General Terms and Conditions of Sale and Delivery
Effective from 1st May, 2014
1.1. Except as otherwise agreed to in writing the following prices, terms and conditions shall apply to all sales of Marine Fuels.
1.2. Each Agreement shall be evidenced by the Seller’s written Confirmation. In the event of any conflict between these terms and conditions and the terms of the Confirmation, the ones of the latter shall prevail.
1.3. An agreement between the Buyer and the Seller shall not be deemed concluded and these terms and conditions shall not apply without the prior written approval of the Seller.
1.4. These terms and conditions together with the Confirmation constitute the entire Agreement. No derogation, addition or amendment of the Agreement shall be in force or in effect unless or until expressly confirmed in writing by the Seller. If any provision of the Agreement is invalid to any extent or unenforceable, the remainder of the Agreement shall not be affected thereby.
2.1. “Seller” shall mean GLOBAL BUNKERING LTD 1st Floor, Kings Court, Bay Street, P.O. Box N-6944, Nassau, Bahamas and their suppliers and/or contractors.
2.2. “Buyer” shall mean the party contracting to buy Marine Fuels under the agreement.
2.3. ”Marine Fuels” shall mean the Seller’s commercial grades of fuel oils and/or gas oils and/or distilled oil products and/or lubricating oil as currently offered generally to its customers for similar use at the time and place of delivery.
2.4. “The Contract” shall mean an agreement between the Buyer and the Seller, subject to these conditions.
2.5. “Goods” shall mean the Marine Fuels and ancillary services to be purchased by Buyer pursuant to the Contract.
2.6. “Vessel” shall mean the Vessel to which the Marine Fuels are to be delivered by the Seller.
2.7. “Agreement” means an agreement between the Seller and the Buyer concluded by way of exchange of confirmation messages (including facsimile, telex or e-mail messages). The Agreement shall incorporate these terms and conditions.
3.1. Prices shall be the Seller’s price in effect at time and place of delivery as set forth in the Seller’s telex confirmation of bunkering and will be valid for only the expected day of arrival of the Vessel as advised by the Buyer. Prices for delivery beyond this range are subject to amendment at the Seller’s option. Unless otherwise agreed, prices shall be deemed to be in US.Dollars. All applicable taxes (including VAT if any), levies, duties, fees and other costs including those imposed by Governments and local Authorities shall be for the Buyer’s account and will not ordinarily be included in the price quoted.
4.1. The Marine Fuels to be delivered hereunder shall be the Seller’s commercials grades of Marine Fuels as currently offered generally to its customers at the time and place of delivery. Save for the forgoing the Seller gives no warranty of merchantability or fitness for purpose of Goods supplied under the Contract and any implied warranty or conditions where statutory or otherwise are expressly excluded.
4.2. The Buyer shall have to sole responsibility for the selection and acceptance of Marine Fuel is delivered.
4.3. Quality Claims and Disputes
4.3.1. It is the Buyer’s responsibility to ensure that the Product tendered for the supply is that required by the Vessel and is delivered into correct tanks.
4.3.2. Two representative samples of each consignment must be taken during the process of delivery of the Product immediately to the Vessel. The samples must be signed and sealed by a representative of the Physical Supplier and an officer of the Vessel or other senior representative of the Buyer.
One set of samples must be retained by the Physical Supplier; the other set must be retained by the Buyer.
4.3.3. The Buyer and the Seller agree that only analyses of sealed samples taken as “drip samples” at the sampling valve on the bunkering barge shall form the basis of documentation that bunker oil was substandard or “off-spec” when delivered. In case that drip sampling is not available onboard barge, tanktruck or shoretank, representative samples shall be taken as a composite of each tank divided with 1/3 from each the top/mid/bottom of the tanks of the Supplier’s facilities. No samples subsequently taken shall be allowed as (additional) evidence.
