Phillips 66 Company

ONLINE SALE TERMS & CONDITIONS

By bidding on any assets (the “Items”) sold by Phillips 66 Company (“Seller”), you agree that the below terms and conditions (this “Agreement”) will apply to the sale of the assets in the event you are the winning bidder.

1.          TAXES

If any excise, sales, use or similar taxes apply to the sale or purchase of the Items and Buyer has not provided a valid exemption certification, all such taxes (i) shall be in addition to the purchase price as bid, (ii) shall be the responsibility of Buyer, and (iii) shall be paid by Buyer no later than the date specified in the applicable invoice.

2.          PAYMENT

If Buyer fails to pay for the Items in accordance with the foregoing, Seller may, at its option, at any time prior to receipt of Buyer's payment in full, cancel this Agreement without notice and without liability to Buyer, in which case Seller shall be entitled to retain as liquidated damages, and not as a penalty, any and all payments theretofore received from Buyer with respect to the Items and to pursue such other remedies and rights to which Seller may be entitled. 

3.          REMOVAL OF THE ITEMS

(a)           Buyer shall be solely responsible for, and shall bear all costs and expenses associated with, the removal of the Items from their location (the “Premises”), including, but not limited to, the costs and expenses of preparing, dismantling, disconnecting, crating, packing, loading and transporting the Items and the cleanup of all debris occasioned by such removal. Buyer shall use reasonable care in removing the Items, and Buyer shall repair or cause to be repaired any damage caused to the Premises or to any property in the removal of the Items

(b)           Time is of the essence with respect to Buyer's removal of the Items from the Premises. Buyer shall remove all of the Items from the Premises no later than 4:00 P.M. on the date communicated to Buyer; provided, however, that Buyer shall not be entitled to remove any of the Items until Seller has received payment in full for all of the Items. If Buyer does not remove all of the Items from the Premises by the time and date specified, Seller may, at its option, either (i) extend the time period for Buyer's removal of the Items by such number of additional days as Seller deems reasonable, in which case Seller may charge Buyer storage fees in such amounts as Seller deems reasonable and Buyer shall pay such storage fees before it shall be entitled to remove any of the remaining Items from the Premises or (ii) consider the remaining Items (including any remaining components of the Items) to have been abandoned by Buyer, in which case Buyer shall lose all right, title and interest in such remaining Items, title to such remaining Items shall revert to Seller, and Seller may retain as liquidated damages, and not as a penalty, any and all payments received theretofore from Buyer with respect to such remaining Items.

(c)           The Items shall be subject to inspection by Seller's representatives at the time of removal from the Premises.  

4.          SELLER’S WARRANTIES

(a)           Nothing in the course of dealing, course of performance, or usage of trade in connection with this Agreement, its execution or performance shall constitute a warranty of any kind. The Items are sold on an "AS IS, WHERE IS" basis with all faults, and, except for Seller's warranty that it has good title to the Items, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

(b)           Any descriptions of particular Items in the listing, if any, are based on the latest information available to Seller's personnel responsible for selling the Items. However, Seller makes no warranty as to such descriptions.   

5.          HAZARDOUS CHEMICALS AND OTHER HAZARDOUS MATERIALS

Buyer acknowledges and understands that the Items may bear or contain hazardous chemicals or other hazardous materials, including, but not limited to naturally occurring radioactive materials (“NORM”), which may be or may become (by chemical reaction, toxicity, flammability, explosiveness or otherwise) hazardous to life, health or property at any time after the Items leave the possession and control of Seller, including, but not limited to, during use, handling, loading, transporting, storing, processing, cleaning, reconditioning, maintaining, labeling, welding, cutting, grinding, separating or disposal of the Items. Buyer further acknowledges that Buyer understands that NORM can be considered a health hazard if workers are exposed to concentrations and that adequate safeguards must be taken while handling NORM, including without limitation any welding or any use which could convert NORM to an inhalable form. Similar precautions must be taken if the Items are painted to safeguard workers from possible exposure to lead based coatings. By purchasing the Items, Buyer hereby acknowledges and affirms that Buyer is fully aware of all such risks, and Buyer covenants and agrees that Buyer will take all appropriate action to avoid or neutralize all hazards associated with such hazardous chemicals or materials. If Seller becomes aware that Buyer is not making an appropriate use of the Items, or is not taking adequate safeguards in handling the Items, then Seller shall have the right (but not the obligation), in its sole discretion, to discontinue sales of the Items to Buyer. It is Buyer's sole and absolute responsibility to ensure that all of its employees, contractors, subcontractors, agents, customers, and anyone else Buyer reasonably foresees being exposed to the Items, take the necessary precautionary measures to be informed of, and inform others of, the presence of any hazardous chemicals or materials and to minimize exposure to levels that present a risk to health. Accordingly, Buyer shall warn each person to whom Buyer resells, gives or delivers any of the Items or whom Buyer can reasonably foresee being exposed to such Items (including, but not limited to, Buyer's employees, contractors, subcontractors and customers) of the hazards associated therewith, and Buyer shall take all actions necessary to protect such persons from such hazards. In handling or disposing of the Items, Buyer shall comply with all federal, state, and local laws and regulations.

