1.1 Except as otherwise agreed to in writing the following prices, terms and conditions shall apply to all sales of Marine Fuels.
2.1 “Seller” shall mean AQUAOIL LTD 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 gasoils 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.
3.1. Prices shall be Seller’s price in effect at time and place of delivery as set forth in Seller’s telex confirmation of bunkering and will be valid for only the expected day of arrival of the Vessel as advised by Buyer. Prices for delivery beyond this range are subject to amendment at Seller’s option. Unless where otherwise agreed, prices shall be deemed to be not in U.S.Dollars. All applicable taxes, levies, duties, fees and other costs including those imposed by Governments and local Authorities shall be for Buyer’s account and will not ordinarily be included in the price quoted.
4.1. The Marine Fuels to be delivered hereunder shall be Seller commercials grades of Marine Fuels as currently offered generally to its customers at the time and place of delivery. Save for the forgoing 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. Buyer shall have to sole responsibility for the selection and acceptance of Marine Fuel is delivered.
4.3. In order to determine the quality of Marine Fuels Seller shall be entitled to draw, or cause to be drawn, samples from each delivery and to have them sealed. One of those samples will be handed to the Master of the Vessel whish has received the delivery, the independent expert to be instructed with an examination of the quality of Marine Fuels. This quality examination shall be effected solely on the basis of the sealed samples, the result of which shall be binding upon both parties. The costs of analysis shall be borne by Buyer, unless the complaint as to quality is shown to be justified.
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, Seller’s of such loss or damage factual records of loss or damage, etc.) or failed to immediately notify in writing.
4.5. Buyer may inspect Marine Fuels delivered hereunder before it is pumped out of the Seller’s or supplying company’s shore tank or barge. Unless otherwise indicated to Buyer in writing by Seller or supplying company, any information provided to Buyer regarding the characteristics of Marine Fuels at any delivery location shall not be construed as specifications of the Marine Fuels to be delivered hereunder, but only as indications of the characteristics of the Marine Fuel that has been available at that locations from time to time.
5.1. All quantities referred to in Contract are understood to be approximate with a margin of 10 per cent more or less at Seller’s option.
5.2. The quantity of Marine Fuels delivered shall be determined from the official gauge of the barge effecting delivery or by gauging in Seller’s shore tank or by Seller’s oil motor at Seller’s election. Except where Government regulations or local authorities determine otherwise, adjustment in volume owing to difference in temperature shall be made in accordance with API/ASTM-IP Petrolium Measurements standards for generalised products (table class='cetext' 6B, 24B or 54B depending on port location). In the measurements of Marine fuels, Seller shall make allowances for all water and non-petroleum sediments in excess of one per cent (1%). Buyer may be present or represented by properly accredited agent when such measurements are taken but if Buyer is not present or represented the Seller determination of quantity shall be deemed to be correct. Buyer shall inspect the all delivered hereunder before it is pumped out of the Seller’s shore tank barge, or any other accredited method of delivery provided such facility to inspect is available.
5.3. In the event the quantity of Marine Fuels delivered exceedes the quantity ordered, Buyer may refuse to accept delivery of the excess quantity, but if Buyer does not so refuse Buyer shall be obligated to pay for the entire quantity delivered at a price specified in the telex referred to in clause n.3.
5.4. Where quantity is determined by Seller otherwise then as above, such determination shall be conclusive unless complaint is made to Seller at time of delivery.
6.1. If, within the framework of a covering transaction, and for reasons for which the Seller is not responsible, the Seller is not or is not with sufficient punctuality, so supplied by its contractor that it is unable punctually to discharge its delivery/service obligation vis-?-vis the customer, the Seller shall be entitled to withdraw from the Contract entered into with the customer.
6.2. Vessel shall be bunkered as promptly as circumstances permit but neither Seller shall be liable for demurrage or for any loss due to congestion at the terminal or prior commitments of available barges.
6.3. If Seller at any time for any reason believes there may be such a shortage of supply at any port that it may be unable to meet the demand of all its customers, Seller may allocate its available and anticipated supply among its costumers in such a manner as it may in its sole discretion determine.
6.4. If Buyer causes delay to Seller’s facilities in effecting deliveries, 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.
6.5. Seller shall not be required to deliver Marine Fuels into any Vessel tanks which are not regularly used for bunkering. If a Government licence or permit is required for deliveries hereunder, no delivery should be made until relevant licence or permit has been issued to Buyer, Seller, and/or Supplying Company, as applicable. Delivery shall be made during Supplying Company’s normal working hours unless required at other times and permitted by port Regulations, in which event Buyer shall reimburse Seller or Supplying Company for all additional expenses incurred in connection therewith.
6.6. Delivery shall be made in bunker lots at wharf or at shore terminals of Seller or by barge or by any other accreditated 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.
