TERMS AND CONDITIONS OF MARINE FUEL SUPPLY
General Conditions of Sale and Delivery effective from January 01, 2010
1. Nominations
1.1 Buyer shall give at least seventy-two( 72) hours notice(exclusive of Saturday, Sunday, and public holidays of the delivery port of the vessel’s readiness to receive delivery of Marine fuel, specifying in such notice the exact quantity , quality, place and name of vessel and other terms consistent with the delivery port authority’s requirements for delivery of Marine fuel.
1.2 The Seller may decline a nomination by notice given to the Buyer at any time.
1.3 The buyer shall ensure that either the Master of vessel which requires delivery of Marine Fuels, or the accredited representatives of the buyer at the Delivery port, gives not less than two(2) clear working days advance notice to the Seller or the Supplier of the vessel’s readiness to receive delivery or such earlier notice as may be required tomake the necessary arrangement or secure any necessary permission from the local authorities to carry out the delivery. The grades and exact quantities of Marine Fuels required and the exact location & time at which delivery is required shall also be declared.
1.4 If the vessel shall not have arrived at the Delivery Port within two(2) days after the expected date of arrival as notified in Clause 2.1 hereof, time being of the essence for the purpose, but Buyer shall, without prejudice to the provisions of Clause11 hereof, be liable to the Seller for all damages, losses and expenses suffered by the Seller consequent upon such non-arrival.
1.5 Nomination is placed according to current applicable terms and condtions of sales and devliery of the seller and/or phsycial supplier.
2. Deliveries
2.1 Delivers hereunder shall be made ex wharf or at seller’s option by barge where barging facilities are available.
2.2 Vessels shall be bunkered as promptly as circumstances permit but seller shall not be liable for demurrage or for any loss due to congestion at the terminal or prior commitments of available barges.
2.3 In the event the Seller or Supplier may consider that no clear safe berth is available for delivery, the Seller shall be no obligation to arrange delivery and shall have no liability for any loss or damage however arising that may be suffered by the Buyer in consequence of such non-delivery.
2.4 Bunkers are delivered under this contract not only on the credit of buyer but also on the credit of the vessel receiving delivery of the bunkers and it is agreed and buyer warrants that seller will have and may assert a lien against the receiving vessel for the amount of the purchase of said bunker.
2.5 In case vessel has not arrived within two (2) calendar days after indicated E.T.A. supplier shall have the right to cancel supply without notice and buyer shall be liable for any charges arising therefrom.
3. Quantity
3.1 The Quantity of bunkers delivered shall be determined from official gauge of the barge effecting delivery or by gauging suppliers shore tank or from supplier’s oil meter at supplier’s option. Except where government regulations determine otherwise, adjustment in volume due to difference in temperature shall be made in accordance with ASTM-IP petroleum measurement tables. ASTM-IP designation: D1250 IP designation: 200. Buyer is requested to be present or represented by properly accredited agent when measurements are taken by if buyer is not present or represented, then supplier’s determination of quantities shall be deemed to be correct and final. Buyer may inspect the oil delivered under this agreement before it is pumped out of supplier’s shore tank or barge. Any claim by buyer concerning shortage in quantity is to be made at time of delivery.
4. Quality
4.1 Two sets of samples for each delivery shall be taken at the flange/barge side tanks during delivery. The samples will be sealed and signed by vessel’s master. One set shall be kept by the buyer and the second set will be retained by the supplier as a reference sample and kept for a period of one month. Samples taken from buyer’s vessel’s tanks at any time cannot, under any circumstance, be used for analysis under this contract.
4.2 It is buyer’s responsibility to ensure that the marine fuel is properly sampled, sealed and signed by the ship’s master.
4.3 Marine fuels to be supplied shall be the quality offered generally by seller at the itme and place of delivery for the particular grade or grades ordered by Buyer. Buyer shall have the sole responsiblitiy for the selection of the proper grade or grades of marine fuels for use in the vessel nominate.
5. Claims
5.1 Any claim for shortage in the quantity of Marine Fuel delivered shall only be valid if notice is made to Seller by Buyer and noted on the Note of Protest at the time of delivery and Seller receives written notification of claim within five (5) days from the date of delivery.
5.2 Any complaints of defect in quality must be notified to Seller in writing within fourteen (14) days of delivery and must be supported by proper evidence failing which such claim is time-barred. If the claim of defect in quality is duly notified to Seller, Seller shall send a representative sample to an 03rd independent surveyor which to be mutually argeed all concerned parties.The result of such testing shall be conclusive and binding on Seller and Buyer. The costs of testing the representative sample shall be on the losing party's account. Any sample taken in a manner outside the control of Seller shall not be recognized as representative of Marine Fuel delivered. The submission of any claim to Seller shall not release Buyer of responsibility to make full payment of the invoiced amount as required in Clause 7 above and no right of offset or counterclaim is allowed to Buyer
6. Payments
In most cases, special payment term will have been agreed and will be set out in the confirmation. Each of the following terms apply unless the confirmation otherwise provides:
6.1 Buyer shall pay Seller, whether in receipt of delivery documents, the full amount stated in Seller's invoice, telegraphic report or other notification of quantity delivered and amount due without any deduction, offset or counterclaim whatsoever, in US Dollars, within mutually agreed payment date. In the event payment by Buyer to Seller is delayed, Buyer shall pay interest at twenty four percent (24%) per annum, calculated daily starting on the 31st day from the date of delivery of Marine Fuel, on the sum of the amount delayed and accrued interest until full payment of all amounts due from Buyer to Seller have been received by Seller.