6.          RELEASE OF CLAIMS

Except for claims relating to Seller's failure to make particular Items available to Buyer for removal, BUYER HEREBY RELEASES SELLER, SELLER'S PARENT, SUBSIDIARIES, AFFILIATES AND CO-VENTURERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES, FROM ANY AND ALL LIABILITY AND WAIVES ANY CLAIMS IT MAY NOW  HAVE, OR WHICH IT MAY HAVE IN THE FUTURE, AGAINST THEM WHICH ARE IN ANY WAY CONNECTED WITH BUYER'S PURCHASE OR REMOVAL OF THE ITEMS. SUCH PURCHASE AND REMOVAL ACTIVITIES INCLUDE, BUT ARE NOT LIMITED TO, BUYER’S POSSESSION, HANDLING, LOADING, TRANSPORTING, STORING, PROCESSING, CLEANING, RECONDITIONING, MAINTENANCE, LABELING, USE, WELDING, CUTTING, GRINDING, SEPARATION OR DISPOSAL OF THE ITEMS. BUYER’S RELEASE SHALL APPLY TO ANY CLAIMS OR LIABILITIES OF WHATSOEVER KIND OR NATURE INCLUDING, WITHOUT LIMITATION, THOSE RESULTING DIRECTLY OR INDIRECTLY FROM STRICT LIABILITY, SELLER’S NEGLIGENCE, THE FAILURE OF SELLER TO GIVE MORE SPECIFIC WARNINGS WITH RESPECT TO INDIVIDUAL ITEMS AND THE INADEQUACY OF ANY SELLER WARNING. No claim by Buyer with respect to Seller's failure to make particular Items available for removal shall be greater in amount than the purchase price of such Items. In no event shall either party be liable under this Agreement for any punitive, incidental, consequential, special or indirect damages, howsoever arising.

7.          INDEMNITY

BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER, ITS PARENT, SUBSIDIARIES, AFFILIATES AND CO-VENTURERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES, HARMLESS FROM ANY AND ALL LIENS, ENCUMBRANCES, FINES, PENALTIES, CLAIMS, DAMAGES, LOSSES, OBLIGATIONS, LIABILITIES, COSTS (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) AND CAUSES OF ACTION OF, TO, OR BY ANY PERSON INCLUDING, WITHOUT LIMITATION, BUYER, BUYER'S CONTRACTORS AND SUBCONTRACTORS, THEIR RESPECTIVE EMPLOYEES, OR ANY GOVERNMENT ENTITY. THE ABOVE INDEMNIFICATION AND HOLD HARMLESS PROVISIONS SHALL APPLY TO INJURY TO, DISEASE SUFFERED BY, OR DEATH OF ANY PERSON AND FOR LOSS OR DAMAGE TO ANY PROPERTY, RESULTING DIRECTLY OR INDIRECTLY FROM ANY AND ALL ACTS OR OMISSIONS OF THE INDEMNIFIED PARTIES, BUYER, OR OF ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY, OR ASSOCIATED WITH, BUYER INCLUDING, WITHOUT LIMITATION, ANY FAILURE BY SELLER TO WARN OR TAKE ALL NECESSARY SAFETY PRECAUTIONS PURSUANT TO SECTION 5 ABOVE, AND REGARDLESS OF WHETHER ANY SUCH INJURY, DISEASE, DEATH, LOSS OR DAMAGE IS CONTRIBUTED TO IN WHOLE OR IN PART BY THE NEGLIGENCE, STRICT LIABILITY, OR ALLEGED BREACH OF WARRANTY OF THE INDEMNIFIED PARTIES. THIS INDEMNITY SHALL HAVE NO APPLICATION TO ANY CLAIM, LIABILITY, OR CAUSE OF ACTION RESULTING FROM THE SOLE NEGLIGENCE OF THE INDEMNIFIED PARTIES.

