based on certified scale weight tickets unless shipment is for a barge or vessel which quantity will be based on third party surveys conducted at Seller’s dock. For avoidance of doubt, any quality testing by Buyer on parameters not warranted by Seller will not relieve Buyer of its obligation to perform pursuant to this Agreement. ALTIVIA will attempt to fill orders to plus or minus 5% of the agreed upon purchase order volume unless otherwise required to meet safety or transportation requirements. 
5. Compliance with Laws. Buyer, its agents, and its carriers shall comply with all laws, regulations, and standards applicable to the sale, delivery, (including loading, unloading, and/or transloading), transportation, storage, use, and disposition of Products.
6. 6. Safety and Health. Safety Data Sheets (SDS) for Products are available at the following Internet address: http://www.ALTIVIA.com. Buyer acknowledges receipt of SDS and other information about the safety and health aspects of Products, shall communicate this information to its employees, agents, carriers and customers, and shall require them to further communicate this information in a like manner. Seller reserves the right to review and inspect all safety, unloading. transloading, and containment procedures and facilities at any location where Product is being delivered. This shall also include, but not be limited to, the review of insurance of the Buyer or location where the Product is unloaded, transloaded, or stored. If the facilities are not in compliance with generally accepted industrial safety standards, Seller’s vetting program and/or applicable laws, Seller reserves the right to delay deliveries of Product to Buyer unless and until Buyer addresses any safety deficiencies identified during such inspection to Seller’s satisfaction. Such delay will not be a breach of contract.
7. Warranties. Seller warrants good title to all Products supplied hereunder at the time of delivery to Buyer and that each Product supplied hereunder will comply with the applicable Seller or attached specifications in effect at the time and place title thereto passes to Buyer. ALTIVIA DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE PERFORMANCE OR QUALITY OF PRODUCTS SUPPLIED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR BUYER’S PARTICULAR OR INTENDED PURPOSES OR USAGE. Seller will at its option and its cost (including expense of return and re-delivery), remedy the defect in, replace, or refund the purchase price of, any Product that fails to meet this warranty. THIS IS BUYER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
8. Claims. All claims must be in writing, including Product quality and quantity claims and must be delivered to Seller within 30 days after delivery of the Product. Buyer shall preserve, and permit Seller to inspect and sample of the subject Product. ANY CLAIM AGAINST SELLER WHICH INVOLVES THE AGREEMENT, OR THE SALE OF PRODUCTS MUST BE BROUGHT WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
9. Limitation of Liability. IN NO EVENT SHALL BUYER OR SELLER’S LIABILITY FOR DAMAGES (WHETHER ARISING FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED THE PURCHASE PRICE OF THE PRODUCT CONCERNED NOR SHALL BUYER OR SELLER BE LIABLE FOR PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Changes to Terms. Seller may change price , credit terms and/or transportation terms by giving Buyer at least fifteen (15) days’ prior notice. These changes will be deemed accepted unless Customer objects in writing within fifteen (15) days of the date of Seller’s notice of change.  Seller shall advise Buyer within fifteen (15) days from receipt of timely written objection from Customer whether Seller shall:
11. a) continue to supply Product on terms and conditions in effect prior to the announced change;
12. b) enter into negotiations with Buyer; or
13. c) cancel the order
