Upload
others
View
6
Download
0
Embed Size (px)
Citation preview
DRAFT 27 January 201514
THROUGHPUT AGREEMENT
between
SASOL OIL (PROPRIETARY) LIMITED
Registration number: 1981/007622/07
(herein referred to as the "Host")
and
GUEST Registration number: ………………. (herein referred to as the "Guest")
in respect of the
NATCOS PETROLEUM PRODUCT TANK CAPACITY
TABLE OF CONTENTS
1 INTERPRETATION ........................................................................................................ 1
2 SCOPE OF AGREEMENT ............................................................................................. 6
3 COMMENCEMENT AND DURATION ........................................................................... 7
4 SERVICES ..................................................................................................................... 7
5 POWER OF ATTORNEY ............................................................................................. 11
6 BREAKDOWNS AND UNINTENDED CAPACITY CONSTRAINTS .......................... 11
7 ADHERENCE TO APPLICABLE LAWS AND RULES .............................................. 12
8 VETTING OF SHIPS .................................................................................................... 12
9 IMPORT SPECIFICATIONS ........................................................................................ 13
10 RISK ............................................................................................................................. 14
11 PETROLEUM PRODUCT THROUGHPUT AND VOLUME RECONCILIATION ........ 14
12 BREACH ...................................................................................................................... 16
13 TERMINATION ............................................................................................................ 16
14 DISPUTE RESOLUTION ............................................................................................. 17
15 FORCE MAJEURE ...................................................................................................... 18
16 DOMICILIA AND NOTICES......................................................................................... 19
17 ASSIGNMENT ............................................................................................................. 21
18 RELATIONSHIP BETWEEN THE PARTIES .............................................................. 21
19 WHOLE AGREEMENT ................................................................................................ 21
20 WAIVER ....................................................................................................................... 21
21 SEVERABILITY ........................................................................................................... 21
22 INSURANCE ................................................................................................................ 22
23 LIABILITY AND INDEMNITY ...................................................................................... 22
24 CONFLICT OF INTEREST .......................................................................................... 23
25 ARBITRATION ............................................................................................................ 23
26 COMMERCIAL TERMS ............................................................................................... 24
27 CONFIDENTIALITY ..................................................................................................... 27
1 DIESEL SPECIFICATIONS ......................................................................................... 30
2 PETROL SPECIFICATIONS ....................................................................................... 31
ANNEXURE
ANNEXURE "1" : PRODUCT SPECIFICATIONS
ANNEXURE "2" : VESSEL VETTING REQUIREMENTS
ANNEXURE "3" : IV9 VETTING REQUIREMENTS
ANNEXURE "4" : GUIDELINE TO LICENSEE VETTING REQUIREMENTS
ANNEXURE "5" : SASOL DISCHARGE PROCEDURE
1
1 INTERPRETATION
1.1 In this Agreement and the Annexures to this Agreement:
1.1.1 clause headings are provided for convenience only and shall not be used in its
interpretation; and
1.1.2 an expression, which denotes:
1.1.2.1 any gender includes the other two genders;
1.1.2.2 a natural person includes a juristic person and vice versa; and
1.1.2.3 the singular includes the plural and vice versa.
1.2 In this Agreement, unless the context indicates a contrary intention, the following
words and expression bear the meanings assigned to them and cognate
expressions bear corresponding meanings:
1.2.1 "Acceptable Losses" means the volume of losses of Petroleum Products that
the oil industry accepts as normal losses in a storage facility, which in the case
of diesel is 0.15% (zero point one five percent) and in the case of petrol is
0.25% (zero point two five percent) of the volume of Petroleum Product in
question;
1.2.2 "Aggregate Capacity" means the aggregate tank capacity at the Natcos
Facility when the tank is not in use;
1.2.3 "Agreement" means this throughput agreement, together with the annexures
hereto;
1.2.4 "Available Capacity" means so much of the Host Capacity as is not in use
either by the Host or by a third party from time to time;
1.2.5 "BFP" means the basic fuel price as recommended by the DoE from time to
time;
1.2.6 "Discharge Supervisor" means the appointed person responsible for
Supervising marine tanker cargo operations at IV9;
1.2.7 "DOE" means the Department of Energy;
2
1.2.8 "Duties" depending on the context and for the purpose of this Agreement,
means either the duty-at-source ("DAS") system, comprising the Fuel Levy,
Road Accident Fund Levy and Excise Duty as defined in the Customs and
Excise Act (No. 91 of 1964), utilised by SARS as a means of assessing duties
payable in respect of locally manufactured Petroleum Products or the actual
excise duties payable under the duty-at-source system;
1.2.9 "Effective Date" means …………………., notwithstanding the date of
signature of this Agreement by the Parties;
1.2.10 "Final Valve" means the last valve within the Natcos battery limit, after which
the pipeline is outside of the Natcos Facility enroute to the Transnet pump
station;
1.2.11 "Host Capacity" means 63.64% (sixty three point six four percent) of the
Aggregate Capacity, being the percentage of the Aggregate Capacity which
the Host is entitled to use;
1.2.12 "Independent Expert" means such professionally qualified marine surveyor
as may be agreed between the Parties, or failing agreement within 5 (five)
business days from the date of request by any Party for such Agreement,
appointed by the Chairman for the time being of the Durban branch of the
Society of Master Mariners provided that the person so appointed shall be a
professionally qualified marine surveyor with at least 15 (fifteen) years marine
surveying experience in the oil industry;
1.2.13 "Independent Surveyors" means a professionally qualified marine surveyor
appointed by the Guest from a list of marine surveyors approved by Natcos
from time to time, the costs associated with such appointment being for the
account of the Guest;
1.2.14 "IVT Facility" means the bulk storage facility operated by TSA in the port of
Durban in the Republic of South Africa;
1.2.15 "IV9" means Berth 9 located at the Port of Durban, Island View;
1.2.16 "Levies" means any slate levy, pipeline levy or other applicable levies
applicable in the context of this Agreement, as determined by DoE or any
other government agency from time to time;
3
1.2.17 "Licensees" means both the Host and TSA;
1.2.18 "Natcos" means the unincorporated joint venture between the Licensees;
1.2.19 "Natcos Facility" means the bulk storage and supply facility jointly owned by
the Licensees in terms of a separate joint venture agreement and operated by
Natcos, situated at the Fynnlands site in the port of Durban in the Republic of
South Africa;
1.2.20 "NERSA", means the National Energy Regulator of South Africa;
1.2.21 "Petroleum Product" means both diesel and petrol products conforming to
the Specifications;
1.2.22 "Parties" means the Host and the Guest collectively and "Party" means any
one of the Parties as the context in which it is used may indicate;
1.2.23 "Planning Process" means the rolling 6 (six) month planning process
conducted by the Licensees each month so as to ensure that the Aggregate
Capacity is never exceeded, which process takes account of planned receipts,
deliveries and maintenance at the Natcos Facility (amongst other things);
1.2.24 "Prime Rate" means the publicly quoted basic rate of interest, compounded
monthly in arrears and calculated on a 365 (three hundred and sixty five) day
year irrespective of whether or not the year is a leap year, from time to time
published by Absa Bank Limited as being its prime overdraft rate, as certified
by any representative of that bank whose appointment and designation it will
not be necessary to prove;
1.2.25 "Quality Certificate" means the documentation generated by Independent
Surveyors, which sets out the quality of the Petroleum Product;
1.2.26 "Quantity Certificate" means the quantity certificate (being the SARS
approved P201 document) generated by Natcos and verified by the
Independent Surveyors which sets out the volume of the Petroleum Product;
1.2.27 "Request" means each ad hoc written request delivered by the Guest to the
Host, in accordance with the provisions of this Agreement, in terms of which
the provision of the Services is formally requested by the Guest, which request
4
must be in such form as the Host may reasonably require from time to time
and must at least specify –
1.2.27.1 the type, quantity, quality and grade of Petroleum Product in respect of
which the Services are being requested;
1.2.27.2 the date on which the applicable Petroleum Product is expected to arrive at
IV9; and
1.2.27.3 the Guest's despatch plan in respect of the applicable Petroleum Product
from the Natcos Facility;
1.2.28 "SARS" when used as an acronym, means South African Revenue Services;
1.2.29 "Services" means making the Available Capacity (if any) available to the
Guest and the receipt, storage, despatching and handling of the Guest's
Petroleum Product by the Host at the Natcos Facility, as contemplated in
clause 4;
1.2.30 "Signature Date" means the date of signature of this Agreement by the Party
last signing;
1.2.31 "Specifications" means the product specifications in respect of the Petroleum
Products contained in Annexure 1, as may be updated by the Host from time
to time by way of 60 (sixty) days' prior written notice to the Guest;
1.2.32 "Transnet" means Transnet SOC Ltd, registration number 1990/000900/30;
1.2.33 "Transnet Pipe Line" means the multi-product pipeline operated and
maintained by Transnet; and
1.2.34 "TSA" means Total South Africa (Proprietary) Limited, registration number
1954/003325/07.
