General Terms & Conditions BMS United
Unless it is otherwise agreed in writing between the Seller and the Buyer, these General Terms and Conditions of Sales Concerning the Supply of Bunker Oil and Lube Oil (“General T & Cs”) shall apply to any Contract for the sale of Marine Fuel between the Seller and the Buyer of such Marine Fuel. Where the Seller agrees expressly with the Buyer in writing for a particular term or terms to be included in their Contract which are inconsistent with these General T & Cs, such particular term or terms shall prevail over these General T & Cs only to the extent of such inconsistencies.
In these General T & Cs, unless the context otherwise requires, the following definitions and meanings shall apply: 1.1 “Buyer” means the buyer under each Contract, which in every case includes the entity or entities named in the Sales Confirmation and their servants, agents and designated representatives, together with the Vessel supplied and her master, registered owners, managers, operators, disponent owners, time charterers, bare-boat charterers and charterers or any party benefiting in any way from consuming the Marine Fuel, and any party requesting offers or quotations for or ordering Marine Fuel and/or services and any party on whose behalf the said offers, quotations, orders, agreements and contracts have been made, all of whom shall be jointly and severally liable as Buyer under each Contract. 1.2 “Seller” means any company in the BMS UNITED Group, namely BMS UNITED BUNKERS LTD., BMS UNITED BUNKERS (ASIA) LTD., or BMS UNITED BUNKERS SA Aps and shall include any of its branch offices, servants, agents and designated representatives. 1.3 “Marine Fuel” means the different grades of Bunker Fuel Oil, Intermediate Bunker Fuels, Marine Fuel Oil, Thin Fuel Oil, Marine Diesel Oil, Light Marine Diesel Fuel and Gas Oil or any other type and grade of oil and lube oil delivered or contracted to be delivered or arranged to be delivered by the Seller. 1.4 “Sales Confirmation” means a confirmation in writing from the Seller to the Buyer setting forth the particular terms of each sale of Marine Fuel, or any other equivalent. 1.5 “General T & Cs” means these terms and conditions in force as of October 1st 2015 and any subsequent amendments hereto, and shall apply to any Contract for the sale of Marine Fuel concluded after this time. 1.6 “Contract” means an agreement by the Buyer to buy and a corresponding agreement by the Seller to sell and deliver or to arrange for the sale and delivery of Marine Fuel of a specified quantity at a specified price. 1.7 “Delivery Port” means a port at which the Seller delivers or arranges for the delivery of Marine Fuel pursuant to a Contract. 1.8 “Company” includes a body corporate, a natural person, an unincorporated body, a governmental- agency and/ or a statutory corporation. 1.9 “Vessel” means the ship or vessel(s) nominated to take delivery, or taking delivery or having taken delivery of the Marine Fuel under a Contract on behalf of the Buyer for which Marine Fuel is to be, has been or arranged to be delivered by the Seller.
2.1 The price of Marine Fuel (“Purchase Price”) shall be the price quoted by the Seller and accepted by the Buyer as confirmed in the sales confirmation or its equivalent pursuant to the Contract for the relevant type of Marine Fuel delivered or to be delivered. The Buyer shall also pay the Seller for all and any taxes, levies, duties, expenses, delivery charges, barging fees, road trucks, jetty fees and other costs (including without limitation, those imposed by the government or authorities or competent organisations at the Delivery Port arising out of and/or incurred in connection with the delivery of such Marine Fuel under the Contract which shall be included in the Seller’s invoice to the Buyer. The Buyer shall furthermore pay any extra costs arising out of and/or incurred in connection with deliveries made on Saturdays, Sundays and Public Holidays, and outside of normal working hours at the Delivery Port or place of delivery/work.
3. Sales Confirmation
3.1 The General T & Cs are deemed incorporated into the Sales Confirmation by reference, and the Sales Confirmation and the General T & Cs together constitute the complete Contract. 3.2 Where the Seller expressly agrees with a Buyer in writing for a particular term or terms to be included in the Contract which is or are inconsistent with these General T & Cs, such particular term or terms shall prevail over the General T & Cs only to the extent of such inconsistencies. 3.3 Should the Contract be entered into by any party acting as an agent for the Buyer and/or acting for or on behalf of the Buyer, whether this is disclosed or undisclosed, then such party or agent in addition to the Buyer and/or the holder of any interest in the Vessel receiving the Marine Fuel shall be jointly and severally liable for and guarantees the proper performance of the obligations of the Buyer under the Contract, and shall be deemed as principal and not only acting as an agent. 3.4 All orders, supplies and deliveries shall always take place for the account of the registered owners of the Vessel and for the account of the current charterers all of whom shall be jointly and severally liable as buyers for the purchase price and the other costs of the respective orders, supplies and deliveries. 3.5 The Buyer warrants that it is authorised and has the power and authority to order the Marine Fuel for delivery to the Vessel, and that the Seller has a maritime lien on the Vessel for its claim. Any notice or any stamp in the Bunker Delivery Receipt or similar cannot waive, extinguish or limit the Seller’s maritime lien on the Vessel.