14. Force Majeure and Allocation. Seller shall not be liable to the Buyer for any delay or failure in performance to the extent that it is caused by circumstances beyond its reasonable control, or by fire; explosion; flood; earthquake; storm; pandemic; act of God; mechanical breakdown; sabotage or vandalism; strike or other labor disturbance (Buyer or Seller shall not be required to settle a labor dispute or take an action that might involve it in a labor dispute); shortages of, or delays in obtaining, feedstock’s, raw materials or finished products, equipment, labor, transportation, or storage; interruption of utility services; or compliance with any law, regulation or order (regardless of validity) of any governmental or military authority. Further, if Seller at any time during a force majeure event decides that its Product supply is insufficient to meet the actual or forecasted needs of Seller, its divisions and subsidiaries, and its and their customers (whether under contract or not), Seller may allocate its supply among all of them in any fair and reasonable manner determined by Seller. Written notice of a force majeure event must be provided as outlined in Section 21(F). In the event that Seller is under Force Majeure for a period of sixty (60) days or more, Buyer shall have the option to immediately terminate the applicable product from this Agreement.
15. Turnarounds, Shutdowns, and Scheduled Maintenance. Seller shall be excused from any failure or delay in performance hereunder resulting from a facility or plant turnaround, or planned shutdown or scheduled maintenance to plants’ units which either produce or affect the production of Product (collectively, a “shutdown”).
16. 13. Indemnity. Buyer shall Indemnify and defend Seller and its employees and agents against any loss, claim, liability (actual or alleged), fine, penalty or expense (Including court costs, attorney fees, and litigation expenses), of any kind (including those based in tort, warranty, or strict liability), arising out of, or in connection with: (i) the performance of this Agreement; (ii) any failure of Buyer, its employees, workmen, agents, servants, contractors, to comply with the terms and conditions of this Agreement; or (iii) any act or failure to act in the handling, loading, unloading, transloading, storage, transportation, resale, or other use, by Buyer or others, of a Product sold under this Agreement. The only exception to this obligation is when Seller’s willful negligence or intentional misconduct is determined by a court to be the sole cause of the damage.  In responding to any third-party claims, Seller may select an attorney and may enter into any settlement without affecting this obligation.
17. Default. In the event that either party shall fail to perform any of its obligations hereunder in accordance with the terms and conditions of this Agreement, and if the defaulting party does not remedy such failure within thirty (30) days after written notice thereof has been given by the non-defaulting party to the defaulting party, or fails to proceed diligently to remedy such failure then this Agreement and all provisions hereof may be terminated by the non-defaulting party upon ten (10) days written notice to the defaulting party; provided, however, that any such termination by the non-defaulting party shall be in addition to and not in lieu of any other legal or equitable remedy which may be available to it because of any failure of the defaulting party.
18. Marine Provisions. This paragraph 15 shall only apply for barge or vessel shipments.
19. Definitions. For purposes of this paragraph 15, the following definitions shall apply: “All Fast” means that the Vessel is safely secured to the dock and, If applicable, the gangway is down and secured. “Laydays” means the window for the Vessel to tender a valid notice of readiness (“NOR”) to the Terminal. “Laytime” means the time allowed to provide adequate berth and to prepare for discharging plus the time allowed for discharging day or night, Saturdays, Sundays and holidays, included. “Terminal” means the terminal, facility port, or other facility where Buyer is taking delivery of the Products. “Vessel” means any barge, tugboat, or tow. “Seller” means ALTIVIA, and includes any third party arranged or contracted on its behalf to make delivery of Product to Buyer at the Terminal. “Buyer” means the buyer identified in the Agreement and includes any third party arranged or contracted on its behalf to accept delivery of Product at the Terminal. “Vessel Party” means the party making delivery from a Vessel.