1.3 Any substantive provision conferring rights or imposing obligations on any Party
in this clause 1 shall be given effect to as if it were a substantive provision in the
body of this Agreement.
1.4 Words and expressions defined in any clause shall, unless the application of any
such word or expression is specifically limited to that clause, bear the meaning
assigned to such word or expression throughout this Agreement.
5
1.5 Any reference to a calendar month shall be construed as meaning one of the
twelve months into which the year is divided according to the calendar (that is,
January, February, etc).
1.6 Any reference to a calendar year shall mean a period of twelve consecutive
calendar months commencing with January.
1.7 No provision herein shall be construed against or interpreted to the disadvantage
of any Party by reason of such Party having or being deemed to have structured,
drafted or introduced such provision and the contra proferentem rule shall thus
not apply.
1.8 The euisdem generis rule shall not apply and whenever a term is followed by the
word "including" which is then followed by specific examples, such examples
shall not be construed so as to limit the meaning of that term.
1.9 Unless specifically otherwise provided, all amounts in this Agreement are
exclusive of value added tax ("VAT") and the Party liable to pay any amount shall
also be liable to pay such VAT if payment thereof is required in terms of the laws
of the Republic of South Africa.
1.10 This Agreement incorporates the Annexure/s to this Agreement which
Annexure/s has the same force and effect as if set out in the body of this
Agreement. In the event of any conflict between this Agreement and any
Annexure, the terms of this Agreement will prevail. In such event, the validity of
the Annexure shall not be affected. In this Agreement the words "clause" or
"clauses" and "Annexure" refer respectively to clauses, and Annexure/s, of this
Agreement.
1.11 Any reference to a business day shall be construed as meaning a day other than
a Saturday, Sunday or public holiday in the Republic of South Africa and for this
purpose "public holiday", in relation to any obligation, shall mean a public holiday
for the time being established or proclaimed as such in accordance with the
provisions of the relevant legislation applicable at the place for performance of
such obligation.
1.12 Any reference to a day shall be construed as a period of 24 (twenty-four) hours
from midnight to midnight, and any reference to a period reckoned as a number
of days, shall be calculated by excluding the first day, and including the last day.
6
Provided that if the last day of such period would not be a business day then
such period shall extend to, and shall include, the first business day thereafter.
1.13 Where the day upon or by which any act is required to be performed is not a
business day, the Parties shall be deemed to have intended such act to be
performed on the following business day.
1.14 Whenever any person is required to act "as an expert and not as an arbitrator" in
terms of this Agreement, then –
1.14.1 the determination of the expert shall (in the absence of manifest error) be final
and binding;
1.14.2 subject to any express provision to the contrary, the expert shall determine the
liability for his or its charges, which shall be paid accordingly;
1.14.3 the expert shall be entitled to determine such methods and processes as he or
it may, in his or its sole discretion, deem appropriate in the circumstances
provided that the expert may not adopt any process which is manifestly
biased, unfair or unreasonable;
1.14.4 the expert shall consult with the relevant Parties (provided that the extent of
the expert's consultation shall be in his or its sole discretion) prior to rendering
a determination; and
1.14.5 having regard to the sensitivity of any confidential information, the expert shall
be entitled to take advice from any person considered by him or it to have
expert knowledge with reference to the matter in question.
2 SCOPE OF AGREEMENT
2.1 The Host is one of the joint owners of the Natcos Facility, which it uses to
receive, store, handle and despatch Petroleum Products in bulk for its own
requirements and those of third parties.
2.2 The Guest is desirous of procuring the Services from the Host, as an
independent contractor.
2.3 The Host hereby agrees to render the Services to the Guest in accordance with
the terms and conditions set out in this Agreement.
7
2.4 For clarification and for the avoidance of doubt, the Parties agree that:
2.4.1 the Natcos Facility is not intended to serve as a storage facility for the Guest's
Petroleum Product (either on a permanent or temporary basis), but is merely
intended to serve as a conduit for the such Petroleum Product from time to
time and subject to the terms and conditions set out in this Agreement; and
2.4.2 no provisions of this Agreement shall be deemed to be a warranty, guarantee
or any other form of representation or undertaking by the Host to the Guest
that there shall be any Available Capacity at any time during the course of this
Agreement and accordingly, each Request shall be considered on a case by
case basis by the Host in accordance with the provisions of clause 4.
3 COMMENCEMENT AND DURATION
This Agreement shall commence on the Effective Date and shall continue in full
force and effect for a period of 12 (twelve) months, unless terminated earlier by
either Party in terms of clause 13.
4 SERVICES
4.1 The Host hereby agrees to render the Services to the Guest in accordance with
the provisions of this Agreement, for which Services the Guest will pay the Host
the tariff fee as set out in this Agreement.
4.2 The rendering of the Services by the Host shall be negotiated on a case by case
basis, subject always to the Host's assessment of the Available Capacity in terms
of clause 4.3.
4.3 In terms of each Request, the Host shall be entitled to decide, in its sole and
absolute discretion, whether or not to accept the Petroleum Product which is the
subject of the applicable Request, having regard (amongst other things) to the
Available Capacity (if any) at the time of receipt of the applicable Request as well
as the forecasts in respect of the Available Capacity, formulated as part of the
Planning Process.