4.3.4. Any samples drawn from the Receiving Vessel’s tanks shall not be valid as an indicator of the quality supplied.
4.3.5 Likewise when quantity claims are raised, it is important to check that all documentation is in order and to note discrepancies in the Physical Supplier's delivery receipt before signing and stamping it.
4.3.6. When the Buyer raises a quality claim and gives a notice to the Seller, the Seller is deemed to have retained its set of Physical Supplier’s sealed samples in full and to be ready to present it for analysis to a reputable independent testing laboratory approved by the Buyer. The analysis of the samples shall be conducted in accordance with the established procedures in the presence of the Buyer’s representative. The results of such analysis shall be binding upon the parties to the Agreement.
4.4. Seller’s warranty obligation under paragraph 4.1 shall lapse if the Goods delivered or service performed is/are altered, improperly neglected to protect any of Seller’s climes or rights against all persons entrusted with the shipment of the Goods (e.g. forwarding agents, carriers, warehousemen, federal railways, etc.) or against their insurers or has failed to safeguard all documentary evidence necessary to determine any loss or damage (e.g. recognizances of damage on way-bills, items written off on tally notes or bills of lading/warehouse receipts, Sellers of such loss or damage factual records of loss or damage, etc.) or failed to immediately notify in writing.
4.5. The time limit for the Seller to receive a notice of a quality claim is 14 (fourteen) days starting from the date of delivery or a shorter period if specified in the Confirmation. In any event, should any timely claim submitted by Buyer not be settled to Buyer's satisfaction in a commercial manner, any legal action by Buyer thereon shall be formally waived and time barred within six (6) calendar months after the delivery date or, in claims related to non-delivery, within six (6) calendar months after the scheduled delivery date.
4.6. Amount of claim should not exceed total cost of supplied bunker.
5. Quantity Claims
5.1. All quantities referred to in Contract are understood to be approximate with a margin of 10 per cent more or less at the Seller’s option. The quantity of the Product delivered hereunder shall be measured at the Physical Supplier’s option by one of generally recognized methods of measurement as it considers appropriate in the circumstances.
5.2. For bulk supplies delivery barges, wagons and vehicles must be checked by tank-dipping to measure the content and to ensure full turn-out. Flow meters must be checked for seals, correct settings, calibration and general condition. All such checks must be carried out before and after delivery of each consignment of the Product as well as before and after each loading of a barge, wagon or vehicle tank. The delivery of the Product must be supervised at all times and care must be taken to ensure that all documentation is complete and accurate before signing and delivery receipt.
Unless these procedures are observed, it is nearly always impossible for a claim to be substantiated. The Seller shall therefore reject the claims for short delivery where the above receiving procedures have not been observed.
5.3. The Seller shall not accept a claim for short delivery based on the figures obtained by measuring the Product in the Vessel's tanks.
5.4. In case representative of the vessel and/or surveyor appointed by vessel refuses take part of inspection of barge for quantity measurements/sampling or refuses to sign quantity/sampling report before commencement of bunkering, the barge is to issue letter of protest and has the rights to sail off without bunkering operations and the Seller/Supplier to be released from any responsibility arisen due to vessel will not take bunker and cancelation fee to apply.
In case representative of the vessel and/or surveyor appointed by vessel
refuses to take part of inspection of barge for quantity measurements/sampling
or refuses to sign quantity/sampling report after completion of bunkering, the
barge is to issue letter of protest and barge's measurements/calculations/samples
made by the barge's representative only will count final and binding for all
5.5. Quantity claims (if any) are to be discussed until signing of the delivery receipt only. The quantity mentioned in the delivery receipt, signed and stamped by the Seller’s representative and the Buyer’s representative to be final and binding for both parties.
6. Deliveries and cancellations
6.1. If the Seller at any time and for any reason considers that there may be a shortage of the Product in the Place of Delivery, it may allocate the available quantity of the Product among its customers. The Seller shall not be bound to export any product if permit of state bodies is required for such kind of export and the Seller has not been granted such permit.