4.1 Wherever the Seller accepts delivery nominations, all such deliveries shall be within port limits, unless delivery outside of such port limits is agreed in advance in writing by the Seller. 4.2 All deliveries under a Contract shall be made ex-wharf or ex-light/barge in accordance with the instructions given by the Buyer or the Master of the Vessel, subject to the Seller’s agreement to such instructions, which agreement shall be reached before the delivery is commenced by the Seller pursuant to the Contract. Without recourse available to the Buyer, the Seller is entitled to suspend delivery of the Marine Fuel under the Contract until such agreement is reached, and if no such agreement is reached within fourteen (14) days from the date of delivery intended under the Contract, the Seller shall be entitled to terminate the Contract but without prejudice to the Seller’s rights to claim damages from the Buyer. 4.3 The Buyer shall solely bear the responsibility and risk for the selection and nomination of the grades of Marine Fuel and the Seller does not warrant and is under no obligation to inspect whether the Buyer’s selection and nomination is suitable for use by the Vessel or any other receiving facility. The Marine Fuel arranged or supplied by the Seller shall be of a homogeneous nature generally available at the place where the Vessel is to take/has taken delivery of the Marine Fuel. The Seller shall bear no responsibility whatsoever for any information which it has given to the Buyer on the characteristics of the Marine Fuel and which shall not in any event be taken to be a specification of the Marine Fuel to be and/ or has been supplied under the Contract. 4.4 The Buyer shall give the Seller, unless otherwise agreed or requested by the Seller, at least five (5) local working days‘ advance notice of the requested date of delivery (which excludes Saturdays, Sundays and Public Holidays) and shall also provide the details of the requested delivery, between 09:00 to 17:00 hours local time at Sellers’ domicile, by email or telefax, unless waived by the Seller in writing. Such notice shall identify the Buyer and the Contract and shall specify all delivery details, including but not limited to, the port, name of Vessel, the local port agent of Vessel, its estimated time of arrival, approximate date of delivery, location of Vessel, method of delivery and confirmation of the grade and quantity of Marine Fuel ordered. The Buyer and/or the agent of the Vessel shall give the Seller at least FortyEight (48) hours confirmation notice (which excludes Saturdays, Sundays and Public Holidays) between 09:00 to 17:00 hours local time at Seller’s domicile, by email, telex or telefax, unless waived by the Seller in writing, of the exact quantity of Marine Fuel required and the exact location and exact time at which the delivery is required. If the Buyer makes any changes after the confirmation notice, such bunker delivery will be subject to clause 4.5 below. 4.5 In the event that the Vessels’ ETA at the Delivery Port is or is expected to be later than the agreed delivery date, the Seller shall be under no obligation whatsoever to comply with the Buyer’s request to change the date and/or time for delivery of the Bunkers and the Seller shall be entitled, in its sole discretion, to cancel the Contract. In the event of cancellation and in addition to the Seller’s claim against the Buyer for any loss and/or damage which shall be on a mark to market basis as at the date of cancellation, the Seller shall be entitled to charge and receive from the Buyer a cancellation fee of US$10 per metric ton for the Marine Fuel ordered under the Contract. 4.6 In addition to the foregoing, the Buyer shall be liable for any and all losses, costs and/or expenses incurred by the Seller resulting from the failure of or delay by the Buyer to take delivery of or refusing to take delivery in part or in full of the quantity of the Marine Fuel ordered under the Contract. In the event of cancellation by the Buyer or if Buyer fails to take delivery in part or in full, the Buyer shall pay a cancellation fee of US 50,000. If the Seller, as a result of the cancellation or failure by Buyer to take delivery of the Marine Fuel, incurs a documented loss in excess of US 50,000 such loss shall be paid by the Buyer. 4.7 Delivery of Marine Fuel by the Seller to the Buyer shall be carried out, inter alia, subject to any regulations, requirements and procedures (including any amendments and revisions thereof) as may be prescribed from time to time by any governmental authority at the port at which the Seller accepts delivery nominations. The Buyer shall, in any event, be solely responsible for ascertaining, acquainting itself and complying with, inter alia, all such regulations, requirements and procedures which are applicable at the Delivery Port and for complying with all relevant berth restrictions and requirements and the Buyer agrees to indemnify the Seller for any losses, costs and expenses which have been incurred by the Seller following the Buyer’s failure to comply with such regulations, requirements and procedures. 4.8 Vessels, including tankers, shall be supplied as promptly as circumstances permit, but the Seller shall in no event be liable for any losses, damages or demurrage, whatsoever and howsoever incurred by the Buyer due to and/or arising out of and/or in connection with any delay or congestion at the supplier’s delivery facilities, the refinery, the shore terminal, or to any other (prior or subsequent) commitment(s) of available barges in the delivery of Marine Fuel under the Contract to the Buyer, or to any deviation to a “first come- first served” regulation or custom which may apply at the Delivery Port. This condition will also apply where the delivery of Marine Fuel is affected by public holidays and practices of the Delivery Port and/or the country where the Delivery Port is located. Moreover, the Seller shall not be in breach of its obligations hereunder to the extent that performance is prevented or delayed due to any reason, including but not limited to the shortage of Marine Fuel, breakdown or under performance of the supply equipment, and/or any conditions outside the control of the Seller. 