GENERAL TERMS AND CONDITIONS

Sale of Lubricants General Terms and Conditions.

● Unless otherwise agreed, Sale of Lubricants General Terms and Conditions apply to each and every sale of lubricants products by GS Caltex Corporation.
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GS Caltex Corporation

General Terms and Conditions (Sale of Lubricants) 2017 Edition

SALE OF LUBRICANTS

GENERAL TERMS AND CONDITIONS

BUYER ACKNOWLEDGES AND AGREES THAT THIS SALE OF LUBRICANTS GENERAL TERMS AND CONDITIONS (THE “GENERAL TERMS AND CONDITIONS”) ARE INCORPORATED IN, AND ARE A PART OF, EACH ORDER CONFIRMATION, PROFORMA INVOICE, SPECIFICATION AND OTHER DOCUMENT, WHETHER EXPRESSED IN WRITTEN FORM OR BY ELECTRONIC DATA INTERCHANGE, RELATING TO THE PRODUCTS TO BE PROVIDED BY SELLER PURSUANT TO THE FOREGOING (SUCH DOCUMENTS ARE COLLECTIVELY REFERRED TO AS THE “SALES CONTRACT”). SALE OF ANY PRODUCTS WHICH ARE SUBJECT OF SUCH SALES CONTRACT IS EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE INCORPORATION OF THE GENERAL TERMS AND CONDITIONS INTO THE SALES CONTRACT IN ITS ENTIRETY WITHOUT MODIFICATION. ANY ADDITIONS TO, CHANGES IN, MODIFICATIONS OR REVISIONS OF THE GENERAL TERMS AND CONDITIONS SHALL REQUIRE THE WRITTEN CONSENT OF THE SELLER.

1. DEFINITION

“Business Day” means a day (other than a Saturday, Sunday or public holiday in the Republic of Korea) when banks in Seoul are open for business; “Buyer” means a party purchasing the Products (defined below) under this Agreement (defined below); “GS Oil Brands” means any mark including, but not limited to symbols, logos, or designs, that consists of “GS”, “GS Oil”, “Kixx” and/or as well as all trademarks that the Seller (defined below) owns or has rights to use; “Order Confirmation” means the Seller’s written acceptance and confirmation of the Buyer’s order for the Products in the form of the Seller’s offer sheet or the proforma invoice which, together with these General Terms and Conditions, constitutes a full and final agreement effective from the date of the Order Confirmation signed by the parties; “Product” or “Products” means the lubricants products sold by the Seller under this Agreement; and “Seller” means GS Caltex Corporation.

2. PRICE

Unless otherwise agreed by the parties, the price of the Product will be the most recent price of the Seller for the Product applicable at the date and time of issuance of the Order Confirmation. Any change to the Product specifications, whether agreed by the parties or mandated by law or regulation, shall warrant a corresponding change in the pricing as the case may be. In addition to the price so calculated, the Buyer shall pay taxes, duties and fees, if any.

3. PAYMENT

3.1 Unless otherwise agreed by the parties, all payments by the Buyer shall be due in United States Dollars in accordance with the Seller’s invoices, in full without discount, withholding, set-off, counterclaim or deduction.

3.2 Payment shall be deemed to have been made on the date the payment is credited to the Seller’s bank account as set out in the Seller’s invoice. If the due date does not fall on a Business Day, the Buyer shall pay on or before the nearest Business Day prior to the due date. The Seller reserves the right to charge interest, on a daily basis, on any amounts not paid by the due date appearing on the Seller’s invoice from the day following the due date appearing on the Seller’s invoice. Such interest is in addition to any other rights of the Seller arising out of or in connection with such delay.

3.3 In the event of any non-payment, the Seller reserves the right to pursue such legal remedies as may be available to it to recover the amount owed.

4. CREDIT

4.1 If the Products are supplied on credit and if the financial condition of the Buyer, in the opinion of the Seller, is impaired or unsatisfactory, the Seller may demand, and the Buyer shall provide within three (3) Business Days:

(a) Payment at any time before the date due for payment whether before or after the delivery of the Product;

(b) such security as the Seller may specify; or

(c) an irrevocable standby letter of credit or bank guarantee acceptable to the Seller.(collectively the “Security”).

4.2 If the Buyer fails to provide the Security pursuant to the Article 4.1 above, the Seller shall be entitled to suspend any pending deliveries or terminate the Agreement in addition to any other remedy.

4.3 In the event of such suspension or termination, the Seller shall not be liable to the Buyer for, and the Buyer shall indemnify and hold harmless the Seller from and against any claim, loss, cost and expense, damage, liability of any kind whatsoever whether direct or indirect arising out of or in connection with such suspension or termination pursuant to this Article 4.

5. DELIVERY, TITLE AND RISK

5.1 Unless otherwise agreed by the parties, delivery of the Products shall be deemed to be complete and title to and risk in the Products shall pass from the Seller to the Buyer upon delivery in accordance with the relevant Incoterms 2010 agreed between the parties and as specified in the Order Confirmation.