6.2 At any time before the scheduled delivery date, should Seller determine in its sole discretion that it would be inadvisable to make deliveries to Buyer on credit, Seller may request that Buyer pay cash in advance or put up security acceptable to Seller. In such event, Buyer’s compliance with Seller's request shall be a condition precedent to Seller’s performance of any of its obligations under the Confirmation of Order. Notwithstanding anything to the contrary herein, failure by Buyer to comply with its obligations hereunder shall constitute a breach of condition, in which case Seller may at any time by notice to Buyer forthwith terminate any agreement for the delivery of Marine Fuel or suspend any actual supplying or scheduled supply of Marine Fuel. In event of such breach by Buyer, Buyer shall be liable for all losses suffered by Seller as a result of Buyer’s breach, provided that Seller’s election to terminate any agreement for the delivery of Marine Fuel or suspend any actual supplying or scheduled supply of Marine Fuel shall be without prejudice to any other rights in law or equity accrued on or before the date of termination.
6.3 If seller considers Buyer’s financial condition inadequate, or for any other reason, Seler may require cash payment in advance or security acceptable to Seller before delivery.
7. Force Majeure
7.1 Except with respect to the obligations for the payment of money due hereunder, the Confirmation of Order or invoice for delivery of Marine Fuel, neither party shall be liable or be in breach of any provision hereof or the Confirmation of Order for any failure or delay on its part to perform any obligation due to any cause beyond its reasonable control, including, without limitation, production cutbacks or embargoes on the export of crude oils or products, Acts of God, flood, fire, explosion, breakdown of plant, strike, lockout, labor dispute, work stoppage, war, insurrection, riot, civil commotion, rebellion, sabotage, or any injunction, law, regulation, ordinance or demand or requirement of any governmental authority, inability to procure or use materials, labor, equipment, transport, services or energy sufficient to meet manufacturing needs from customary sources at customary prices and without litigation, or any other cause whatsoever, whether similar or dissimilar to those enumerated herein, beyond the reasonable control of such party.
7.2 Seller shall not be responsible for any delay or failure to deliver Marine Fuels where performance is delayed, prevented or made substantially more expensive by circumstances beyond Seller's control, including but not limited to labor strife, social disorder or riot, compliance with any order, demand or request of any international, national, port, transportation, local, or other authority/agency. Seller shall not be liable for any demurrage resulting from such delay or failure to perform.
8. Title
8.1 Title in and to the Marine Fuels delivered and/or property rights in and to such Marine Fuels shall remain vested in the Seller until payment has been received by the Seller of all amounts due in connection with the delivery.
8.2 Until full payment of all monies due to the Seller in respect of the supply of Marine Fuels has been made, the Buyers shall not be entitled to use the bunkers other than for the propulsion of the vessel, nor mix, blend, sell, encumber, pledge, alienate or surrender the bunkers to third parties.
8.3 In event of non payment (in part or whole) or other breach of these terms and condition by the Buyer (Masters/Owner/Charterer/Operator/Others/ Related all concerned parties) the Seller is entitled to take back the Marine Fuels without prior judicial intervention. Should be Marine Fuels be no longer definably present, the Seller has the right to attach the vessel and/or any sister ship and/or nay other assets of the Buyer wherever situated in the world without prior notice. All other rights of the Seller are hereby expressly reserved.
8.4 Where title in and to the Marine Fuels delivered has passed to the Buyer and/or others, the Buyer hereby grants a pledge in favour of the Seller for any and claims of whatsoever nature and howsoever arisigin that the Seller may have against the Buyer in respect of the supply of Marine Fuels and on any other Marine Fuels present in the vessel, inclusive of mixtures of the delivered Marine Fuels and other Marine fuels.
9. Indemnity
9.1 Without prejudice to any other condition of the contract, seller shall not be responsible for any expense, claim, losses, damages and liabilities arising in connections with buyer’s receipt, use, storage and transportation of bunkers delivered under this contract, unless the same be due to seller’s willful misconduct. In all other cases seller sell not be responsible and buyer shall indemnify seller against all losses, claims, demands and costs arising from actions by any third party.