4.9 The Buyer shall ensure that the Master of the Vessel shall: a. Advise the Seller, in writing prior to delivery, of the maximum allowable pumping rate and pressure and agree on communication and emergency shut down procedures; b. Notify the Seller, in writing prior to delivery, of any special conditions, difficulties, peculiarities, deficiencies or defects in respect of and particular to the Vessel which might adversely affect the delivery of the Marine Fuel; and c. Provide a free and safe side of the Vessel to receive the Marine Fuel and render all necessary assistance which may reasonably be required to moor or unmoor the Vessel and/or the delivery barge, as appropriate. 4.10 The Buyer shall be responsible for making all connections and disconnections of the delivery hose(s) to the Vessel’s bunker manifold and to ensure that the hose(s) are properly connected to the Vessel’s manifold prior to the commencement of delivery. The Buyer shall render all other necessary assistance and provide sufficient tankage and equipment to receive promptly the delivery under the Contract. Where delivery is undertaken ex-wharf, the Buyer shall promptly receive the delivery and shall forthwith withdraw the Vessel from the shore terminal or wharf once delivery is completed, in an appropriate manner. 4.11 The Seller does not guarantee the pumping rate at which the Marine Fuel is to be delivered to the Vessel. The Seller shall not be liable for any consequences, losses or damages howsoever caused arising from the rate at which the Marine Fuel is pumped into the Vessel. 4.12 The Buyer shall indemnify and hold harmless the Seller against all damages and liabilities arising from any acts or omissions of the Buyer or its servants, the Vessel’s officers or crew in connection with the delivery of the Bunker Fuel under the Bunker Contract. 4.13 In addition to and without prejudice to clauses 4.5 and 4.6 hereinabove, if the Buyer cancels the nomination for any reason whatsoever, any charges incurred shall be for the Buyer’s account. 4.14 Where the Marine Fuel is not delivered in due time and it is proven that this is due to the Seller’s (but not the Supplier’s) gross negligence or willful misconduct, the Seller shall be liable for the documented/proven direct loss of the Buyers in consequence thereof. The Seller’s liability for damages shall be limited to the equivalent of five (5) days time charter equivalent in the charter agreement in which the Vessel is engaged at the material time. The Seller shall, under any circumstances, not be liable for any consequential loss whatsoever. Both with regard to the Buyer’s right to compensation and right of rescission, it is a condition that an agreement has been made to the effect that delivery will take place at a specific date and time and this time is exceeded by twelve (12) hours and that the Seller has acknowledged 48 hours’ prior notice regarding the arrival of the Vessel at the Delivery Port. The said notice may only be given on normal working days between 8.30 am and 5 pm and by e-mail or fax to the Seller. If specific calling instructions have been given by the Seller, no damages can be claimed, unless these instructions were followed. 4.15 The risk in the Marine Fuel being supplied under the Contract shall be transferred successively from the Seller to the Buyer, as it passes through the fixed receiving connector in the Vessel.
5.1 The Buyer, in co-operation with the Supplier shall arrange for minimum three (3) representative samples of each grade of Marine Fuel to be drawn throughout the entire bunkering operation. Such sampling shall be performed in the presence of the Seller or its representatives and the Buyer or its representatives, but the absence of the Buyer or its representatives during all or any part of the sampling process shall not prejudice the validity of the samples. 5.2 The samples shall be securely sealed and provided with labels showing the Vessel’s name, identity of delivery facility, product name, delivery date and place and seal number, authenticated with the Vessel’s stamp and signed by the Seller’s representative and the Master of the Vessel or his representative. The seal numbers shall be inserted into the Bunker Delivery Note (“BDN”), and by signing the BDN, both parties agree to the fact that the samples referred to therein are deemed valid and taken in accordance with the requirements as specified in this clause. 5.3 One (1) sample shall be retained by the Seller for thirty (30) days after delivery of the Marine Fuel, or if requested by the Buyer in writing, for as long as the Buyer reasonably requires. The other two (2) samples shall be retained by the Vessel, one of which being dedicated as the MARPOL sample. 5.4 In the event of a dispute with regard to the quality of the Marine Fuel delivered, the samples retained by the Seller pursuant to the clauses herein shall be deemed to be conclusive and final evidence of the quality of the product delivered. 5.5 One, and only one, of the samples retained by the Seller shall be forwarded to a mutually agreed, independent and certified laboratory to perform a set of tests, the result of which are to be made available to both parties. If the Seller and the Buyer cannot agree on an independent laboratory to perform mutual analysis or if the Buyer fails to reply to the Seller’s notice hereof within seven (7) days from receipt of such notice, the Seller can at its sole discretion decide which independent laboratory shall perform the analysis, which shall be final and binding for all parties involved. The costs of any tests and analysis carried out by the independent laboratory shall be borne by the Buyer if the results are in favour the Seller, or by the Seller if the results are in favour of the Buyer. 5.6 The seal must be breached only in presence of both parties, unless one or both parties have declared in writing that it/they will not be present, or fails to be present at the appropriate time and place despite having been given sufficient and proper notice of at least seven (7) days in advance; and both parties shall have the right to appoint independent person(s) or institute(s) to witness the seal breaking. If any of the seals have been removed or tampered with prior to the seal breaking, such sample(s) shall be deemed to have no value as evidence. 5.7 Any other samples drawn by the Buyer’s personnel or any other party whatsoever either during bunkering or at any later date after bunkering shall not be valid as indicator of the quality supplied, nor shall be admissible as evidence. The fact that such samples may bear the signature of personnel on board the barge or tank truck or other delivery conveyance shall have no legal significance as such local personnel have no authority to bind the Seller to different contractual terms.