6.2. Vessel shall be bunkered as promptly as circumstances permit as per daily barge schedule but neither the Seller shall be liable for any claims and/or demurrage and/or losses due to any delays owing to congestion and/or weather and/or and/or agents and/or port authorities and/or Customs or prior commitments of available barges.
6.3. If the Buyer causes delay to the Seller’s facilities in effecting deliveries, the Buyer shall pay demurrage to the Seller on the basis of actual costs incurred, and reimburse Seller for all other losses and expenses arising therefrom.
6.4. Delivery shall be made in bunker lots at wharf or at shore terminals of the Seller or by barge or by any other accredited methods of delivery, where such facilities are available from time to time. In the case of more than one method of delivery being available at a particular point of delivery, the Seller shall at its solo discretion adopt one.
6.5. When deliveries are made by barge, the Buyers shall provide free of cost a clear safe berth, position or anchorage for the barge(s) alongside the Vessel’s receiving lines. The Seller shall be under no obligation to make ex barge deliveries when in its opinion a clear and safe berth, position or anchorage is not available. The Buyer shall agree to pay and indemnify the Seller against all claims and expenses for any loss, damage, demurrage or delay caused by the Buyer’s Vessel to the barge, the barging equipment and/or by the barge to the Vessel / the vessel’s equipment.
6.6. The Buyer shall make all connections and disconnections between the pipelines or delivery hoses and Vessel’s intake lines and shall render all other necessary assistance and provide sufficient tankage and equipment to receive promptly all deliveries hereunder.
6.7. Delivery shall be deemed completed and title passes as the Marine Fuels pass the flange connecting the pipelines or delivery hoses with the intake lines of the Vessel, at which point the Seller’s responsibility shall cease and the Buyer shall assume all risks including loss, damage, deterioration, depreciation, evaporation, shrinkage as to the Marine Fuels so delivered.
6.8. On completion of the delivery to the Vessel, the Master of the Vessel or authorized representative of the Buyer shall thereafter give to the Seller a signed delivery receipt thereof in the form required by the Seller. The Seller shall not be deemed to have any constructive knowledge of the authority or lack of authority of any representative of the Buyer and shall be under no duty to verify the authority of such representative.
The acceptance of the afore-said signed delivery receipt in good faith by the Seller shall bind the Buyer.
6.9. The Buyer must give not less than 72 (seventy-two) hours’ notice (excluding Sabbaths, holidays and other non-working days at the Place of Delivery) of the Vessel's readiness to receive the Product. Notice must be given during the Seller’s normal business hours (Monday to Friday inclusive, 08.00-18.00 CET). Notice given outside these hours shall be deemed to have been given at 08.00 on the first business day thereafter. The Buyer shall give to the Seller final notice of requirement directly or through Buyer’s agent at least 48 hours (Saturday, Sunday or holidays excluded) before loading Marine Fuels into barge or other accredited methods of transportation. The Seller is not responsible for any delay of the vessel in the port and other consequences in case the Buyer fails to give such notices.
6.10. The Seller shall have the option to immediately cancel the agreement in full or in part, or to store or produce the storage of the Marine Fuel in whole or in part for the account and risk of the Buyer and to charge the Buyer the expenses thereby incurred, or to hold the Buyer fully to the agreement, or take any other measures which the Seller deems appropriate, without prejudice to its rights of indemnification, without any liability on the side of the Seller, in any (but not limited to) one of the following cases:
a) When the Buyer, for whatever reason, fails to accept the Marine Fuel in part or in full at the place and time designated for delivery;
b) When the Buyer fails in part or in full to comply with its obligations to pay any amount due to the Seller and/or provide security as set out herein;
c) When, before the date of delivery, it is apparent in the opinion of the Seller that the financial position of the Buyer entails a risk for the Seller;
d) When, in case of force majeure, the Seller is of the opinion that the execution of the agreement shall be cancelled.
The Seller may terminate any agreement with the Buyer in whole or in part, in its full discretion, upon the breach of any provisions hereof by the Buyer. The Seller has the right to apply cancellation fee which the Seller may have sustained in connection herewith (minimum USD 7 pmt).
