GENERAL TERMS AND CONDITIONS FOR THE SALE AND DELIVERY OF MARINE FUEL (BUNKERS)

Transcription

1 GENERAL TERMS AND CONDITIONS FOR THE SALE AND DELIVERY OF MARINE FUEL (BUNKERS) PREAMBLE These General Terms and Conditions shall apply to all deliveries of Marine Fuel and is confirmed in the Bunker Confirmation and shall remain applicable to any transaction between the Seller and the Buyer including their fleet of vessels whether disponed, managed, chartered or owned. These Terms and Conditions define the rules regulating the agreement between Buyer and Seller with regard to ordering, delivery, price, payment and applicable law DEFINITIONS Marine Fuel means marine bunker and any intermediate marine oil and related products of whatever type or grade delivered by the Seller. Bunker Contract means the General Terms and Conditions. Each delivery constitutes a separate contract of sale. Bunker Confirmation means the written confirmation of Seller to Buyer with agreed price and applicable terms and conditions. Buyer(s) means the Buyer under each Bunker Contract, including the entity or entities named in the benefitting from consuming the Marine Fuel, whom shall be jointly and severally liable as Buyer under the Bunker Contract. Seller means the party contracting to sell and deliver Marine Fuel. Supplier means the party physically supplying the Marine Fuel to vessel and shall include its servants, agents, successors, sub-contractors and assigns. Vessel means the vessel, ship, or any craft nominated in the confirmation to receive Marine Fuel QUALITY Supplied Marine Fuel shall be of the quality usually offered by Seller to its Buyers at the time and place of delivery. It is on Buyer s sole responsibility to ensure that proper grade of Marine Fuel has been ordered, which fits and tie in with receiving vessel's technical requirements. Any implied warranties, including the warranties of merchantability and fitness for particular purpose that the Seller may be deemed to have made, are expressly excluded and disclaimed. The Seller can in no circumstances be held responsible for any consequences of misuse or defective application of the Marine Fuel. Legends Oil Trading & Bunkering DMCC Page 1

2 The Buyer shall be responsible to keep the delivered Marine Fuel segregated from any bunker oil onboard the vessel or from different delivery to vessel. In no event shall the Seller be responsible for quality and compatibility with any other product onboard the receiving vessel. Quality Claim Any claim regarding the quality of the Marine Fuel delivered shall be presented in writing to the Seller immediately upon detection of the alleged defect, and in any event no later than fourteen (14) calendar days from receipt of Marine Fuel. Buyer should provide Seller with full details of the possibly defective Marine Fuel together with the Vessel's position, destination and ETA, the quantities and locations of all bunkers on board the Vessel/stored in the Vessel, the rate and quantity of consumption since delivery and the location of the Vessel immediately prior to delivery of the alleged defected Marine Fuel, and for each of the three preceding deliveries to the Vessel, the quantity, quality and specification of Product supplied, the place and date of supply and the name of the supplier. Should the Buyer fail to make timely notification of any claim regarding the quality of the Marine Fuel the claim shall be deemed waived and barred. If after fourteen (14) calendar days from the date that Buyer registers a quality claim to Seller, no agreement has been reached between Seller and Buyer, Seller reserves the right to have one of its retained samples independently analyzed and for the results to be final and binding upon both parties. The cost of any analysis shall be borne by Buyer, unless the complaint as to quality is showed to be justified. Buyer shall take all reasonable steps and actions to mitigate any damages, losses, costs and expenses related to any claim of alleged defective Marine Fuel. In any event the Sellers obligation hereunder shall not exceed the direct expenses incurred for the removal and replacement of the Marine Fuel delivered and shall not include any consequential or indirect damages, demurrage claim, loss of opportunity or loss of profit. Should the Buyer remove the Marine Fuel without prior written consent of the Sellers, all such costs incurred in doing so shall be for Buyers account. Seller/Supplier shall not be responsible for any claim arising in circumstances where there is or has been commingling of fuel delivered by Seller/Supplier with other fuel aboard Buyer s vessel QUANTITY Quantity of Marine Fuel delivered shall be determined from the official gauge/sounding of the delivering barge before and after the Marine Fuel is pumped out or from ullages taken in the shore tanks before and after the bunker pumped-out, in case of delivery from shore terminal. Adjustment in volume of delivered Marine Fuel due to difference of temperature shall be made in accordance with ISO-ASTM-API-IP petroleum measurement Tables. The Buyer may appoint a surveyor or other qualified representative to be present during the taking of measurements on board any barge delivering the Marine Fuel to vessel both before and after delivery. If Buyer is not present or represented, the Seller s/supplier s determination of Legends Oil Trading & Bunkering DMCC Page 2