6.1 It shall be the sole responsibility of the Buyer to ensure that the Vessel, its crew and those responsible for its operation and management observe and comply with all health, safety and environmental laws and regulations with regard to the receipt, handling and use of the Marine Fuel. 6.2 The Buyer warrants that the Vessel now and at all times is and will be in compliance with all governmental, international convention and international shipping association trading and pollution standards and regulations. The Buyer further warrants that the Vessel will not be moored at a wharf or alongside other marine loading facilities of or chosen by the Seller unless free of all conditions, deficiencies or defects. 6.3 In case of any spillage (which for the purpose of this clause shall mean any leakage, escape, spillage, discharge or overflow of the Marine Fuel) occurring before, during or after the delivery of the Marine Fuel, the Buyer shall, in addition to any other obligations imposed by law, immediately notify the appropriate governmental authorities and take or arrange whatever action is necessary to respond and clean-up such spillage, and shall pay all costs and expenses incurred in connection therewith. If the Buyer fails to take such prompt action, the Buyer hereby authorises the Seller, the supplier and/or any other party appointed by the Seller or the supplier, to take such action on behalf of the Buyer, at the Buyer’s sole risk and expense, and the Buyer shall fully indemnify and hold the Seller, the supplier and/or any other party appointed by the Seller or the supplier, harmless against any damages, expenses, claims, fines and any kind of liabilities, of whatever nature, unless such spill or discharge is proven to be solely caused by the Seller’s gross negligence or wilful misconduct. 6.4 The Buyer shall fully indemnify and keep fully indemnified the Seller against any liability, fine, claim or proceedings whatsoever arising out of or in connection with any failure by the Buyer to comply with its obligations under this clause 6.
7.1 Quantity shall be determined at the Seller’s option from the gauge or meter of shore or barge tanks. Such determination shall be considered to be the sole valid and binding determination of the quantity supplied. During measurements, the Buyer shall have the right to be represented by a person or a body that is mutually agreed between Seller and Buyer and this must be agreed at the time of confirmation of Contract between Buyer and Seller. Measurements taken by any other means on board the Vessel shall not be binding on the Seller and shall have no evidential value. The volume shall be adjusted to 15ºC under prevailing ASTM-IP Petroleum Measurement tables. 7.2 Any claim regarding the quantity of the Marine Fuel delivered under the Contract shall be notified in writing by the Buyer or the Master or the Chief Engineer of the Vessel to the Seller immediately at the conclusion of the delivery of the Marine Fuel while the delivery hoses are still connected. Further, the Buyer or the Master of the Vessel shall give to the Seller a letter of protest which must also state the full details of such claim and must be accompanied by all the relevant supporting documentation, by no later than fifteen (15) fays from the date of delivery of the Marine Fuel to the Vessel. In the event that the procedures set out in this clause are not complied with, any such claim shall be deemed irrevocably waived and time barred. For the avoidance of doubt, any notification or reservation inserted in the BDN shall not qualify as a notice under this clause and the Seller shall under no circumstances be deemed to have accepted such notice or protest to the physical supplier. 7.3 The duty officer/chief engineer of the Vessel or the respective person signing the BDN must be present at all times, to supervise the pre-delivery and post-delivery procedures concerning the supply to the Vessel, and he shall be responsible to ensure/check that the documentation is complete and accurate with signatures and stamps as appropriate. Any discrepancies must be immediately notified to the Seller in writing. Failure in proper documentation and/or procedures stated herein will not substantiate a claim. For the avoidance of doubt, the Seller will not accept any claim for short delivery based on figures obtained by measuring the Marine Fuel in the Vessel’s tanks. All agreed information in the BDN shall be final and binding unless there is a parallel timely document signed by both the Buyer and the Seller or their respective representatives.
8.1 Any claim pertaining to the quality of the Marine Fuel delivered under the Contract must be based on the tests and analysis carried out as soon as practicable in full accordance with clause 5 herein. 8.2 Any claim regarding the quality of the Marine Fuel delivered shall be presented in writing together with full details of the claim and all the relevant supporting documentation to the Seller as soon as an alleged problem has occurred or as soon as the Buyer is notified of any alleged problem, and in any event by no later than fifteen (15) days from the delivery to the Vessel, failing which any such claim shall be deemed to be irrevocably waived and time barred.