In case the order is cancelled by the Buyer, or nominated vessel lifts significantly less quantity than it was ordered, the Buyer will be liable for the Seller’s costs, including but not limited to value on unsold product and/or costs arising from the Seller’s purchase of derivatives to protect the Seller from sudden changes in underlying oil cargo/paper markets. The costs are to be determined by the Seller.
In most cases special terms of payment shall be agreed and set out in the Confirmation. Each of the following terms shall apply unless the Confirmation provides otherwise:
7.1. The payment shall be made in United States Dollars (USD) to the bank account specified by the Seller in full without deduction for any reason whatsoever irrespective from any claim(s) and / or dispute(s), so as to ensure that the Seller receives the full amount due to it on or before the Due Date.
7.2. The Due Date is as provided in the Confirmation or, in default, the date of Delivery.
7.3. Timely payment is of the essence of the Agreement.
7.4. If the Buyer fails to make payment on or before the Due Date, it shall be charged with 2.0 % (two per cent) of the outstanding sum per month of 30 days pro rata calculated on a daily basis starting from the Due Date up to receipt of the cleared outstanding funds by the Seller. The interest accrued shall be added to and become the part of the outstanding sum. In the event that such rate of interest specified in the Agreement is in the excess of that permitted by relevant law, it shall be substituted by the maximum rate of interest so permitted.
7.5. Payment shall be made by way of telegraphic, telex, swift or rapid electronic transfer to the bank account specified by the Seller. All bank and other charges, if any, incurred in connection with funds remittance shall be for the Buyer’s account.
Notice of remittance including identifying references shall always be given to the Seller.
7.6. Payments received by the Seller from the Buyer or from other party acting on behalf of the Buyer notwithstanding any specific requests to the contrary shall be applied to settle the outstanding sums in the following order:
7.6.1. Interest accrued in respect of the overdue transactions where the principal sum has been previously paid.
7.6.2. Interest accrued in respect of all other transactions.
7.6.3. All the outstanding principal sums starting from the oldest one and proceeding chronologically up to the most recent one.
7.6.4. Any principal sum which the Seller knows or reasonably expects to fall due at a future date.
7.7. The Buyer and the owner of the Vessel are jointly and severally liable for payment. The vessel stamp on the delivery receipt shall evidence that the Owner of the Vessel has agreed to incur such liability. No disclaimer stamp of any type of form will be accepted on the delivery receipt, nor, should any stamp is applied will it alter, change or waive the Seller’s maritime lien against the vessel, or waive the vessel’s ultimate responsibility for the debt incurred through this transaction. The overdue payments shall constitute a lien against the Vessel to the extent permitted by local law.
7.8. The Seller may in good faith vary, amend, withdraw, substitute or supplement the terms relating to payment at any time in the course of a transaction in such a manner as it, at its absolute discretion, considers necessary to protect its interests.
7.9. If at any time reputation, standing, creditworthiness, liquidity or solvency of the Buyer or any subsidiary, parent, associate or affiliate company thereof gives to the Seller a reasonable cause for concern, the Seller may, without prejudice to all other rights and remedies which it may have, give a notice to the Buyer that credit facilities from the Seller to the Buyer are withdrawn or suspended as the case may be and all outstanding sums shall thereupon fall due for immediate payment.
7.10. In the event that the Buyer or any subsidiary or parent company thereof is the subject of debt, bankruptcy or liquidation proceedings, the Seller may forthwith terminate the Agreement when it gets to know about such proceedings.
7.11 All legal and other costs and expenses incurred by the Seller including those of the Seller’s legal department and of other lawyers acting on behalf of the Seller in connection with the Buyer’s failure to comply with any term of the Agreement including but not limited to actions for debt shall be for the Buyer’s account and shall for all purposes form a part of the price of the Product supplied to the Buyer.