If Buyer sells any Items, it shall sell them subject to a written agreement containing this paragraph. Buyer acknowledges that the prices for the Items would have been higher had Buyer not agreed (i) to limit Seller's liability, (ii) to assume various liabilities and (iii) to assume certain indemnity obligations under this Agreement.  

8.          TITLE AND RISK OF LOSS

Subject to Section 3(b) above, title to the Items shall pass from Seller to Buyer upon of Seller's receipt of payment in full for the Items in accordance with Section 2 above.  Buyer assumes risk of loss and damage to an Item upon Buyer commencing the removal of the Item from the Premises in accordance with Section 3 above.    In the event that one or more of the Items are discovered missing from the Premises prior to Buyer’s removal and prior to the date set forth in Section 3(b) above, Seller and Buyer shall negotiate in good faith a reduction in the amount due to Seller, and Seller shall refund, or cause to be refunded, such amount to Buyer.

9.          INSPECTIONS

Buyer acknowledges and warrants that, prior to entering into this Agreement, it was offered ample opportunity by Seller to inspect all of the Items.

10.        EQUIPMENT AND MACHINERY

If the Items include any machinery or equipment, the installation of such machinery or equipment, whether at Buyer's premises or elsewhere, shall be the sole responsibility of Buyer and shall be at Buyer's expense. With respect to such machinery or equipment, Buyer shall also have the sole responsibility for (i) the safe and proper maintenance and operation, (ii) training all of Buyer's personnel assigned to operate or maintain such equipment or machinery in compliance with all applicable federal, state and local safety statutes, ordinances, rules and regulations relating to the operation or maintenance of such equipment or machinery and (iii) the installation and maintenance of any safety guards and other safety apparatus which are included with such equipment or machinery or which may be required or affixed at any time thereto. Seller recommends the installation of safety apparatus on such equipment or machinery, but Seller shall have no responsibility for doing so.

11.        INSURANCE

Buyer, and Buyer’s contractors and subcontractors, shall maintain the following: (a) Workers’ Compensation and Occupational Disease insurance complying with the laws of each state in which the work is to be performed; (b) Employer’s Liability insurance with a limit of not less than $1,000,000 per occurrence; (c) Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 per occurrence; (d) General Public Liability insurance, including contractual liability, with a combined single limit for bodily injury or property damage of not less than $1,000,000 per occurrence; and (e) such other insurances as the law or Buyer may require. All insurance required above shall be primary to any insurance coverage available to Seller. The above-stated minimum requirements are not intended to indicate the amounts and types of insurance that Buyer needs or may ultimately need. The policies described in (c) and (d) above shall be endorsed to show Buyer as additional insured and all insurance policies obtained by Buyer shall contain a waiver of subrogation in favor of Seller to the extent of the liabilities assumed by Buyer under this Agreement. The policies provided for herein above shall contain a provision that any breach by Buyer of any warranty, covenant, or representation in any of the policies shall not prejudice any claim by the additional insured. Whenever requested, Buyer shall furnish evidence satisfactory to Seller that such insurances are in effect.

12.        RECORDS  

Buyer shall, and will ensure that its contractors and subcontractors shall, maintain a true and correct set of records pertaining to its performance of this Agreement and all transactions related hereto, for a period of not less than two years after completion of performance under this Agreement. Any representative or representatives authorized by Seller may audit any and all such records of Buyer, its contractors or subcontractors, at any time or times during performance of this Agreement and during the two-year period after completion of performance.

13.        CONFLICT OF INTEREST

Buyer shall not, and shall ensure that its contractors and subcontractors shall not, pay any commissions, fees or grant any rebates to any employee, officer or agent of Seller, nor favor employees, officers or agents of Seller with gifts or entertainment of significant cost or value, nor enter into any business arrangement with employees, officers or agents of Seller other than as a representative of Seller, without Seller's written approval. Seller shall have the right to verify Buyer's compliance with the provisions of this paragraph pursuant to Seller's audit rights set forth in Section 12 above.

14.        SEVERABILITY

If any provision of this Agreement, whether a section, sentence or any portion thereof, is determined by a court of competent jurisdiction to be null and void or unenforceable, such provision shall be deemed to be severed and the remaining provisions of this Agreement shall remain in full force and effect.

15.        GOVERNING LAW

THE INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS EXCEPT FOR ANY RULE OF LAW OF THE STATE OF TEXAS WHICH WOULD MAKE THE LAW OF ANY OTHER JURISDICTION APPLICABLE.