3 quantities shall be deemed to be correct and conclusive and Buyer shall thereby waive any claim against Seller with respect thereto. Quantity Claim Any claim disputing the delivered quantity must be made immediately to Seller/Supplier or his agent at the time and place of delivery, followed by written letter of protest addressed to Seller/Supplier before disconnection of delivery equipment. Seller/Supplier has the option to leave delivery equipment connected to the vessel at Buyer s expense until a quantity dispute has been resolved to Seller s satisfaction. Provided that difference remained unsolved and Buyer intends to claim disputing the delivered quantity of Marine Fuel, a formal written claim with all essential details required by Seller/Supplier should be submitted within fourteen (14) days from the date of delivery, failing which any such claim shall be waived and barred SAMPLING Seller/Supplier shall take three representative samples of each grade of Marine Fuel delivered, which samples shall be sealed. The sample shall be taken from a point and in manner chosen by the Seller/Supplier or its representative in accordance with the customary sampling procedures at the port or place of delivery of the Marine Fuel. The Buyer or his representative has a right to be presented when such samples are taken but the absence of the Buyer or its representative during all or any part of the sampling process shall not prejudice the validity of the samples. The sealed samples shall be provided with labels showing the receiving Vessel s name, number of truck or delivering vessel s name, product name, delivery date and place, and seal number, authenticated with the delivering truck s or vessel s stamp, signed by the Seller s/supplier s representative and the Master of the receiving vessel or his authorized representative. One sealed sample shall be handed to the Master of the vessel receiving the Marine Fuel. The other two samples shall be retained by Seller/Supplier for a period of thirty (30) days from the date of delivery. Only sealed samples drawn, labeled and delivered by Seller/Supplier considered qualified for testing for proving the quality of the Marine Fuel provided DELIVERY The Buyer warrants that the vessel s Owner has given the Buyer express authority to purchase the Marine Fuel. Marine Fuel delivered under a Bunker Contract shall be made not only on the account of Buyer but also on the account of the receiving vessel. Unless otherwise requested by the Seller, the Buyer or their agents shall give the Seller and/or Seller s nominated representatives at the place of delivery 72/48/24 hours written notice of arrival of the vessel at the place of delivery. Seller or Supplier shall be under no obligation to make delivery when in its sole discretion a clear and safe berth, position or anchorage is not available. Legends Oil Trading & Bunkering DMCC Page 3

4 Delivery of Marine Fuel shall be made at any time day and night at the port or anchorage or berth of delivery as stated in Bunker Confirmation. The Buyer shall be responsible for making all connections and disconnections of the delivery hoses to the receiving vessel and shall ensure that hoses are properly connected to manifolds. All losses, damages, costs and expenses of whatsoever nature incurred by Seller/Supplier by reason of any failure by the Buyer to comply with his obligations hereunder shall be on Buyer s account. Buyer is responsible for ensuring the delivery is conducted at a safe rate and pressure and that all equipment utilized is in a safe and good working condition. If Buyer causes delays to Supplier s delivery facilities in the receiving the Marine Fuel, Buyer shall be liable to reimburse Seller for any and all costs incurred. If Buyer fails to arrive at the agreed time for delivery or if vessel is unable to receive the entire ordered quantity, Buyer shall be considered in default, without further notice. In addition, if the vessel fails to take delivery of the Marine Fuel or any part thereof, the Buyer shall compensate the Seller for any losses or damages, which Seller may sustain as a result of such failure, including loss of profit. Seller or Supplier or his agent shall not be liable for any losses, damages, delays or demurrage incurred by Buyer the receiving vessel, or any other party caused due to late delivery of Marine Fuel, unless such delay or failure caused by Seller s proven negligence, as result of non-compliance with instructions of Seller/Supplier, failure of receiving vessel crew and/or representative and/or agent to conform with safety and environmental protection rules applicable at the time of Bunkering. Upon completion of the delivery to the vessel, the Master or authorized representative of Buyer shall confirm the delivery by signing a receipt, provided by Seller or Supplier at that time TITLE The Marine Fuel remains in Seller s property and ownership of Marine Fuel shall pass to the Buyer(s) only after the value of agreed price of supplied Marine Fuel quantity has been received by the Seller. Until such time as payment is made, for the value of supplied Marine Fuel, Buyer(s) agrees that they are in possession of Marine Fuel as Bailee for the Seller but Buyer shall insure the supplied Marine Fuel against loss or damage accordingly and in the event of such loss or damage it shall hold the proceeds of such insurance on behalf of Seller as trustee of Seller. In the event that the Marine Fuel has been mixed with other products on board the Vessel, title to the Marine Fuel shall remain with Sellers corresponding to the quantity of the Marine Fuel delivered RISK Risk of Marine Fuel passes to Buyer(s), once Marine Fuel passes the flange connecting Supplier s delivery hose to the receiving vessel permanent in-take facility. Buyer(s) afterwards shall assume all risks and liabilities relating thereto, including loss, damage, Legends Oil Trading & Bunkering DMCC Page 4