9.1 In the event of any claim presented in accordance with clauses 7 and 8 above, the Buyer shall: a. Cooperate with the Seller and make all necessary arrangements for the Seller or its representatives to investigate such claim, including but not limited to the boarding and inspection of the Vessel, the interviewing of crew and the inspection, review and copying of Vessel’s relevant documents, logs and records; and b. Take all reasonable steps and actions to mitigate any damages, losses, costs and expenses related to any claim of alleged off-specification or defective Marine Fuel; and c. Take all reasonable steps to preserve the Seller’s recourse against the supplier of the Marine Fuel or any other third party possibly liable. The Seller shall not be liable to pay damages if the Buyer has failed to safeguard the Seller’s recourse against the supplier of the Marine Fuel or any other third party possibly liable, or has failed to ensure the existence of the necessary evidence. 9.2 A breach of any part of clause 9.1 above by the Buyer shall constitute a waiver and bar of any such claim, and the Seller shall not be liable to pay any loss or damages to the Buyer. Further or alternatively, the Seller shall be entitled to set off losses caused by the Buyer’s breach of the said clause against any liability to the Buyer. 9.3 Any claims against the Seller in respect of this Contract shall be brought before the relevant court or arbitral tribunal in accordance with relevant provisions herein within three (3) months of the date of delivery of the Marine Fuel, failing which such claims shall be deemed to be irrevocably waived and time barred. 9.4 The Buyer’s submission of any claim does not relieve it of the responsibility and obligation to make full payment as required under the Seller’s invoice pursuant to the Contract, and the Buyer shall not be entitled to set off or deduct any claim from payment. It is expressly agreed that any compensation or other amount relevant to a claim by the Buyer shall only become payable upon the mutual agreement of Seller and Buyer or the issuance of a final and unappealable competent award or judgement.
10.1 Payment shall be made at the Seller’s place of business, by means of telegraphic bank transfer according to the payment instructions in the Seller’s invoice. If the Purchase Price has been agreed in a currency other than United States Dollars (“USD”), the Buyer shall at all times bear any and all currency fluctuation risks and the Buyer shall consequently indemnify the Seller in USD for any shortfall arising from the conversion of this other currency into USD at the time of payment when compared to the prevailing rate of the conversion on the date of the subject invoice together with any bank charges. Any gains resulting from an improvement in the currency conversion between the date of the subject invoice and payment shall go to the Seller. Payments received by the Seller from or on the behalf of the Buyer, notwithstanding any specific request to the contrary, will be applied in the following order in diminution or extinction of: i) any costs (including attorneys’ fees) incurred by the seller in pursuing such payment,ii) default interest/late charges incurred and iii) the principal amount due. All payments effected by buyers are considered on account and in no particular order against due invoices for all vessels operated by the vessel’s managers and seller may allot such incoming payments against any overdue seller’s invoices irregardless of due dates. 10.2 Delivery documents may be provided to the Buyer at its request, but payment shall not be conditioned upon the Buyer’s receipt of such documents. Subsequent adjustments, if any, will be made upon receipt by the Seller of the BDN. Unless otherwise agreed, the final volume stated in the Seller’s or its representative’s delivery documentation is to be considered final in respect of the quantity to be invoiced. 10.3 If not otherwise specifically agreed between the Buyer and the Seller at time of ordering, the confirmed costs, including possible additional extra charges, are only valid for delivery performed to the Vessel on the agreed and confirmed delivery date(s) as set out in the Sales Confirmation. Should the date(s) of delivery for any reason change from those as set out in the Sales Confirmation, the Seller shall be entitled to charge any such additional costs and/or charges. 10.4 The Purchase Price and other charges shall be payable by the due date specified in the Seller’s invoice, unless otherwise agreed or unless the Contract is lawfully terminated (in which case all the amounts become immediately due and payable). In case any payment is not timely received by the Seller, whether in part or in full the Buyer shall be charged and obliged to pay to the Seller default interest/late payment charges at the rate of 3% per month on the principal amount due, from the due date of payment to the date of actual full payment of the principal, without prejudice to the Seller’s right to claim full payment forthwith. The Buyer hereby agrees and accepts that the quantum of the default interest/ late payment charges as calculated hereinabove in this clause is not a penalty, but constitutes the agreed damages suffered by the Sellers as a result of the latter being deprived of the timely payment of the principal amount (inclusive of, but not limited to, the element of interest), without prejudice to all other rights and entitlements of the Seller under the Contract and these General Terms and Conditions or under the applicable Law or otherwise. In the event that the aforesaid contractually agreed rate of default interest/late payment charges is in excess of that permitted by any applicable Law, it shall be substituted by the maximum rate so permitted. 10.5 The Buyer shall not be entitled, without the Seller’s prior consent in writing, to set off any claims against the Seller whether in law or equity, whether or not these claims are connected with, and/or whether or not they arise out of the Contract. If payment is withheld or set off by the Buyer, partially or in full, due to alleged short delivery, quality dispute or any other reason whatsoever or not paid on time, the Buyer shall pay, in addition to the outstanding amount, a compensation to the Seller of 20 percent of the outstanding amount. 10.6 If the Buyer has not effected payment within 30 days from the date of delivery or by the due date as may be otherwise stated in the Seller’s invoice, the Buyer shall within seven (7) days after Seller’s request forward an admission of debt worded in such a way that the document may be used as a basis for execution in the country where the Buyer is incorporated or maintains a principal place of business. 10.7 If at any time the Seller is of the opinion before delivery to the Buyer that adequate assurance of the Buyer’s ability to perform its obligations under these General T & Cs is lacking and/or becomes doubtful, or that the financial ability of the Buyer is impaired or unsatisfactory, the Seller may, in its sole and absolute discretion, require the Buyer to pay cash in advance or to put up security acceptable to the Seller, and the Seller may refuse and/or withhold delivery until the Buyer complies with such requests, or failing the Buyer’s compliance with such request within these (3) working days from the date of request, the Seller shall be entitled to terminate the Contract but without prejudice to the Seller’s rights to claim damages from the Buyer. In such circumstances, the Buyer shall have no recourse against the Seller. Additionally, if Seller determines, since the date of the Contract, that there has been any material adverse change in the financial condition, business operation, or condition of the Buyer or any subsidiary, which has a material adverse effect on the ability of Buyer to perform its obligations herein, Seller may amend the payment terms in its sole discretion including claiming immediate payment notwithstanding that credit has been granted. 