4.4 Unless the Host agrees in writing within 30 (thirty) days of receipt of the
applicable Request ("Acceptance") to accommodate the Petroleum Product (or a
portion thereof) which is the subject of the applicable Request, the Host shall be
under no obligation whatsoever to accept any of the Guest's Petroleum Product
8
at the Natcos Facility. In the event that the Host elects to issue an Acceptance to
the Guest in respect of any Request, the Host's obligation to accept the
applicable Petroleum Product from the Guest shall be subject to the terms and
conditions as to quantity, time of delivery and time of despatch specified in the
applicable Acceptance.
4.5 Once the Host has issued an Acceptance, the Host shall ensure that there is
adequate Available Capacity to receive the Petroleum Product which is the
subject of the applicable Acceptance within the timeframe specified in that
Acceptance.
4.6 In order to maximise the likelihood of there being sufficient Available Capacity to
accommodate a Request (or part thereof), the Guest should comply with the
following indicative timeline:
M+6: Guest to provide an indication of tank capacity requirements and a
draft import plan.
M+3: Guest to provide a formal Request.
M+1: Guest to confirm final receipt and despatch plans (including the time
of arrival of each vessel).
4.7 For purposes of the indicative timeline contained in clause 4.6, "M + n" indicates
the number of months in advance of the anticipated date of arrival of the guest's
Petroleum Product at IV9. For example, "M + 6" (n = 6) will mean 6 (six) months
before the anticipated date of arrival of the Guest's Petroleum Product, and
"M + 1" (n = 1) will be 1 (one) month prior to such anticipated arrival date.
4.8 In order for a Request to be considered, the information specified in the timeline
contained in clause 4.6 must be provided to the Host before the 20th (twentieth)
day of the applicable month, so that the Host may collate such information into a
daily stock rights progression and feasibility report for further consideration.
4.9 Without detracting from the abovementioned provisions of this clause 4 and due
to the fact that the Licensees do not discriminate between third party applicants
and due to the fleeting nature of Available Capacity, the Guest needs to issue
each Request to the Host as soon as possible. Access to the Natcos Facility is
granted on a "first come, first serve" basis with no exclusivity, right of first refusal
or any other similar right being afforded to the Guest in terms of this Agreement,
9
except where such allocation would be in contravention of applicable laws or in
contravention of national security.
4.10 The Guest acknowledges that, as part of the Host rendering the Services,
Petroleum Products of a similar specification will be co-mingled by the Host at the
Natcos Facility, regardless of the source and/or ownership of such Petroleum
Products. Accordingly, neither the Guest nor any third party which owns any
Petroleum Product at the Natcos Facility can claim any ownership or other
entitlement to the Petroleum Product (or any portion thereof) contained in a
particular tank of Petroleum Product. Ownership of Petroleum Product will be
determined and recorded according to the type and quantity of Petroleum
Product in question, and not necessarily by reference to a specific tank at the
Natcos Facility. Subject to the forgoing provisions of this clause 4.10, it is
recorded that ownership of the Guest's Petroleum Product will not pass to the
Host at any time by virtue of the rendering of the Services to the Guest by the
Host.
4.11 The Guest further acknowledges that the Natcos Facility does not have a gantry
with loading facilities. Accordingly, Petroleum Product can only be moved out of
the Natcos Facility by the Transnet Pipeline.
4.12 The Guest shall be responsible for arranging all delivery and movement, and
shall also bear all the cost pertaining to all delivery and movement, of its
Petroleum Product to the point of risk transfer contemplated in clause 10.1.1 and
from the point of risk transfer contemplated in clause 10.1.2.
4.13 Any of the Guest's Petroleum Product that is accommodated at the Natcos
Facility will be despatched in accordance with the despatch plan ("Despatch
Plan") which is provided to the Host by the Guest as part of the applicable
Request. The Guest shall be obliged to, and warrants to the Host that it will, do
or procure the doing of all such things as may be required in order for the Guest's
Petroleum Product to be despatched from the Natcos Facility in accordance with
the applicable Despatch Plan.
4.14 Notwithstanding the provisions of clause 15, in the event that there is a deviation
from the Despatch Plan, which deviation results in the Licensees being unable to
meet their scheduled commitments as contemplated in the Planning Process, the
Guest accepts full liability for and indemnifies the Host against all claims arising
directly or indirectly from or in connection with such deviation, irrespective of
10
whether the claims arise in contract, delict, statute or from strict liability and
including all direct and indirect, special and consequential damages, loss, costs
(including legal costs on the attorney and own client scale and on a full indemnity
basis), interest, fines, penalties, demurrage on all affected vessels, loss of
contract, profit, production, interruption or cessation of production or operation.
4.15 If the Host is unable to receive the Guest's Petroleum Product in accordance with
an Acceptance due to the noncompliance by the Guest with the provisions of this
Agreement and/or with the terms of the applicable Request, the Guest waives
any claim which it may have against the Host in respect of the provision of the
corresponding Services.
4.16 In the event that there is a deviation from the Despatch Plan and such deviation
is not rectified by the Guest within 7 (seven) days of receipt by the Guest of a
written notice from the Host requesting such rectification (or such longer period
as the Host may specify in such notice), the Host shall be entitled, without
derogating from any other remedies which the Host may be entitled to pursue in
law and/or in terms of this Agreement, to –
4.16.1 sell the Guest's Petroleum Product which is not despatched from the Natcos
Facility in accordance with the applicable Despatch Plan in such manner by
public auction or by private treaty, at the best price realisable under the
circumstances, and further on such terms as may appear to the Host to be
most expedient;
4.16.2 institute legal proceedings which the Host may deem necessary in connection
therewith;
4.16.3 give good, valid and sufficient receipts and discharges for the purchase price
or proceeds of such Petroleum Product; and
4.16.4 effect transfer of and convey valid title to such Petroleum Product on behalf of
Guest.
4.17 The proceeds received by the Host in respect of the sale of the applicable
Petroleum Product in accordance with the provisions of clause 4.16 shall be
applied by the Host towards the discharge of the Guest's obligations to the Host
in terms of clause 4.14 and all reasonable costs and expenses incurred by the
11
Host in connection with such sale. The balance, if any, of such proceeds will be
paid by the Host to the Guest.
5 POWER OF ATTORNEY
The Guest hereby irrevocably nominates, constitutes and appoints the Host (acting
through an agent or any representative of the Host holding office from time to time)
with power of substitution, to be its true and lawful attorney to do all such things and
to complete and sign all such documents, for so long as this Agreement remains in
force, for the purposes of implementing and giving effect to the provisions of clauses
4.16 and 4.17, and for all purposes incidental thereto.
6 BREAKDOWNS AND UNINTENDED CAPACITY CONSTRAINTS
6.1 From time to time events may occur (such as, but not limited to, breakdowns
and/or emergency maintenance procedures in respect of the Natcos Facility) that
limit or eliminate the Available Capacity on short notice ("Capacity Constraint
Event"). The Host will communicate the occurrence of a Capacity Constraint
Event to the Guest as soon as reasonably possibly after the Host becomes
aware thereof.
6.2 The Host will use its reasonable commercial endeavours to try to accommodate
each Request in respect of which an Acceptance has already been issued by the
Host at the time of occurrence of the Capacity Constraint Event for the duration
of a Capacity Constraint Event, but does not in any way guarantee, warrant or
otherwise represent to the Guest that it will be able to find alternate capacity or
that it will be able to render the Services in respect of the applicable Petroleum
Product for so long as the Capacity Constraint Event continues.