5 deterioration, depreciation, contamination, evaporation or shrinkage of Marine Fuel and responsibility for loss, damage and harm caused by pollution or in any other manner to third parties. Buyers shall indemnify and hold Sellers or Suppliers and their agents harmless from any and all losses, damages, demands, claims, suits or liability for damage to property for injury or death caused to any person arising out or connected with an action or omission on Buyer s part, their officers, crew or third parties acting on their using Marine Fuel delivered hereunder PRICE Unless otherwise specified, prices of Marine Fuel shall be deemed to be in US dollars in the amount expressed per unit, delivered or ex-wharf, as stated in the Bunker Confirmation. If price quoted as ex-wharf, Buyer shall pay any additional expenses or costs such barging charges, wharfage charges, port dues, overtime, dues, duties, taxes for which the Sellers/Suppliers are accountable but which are for Buyers account. The price of Marine Fuel agreed by Seller with the Buyer at the time of nomination of vessel shall remain in force for period of seventy-two (72) hours basis vessel s arrival, as advised by Buyer to Seller at the time of nomination. In the event that the vessel is delayed in taking delivery of the Marine Fuel for a period of more than seventy-two (72) hours of its confirmed delivery period as aforesaid mentioned, Seller is entitled in its absolute discretion either to adjust the agreed price upwards to reflect any upward changes in the value of the market price of Marine Fuel between the date of nomination and date of actual delivery or to consider the contract null and void, whereupon Seller shall be forthwith released from all its obligations under this contract. Buyer shall be liable for all costs, expenses and charges incurred by the Seller on account of Buyer s failure and breach of its committed obligations under this Bunker Contract PAYMENT Payment of the supplied Marine Fuel shall be made by the Buyers in full as stated in Seller s invoice in United States Dollar within thirty (30) days from the date of delivery, unless otherwise agreed. Seller shall be entitled to the payment without discount, reduction, counterclaim, or set-off and free of bank charges and shall be made to the Seller by bank transfer, according to the payment instructions contained in the Seller s invoice or any copy hereof forwarded by Fax, or other means. Payment shall be deemed to have been made on the date the payment is credited to the counter of the bank designated by the Sellers. Should the due date for payment fall on a Saturday, Sunday or Public Holiday, then payment should be received by the previous working day. In the event payment has been made in advance of delivery, same shall be adjusted on the basis of the actual quantities of Marine Fuel delivered and additional payment and/or refund shall be made within thirty (30) days after completion of delivery. Legends Oil Trading & Bunkering DMCC Page 5

