SCHEDULE 1.1
PROPANE JOBBER QUALIFICATION TERMS AND CONDITIONS
These General Terms and Conditions (“Terms and Conditions”) apply to govern all transactions made by and between _________________ (collectively, “Jobber”), and the Sunbelt Rentals, Inc. (“Sunbelt”) that places any order with Jobber for the delivery of propane products hereunder.
1. PURCHASE/SUPPLY REQUIREMENTS. Except as otherwise set forth in writing, Jobber has no obligation to sell any Product to Sunbelt and Sunbelt has no obligation to purchase any Product from Jobber at any time.
2. SALE OF FUEL PRODUCTS. “Propane Products”, “Fuel Products”, and/or “Fuel” shall refer to propane meeting applicable ASTM specifications of the respective jurisdictions where any such Product shall be supplied. All Fuel sales shall be for delivery and usage at or about Purchaser’s locations.
3. DELIVERY. Sunbelt shall provide Jobber with adequate ingress to and egress from Sunbelt’s location(s). The parties shall mutually agree in advance to a delivery time frame or schedule. All deliveries shall be made by a common carrier selected by Jobber. Jobber has no obligation, at any time, to deliver Fuel in less than twenty-four (24) hours after receiving Sunbelt’s order.
4. OWNERSHIP AND WARRANTY OF FUEL PRODUCTS. Sunbelt shall take control, possession, and ownership of all Products at the time of delivery to Sunbelt’s designated delivery location or into Sunbelt’s Fuel Storage Tank(s) (as hereinafter defined), as applicable per the agreement between Sunbelt and Jobber. Jobber warrants that all Fuel Products will meet applicable ASTM specifications at the time of delivery. Sunbelt shall have five (5) days from the date of delivery to notify Jobber of non-conforming Product; thereafter, the Products are deemed accepted.
5. PURCHASE PRICE. The price of Fuel Products shall be charged to Sunbelt as a per gallon price in accordance with the applicable pricing agreement/arrangement between Jobber and Sunbelt. Sunbelt shall also pay freight costs, applicable taxes, regulatory charges, and other assessorial fees, which shall be added as separate line items to Sunbelt’s invoice. [SE1]
6. PAYMENT FOR PETROLEUM PRODUCTS. Jobber will invoice Sunbelt for its Fuel purchase upon delivery. Jobber will submit such invoices to Sunbelt within ten (10) days of the applicable delivery, and Sunbelt is responsible to make full payment of all undisputed invoiced amounts to Jobber via EFT and/or ACH within ten (10) days from delivery date. Should any of Sunbelt’s subsidiaries/affiliates receive goods and/or services under the terms hereof and fail to timely pay any invoices when due, Jobber has the right to demand payment directly from Sunbelt, and Sunbelt is responsible to pay to Jobber the full amount of any unpaid invoice on behalf of its subsidiaries/affiliates. If Sunbelt fails to make any and all undisputed payments when due, Jobber is authorized to stop and/or suspend all Fuel deliveries until such time as Sunbelt pays all outstanding invoices, and thereafter has the right to demand advance cash payment for future Fuel deliveries. All Fuel shall be billed on gross or net gallons in accordance with the prevailing practice in the jurisdiction where such Fuel is sold.
7. LEAK DETECTION. Jobber is not the owner/operator of, nor has any ownership interest, right, or responsibility whatsoever regarding any of the motor fuel storage tanks, pipes, pumps, and other related equipment (the “Fuel Storage Tanks”) into which Jobber is to place the Fuel Product acquired by Sunbelt hereunder. Sunbelt warrants that, for so long as Jobber is delivering into the Fuel Storage Tanks, such tanks are and will be in good condition, free of leaks, possess proper caps, lids, valves, alarms, and other equipment as required by law, and otherwise be in compliance with all applicable rules and regulations. Sunbelt acknowledges that the leakage of Fuel Product from the Fuel Storage Tanks, except to the extent caused by the negligence of Jobber or its agents or subcontractors, is a matter that is solely the responsibility of Sunbelt. Sunbelt agrees that should any leaks be detected, Sunbelt will promptly notify Jobber to ensure that no further Petroleum Product will be deposited into such Fuel Storage Tanks until such leaks are properly repaired.