5.2 If the Seller pays freight, the selection of carrier and routing of shipments shall be at the Seller’s option.

5.3 The Seller will not accept any liability whatsoever for the adherence to a time limit, unless the Seller makes an express, written commitment to the Buyer regarding date of arrival at the destination port. The Seller assumes no liability whatsoever for delays in delivery caused by upstream suppliers or transport agents beyond its reasonable control.

6. QUALITY

6.1 Unless otherwise agreed by the parties, the Seller warrants that the Products to be delivered under this Agreement shall, at the time of delivery, conform to the agreed specifications.

6.2 The Buyer shall be solely responsible for the selection and use of the Products. The Seller makes no warranties of quality, merchantability or fitness for any purpose, and any implied warranties or conditions whether statutory or otherwise are expressly excluded.

6.3 The quality or specifications of any Product may be changed or altered, or the manufacture of any Product may be discontinued. If such change, alteration or discontinuation affects this Agreement, the Seller will give the Buyer a written notice no later than two (2) weeks prior to the agreed shipment date and the Buyer may terminate this Agreement or elect to purchase other lubricant products on new terms agreed between the parties. In the event of such termination or purchase, the Seller shall not have any liability to the Buyer whatsoever and shall not be considered to be in breach of this Agreement.

7. CLAIMS

Any dispute, complaint or claim based on any deficiency in quality or quantity shall be waived and forever barred unless notified to the Seller in writing within seven (7) days from the date of delivery or, if the deficiency was not apparent on reasonable inspection, within seven (7) days after the discovery of the deficiency, provided, however, any and all claims for deficiency shall be waived and forever barred after one (1) year from the date of delivery.

8. HEALTH, SAFETY AND ENVIRONMENT

8.1 The Buyer agrees to comply with all relevant health, safety and environmental obligations contained in any law applicable in any country where the Products are sold or handled.

8.2 The Seller will make available to the Buyer Material Safety Data Sheet, including warnings and safety and health information concerning the Products sold hereunder. The Buyer agrees to draw the attention of any persons handling or using the Products or having access to the Products to any warnings, information or suggestions referred to in the Material Safety Data Sheet or any relevant information furnished by the Seller or appearing on the label or packaging of the Products. If the Buyer fails to communicate such warnings and information, the Buyer agrees to defend, hold harmless and indemnify the Seller from and against any and all liability arising out of or in connection with such failure.

9. TRADEMARKS

9.1 The Buyer acknowledges and agrees that all rights in GS Oil Brands and the Seller’s business and the goodwill connected with GS Oil Brands shall remain in the Seller, and that the Buyer has and will acquire no right, title or interest in GS Oil Brands or in any of trademarks, trade names, designs, copyrights and other proprietary rights, used on or embodied in Products by virtue of the discharge of its obligations under this Agreement.

9.2 The Buyer shall not, and shall procure that its resellers and agents do not:

(a) Alter or make any addition to the labeling or packaging of the Products displaying GS Oil Brands;

(b) Make any addition or modification to the Products or to any advertising and promotional materials supplied by the Seller; or

(c) Alter, deface or remove in any matter any reference to GS Oil Brands, any reference to the Seller or any other name attached or affixed to the Products or their packaging or labeling.

9.3 The Seller alone is responsible for the registration and maintenance of any marks or designs that relate to the Products. The Buyer shall not obtain or try to obtain or register for itself anywhere in the world any trademarks or trade names the same as or similar to GS Oil Brands.

10. LIABILITY

10.1 Notwithstanding any other provision to the contrary in this Agreement, neither party shall be liable to the other party for any indirect, special or consequential costs, expenses, losses or damages of any nature whatsoever, including, but not limited to loss of actual or anticipated profit, losses caused by business interruption or loss of goodwill or reputation, howsoever arising.

10.2 Without prejudice to the provisions above and to the maximum extent permitted by the applicable law, the Seller’s maximum aggregate liability to the Buyer arising out of or in connection with this Agreement howsoever arising shall not exceed in aggregate the price payable by the Buyer for such delivery.

11. FORCE MAJEURE

11.1 Neither party shall be in breach of this Agreement nor liable for delaying in performing, or failure to perform, any of its obligations under this Agreement other than the payment of money if such delay or failure result from:

(a) Acts of God, severe weather, flood, drought, earthquake or other natural disaster;

(b) Epidemic or pandemic;

(c) Terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d) Nuclear, chemical or biological contamination or sonic boom;

(e) Any law or any action taken by a government or public authority, including but not limited to imposing an export or import restriction, quota or prohibition;

(f) Collapse of buildings, fire, explosion or accidents;

(g) Any labor or trade dispute, strikes, industrial action or lockouts;

(h) Non-performance by suppliers or subcontractors including any curtailment, failure or cessation of supplies of the Products whether or not such supplies are in fact for the purpose of any delivery under this Agreement; and

(i) Interruption or failure of utility service. (the “Force Majeure”)

11.2 If a party is prevented, hindered, curtailed or delayed in or from performing any of its obligations under this Agreement by an event of Force Majeure, the affected party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.