10.8 If the Buyer has not effected payment within 30 days from the date of delivery or by the due date as may be otherwise stated in the Seller’s invoice, and upon written notice from the Seller to the Buyer, the Buyer agrees that effective from the due date of payment, an assignment shall take place of all the Buyer’s rights, interest and claims, including rights of action in rem against the Vessel and/or claims in personam against her owners and/or bare-boat charterers and/or time charterers and/or voyage charterers and/or managers, arising in connection with the Buyer’s sale of such Marine Fuel to any Vessel(s) and/or her owners, bare-boat charterers, time charterers, voyage charterers, operators, managers and/or agents. No further agreement is required from the Buyer for such an assignment to take effect in law and/or equity. The Seller may then if it so wishes bring any action (including any action in rem against the receiving Vessel of the Marine Fuel) in the Buyer’s name or jointly in the names of Seller and Buyer. The Buyer irrevocably consents to have itself named as the plaintiff or co-plaintiff in such action and hereby authorises the Seller to take all steps in connection with the commencement and continuance of such an action, including the terms on which any such claim may be settled, whether in its sole name or jointly. It is hereby agreed that the Seller has the sole right to retain for itself any money recovered from a third party pursuant to this clause. Any claim brought against a third party under this clause shall be entirely without prejudice to the other claims or rights the Seller may have against the Buyer under the Contract, which claims or rights shall remain in full force and effect. The recovery of any money under this clause from a third party shall not reduce or by way of set off be allowed to diminish the amounts which may be owed to the Seller by the Buyer under the Contract. This clause does not in any way limit or prejudice Seller’s retention of ownership over the Marine Fuel, as provided by clause 14 herein. 10.9 For the protection against fraud schemes, the Buyer shall obtain oral and written confirmation from its usual contact person within the Sellers organisation prior to effecting any payment pursuant to changed payment instructions. If for any reason the Buyer receives payment information from anyone purporting to represent the Seller or purporting to be part of Sellers organisation, which deviates from the account information previously received from the Seller, the Buyer must immediately contact its usual contact person within the Seller’s organisation both by telephone and e-mail to ensure that the new bank account information is correct. The Seller undertakes no liability for payments made to accounts not identified by the Seller in invoices which are not Seller’s genuine invoices.
11. Force Majeures
11.1 The Seller shall not be liable for any loss, damage or demurrage howsoever arising and/or for any breach, delay or non-performance of the Contract to the extent such is caused: a. directly or indirectly by delays due to or resulting from weather (whether unusual or not) or affects of the weather, local customs/procedures, local congestion at the delivery location affecting the Seller’s or the Supplier’s delivery equipment, local congestion at loading facilities, the prior commitment, non-availability and/or malfunction of delivery equipment; or b. by any governmental act or compliance with any order, request, or control of any governmental authority or person purporting to act thereof whether or not such order or request is later determined to be invalid (including compliance with or implementation of any order, request, plan or programme of any authority created by governments); and/or c. the interruption, unavailability, or inadequacy of Marine Fuel, or any constituent thereof, or any facility of production, manufacture, storage, transportation, distribution or delivery, because of wars, hostilities, public disorders, acts of enemies, sabotage, strikes, lockouts, labour or employment difficulties, fires, acts of God, accidents, breakdowns, or any other cause whatsoever which is not within the control of the Seller including, but not limited to, the failure, cessation, termination or curtailment in whole or in part of any of the existing or contemplated sources of supply of the Seller of Marine Fuel, or the crude oil or petroleum products from which such Marine Fuel is derived. 11.2 The Seller shall not be required to remove any such cause or replace the affected source of supply or facility, and, in the event of an actual or anticipated shortage of supply that directly or indirectly prevents the Seller from fulfilling the requirements of its customers including its affiliated companies and the Buyer, the Seller may allocate available quantities of Marine Fuel to its customers and/or the Buyer in its absolute discretion. 11.3 In the event that any governmental authority imposes any form of price control, rationing, allocation, or other emergency measures on the Seller’s sales of Marine Fuel at the port where the Buyer desires to take delivery of the Marine Fuel and has contracted with the Seller for the same, then the Seller has the right to: a. suspend delivery of any Marine Fuel under the Contract for such periods as the Seller may determine are required to resolve uncertainties raised by such governmental actions, alternatively to cancel such delivery and/or terminate the Contract if the Seller is of the opinion that the period of time required for such uncertainties to be resolved may be indeterminate or unforeseeable. In the event of such termination of Contract, the Seller shall be relieved of its obligations to perform hereunder; or b. allocate such quantities of Marine Fuel to the Buyer as the Seller may determine to be appropriate in its absolute discretion and in respect of any shortfall of the Contractual quantity, the Seller shall be entitled to suspend delivery of such shortfall for such period as the Seller may determine is required to resolve uncertainties raised by such governmental actions or alternatively to cancel any further delivery of such shortfall if the Seller is of the opinion that the period of time required for such uncertainties to be resolved may be indeterminate or unforeseeable, in which event the Seller shall be relieved of any further obligations to perform under the Contract in respect of this shortfall. 11.4 Where the Seller exercises the right to cancel or suspend any further delivery of such shortfall, the Buyer shall only be liable to pay for the quantity delivered and if full payment has already been made by the Buyer in respect of the contractual quantity, the Seller shall refund the Buyer the value of such shortfall from the contractual price which has been paid, if any. 11.5 The Buyer shall have no right of cancellation of the Contract due to Force Majeure as stated in clause 11.1.