8. INSURANCE. Jobber shall be obligated to maintain at its expense the below listed insurance policies with at least the below listed coverages. All of the below listed insurance, except that prescribed in sub-paragraph (a), shall include Sunbelt as additional insured , on a primary non-contributory basis. Prior to providing any services hereunder, Jobber shall furnish Purchaser insurance certificates and/or certified copies of the original policies to evidence compliance with this Section 5. Jobber may show any of the required coverages with any combination of excess and primary policies. (a) Workers compensation and occupational disease insurance which fully complies with applicable law; (b) Comprehensive automobile liability insurance including an MCS 90 endorsement with a minimum combined single limit of $2,000,000 each accident for bodily injury and property damage or such higher limit(s) as may from time to time be required by applicable Federal or State laws and regulations; (c) Comprehensive general liability insurance, including contractual liability insurance covering indemnification under this Agreement, with a minimum combined single limit of $2,000,000 for each occurrence. (d) Environmental/Pollution Liability insurance with a minimum of $2,000,000 for each occurrence shall include coverage for any loss, damage, fine, cost or expense, including attorney’s fees, for any spillage, pollution contamination, environmental clean-up, or other mishap directly or indirectly arising from the Services. Upon request, Jobber shall furnish to Sunbelt written certificates obtained from the insurance carrier showing that such insurance has been procured, is being properly maintained, the expiration date, and specifying that written notice of cancellation or modification of the policies shall be given to Sunbelt at least thirty (30) days prior to such cancellation or modification.
9. INDEMNIFICATION. A. Sunbelt agrees to defend and indemnify Jobber (and its officers, directors, employees, successors and assigns) against all claims, suits, liabilities, fines, penalties, assessments, losses and expenses (including attorney’s fees and expenses of litigation) arising out of Sunbelt’s or its subsidiaries’/affiliates’: (i) negligence, non-performance or breach of its obligations, representations or warranties herein; (ii) use, sale, storage, handling, leakage or spillage of the Fuel; and (iii) operation of their business or businesses wherever located; except to the extent of Jobber’s indemnification obligations as set forth below or caused by the negligence or willful misconduct of Jobber. B. Jobber agrees to defend and indemnify Sunbelt (and its officers, directors, employees, successors and assigns) against all claims, suits, liabilities, fines, penalties, assessments, losses and expenses (including attorney’s fees and expenses or litigation) arising out of Jobber’s: (i) negligence, non-performance or breach of its obligations, representations or warranties herein; (ii) negligent delivery of Fuel; and (iii) delivery of Fuel which fails to meet applicable ASTM specifications of any such Fuel in the jurisdiction where such Product is delivered; except to the extent of Sunbelt’s indemnification obligations as set forth above or caused by the negligence or willful misconduct of Purchaser. C. This provision shall survive any expiration or termination of this Agreement.
10. FORCE MAJEURE. Any delay in performance or failure to perform by either Jobber or Sunbelt (other than to make payments when due) shall not constitute a breach or default hereunder, or give rise to any claims for damages hereunder, if such delay or failure is caused by circumstances or events beyond the reasonable control of the affected party (or in the case of Jobber, circumstances or events affecting a supplier), including but not limited to, acts of God such as floods, fires, explosions, extreme heat or cold, earthquake, hurricane, or storm; strikes, lockouts or other industrial disturbances; wars, acts of terrorism or sabotage; accident or breakage of equipment or machinery; interruption, loss, or shortage of transportation facilities, supplies, or refinery capacity, or shortage of supply of Product deliverable hereunder; or any law, rules, order or action of any court or instrumentality of the federal or any state government (the “Force Majeure Event”). Any suspension of performance pursuant to this section shall commence upon notice of any such Force Majeure Event and shall continue until the affected party is able to again perform its obligations hereunder. Neither Sunbelt nor Jobber shall be required to make up performance omitted on account of a Force Majeure Event (other than payments properly due and owing for delivered Product).
11. LIMITATION OF LIABILITY. In no event shall either party be liable to the other party for any loss of profits, revenue, use, opportunity, goodwill, governmental or regulatory sanctions, or for any consequential, special, indirect, or punitive damages. The total cumulative liability of either party (including its affiliates) to the other party for all claims, losses, damages, and expenses arising hereunder shall not be greater than the total value of compensation received under the applicable purchase order; provided, however, that this limitation does not apply to claims arising from gross negligence, willful misconduct, third-party indemnity obligations for bodily injury (including death), and damage to property.
12. COMPLIANCE WITH LAW. Jobber represents and warrants that it is duly and legally qualified in accordance with all federal, state, provincial, territorial, and local laws, statutes, regulations, rules, and ordinances (collectively, “Applicable Law”) to provide the services contemplated herein. Jobber further agrees to comply with all Applicable Law in the performance of its services under this Agreement.
12. GOVERNING LAW. This Agreement shall be controlled by the laws of the State of North Carolina and all disputes shall be submitted to a court of proper jurisdiction in the State of North Carolina. In the event of a dispute, the substantially prevailing party shall be entitled to recover from the non-prevailing party its costs and attorneys’ fees incurred in connection with such dispute.
13. ENTIRE AGREEMENT. These Terms and Conditions constitute the entire agreement between the parties, and supersede all prior communications, agreements, and understandings of the parties with respect to the subject of these Terms and Conditions. No modifications hereof shall be effective unless set forth in writing and signed the Parties.