11.3 The affected party shall give a written notice to the other party as promptly as practicably possible. If the event of Force Majeure prevents, hinders, curtails or delays the affected party’s performance of its obligations for a continuous period of more than thirty (30) days, the party not affected by the event of Force Majeure may terminate this Agreement by giving a five (5) day written notice to the affected party. Either party shall not be liable for any damage, loss, expense, claim or costs incurred by the other party as a result of such termination, and such termination shall be without prejudice to any right, obligation or liability which has accrued prior to termination.

12. TERMINATION

12.1 Without prejudice to any accrued rights or remedies available to it, either party may terminate the Agreement by giving a written notice with immediate effect to the other party if:

(a) The other party fails to pay any amount due under this Agreement on the due date for payment and remains in default for more than fourteen (14) days after being notified of such non-payment;

(b) The other party commits a material breach of any term of this Agreement and fails to remedy that breach within fourteen (14) days of that party being required to do so;

(c) The other party repeatedly breaches any of the terms of this Agreement in a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

(d) An order is made or a resolution is passed for the winding up of the other party, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or such an administrator is appointed, or a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of a creditor to appoint a receiver or manage or which entitle a court to make a winding-up order, or the other party takes or suffers any similar or analogous action in consequence of debt, or an arrangement or composition is made by the other party with its creditors or an application to a court for protection from its creditors is made by the other party;

(e) The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;

(f) There is a change of control of the other party; or

(g) The other party purports to assign or otherwise transfer its rights or obligations under this Agreement in breach of Article 13.

12.2 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

12.3 The Seller may cancel any orders for the Products placed by the Buyer before termination if delivery would fall due after termination, whether or not they have been accepted by the Seller. The Seller shall have no liability to the Buyer in respect of such cancelled orders.

13. ASSIGNMENT

Either party shall not assign, transfer, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the other party’s prior written consent.

14. MISCELLANEOUS

14.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to their subject matter.

14.2 If any provision of this Agreement or any part of such provision is or becomes void, invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions of this Agreement shall remain in full force and effect and not in any way be affected or impaired thereby.

14.3 No amendment or waiver of any provision of this Agreement shall be valid unless executed in writing and signed by the parties. No failure of any party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy hereunder shall preclude any other or further exercise thereof or exercise of any other right or remedy.

14.4 Nothing in this Agreement and no action taken by the parties under this Agreement shall constitute a partnership, association, joint venture or other co-operative entity between the parties.

14.5 Articles 9 and 10 shall survive the termination of this Agreement and shall continue in force.

15. COMPLIANCE

15.1 Each party shall, at its own expense, comply with all laws and regulations to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licenses, registrations, permits and approvals.

15.2 The Buyer agrees that it will not:

(a) resell any Products to any person, entity or country with whom trade (or supply for end use by) is prohibited under any sanction or restricted part regime imposed by the Republic of Korea, United States of America or under other applicable law or to whom goods and technologies of U.S. origin may not be supplied (the “Restricted Party”); and

(b) resell any Products to any natural or legal person who the Buyer knows or suspects will resell directly or indirectly to a Restricted Party.

16. GOVERNING LAWS

16.1 This Agreement shall be governed by and construed in accordance with the law of the Republic of Korea without regard to the conflicts of law rules that may require the application of laws of another jurisdiction. The Convention on the International Sale of Goods (Vienna 1980) shall not apply.

16.2 If a dispute or claim arises out of or in connection with this Agreement or the performance, validity or enforceability of this Agreement (the “Dispute”), the parties shall first attempt to settle it through consultation and negotiation in good faith for a period of 1 month after one party notifies the other of the Dispute in writing. If the parties are unable to resolve the Dispute for any reason, the Dispute shall be submitted under the exclusive jurisdiction of Seoul Central District Court.

SALE OF LUBRICANTS

SUPPLEMENTARY GENERAL TERMS AND CONDITIONS

ONLY IN THE EVENT OF BUYER FALLING UNDER THE DEFINITION OF THE DISTRIBUTOR UNDER THE KOREAN ACT NO. 13614, THIS SUPPLEMENTARY GENERAL TERMS AND CONDITIONS (THE “SUPPLEMENTARY GENERAL TERMS AND CONDITIONS”) SHALL APPLY.

17. MISCELLANEOUS

17.1 Product Off-Spec

When the Product is delivered off-spec at the time of delivery, and if such off-spec is turned out to be due to the Manufacturer’s fault and notified to the Manufacturer within the claim time limit under the General Terms and Conditions, the Manufacturer may replace the Products, take returns or take any other reasonable actions at its sole discretion.

17.2 Assignment

If the Distributor needs to assign or transfer any or all of its substantial assets or business, the Distributor may give a prior notice to the Manufacturer.

17.3 Sales Incentive

The Manufacturer may provide Sales Incentives to the Distributor under the separate agreement if the Distributor satisfies the Manufacturer’s certain conditions in purchasing the Product.