6.3 Although the Host will use its reasonable commercial endeavours to resolve the
Capacity Constraint Event as soon as practically possible, it may nevertheless
become necessary for the Guest to find alternative facilities for the receipt,
storage, despatching and handling of its Petroleum Product for so long as the
Capacity Constraint Event continues. The Host will attempt to assist the Guest in
finding such alternative facilities, but the accountability and responsibility for
finding such alternative facilities will rest with the Guest. Any and all costs of any
nature whatsoever incurred by the Guest as a result of or in connection with a
Capacity Constraint Event (whether in connection with the use of alternate
facilities in respect of the affected Petroleum Product or otherwise) shall be for
12
the account of the Guest and the Guest shall have no claim of any nature
whatsoever against the Host in respect thereof.
6.4 The Host shall not be liable to the Guest for any loss or damage of any nature
whatsoever incurred or suffered by the Guest as a result of or attributable to
defaults in performance by the Host under this Agreement as a direct or indirect
result of a Capacity Constraint Event.
7 ADHERENCE TO APPLICABLE LAWS AND RULES
7.1 The Guest warrants to and in favour of the Host that it is and will at all times while
utilising the Services be in compliance with all laws, regulations, guidelines and
policies applicable to the importation and distribution of Petroleum Products,
including, but not limited to, all SARS, DoE, NERSA and Department of Trade
and Industry requirements (including, but not limited to, having in place all of the
relevant licenses, permits and other consents and approvals required from time
to time in order to import and distribute Petroleum Product).
7.2 In addition, the Guest indemnifies and holds Sasol harmless against any claims
of any nature whatsoever (whether arising in contract, delict, from statute or strict
liability) arising out of or in connection with non-compliance by the Guest with the
provisions of clause 7.1, including but not limited to claims for damages, loss,
costs (including legal costs on the attorney and own client scale and on a full
indemnity basis), fines, interest and penalties.
7.3 The Guest must at all times adhere to Natcos’s safety, health, environmental and
quality rules, guidelines and policies, as such rules, guidelines and policies may
be amended or replaced by Natcos from time to time by written notice to the
Guest. By signing this Agreement, the Guest acknowledges that it has read and
understood the version of such rules, guidelines and policies which is in place as
at the Signature Date.
8 VETTING OF SHIPS
8.1 The Host shall only accept Petroleum Product from the Guest at the Natcos
Facility via ship, and not from a third party storage facility which is linked to the
Natcos Facility by pipe.
8.2 Each of the Guest's vessels must comply with the following vetting requirements
–
13
8.2.1 the vetting requirements for the vessel and for IV9, as specified in Annexures
2 and 3 respectively (each of which may be amended or replaced by the Host
from time to time by way of written notice to the Guest); and
8.2.2 the vetting requirements of each of the Licensees, from time to time.
8.3 The criteria contained in Annexure 4 are offered as guidance as to the
acceptability of the Guest's vessels by the Licensees, but shall not in any way be
deemed to be a conclusive and/or finite list of either of the Licensees' vetting
requirements (which requirements are subject to change at any time and from
time to time at the applicable Licensee's sole and absolute discretion, without the
need to provide notice of such changes to the Guest).
9 IMPORT SPECIFICATIONS
9.1 The Guest must ensure that its Petroleum Products comply with the
Specifications in order for such Petroleum Products to be discharged by the
Guest into the Natcos Facility.
9.2 Samples of the Guest's Petroleum Product shall be drawn by the Guest from the
vessel tanks at the time that the applicable vessel is loaded with Petroleum
Product and again immediately before discharge into the Natcos Facility
commences and such samples will be tested by the Independent Surveyors as
for critical analysis as per the Host's discharge procedure contained in
Annexure 5 (which may be amended or replaced by the Host from time to time by
way of written notice to the Guest) to prevent and/or eliminate the risk of
contaminating the Petroleum Product volume at the Natcos Facility immediately
before the Guest's Petroleum Product is discharged into the Natcos Facility.
9.3 If the Guest's Petroleum Product does not meet the Specifications, the Host shall
have the sole and absolute discretion to reject receipt of that Petroleum Product
and to refuse to allow it to be discharged into the Natcos Facility without incurring
any liability whatsoever to the Guest, in which event the Guest will be obliged to
immediately remove such Petroleum Product by ship or other means from IV9 at
the Guest’s own cost. Any other arrangements between the Host and the Guest
regarding the correction of the Petroleum Product to meet the Specifications shall
be the subject of a separate written agreement, the agreed principle being that
any such correction would be done at the sole risk and at the cost of the Guest.
14
9.4 The Guest shall submit the Quality Certificate prepared at the point of loading the
applicable Petroleum Product into the relevant vessel, as well as the Quality
Certificate prepared at IV9, prior to discharge of the applicable Petroleum
Product into the Natcos Facility, in order for the Host to determine whether the
Petroleum Product meets the Specifications.
10 RISK
10.1 Save as is otherwise expressly provided for in this Agreement –
10.1.1 all risk in and to the Guest's Petroleum Product shall pass from the Guest to
the Host once the applicable Petroleum Product passes the off-loading arms
at IV9; and
10.1.2 the risk in and to the applicable Petroleum Product shall pass from the Host
back to the Guest immediately after such Petroleum Product leaves the Final
Valve.
10.2 Without detracting from the provisions of clause 10.1, the Guest is responsible for
any and all incidents that may occur outside of the risk transfer points described
in clause 10.1, including (but not limited to) clean up, related costs, rehabilitation
etc.
11 PETROLEUM PRODUCT THROUGHPUT AND VOLUME RECONCILIATION
11.1 The volume of the Guest's Petroleum Product received at the Natcos Facility
shall be measured by Natcos under the supervision of the Independent
Surveyors by way of tank dips before and after the applicable Petroleum Product
has been discharged from the Guest's vessel into the applicable Petroleum
Product tanks at the Natcos Facility. The Parties agree that the Quantity
Certificate setting out the final volume of Petroleum Product received at the
Natcos Facility shall be final and binding on the Parties, in the absence of
manifest error.
11.2 The Guest will be responsible for the appointment of the Discharge Supervisor,
who must be approved by Natcos. The Guest shall be liable for any and all costs
specified by and payable to the Discharge Supervisor pertaining to the
appointment of the Discharge Supervisor.
15
11.3 The Guest must confirm in writing to the Host, prior to the Guest's Petroleum
Product being discharged into the Natcos Facility, that Transnet has given a firm
commitment to accept injections of the Guest's Petroleum Product into the
Transnet Pipe Line on the dates specified in the Despatch Plan. The Host will not
be obliged to request such written confirmation from the Guest, or to ascertain
whether such firm commitment has in fact been given by Transnet.