 

1. Barge Quantity and Inspection. Quantities shall be determined for Barges based on third party marine surveys or Sellers tank strappings; Quantities may be temperature-adjusted to 60°F, at Seller’s option, using built in temperature compensators or ASTM tables. Buyer may request that Product quantity and quality be determined by a jointly-selected, licensed inspector whose findings shall be conclusive, and inspection costs shall be paid by Buyer. For avoidance of doubt, any quality testing by Buyer on parameters not warranted by Seller will not relieve Buyer of its obligation to perform pursuant to this Agreement. Seller quantity shall prevail in the event discrepancies are one percent (1.0%) or less of Seller invoiced quantity. In the event that discrepancies of invoiced quantity with Buyer’s third-party barge survey differs by more than one percent (1.0%), the simple average of (i) Seller’s invoiced quantity; and (ii) Buyer’s third-party barge survey; shall be used for settlement purposes.  For purposes of quantity discrepancy settlement, only Seller’s tank strappings and/or third-party barge surveys shall be used, the absence of which shall make Seller’s quantity binding for invoicing purposes.
2. Notice. Seller must confirm the shipment date upon receipt of any purchase order and shall confirm shipment within two (2) days of the actual departure of the Vessel. Seller shall notify the Terminal at least twenty-four (24) hours in advance of the Vessel’s estimated time of arrival at the Terminal. Any delays due to the Seller’s failure to notify the Terminal as stated above shall not count as used Laytime or as time on demurrage.
3. Safe Berth. Buyer shall exercise due diligence to provide a safe berth to which the Vessel may proceed to and depart from_, and where the Vessel can always lie safely afloat. Buyer shall provide a berth for the Vessel free of all wharfage and dockage charges.

 

1. Laytime and Demurrage. Allowed Laytime for discharging at the Terminal shall commence when used Laytime commences. In the case of barge tows, Buyer shall have as allowed Laytime of 8 all-purpose hours unless otherwise agreed by the parties. Buyer shall have the right to shift a Vessel at the port of discharge from one safe berth to another, provided Buyer pays all expenses incurred in shifting the Vessel and time consumed on account of such shifting counts as used Laytime. Shifting Vessels from fleet or anchorage to safe berth is not to count as used Laytime. Laytime shall cease upon release from the Terminal and/or cargo inspector; absence which then upon disconnection of hoses.

All demurrage for any excess of used Laytime over allowed Laytime incurred at the Terminal shall be at the sole cost and expense of Buyer, unless due solely to the fault of Seller. Undisputed claims will be due to Seller no later than Fifteen (15) calendar days from receipt of invoice and supporting documents. Demurrage charges shall be presumed to be valid if not disputed in writing by Buyer within five (5) calendar days from receipt of invoice and supporting documentation.

1. Pumping and Hoses. Hoses between the Vessel and the shore flanges shall be furnished by Buyer or caused to be furnished by Buyer and shall be connected and disconnected at Buyer’s risk and expense. Flanges for hose connections should be at or near the Vessel’s dock side rail.
2. Security. (1) The Terminal shall comply with the requirements of the ISPS Code and if applicable, the Maritime Transportation Security Act 2002 and any implementing regulations (“MTSA”). (2) Any costs or expenses in respect of the Vessel including used Laytime, demurrage, or any additional charge, fee or duty levied on the Vessel at the Terminal and actually incurred by Seller resulting directly from the failure of the Terminal to comply with the MTSA shall be for the account of the Buyer, including but not limited to the time required or costs incurred by the Vessel in taking any action or any special or additional security measure required by the MTSA. (3) Except where the Vessel has failed to comply with the requirements of the MTSA, the Buyer shall be responsible for the cost of any demurrage actually incurred by Seller arising from delay to the Vessel at the Terminal resulting directly from the Vessel being required by the Terminal or any relevant authority to take any action or any special or additional security measures or undergo additional inspections by virtue of the Vessel’s previous ports of call.
3. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Houston, Texas before a sole arbitrator to be a retired judge. The arbitration shall be administered by JAMS (Judicial Arbitration and Mediation Services) pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
4. Confidentiality. The parties acknowledge that the terms and conditions of this Agreement are confidential, and Seller could incur substantial damage if such terms and conditions were disclosed to third parties. Accordingly, Buyer agrees to hold in strictest confidence the terms and conditions of this Agreement, including any modification or amendment of this Agreement.  Buyer shall not, without the prior written authorization of Seller, disclose to any third party such terms or conditions, save to employees or agents in connection with Buyer’s performance of this Agreement, and only if such employees and agents are advised of the confidential nature of such information and agree to be bound by this provision as if they were parties hereto (it being understood and agreed that Buyer shall nonetheless be liable for any breach of confidentiality by any such employee or agent).  In the event that Buyer receives a subpoena or other judicial or other governmental order requiring it to disclose the terms and conditions of this Agreement, it shall promptly so notify Seller so that Seller may seek an appropriate protective order, and shall cooperate with Seller, at Seller’s expense, in seeking such a protective order. This confidentiality provision shall survive the termination of the Agreement for a period of 24 months.