12. Arrest of the Vessel
12.1 The Marine Fuel supplied to the Vessel is sold and delivered on the credit of the Vessel, as well as on the promise of the Buyer to pay therefore, and the Buyer agrees and warrants that the Seller shall have and may assert a maritime lien against the Vessel and may take such other action or procedure against the Vessel and any other vessel or asset beneficially owned or controlled by the Buyer, for the amount due for the Marine Fuel and the delivery thereof. The Seller is entitled to rely on any provisions of law of the flag state of the Vessel, the place of delivery and/or where the Vessel is found and shall, among other things, enjoy the full benefit of local legislation granting the Seller maritime lien on the Vessel and/or providing for the right to arrest the Vessel. Nothing in the Contract shall be construed to limit the rights and/or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.
13. Termination by Default
13.1 The following shall constitute events of default by the Buyer, entitling the Seller to terminate by written notice to the Buyer any Contract for the sale of Marine Fuel forthwith and claim and receive damages from the Buyer: a. failure by the Buyer to perform any obligations under the Contract; b. arrest/seizures of assets of the Buyer, including but not limited to, the Vessel; c. the Buyer becomes insolvent according to the laws of the place of incorporation or establishment of the Buyer or has a liquidator, receiver, or judicial manager appointed or enters into any arrangement or composition with its creditors; d. liquidation/bankruptcy or any other changed financial or legal position of the parent company, sister companies or affiliated companies to the Buyer, which the Seller deems in its sole discretion to adversely affect the financial position of the Buyer. e. the Buyer fails to pay any invoice to the Seller at the time of maturity set forth in such invoice; f. the Buyer fails to comply with any other obligation pursuant to the Contract, including but not limited to, the Buyer’s failure to take delivery of Marine Fuel in full or in part; and/or g. in case of any other situation, which the Seller deems in its sole discretion to adversely affect the financial position of the Buyer. 13.2 Upon the occurrence of an event of default as set out above, all sums owed by the Buyer shall become immediately due and payable and the Seller shall also be entitled to: a. cancel all outstanding stems and/or withhold future deliveries; b. store the Marine Fuel in full or in part for the Buyer’s account and risk; c. demand that the Buyer complies with its obligations pursuant to the Contract; and/or d. make use of any other remedy available under the law. 13.3 Without prejudice to the foregoing, in the case of the Seller lawfully cancelling the Contract prior to delivery for any reason whatsoever, the Buyer shall pay the difference between the Contract price and the market price as at the date of termination (if the latter is higher than the former), together with a termination charge of US$10 per metric ton, plus any other losses arising as a result of the Buyer’s default (including but without limitation any sub-contractor’s charges).
14.1 Title to the Marine Fuel shall remain with the Seller and pass to the Buyer only upon payment of the Purchase Price of the Marine Fuel delivered and all other monies, pursuant to Clause 10 hereof. Until such time as payment is made, on behalf of itself and the Vessel, the Buyer agrees that it is in possession of the Marine Fuel as a mere bailee of the Seller. If, prior to payment, the Seller’s Marine Fuel is co-mingled with other marine fuels on board the Vessel, title to the Marine Fuel shall remain with the Seller at the quantity corresponding to that of the Marine Fuel delivered. If the Buyer co-mingles the Marine Fuel with other marine fuels owned by a third party and the total co-mingled fuels are reduced through use to an amount less than the amount delivered under the Contract, title in the unused fuels will remain with the Seller on a pro-rata basis calculated using the quantities as they were when originally co-mingled. 14.2 Clause 14.1 is without prejudice to all rights the Seller may assert or may have in order to enforce its right of maritime and/or contractual lien against the Vessel or to otherwise obtain security by seizure, attachment or arrest of assets under these General T & Cs and the laws of the governing jurisdiction, against the Buyer or the Vessel in the event of non-payment. Any such lien shall extend to the Vessel’s freight and/or hire payments for the particular voyage during which the Marine Fuel was supplied and to freights and/or hire of all subsequent voyages.