11.4 A line flush is required before every injection into the Transnet Pipe Line ("Line
Flush"). The Line Flush is a Transnet requirement to ensure that Petroleum
Product that enters the Transnet Pipe Line is not contaminated. The Line Flush
is essentially a header volume that must not enter the Transnet Pipe Line, but is
rather taken to an alternate storage location ("Line Flush Storage Facility"). As
at the Signature Date, the only Line Flush Storage Facilities which are linked to
the Natcos Facility are the IVT Facility and the facilities operated by the other
coastal oil companies (it being recorded that the Natcos Facility cannot
accommodate the Line Flush). The Guest is responsible for making and
procuring the making of all relevant arrangements for each Line Flush to be
received by an appropriate Line Flush Storage Facility on the dates specified in
the applicable Despatch Plan. The Guest shall provide the Host with written
confirmation upon receipt of a firm commitment from the applicable Line Flush
Storage Facility that it will accept the Line Flush on the dates specified in the
applicable Despatch Plan. The Host will not be obliged to request such written
confirmation from the Guest, or to ascertain whether such firm commitment has in
fact been given by a Line Flush Storage Facility. The Guest is also responsible
for the recovery of the applicable Line Flush from the corresponding Line Flush
Storage Facility.
11.5 The Guest shall be entitled to receive back 100% (one hundred percent) of the
volume of Petroleum Product which was accommodated by the Host at the
Natcos Facility, minus the Acceptable Losses and less the Line Flush.
11.6 The volume of Petroleum Product transferred back to the Guest shall be
measured by Natcos under the supervision of the Independent Surveyors by way
of tank dips at the Natcos Facility before and after the transfer of the applicable
Petroleum Product. The Independent Surveyors' Quantity Certificate setting out
the final volume of Petroleum Product dispatched by the Host from the Natcos
Facility for the benefit of the Guest shall be final and binding on the Parties, in the
absence of manifest error.
16
11.7 As soon as reasonably and practically possible after the completion of each
Request in respect of which an Acceptance was issued, a reconciliation
("Reconciliation") of the aggregate volume of Petroleum Product received by the
Host from the Guest at the Natcos Facility as per the signed Quantity Certificate
issued in terms of clause 11.1 and the aggregate volume of Petroleum Product
returned to the Guest by the Host from the Natcos Facility as per the signed
Quantity Certificate issued in terms of clause 11.6 (plus all the Acceptable
Losses and plus all applicable Line Flushes as per the applicable Quantity
Certificate) will be completed. Any volume differences identified in the
Reconciliation will be settled by one Party to the other through the repayment of
the applicable physical Petroleum Product volumes. If volume repayment is not
feasible, the Parties shall agree on an appropriate commercial settlement. If the
Parties fail to reach a commercial settlement within a reasonable period of time,
then settlement will be made in accordance with the average BFP prices for the
specific Petroleum Product for the period during which the Services in respect of
the applicable Request were rendered.
12 BREACH
Should a Party ("Defaulting Party") commit a breach of any of the terms of this
Agreement which can be remedied, and remain in default after receipt by the
Defaulting Party of written notice from the other Party ("Aggrieved Party") calling
for such breach to be remedied within 5 (five) business days after the Aggrieved
Party delivered such notice, such Aggrieved Party will be entitled, without prejudice
to any other rights it may have hereunder or in law, to terminate this Agreement with
immediate effect and by written notice to that effect given to the Defaulting Party. In
the event that any breach cannot be remedied within the aforesaid period or at all,
the Aggrieved Party shall be entitled, without prejudice to any rights it may have in
law or in this Agreement, to summarily terminate this Agreement.
13 TERMINATION
13.1 In addition to the termination of this Agreement as contemplated in clause 12 -
13.1.1 each Party shall be entitled to terminate this Agreement at any time by giving
the other Party 30 (thirty) days' prior written notice of termination (the Parties
hereby acknowledging that this is a reasonable period); and
13.1.2 this Agreement shall automatically terminate with immediate effect in the event
17
that access to the Transnet Pipe Line from the Natcos Facility is discontinued
for any reason whatsoever.
13.2 Notwithstanding any termination of this Agreement, the provisions of this
Agreement will continue to be of full force and effect in respect of –
13.2.1 any of the Guest's Petroleum Product which is still located at the Natcos
Facility following such termination and will continue to apply thereto until such
time as the applicable Petroleum Product is no longer located at the Natcos
Facility; and
13.2.2 the Petroleum Product which is the subject of a Request in respect of which
the Host has issued an Acceptance in accordance with the provisions of
clause 4.4 prior to such termination of this Agreement, and will continue to
apply thereto until such time as the Host has discharged all of its obligations to
the Guest in respect of such Petroleum Product in accordance with the terms
and conditions contained in this Agreement.
14 DISPUTE RESOLUTION
14.1 Quality Disputes
14.1.1 In the event of a dispute regarding the quality of the Petroleum Product being
delivered by the Guest to the Host at the Natcos Facility, the Parties shall use
their reasonable commercial endeavours to resolve the dispute within 5 (five)
business days of the dispute having been brought to the attention of the Party
which is not raising the dispute.
14.1.2 Should the Parties be unable to resolve the dispute during the
abovementioned period then either of the Parties may refer the dispute to the
Independent Expert, who shall act as an expert and not as an arbitrator.
14.1.3 Notwithstanding anything to the contrary in this agreement, the provisions of
this clause 14.1 shall remain in force notwithstanding the termination,
cancellation, invalidity, unlawfulness or unenforceability of this Agreement or
of any of the provisions thereof.
14.2 Other Disputes
18
14.2.1 Any disputes, other than a dispute referred to in clause 14.1, which arises
between the Parties shall be referred to the persons nominated by each of the
Parties from time to time as the relationship manager in respect of this
Agreement ("Relationship Managers") who will use their reasonable
commercial endeavours to resolve the dispute within 15 (fifteen) days of the
dispute having been referred to them.
14.2.2 Should the respective Relationship Managers be unable to resolve the dispute
in accordance with the aforegoing, such dispute shall be referred to the
persons appointed by each of the Parties from time to time as the managing
director in respect of the division under which this Agreement falls (or their
respective nominees) ("Managing Directors") who will use their reasonable
commercial endeavours to resolve the dispute within 15 (fifteen) days of the
dispute having been referred to them.
14.2.3 In the event of the Managing Directors being unable to resolve the dispute in
accordance with the aforegoing, then either of the Parties may refer the
dispute to arbitration as contemplated in clause 25.
14.2.4 Notwithstanding anything to the contrary in this agreement, the provisions of
this clause 14.2 shall remain in force notwithstanding the termination,
cancellation, invalidity, unlawfulness or unenforceability of this Agreement or
of any of the provisions thereof.
15 FORCE MAJEURE
15.1 Neither Party shall be liable to the other for the loss or damage of any nature
whatsoever incurred or suffered by a Party because of delays or defaults in
performance under this Agreement caused by circumstances beyond its control,
and without its fault or negligence, including but not restricted to acts of God,
perils of navigation, floods, fire, war (declared or undeclared), hostilities,
executive or administrative orders or acts of either general or particular
application of any government or of any officer or agent acting under the authority
of such government, blockade, labour disturbance, strikes, riot, quarantine
restrictions, earthquakes, load shedding, power failures/outages or expropriation.
15.2 If a Party is by reason of force majeure prevented from fulfilling its obligations
under this Agreement the Party so prevented shall without delay notify the other
19
in writing to that effect. The Parties shall then promptly meet with a view to
reducing or mitigating the effects of the force majeure.
15.3 A Party who alleges the existence of force majeure shall have the burden of
providing the existence of such force majeure.