 

18. Lead Time. Seller requests a minimum 30 days of lead time prior to the shipment of a requested order and Buyer agrees to use their best efforts to comply. In the event that the Buyer is not able to provide the appropriate lead time, Seller has the right to charge a rush order fee of $500 and pass along any additional freight charges incurred

 

19. Returns and Cancellations. Seller has the right to charge a cancellation fee of $500 plus any additional fees incurred for cancelling orders with less than 72 hours of lead time. Additionally, if Buyer requests a return of product for commercial reasons and Seller agrees to the return, Buyer agrees to pay all freight charges and a 20% restock fee. Seller will use their best efforts to minimize the costs to the Buyer and will provide details if requested showing the freight expenses incurred.
20. Supplier as a Critical Vendor. Buyer hereby acknowledges and confirms that ALTIVIA’s supply of product under the Agreement is essential and otherwise critical to Buyer’s business. With reference to the foregoing, Buyer hereby covenants and undertakes that in the event that proceedings are initiated that seek to restructure all or any portion of Buyer’s business, including under Chapter 11 of the United States Bankruptcy Code, or similar legislation, Buyer shall timely petition to have ALTIVIA recognized and approved by the applicable court as a “critical vendor” (or in such other equivalent capacity as may be applicable) so as to ensure (among other things), that continued operation of the Agreement and timely payment of all amounts owing thereunder persists during such proceedings.

 

21. General. (A) The sale of Products to Buyer and this Agreement shall be governed by Texas law. (B) Buyer’s obligations in paragraphs 2, 5, 6, 8, 9, 13, 14, 16, 17 and 20 shall survive termination of this Agreement. (C) The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of its remaining provisions. (D) This Agreement, and any rights or duties under it may not be assigned or delegated by Buyer; any attempted assignment or delegation by Buyer will be void. (E) In the event of a sale or transfer of all or substantially all of Buyer’s equity interests or assets, or a controlling interest in either, by merger, acquisition, exchange, joint venture, or other similar transaction, Seller may, in its sole option, immediately terminate this Agreement. (F) No claim or notice under this Agreement to be given to Seller shall be valid unless sent by certified mail return receipt requested, by a national overnight courier service, or transmitted by electronic means to the proper fax, telecopy or other electronic media with confirmation by the recipient, to Seller addressed as follows: Commercial Director, ALTIVIA, 1100 Louisiana, Suite 4800, Houston, Texas 77002, with copy to Contracts@ALTIVIA.com. No claim or notice under this Agreement to be given to Buyer shall be valid unless sent by certified mail return receipt requested, by a national overnight courier service. or be transmitted by electronic means to the proper fax, telecopy or other electronic media with conformation by the recipient, to Buyer addressed to Buyer’s address or to such addresses as may be requested in writing by Buyer in the future. (G) No amendment or modification of this Agreement will be valid unless made in a writing signed by authorized representatives of both parties. Any attempt by either party, through a job order, purchase order, invoice, or other document, to vary any of the terms of this Agreement will be void, unless contained in a contract executed as specified above.  (H) No failure to exercise or election not to exercise any of a party’s rights hereunder will constitute a waiver or modification of such rights or be deemed to be a course of performance or dealing, modifying or waiving the parties’ rights, remedies, duties, obligations or liabilities under this Agreement or any part thereof.   (I) This Agreement is superseded by any signed contracts between the parties with respect to its subject matter.