10. Liens
10.1 Where product is supplied to a vessel, in addition to any other security, the agreement is entered into and product is supplied upon the faith and credit of the vessel. It is agreed and acknowledged that a maritime lien against the vessel is thereby created for the price of product supplied and that the company in agreeing to deliver product to the vessel does so replying upon the faith and credit of the vessel, and that such maritime lien may be enforced in any court of competent jurisdiction. The customer represents that it is the vessel’s Owners, or Charterers, or a person authorized by the Vessel’s Owners or Charterers to order the bunkers. The customer, if not the owner of the vessel, hereby expressly warrants that customer has the authority of the owner to pledge the vessel’s credit as aforesaid that he has given notice of the provisions of this clause to the owner. The company shall not be bound by an attempt by any person to restrict, limit or prohibit its lien or liens attaching to a vessel unless notice in writing of the same is given to the Company before it sends its confirmation to the Customer.
10.2 Any notice by Buyer that a maritime lien on the vessel may not created because of the existence in Buyer’s charter of a prohibition of lien clause, of for any other reason, must be given to Seller in the initial order for marine fuel, in which case no credit can be granted to Buyer and the marine fuel shall be paid in cash or equivalent prior to delivery. Any notice of such restriction given by Buyer, its agents, ship’s personnel or other person later than in the initial order shall no effect a modification of the terms and conditions of sales except that any granting of credit by Seller is rescinded on receipt of the notice, with full payment the due.
11. Limiation of Liablity
11.1 Seller contracts to supply marine fuel only upon the basis of the lliabilities as set forth below, unless Otherwise negotiated by the parites and agreed to in writing. In no event shall Sellers’ liability for any claim for claims arising under this contract related to a particular nominion exceed in the aggregate the sum of $ 50,000.00
12. Cancellation
12.1 Any cancellation, cancellation fees will be applied according to supplier’s discretion.
13. Governing Law
13.1 Save that the Seller may take such action or actions as it shall in its absolute discretion consider necessary to enforce, safeguard or secure its rights hereunder in any court or tribunal or any state or country, the provisions hereof shall be governed by the law of U.S.A and the jurisdiction of the United States of America.
TERMS AND CONDITIONS OF MARINE FUEL SUPPLY
General Conditions of Sale and Delivery effective by Dec.31th ,2009
Sampling
A representative sample- shall be drawn during delivery using the continuous drip method from a mutually agreed point, which shall be either the ship's manifold or the barge manifold. Such agreement shall be reached at the time of negotiation between Buyer and Seller or failing that between respective agents, the Master of the vessel and barge, prior to delivery. In the event that the agreed point is the barge manifold, Seller warrants that the transfer hoses and other equipment shall be clean and free from sediment, clingage and contaminants which may be likely to affect the quality or specification of the product. The sample drawn shall be divided and then sealed, labelled, dated and distributed to Seller and Buyer. In the event of a dispute, a mutually agreed independent surveyor shall be appointed to analyse the sealed sample retained by the seller. In default of agreement, the surveyor shall be appointed by the President of the Institute of Petroleum in London. The costs of the surveyor shall be shared equally between Seller and Buyer and the result of the surveyor's analysis shall be final and binding on both parties, save for fraud or manifest error.
Quality
As per physical supplier’s terms and conditions
Quantity
The final delivered quantity shall be determined using information supplied by Seller as to density and temperature and in accordance with the latest joint Petroleum Measurement Tables of the American Petroleum Institute (API), American Society of Testing and Materials (ASTM), official calibration tables,ullages and soundings. The Buyer's representatives shall be entitled to witness opening, closing and sounding of bunkers tanks, gauges and other equipment. However, on-attendance by Buyers's representative shall not constitute acceptance by Buyer of the Seller's statement of the quantity delivered.
Deliveries / Demurrage / Delays
Seller shall bunker the vessel promptly and without undue delay. Seller shall be liable for demurrage or loss incurred by Buyer and/or Vessel, whether directly or indirectly, as a result of Seller's failure to deliver at the contractually agreed time, provided always that Seller shall not be liable for such demurrage or loss where the Seller's failure was caused by events beyond its reasonable control. In the event of a failure by Seller to deliver on time due bad weather, the parties hereby agree that Seller shall not be liable for that failure and that the Buyer shall have the right at its sole discretion to terminate the contract without penalty.
Claims
All claims as to quality defect, shortage or otherwise shall be made in writing to Seller within 14 working days from the date of completion of delivery. If buyer fails to submit any claim within the time limit, Buyer's claim shall be deemed to be waived and any liability on the part of the Seller shall be extinguished.
Law and Jurisdiction (Dispute)
This agreement shall be governed by and construed in accordance with U.S.A Law. Any claim or dispute not settled by negotiation shall be settled by arbitration in U.S.A before a single arbitrator agreed upon by both parties or if not so agreed appointed in accordance with the U.S.A Arbitration Acts as amended from time to time. The arbitrator shall be conducted in U.S.A, the seat of the arbitration shall be U.S.A and the arbitration award should be final without appeal to the courts.
Settlement of Invoice
In the event of a pricing disputes, Buyer shall be entitled to make payment of the undisputed portion only, provided that once the dispute is settled any resultant additional payment will be made by Buyer to Seller immediately. And the late payments
Should be added 20% interest per annual on Invoice Values
Appreciate these will be difficult to agree, but please advise if there is any possibility.
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