15.4 A Party who, because of force majeure, fails to perform in whole or in part its
obligations under this Agreement, shall use its reasonable commercial
endeavours to mitigate the effect of its failure or omission to perform in full and
shall continue to perform its obligations as far as possible and practical and, upon
the cessation of the force majeure, without delay in writing inform the other Party
of such cessation.
15.5 If for reasons of force majeure, a Party is unable, notwithstanding that Party’s
efforts to remove the causes of the force majeure, to perform all or any of its
obligations hereunder and such non-performance continues for more than 30
(thirty) consecutive days after force majeure has been notified in terms of clause
15.2, then either of the Parties shall be entitled to terminate this Agreement and
neither Party will have any claim against the other arising out if such termination.
16 DOMICILIA AND NOTICES
16.1 The following addresses shall constitute the domicilium citandi et executandi of
each of the Parties:
16.1.1 In the case of the Host:
32 Hill Street
Ferndale
Randburg
2194
South Africa
Attention: Vice President Supply Chain SA Energy
16.1.2 In case of the Guest:
……………………………
……………………………
……………………………
……………………………
Attention: ………….
20
16.2 For operational matters, all communication should be addressed to the Parties at
the following address:
16.2.1 In the case of the Host:
32 Hill Street
Ferndale
Randburg
2194
South Africa
Attention: Senior Manager: Planning Operations;
16.2.2 In the case of the Guest:
……………………………
……………………………
……………………………
……………………………
Attention: ………….
16.3 Each Party may change its address for purposes of clause 16.1 and/or 16.2 to
any other physical address by written notice to the other Party to that effect.
Such change of address will be effective 5 (five) business days after receipt of
the notice of the change.
16.4 All notices to be given in terms of this Agreement will be given in writing and will -
16.4.1 be delivered by hand, and not by way of telefax or email; and
16.4.2 if delivered by hand during business hours, be presumed to have been
received on the date of delivery. Any notice delivered after business hours or
on a day which is not a business day will be presumed to have been received
on the following business day.
16.5 Notwithstanding the above, any notice given in writing, and actually received by
the Party to whom the notice is addressed, will be deemed to have been properly
given and received, notwithstanding that such notice has not been given in
accordance with this clause 16.
21
17 ASSIGNMENT
Neither Party shall be entitled to transfer or assign, partially or entirely, any of its
rights or obligations under this Agreement to anyone else without the prior written
consent of the other Party, which consent shall not be unreasonably withheld.
18 RELATIONSHIP BETWEEN THE PARTIES
It is expressly understood that the Parties are contractors independent of one
another, and that neither has the authority to bind the other any third party, or to
otherwise act in any way as the representative of the other, unless otherwise agreed
upon, in writing, between the Parties.
19 WHOLE AGREEMENT
19.1 This Agreement constitutes the entire agreement between the Parties in respect
of the subject matter hereof and neither Party shall be bound by any
undertakings, representations, warranties or promises not recorded in this
Agreement.
19.2 No alteration, variation or consensual termination of this Agreement and no
addition to this Agreement shall be of any force or effect unless reduced to
writing and signed by the Parties or their duly authorised representatives.
20 WAIVER
No waiver of any of the terms and conditions of this Agreement will be binding or
effectual for any purpose unless expressed in writing and signed by the Party giving
the same, and any such waiver will be effective only in the specific instance and for
the specific purpose given. No failure or delay on the part of either Party in
exercising any right, power or privilege hereunder will operate as a waiver thereof,
nor will any single or partial exercise of any right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or privilege.
21 SEVERABILITY
Should any of the terms or conditions of this Agreement be held to be invalid,
unlawful or unenforceable, such terms and conditions will be severable from the
remaining terms and conditions that will continue to be valid and enforceable. If any
term or condition held to be invalid, unlawful or unenforceable is capable of
22
amendment to render it valid, lawful or enforceable the Parties agree to negotiate an
amendment to this Agreement to remove the invalidity, unlawfulness or
unenforceability.
22 INSURANCE
22.1 The Parties shall respectively and as each deems fit, obtain and maintain
adequate insurance cover for all their respective assets and liabilities and their
respective responsibilities in terms of this Agreement.
22.2 The nature and ambit of a Party’s insurance shall not limit their liabilities and /or
responsibilities in terms of this Agreement.
22.3 The Host shall insure the full value of the Petroleum Product of the Guest against
risk of loss and/or damage by –
22.3.1 fire, riot, flood, civil disturbance, earthquake, contamination and such other
causes (whether or not similar to the foregoing) against which property of such
nature as the Petroleum Product is ordinary insured; and
22.3.2 political riot, malicious damage and similar causes to the extent commercially
available in the Republic of South Africa,
from the time when risk in respect of such Petroleum Product passes from the
Guest to the Host in terms of clause 10.1.1 until such time as risk in respect of
such Petroleum Product passes back to the Guest from the Host in terms of
clause 10.1.2.
23 LIABILITY AND INDEMNITY
23.1 The Guest hereby indemnifies the Host against all claims and/or liabilities arising
from whatsoever cause and under whatsoever circumstances, which relate to:
23.1.1 any representations or warranties made by the Guest to any third party in
respect of the Petroleum Products; and
23.1.2 claims by any third party for damage, death or injury arising from either Party's
failure to provide the claimant with information in respect of the inherent
dangers, correct use and storage of the product or its derivatives or failure to
observe any applicable legal requirement, including but not limited to
legislation pertaining to health, safety and environmental matters.
23
23.2 Save as otherwise expressly provided for in this Agreement (an particularly in
clause 7), neither Party shall be liable to the other for any indirect, special or
consequential damages in respect of claims arising from or in connection with
this Agreement, including claims in delict, contract, statute or from strict liability,
and including but not limited to loss of profits, loss of business, loss of market or
the like.
24 CONFLICT OF INTEREST
24.1 It is a material term of this Agreement that neither the Host nor the Guest shall
make any payment or give anything of any value or provide any other benefit to
any official of any government or public organisation (including any officer or
employee of any government or public organisation) to influence his or its
decision, or to gain any other advantage for either of the Parties in connection
with this Agreement.
24.2 The Parties shall immediately notify each other upon becoming aware of any
breach of clause 24.1.
24.3 Each of the Parties indemnifies and holds the other Party harmless for all losses
and expenses arising out of a breach of clause 24.1.
25 ARBITRATION
25.1 Subject to the provision of clause 14, each Party consents to the referral to
arbitration of any dispute arising out of this Agreement. For the purpose of this
clause 25, the term "dispute" shall be interpreted in its widest sense and shall
include any dispute or difference in connection with or in respect of the
conclusion or existence of this Agreement, the carrying into effect of this
Agreement, the interpretation or application of the provisions of this Agreement,
the Parties’ respective rights and obligations in terms of and arising out of this
Agreement, or the validity, enforceability, rectification, termination or cancellation,
whether in whole or in part, of this Agreement. Such arbitration shall be
conducted as follows:
25.1.1 in Johannesburg;
25.1.2 on an informal basis;
24
25.1.3 in accordance with the provisions of the Arbitration Act, No. 42 of 1965, as
amended, and the rules of the Arbitration Foundation of South Africa, provided
that either Party shall be entitled to approach the High Court to obtain
appropriate urgent relief as may be necessary under the circumstances; and
25.1.4 if possible, it shall be held and concluded within 21 (twenty one) business
days after it has been demanded.