8.1. The Buyer’s rights in respect of any claim whatsoever, excepted to claim relating to quantity and quality, are conditional on written notice of the claim being given to Seller promptly after circumstances giving rise to the claim are discovered, but in no event later than fourteen (14) days following the date of delivery. If the Buyer fails to give the said written notice or if the said written notice is not received by the Seller within fourteen (14) days after the delivery of the Marine Fuels to the Vessel, any claim shall be conclusively deemed to have been waived and the Buyer’s rights is respect thereof shall be extinguished.
9. Safety and environmental protection.
9.1. Buyer shall be responsible for users compliance with all health and safety requirements relating to Marine Fuels supplied and shall best assure that any user avoids frequent or prolonged contact with or exposure to the Marine Fuels both during the subsequent to delivery. The Seller or the Seller’s supplier accepts no responsibility for any consequence arising from failure to comply such health and safety requirements or arising from such contact or exposure.
9.2. In the event of any leakage spillage, overflow of bunkers causing or likely to cause pollution occurring at any stage, the Buyer shall, regardless as whether the Buyer or the Seller is responsible, immediately take such action as is necessary to effect clean up and failing prompt action the Buyer (which hereby warrants that it has been authorized by Vessel’s Owners) authorizes the Seller to take whatever measures Seller deems fit to clean up at the Buyer’s expenses, the Buyer warrants that the Vessel at all material times will be in compliance with all national and international regulations. It shall be the responsibility of the Master of the Vessel to notify the Seller of any special conditions, difficulties, peculiarities, and deficiencies or defects with respect to the Vessel or any part thereof which might adversely affect the delivery of bunkers. Seller has the right to refuse to deliver bunkers to the Vessel if it is probable that such delivery will result in adverse consequences of any kind whatsoever.
10. Exemption of Liability
Neither the Seller nor the Buyer shall be liable for any failure to fulfill any term or condition of the Agreement if such failure has been caused by the circumstances whatsoever which lie beyond the immediate control of the parties including but not limited to:
10.1. Act of God.
10.2. Act of war.
10.3. Act of public enemies.
10.4. Quarantine restrictions.
10.5. Strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general.
10.6. Riots and civil commotions.
10.7. Saving or attempting to save life or property at sea.
10.8. Any other cause arising without the actual fault or privity of the party being in breach of the Agreement, or without the fault or neglect of the agents or servants thereof.
The Buyer warrants that at all times during the term of this Agreement: it has instituted and maintains policies and procedures designed to ensure continued compliance with all Trade Laws applicable to the performance of this Agreement, including, but not limited to, the maintenance of accurate books and records. Regardless of whether they may be directly applicable to a party, as a minimum, "Trade Laws" includes all sanctions, embargoes, or other trade restrictions administered or enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC", including the OFAC Specially Designated Nationals List ("SDN List")), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury, or any other applicable authority or regulatory body.
Notwithstanding any other clause of this Agreement, the Seller may terminate this Agreement immediately upon written notice to the other party at any time if, in its reasonable judgment, the other party is in breach of any of the representations and warranties as said above. The Buyer has to be liable and he will reimburse all/any losses a/o damages of the Buyer which will arise due to above said breach of any of the representations and warranties.
12. Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with English law.
All disputes arising out of the Agreement shall be referred to arbitration in London in accordance with the London Maritime Arbitrators Association (LMAA) Terms.
The Buyer is responsible for effecting and maintaining insurances which will fully protect the Buyer, his employees and agents, the Vessel and the Vessel’s crew from all risks, hazards and perils associated with or arising from the Agreement.
14. Licenses, Permits and Approvals
The Buyer is responsible for obtaining all necessary permits, licenses and approvals required to enable both parties to execute all their rights and obligations under the Agreement.
Failure to enforce any right by any party to the Agreement against any other party shall not be a waiver of the right or in any way affect the validity the Agreement. In particular, granting of any additional time by the Seller to make payment or waiving or reducing of any financial or other charges shall not prevent the Seller from exercising any of its contractual rights at any time thereafter.