15. Limitation of Seller’s Liability
15.1 The Seller’s liability for any losses or damages that may be suffered by the Buyer or the Vessel or any third party whatsoever, whether based in tort or contract, shall be limited to the Purchase Price of the Marine Fuel as set out in the Seller’s invoice issued pursuant to the Contract. 15.2 Furthermore, the Seller shall under no circumstances be liable for any indirect or consequential loss or damage that may be suffered by the Buyer or the Vessel whatsoever, including but not limited to: a. any loss of hire or freight and/or loss of income or profit, howsoever caused; b. any delay, detention or demurrage howsoever caused; c. any indirect, special or consequential losses and/or damages, including but not limited to damages arising from the exercise of the Seller’s rights to suspend and/or to withhold and/or to terminate delivery of the Marine Fuel; and/or d. any damages or losses as a result of any acts or omissions of the Seller’s agents and/or subcontractors including but not limited to those transporting the Marine Fuel and/or fuelling agents. e. Any liability for damage to the receiving Vessel shall be limited to documented cost of engine repairs and in any event be reduced by 20 percent of the invoice value of spare parts for each year or fraction thereof in which the replaced part has been in use. Further, any time loss shall be limited to 5 days’ time charter hire equivalent. However, the Seller shall not be liable to pay damages if the Buyer has failed to safeguard the Seller’s recourse against the physical supplier or any other wrongdoer or has failed to ensure the existence of the necessary evidence or has not objected to the Seller immediately. f. The Buyer shall in addition be obliged to take all appropriate steps in order to mitigate any losses, such steps to include but without limitation the close co-operation and discussing with the Seller of all available options to this effect. Any loss due to Buyer’s failure to mitigate and unilateral actions cannot and shall not be claimed against the Seller.
16.1 The Buyer shall defend, indemnify and hold the Seller harmless with respect to any and all liability, loss, claims, expenses or damage the Seller may suffer or incur by reason of, or in any way connected with, the acts omissions, fault or default of the Buyer or its agents or its representatives in the purchase, receipt, use, storage, handling or transportation of the Marine Fuel under the Contract.16.2 The Buyer undertakes to indemnify the Seller against any claims, losses or costs of whatever kind related to the Contract instituted by third parties against the Seller to the extent such claims exceeds the Seller’s liability towards the Buyer according to clause 15 herein. 16.3 The Buyer agrees to pay any and all expenses, legal fees (including but without limitation, attorneys’ fees) and court costs incurred by the Seller to: a. Collect and obtain payment of any amount due to the Seller, including but not limited to legal fees (inclusive of attorneys’ fees) and court costs associated with enforcing any maritime lien, attachment, right of arrest, or other available remedy in law, equity or otherwise; and/or b. Recover any damages or losses suffered by the Seller as a result of any breach by the Buyer of any provisions of the Bunker Contract.
17. Maritime Lien
17.1 Where Marine Fuel is supplied to a Vessel, in addition to any other security, the Contract is entered into and Marine Fuel is supplied upon the faith and credit of the Vessel. It is agreed and acknowledged that a maritime lien over the Vessel is thereby created for the Purchase Price of the Marine Fuel supplied and that the Seller in agreeing to deliver Marine Fuel to the Vessel does so relying upon the faith and credit of the Vessel. The Buyer, if not the owner of the Vessel, hereby expressly warrants that he has the authority of the owner to pledge the Vessel’s credit as aforesaid and that he has given clear notice of the provisions of this clause to the owner. The Seller shall not be bound by any attempt by any person or entity to restrict, limit or prohibit its lien or liens attaching to the Vessel, either by clausing the respective BDN, or otherwise howsoever.
18. Law and Jurisdiction
18.1 The Contract, these General T & Cs and all claims and disputes arising under or in connection therewith shall be governed by the General Maritime Law of the United States of America. 18.2 Without prejudice to the provisions of Clause 21.3 here-below, any disputes and/or claims arising in connection with the Contract and these T & Cs shall be submitted to and finally resolved by way of arbitration in Cyprus. 18.3 Notwithstanding the provisions of clauses 18.1 and 18.2 herein above, for the sole benefit of the Seller, it is further agreed that the Seller, without prejudice to any of its rights, has the right to proceed against the Buyer and/or the Vessel and/or any other party in such jurisdiction worldwide as the Seller in its sole discretion sees fit, inter alia, for the purpose(s) of securing any payment due to it or proceeding in the main or any other proceedings in order to enforce and/or collect any claim or cause the issuance of any Court judgement whatsoever. Where the Seller elects to take such action, the Seller has the option to submit to the jurisdiction of the Court where security is obtained and to the laws of that 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. 18.4 The Buyer shall always be liable to pay for all the costs incurred by the Seller in pursuing any claim hereunder, including but without limitation attorneys’ fees.
19.1 For supplies within Singapore, the Singapore Standard SS 600 : 2008 Code of Practice for Bunkering and any subsequent amendments thereto (the “Code”) is deemed to be incorporated by reference into these terms and conditions and shall apply except to matters where specific provision has been made herein. In the event of any inconsistency between their General T&Cs and the Code in any respect, these General T&Cs shall prevail. 19.2 If any part of the Contract is declared invalid, it shall not affect the validity of the remainder of the Contract or any part thereof. 19.3 The headings of each section herein are descriptive only, and are provided for organisational purposes.