16.        WAIVERS

Seller shall not be deemed to have waived any right, power, privilege or remedy unless such waiver is in writing and duly executed by it. No failure to exercise, delay in exercising or course of dealing with respect to any right, power, privilege or remedy shall operate as a waiver thereof by Seller or of any other right, power, privilege or remedy. No exercise or partial exercise of any right, power, privilege or remedy shall preclude any other or further exercise thereof by Seller or the exercise of any other right, power, privilege or remedy by Seller.

17.        COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS

Buyer shall comply with all applicable statutes, laws, codes, ordinances, orders, rules, regulations, proclamations and other governmental requirements which are in any way related to its purchase or removal of the Items, including, but not limited to those relating to its possession, transportation, storage, processing, cleaning, reconditioning, maintenance, handling, labeling, use or disposition of the Items. In addition, Buyer, and Buyer’s contractors and subcontractors, shall comply with OSHA and state safety regulations, all applicable laws relating to or affecting the employment of labor, and while on the Premises all of the safety rules, regulations and requirements for the site. Buyer shall indemnify and hold Seller, its parent, subsidiaries, affiliates and co-venturers, and their respective directors, officers, employees, agents and representatives, harmless from and against any fine, penalty, or liability, cost and expense (including without limitation court costs and attorneys' fees) arising out of any failure by Buyer, or anyone directly or indirectly employed by or associated with Buyer in connection with this Agreement, to observe or comply with any such statutes, laws, codes, ordinances, orders, rules, regulations and requirements.  

18.        LICENSES AND PERMITS

Buyer shall obtain and pay for all required consents, approvals, licenses and permits which are in any way related to its purchase and removal of the Items, and Buyer shall give all required notices. Buyer hereby represents and warrants that it has obtained all such consents, approvals, licenses and permits, and Buyer shall furnish copies of the same to Seller upon request.

19.        ASSIGNMENT   

Buyer shall not assign this Assignment, in whole or in part, without the prior written consent of Seller. Any such assignment without the prior written consent of Seller shall be void and of no force and effect. This Agreement shall inure to and be binding upon the respective successors and permitted assigns of parties hereto.

Buyer shall not assign this Agreement or sublet the Work hereunder, in whole or in part, without the prior written consent of Seller, nor shall Buyer assign any amounts due or to become due to it under this Agreement, without the prior written consent of Seller. Any such assignment without the prior written consent of Seller shall be void and of no force and effect. This Agreement shall inure to and be binding upon the respective successors and permitted assigns of the parties thereto.

20.        INTERPRETATION

The headings in this Agreement are for convenience of reference only and shall not affect its interpretation or construction. When used in this Agreement, the singular form shall include the plural, and vice versa, and the use of any gender shall include all genders, as appropriate. The terms "herein", "hereinbefore", "hereinafter", "hereunder" and "hereof" shall refer to the entirety of this Agreement and shall not be limited in applicability to the section in which they appear.

21.        EXPORT COMPLIANCE  

This Agreement may involve the sale of Items which are subject to U.S. or foreign export control laws and regulations. If the Buyer takes delivery of any items in the United States, and the final destination of the Items is outside of the United States; Buyer expressly assumes responsibility for determining licensing requirements and obtaining export license authority. Further, Buyer warrants and represents that: (a) Buyer is not a citizen, national, permanent resident of, or incorporated or organized to do business in, and is not under the control of, any of the governments of Cuba, Iran, North Korea, Sudan or Syria; (b) Buyer is not listed on any U.S. government list of restricted parties, or owned or controlled by a restricted party; (c) Buyer will not sell, transfer or otherwise re-export the Items, directly or indirectly, to the above-mentioned countries or to citizens, nationals or permanent residents of those countries; (d) Buyer will not use the Items and will not allow the Items to be used for any purposes prohibited by U.S. export laws and regulations; and (e) Buyer has in place procedures in place to ensure compliance with the foregoing.

Incorporation by Reference of Buyer Terms and Conditions. These Terms and Conditions are specific to this auction and supplement our standard Buyer Terms and Conditions  applicable to all bidders on our marketplace. You hereby acknowledge and agree to the most recent Buyer Terms and Conditions  which are hereby incorporated by reference into these Terms and Conditions specific to this auction. In the event of a conflict between these Terms and Conditions specific to this auction and our standard Buyer Terms and Conditions , these Terms and Conditions shall control.  A link to our most current version of Buyer Terms and Conditions  can be found at the bottom of the page and on the Site Map which can be accessed at the bottom of each page on our marketplace website