25.2 If the dispute in question is:
25.2.1 primarily an accounting matter, the arbitrator shall be an independent
accountant agreed upon in writing between the Parties;
25.2.2 primarily a legal matter, the arbitrator shall be practicing senior counsel with
no less than 10 (ten) years standing agreed upon in writing between the
Parties; or
25.2.3 any other matter, the arbitrator shall be an independent person agreed upon in
writing between the Parties.
25.3 If the Parties cannot agree upon a particular arbitrator in terms of clause 25.2
within 7 (seven) days after the arbitration has been demanded, the arbitrator shall
be a practicing senior counsel with no less than 10 (ten) years standing
nominated by the President of the Law Society of the Northern Provinces (or its
successor) within 7 (seven) days after the Parties have so failed to agree.
25.4 The Parties irrevocably agree that the decision in these arbitration proceedings:
25.4.1 shall be final and binding on the Parties; and
25.4.2 may be made an order of any Court of competent jurisdiction.
25.5 Any arbitration proceedings pursuant to the provisions of this clause 25 shall be
treated as confidential by the Parties.
25.6 This clause 25 shall be severable from the remainder of this Agreement, and
shall survive its termination for whatever reason.
26 COMMERCIAL TERMS
26.1 Rates/Consideration payable by the Guest to the Host ("Tariff Fee")
25
As consideration for the rendering of the Services, the Guest shall, subject to the
provisions of clause 26.3, pay the Host the NERSA approved tariff from time to
time (it being recorded that as at the Signature Date, the approved NERSA tariff
is R0.053 (five point three cents) per litre) in respect of each litre of the Guest's
Petroleum Product accommodated at the Natcos Facility. The tariff payable by
the Guest in terms of this Agreement shall exclude Duties as contemplated by
the Customs and Excise Act, as amended from time to time, as well as any other
Levies which are be due and payable.
26.2 Taxes
26.2.1 In terms of legislation in force as at the Signature Date, the Guest (being the
importer on record), will be liable to pay to the relevant authorities the customs
duty in respect of the Petroleum Product on importation into the Natcos
Facility. The Guest will also be liable to pay the Levies applicable to the
Petroleum Products. When the Guest reacquires possession of its Petroleum
Product from the Host at the Final Valve, the Guest will be liable to pay Duties
and Levies to the Host.
26.2.2 The Tariff Fee shall be exclusive of VAT.
26.2.3 The Guest warrants to and in favour of the Host that:
26.2.3.1 it has and will at all times during this Agreement continue to have properly
and timeously paid all its outstanding monies for taxation purposes, due
and payable, including all amounts in respect of custom duties on
Petroleum Products;
26.2.3.2 no audits or investigations into its tax affairs have been conducted or are
pending by any government taxing authority, or are, to the best knowledge
and belief of the Guest, threatened; and
26.2.3.3 no notice of any proposed tax audit, or of tax deficiency or adjustment, has
been received by it, and that there is no reasonable basis for any tax
deficiency or adjustment to be assessed against it.
26.2.4 The Guest acknowledges that a breach of this clause 26 shall constitute a
material breach of this Agreement and that the Host shall be entitled to
terminate this Agreement immediately without any further notice.
26
26.2.5 Save to the extent prohibited by law, the Guest hereby indemnifies the Host
and holds it harmless against any financial losses, damages or expenses that
may occur from any recoveries by the responsible government authority or its
collecting agencies of outstanding taxes, Duties and/or Levies, which taxes or
Levies would ordinarily have to be recovered from the Guest.
26.2.6 The Parties record that should any other taxes and/or Levies be levied by any
competent authority that increases the cost at which the Host provides the
Services to the Guest in terms of this Agreement then the Host shall be
entitled to increase the Tariff Fee payable by the Guest to the Host in terms of
this Agreement to place the Host in the same financial position it would have
been in had it not been for such increase in taxes and/or Levies.
26.3 Manner of Payment
26.3.1 Subject to the provisions of this clause 26, the Tariff Fee shall be deemed to
be earned by the Host, and the Guest’s corresponding liability to pay shall
arise, as and when the Guest's Petroleum Product passes through the Final
Valve.
26.3.2 An invoice will be rendered by the Host to the Guest on the 3rd (third) business
day after the end of every month ("Invoice") which will set out the Tariff Fee
and Duties reimbursements to be made by the Guest in respect of the
immediately preceding month. The Tariff Fee and the Duties reimbursements
relating to such Invoice shall be made by the Guest to the Host within 15
(fifteen) days after the end of the month to which such Invoice relates while
this Agreement is in place.
26.3.3 Should any payment under or arising from this Agreement fail to be made on
the due date therefor then, without prejudice to such other rights as may
accrue to the Host consequent upon such failure, such overdue amounts will
bear interest at a rate which is 200 (two hundred) basis points above the
Prime Rate, from the due date for payment to the date of actual payment, both
dates inclusive.
26.3.4 Notwithstanding the foregoing, if the Guest disputes the amount payable in
respect of any Invoice, the Guest shall nevertheless pay the full amount
payable in terms of such Invoice with any adjustments being accounted for in
terms of clause 26.3.5, and the Parties shall endeavour in good faith to
27
resolve the dispute with respect to such Invoice as soon as practicable. Failing
resolution within 7 (seven) days after the Host becoming aware of the dispute,
the dispute will be settled in accordance with clause 14.2.
26.3.5 Any adjustment required to be made to an amount specified in an Invoice
arising as a result of the resolution of a dispute in accordance with clause
26.3.4 will, so far as practical, be reflected in the Host’s next Invoice.
26.3.6 The Guest shall under no circumstances be entitled to set-off or deduct or
withhold any amounts that are to be paid by the Guest to the Host in terms of
this Agreement against any amount that the Host may be obliged to pay to the
Guest whether in terms of this Agreement or otherwise.
26.3.7 The Guest will pay the Host by way of an electronic bank transfer into a bank
account as may be nominated by the Host in writing from time to time or in
such other manner as the Parties may agree in writing.
27 CONFIDENTIALITY
27.1 The Guest, by virtue of its association with the Host, may come into possession
of and may have access to the Host’s trade secrets and confidential information
(collectively referred to as "Trade Secrets").
27.2 The Guest may not directly or indirectly divulge or disclose any of the Trade
Secrets to any one or more third parties or its own employees, unless disclosure
to its own employees is necessary to give effect to this Agreement.
27.3 In the event that the Guest is under a legal compulsion to disclose the Trade
Secrets to any one or more third parties, the Guest must in writing inform the
Host of the compulsion and cooperate fully with the Host in resisting the
compulsion, should the need arise.
27.4 When this Agreement terminates, the Guest must, upon written demand by the
Host, return to the Host or destroy all of the Trade Secrets as the Host may
specify in such written notice.
27.5 The provisions of this clause 27 shall apply, mutatis mutandis, to the Host in
respect of the Guest's trade secrets and confidential information.