6 Should Marine Fuel be ordered by broker or agent, then such broker or agent as well as the principal shall be bound to and be liable for all obligations as fully and as completely as if it were itself a Buyer whether such principal be disclosed or undisclosed and whether or not such broker or agent purports to contact as broker or agent. If the Buyer fails to pay any invoice at the time of maturity set forth in the invoice, the Buyer shall bear interest at the rate of two per cent (2%) per month or any part thereof. The interest rate will be charged monthly from the date of maturity, without prejudice to any other right or claim of the Seller. If at any time the reputation, standing, creditworthiness, liquidity or solvency of the Buyer or any subsidiary, parent, associate or affiliate thereof should give the Seller reasonable cause for concern, and/or if any amount due remains outstanding for a period of 7 days from the Due Date, the Company may without prejudice to all other rights and remedies which it may have give notice to the Buyer that credit facilities from the Seller to the Buyer are withdrawn or suspended as the case may be and all sums outstanding and/or due for payment at a future date shall thereupon fall due to immediate payment LIEN Marine Fuel sold and delivered by Sellers/Suppliers and hereby agreed by the Buyer that the Marine Fuel purchased and received on behalf of himself and the Owners and Charterers of the vessel, on the faith and credit of the Buyer and on the faith and credit of the Vessel. In the event of non-payment, the Sellers reserve the right to pursue all legal remedies available to recover the amount owed. Sellers shall have Maritime Lien on the vessel identified by its IMO number until payment and interest has been received by the Sellers. Remarks or stamps in any form or wording on Bunker Delivery Receipt shall be invalid and of no effect and shall in no way impair Seller s lien or discharge the vessel s responsibility for debts under this agreement FORCE MAJEURE Neither party hereto shall be responsible for damages caused by delays, failure to perform in whole or in part any obligation hereunder, excluding payment of money, or non-compliance with any of the terms hereof when such delay, failure or non-compliance is due to or results from causes beyond the reasonable control of the affected party, including interruption, unavailability, or inadequacy of marine fuels, or any facility of production, manufacture, storage, distribution or delivery, because of wars affecting the delivery area, hostilities, riot, restrain of princes, piracy, public disorders, acts of enemies, sabotage, strikes, lockouts, fires, acts of God, accidents, breakdowns, weather conditions, or any other case whatsoever, which is not within the control of Seller, Supplier or his Agent. Legends Oil Trading & Bunkering DMCC Page 6

7 SAFETY AND ENVIROMENTAL PROTECTION Buyer warrants that its personnel shall comply both during and after delivery, with all safety rules and environmental regulations, both national and international. It is sole responsibility of Buyer to ensure that receiving vessel is properly equipped and operated in a manner as to avoid leakage, spillage or pollution of sea water. In the event of any leakage, spillage, overflow of Marine Fuel causing or likely to cause pollution during delivery, Buyer shall assist and co-operate with Seller/Supplier and shall take immediate action as is necessary to remove the Marine Fuel and mitigate the effects of such spillage, leakage or overflow. The Buyer shall indemnify and hold Sellers/Suppliers harmless against any claims or liability, expenses, damages, costs, fines and penalties imposed by reason of any leakage, spillage, overflow or pollution of sea water, except to the extent that such leakage, spillage or overflow shall be proven to be solely caused by negligence or omission of Seller/Supplier LAW This Bunker Contract and all claims and disputes arising under or in connection therewith shall be governed the Laws of England. Any dispute arising out of or in connection with this Bunker Contract, involving amounts in excess of US$ 50,000 (United States Dollars Fifty Thousand) shall be subject to the jurisdiction of the English High Court in London. Any dispute arising out of or in connection with this Bunker Contract involving amounts up to and including US$ 50,000 (United States Dollars Fifty Thousand) shall be referred to arbitration by a single arbitrator in London in accordance with the provisions of the London Maritime Arbitrators Association (LMAA) Small Claims Procedure (2012). Nothing herein contained shall prevent Seller from commencing proceedings, in the event of a breach of this Bunker Contract by the Buyer, for obtaining security for its claims either by way of arrest or otherwise against vessel owned and/or chartered by the Buyer and/or against any Buyer s property in any state or jurisdiction. The Buyer agrees and acknowledges that the nature of the transaction and of the respective business concerned is such, to the effect that the foregoing which are set for the benefit of the Seller, are absolutely reasonable and fully acceptable by the Buyer, which hereby confirms that it will also be liable for all costs associated with enforcing a maritime lien, attachment, right of arrest or any other available remedy in law SEVERABILITY If any portion of this Bunker Contract is held to be invalid, void or unenforceable for any reason by a court or governmental authority of competent jurisdiction, it will not affect the validity, legality or enforceability of the Bunker Contract and other terms shall continue in full force and effect. Legends Oil Trading & Bunkering DMCC Page 7