28
SIGNED at ___________________________ on ___________________________ 2014
For and on behalf of SASOL OIL (PROPRIETARY) LIMITED
Signature
Name of Signatory
Designation of Signatory
AS WITNESS:
Signature of Witness Signature of Witness
Name of Witness Name of Witness
Identity Number of Witness Identity Number of Witness
29
SIGNED at ___________________________ on ___________________________ 2014
For and on behalf of GUEST
Signature
Name of Signatory
Designation of Signatory
AS WITNESS:
Signature of Witness Signature of Witness
Name of Witness Name of Witness
Identity Number of Witness Identity Number of Witness
ANNEXURE "1"
PRODUCT SPECIFICATIONS
1 DIESEL SPECIFICATIONS
1.1 Table 1 below sets out the petrol specifications that the Guest must comply with.
1.2 However, due to the high risk associated with the storage and cross-pump of
Petroleum Product via the Natcos Facility and co-mingling the Petroleum Product
with other Petroleum Product at the Natcos Facility, the following measures are
also required for diesel imported into the Natcos Facility for the duration of this
Agreement:
1.2.1 Conductivity @ 20oC – product shall be treated with Stadis 450 prior to
discharge into Natcos to ensure that it meets the specification requirement.
Typical conductivity is approximately 200pS/m.
1.2.2 Flash point: Although the minimum requirement is 62 oC, a flash point of above
65oC is preferred from a sourcing perspective.
Table 1: Specification for Diesel grade product
Property Units Limit Test Method Import requirement
Notes
Appearance max ASTM D4176 2
or Caltex Haze at 16-23
Colour max ASTM D1500
3
Density @ 20°C kg/l min D4052/D1298 0,816
Ash Content % m/m max D482 0,01
Cetane Number min D613/IP41 45
Carbon Residue, Ramsbottom % m/m max D524 0,2
(on 10% residue)
CFPP - Winter, 15 Mar - 30 Sept Deg C max IP309 -4
- Summer, 1 Oct - 14 Mar Deg C max 3
Cloud point- Winter, 15 Mar - 30 Sept Deg C max +4
Conductivity @ 20 Deg C pS/m min D2624 100
pS/m max 600
Corrosion, Copper Strip, 3 hrs @ 100°C max D130 1
Distillation D86
90 % vol. Recovery Deg C max 362
Sulphur Content mg/kg max D5453 480
Flash point, PMCC Deg C min D93 62
Strong Acid Number mg
KOH/g max D974/D664 nil
Acid Number mg
KOH/g max D974/D664 0,25
Kinematic Viscosity @ 40 Deg C cSt (3) min D445 2,2
max 5,3
Water Content, Karl Fischer ppm (v/v) max D4377/D6304 200
IP356
Total Contamination mg/kg
max
IP440
12
Lubricity (HFRR) (Lubricity improver must have latest British Standard multi
product pipeline approval) um max CEC F06-A-96 400
Oxidation Stability mg/100ml max D2274 2,0
Fatty Acid Methyl Ester (FAME) content Vol% 0.0 See Note
1&2
NOTES:
Blending of Fatty Acid Methyl Ester (FAME) into diesel is not allowed as part minimising the jet fuel contamination during conveyance in a multi product pipeline.
FAME content: o Load port < 10ppm o Discharge port < 50ppm
2 PETROL SPECIFICATIONS
2.1 Table 2 below sets out the petrol specifications that the Guest must comply with.
2.2 However, due to the high risk associated with the storage and cross-pump of
Petroleum Product via the Natcos Facility and co-mingling the Petroleum Product
with the other Petroleum Product at the Natcos Facility, the following measures
are also required for petrol imported into the Natcos Facility for the duration of
this Agreement no ethanol and or methanol are allowed as part of the petrol
blending components.
Table 2: Specification for ULP 95 grade product Property Units Limit Method Import
Requirement Note
Appearance SABS 1598 Requirements 4.1.3
Clear and free from visible water,
sediment and suspended matter
Colour Visual Un-dyed
Density @ 20°C kg/l min D4052/D1298 0,710 1
max 0,785
Octane Number, Research min D2699/IP237 95.0/93.0
Octane Number, Motor min D2700/IP236 85.0/93.0
Lead Content g Pb/l max D5059/D352 0,001 2
Gum, Existent mg/100ml max D381/IP131 4
Gum, Potential (2.5 hrs @ 100 Deg C) mg/100ml max IP138/D873 4
Induction Period @ 100 Deg/C mins min D525/IP40 360
Distillation D86/IP123
IBP Deg C Report
10 % vol Deg C max 65
50% vol Deg C min 77
50% vol Deg C max 115
90 % vol Deg C max 185
FBP Deg C max 210
Residue % v/v max 2,0
Evaporated to 70 Deg/C % v/v
Reid vapour pressure/DVPE ** kPa min D323/D5191 45
max 75
FVI, Spring, 1 Sept - 30 Sept max RVP + 0,7*E70 89
Summer, 1 Oct to 28 Feb max 87
Property Units Limit Method Import Requirement
Note
Autumn, 1 March to 31 March max 89
Winter, 1 April to 31 Aug max 94
Total Acidity mg KOH/g max D3242/IP354 0.025
Sulphur Content % m/m max D4294/IP336 0.050 D5453/D3120
Doctor test max IP30 Negative 3
Or Mercaptans %m/m max D32270 0.0015
Cu Corrosion (3hr @ 50 Deg/C) rating max D130/IP154 1
Ag Corrosion (4 hr @ 50Deg/C) rating max IP 227 1
Aromatics content % v/v D5880/D5443 42
% v/v D1319
Benzene content % v/v max D5880/D5443
% v/v D4815/D3606 3.0
Oxygen content %m/m max ASTM D 4815 2.8 4
Butane content % m/m max GC 4.0
Metallic additives mg/l max D3831 1
NOTES:
In case of dispute, test method ASTM D4052 shall be used.
Applicable at loading point
Negative Doctor test will be acceptable, a positive result must, however, be accompanied by a Mercaptan concentration as per ASTM D 3227.
Oxygenates added must be specified in the Quality Certificate by type of oxygenate and concentration added to the base gasoline.
****ASTM D5191 is a DVPE test method and NOT RVP.
ANNEXURE "4"
GUIDELINE TO LICENSEE VETTING REQUIREMENTS
Age of vessel: The Age of vessels shall not exceed 20 (twenty) years.
Flag of vessel: The following Flag States are unacceptable: Iran, Korea DPR, Albania, Tonga, Honduras, Comoros, Georgia, Slovakia, Bolivia, Syrian Arab Republic, Cambodia, Algeria, Lebanon.
Crew Matrix: Unacceptable if the Captain & C/O or C/E & 1/E have:
Joined at the same time.
Aggregated time with company < 2 years
Aggregated time in rank < 5 years
Aggregated tanker experience < 10 years
In exceptional circumstances the Licensees may accept a vessel that does not meet the crew matrix criteria or is on its maiden voyage, but only when proof can be given that the vessel was approved by ExxonMobil, Shell, Chevron or BP in the immediately preceding 6 month period.
If the vessel has been inspected and found unacceptable by TOTAL, Sasol, ExxonMobil, Shell, Chevron, BP, PetroSA or any other charter party operating in South Africa or the vessel has had a fatality, then it will not be acceptable to the Licensees.