6.7. When deliveries are made by barge, 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. Buyer shall agree to pay and indemnity the Seller against all claims and expenses for any loss, damage, demurrage or delay caused by Buyers Vessel to barging equipment.
6.8. 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.
6.9. 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 Seller’s responsibility shall cease and Buyer shall assume all risks including loss, damage, deterioration, depreciation, evaporation, shrinkage as to the Marine Fuels so delivered.
6.10. On completion of the delivery to the Vessel the Master of the Vessel or authorized representative of Buyer shall thereafter give to the Seller a signed receipt thereof in the form required by 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 receipt in good faith by the Seller shall bind the Buyer.
6.11. If Buyer fails to take delivery of the Marine Fuels or any part thereof Seller shall be entitled to the reimbursement of all costs and damages cause and, at Buyer’s risk and expense, to transport the Marine Fuel back and then restorage it or to sell at a degraded form at a lower price than applicable under the Contract without prejudice to the Seller’s other rights under the contract for damage or otherwise.
6.12. Seller may elect to discontinue operations at any delivery location for any reason without obligation to Buyer.
6.13. If the Buyer fails to accept/collect the delivery/service on the date of delivery whether it be stated as merely nominated date or otherwise, Seller shall be entitled, but not obliged, to repudiate performance of the contract and to claim damages for non performance and at Seller’s discretion, compensation for the loss caused calculated on the basis of 10 % of the agreed price (without any evidence of a loss) unless the Seller is in a position to prove higher loss in which case the Seller will be entitled also to compensation of such higher loss.
6.14. Where lighterage is employed, lighterage expenses shall be for the account of the Buyer. Deliveries of light diesel, Gas Oil and other grades of Marine Fuels on two or more barges will be subject to separate lighterage charges.
7.1. Buyer’s shall give Seller directly, or through Buyer’s agent at least 72 hours notice (Saturday, Sunday or holidays excluded) of Vessel’s readiness to receive delivery and exact required quantity to enable Seller to make necessary arrangement for the delivery.
7.2. Buyer shall give 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.
8.1. Buyer’s rights in respect of any claim whatsoever, including but not limited to claim relating to quantity, quality and price, 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 six (6) 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 eight (8) 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.
8.2. Buyer’s rights is respect of any claim of any kind whatsoever shall in any case be conclusively deemed to have been waived and all rights in respect thereof shall be extinguished unless a suit is brought within tree (3) months after delivery of the Marine Fuels to the Vessel or, if delivery has not taken place, within three (3) months of the date on which the Marine Fuels ought to have been delivered.
8.3. Buyer’s submission of any claim does not relieve it of responsibility to make payment in full as required under Clause 9.
9.1.Payment shall be made by the Buyers as directed by Seller and shall include the amount of any taxes payable by Seller in relation to the sale of Goods.
9.2.Unless otherwise agreed, payment shall be made by tested telegraphic transfer. Delivery documents may be provides to Buyer at its request, payment shall however not be conditional upon Buyer’s receipt of such documents.
9.3. Overdue payments shall at Seller’s sole discretion be subject to an interest charge running from the due date of payment at the rate of two per cent (2%) per thirty days (30) period compounded or the maximum rate permitted under applicable law, the Seller remaining entitled to the reimbursement of any other damage/cost including but not limited to the attorney fees, the costs and expenses which may be incurred by Seller with respect to collection, legal or other actions necessary at any time in Seller’s opinion for the protection of its interest and the enforcement of its rights hereunder.
9.4.Should Marine Fuels be ordered by a broker or agent then such broker or agent as well as the Buyer shall be bound by and liable for all obligations as fully and as completely as if they were themselves the Buyer whether such principal shall be disclosed or undisclosed and whether or not such broker or agent purports to contract as brokers or agents only but in all such cases the said broker or agent shall not have any right against the Seller.
9.5.Marine Fuels is delivered hereunder not only on the credit of Buyers but also on the credit of the Vessel receiving delivery and it is agreed, and Buyer warrants, that Seller will have any may assert a lien against the receiving Vessel, for the amount of the purchase paragraph
9.3.Notwithstanding anything herein to the contrary, including but not limited to clause 9.5. by in rem action against the Vessel through arrest and/or attachment or by any other action provided for by the laws of the Country where the lion is exercised.
9.6. The Owner and/or the Manager(s) of the Vessel receiving delivery of Marine Fuels under these General Terms and Conditions of Sale and Delivery, shall be responsible for the performance of all of Buyer’s obligations hereunder. If delivery of Marine Fuels is contracted for by an agent or Manager of the Owner or by Operator or Charterer, whether such Owner is disclosed or undisclosed.
9.7. If it has been agreed that payment shall be made by instalments, and if Buyers fails either wholly or in part into arrears in respect of two consecutive instalments, the entire remaining balance shall become due for payment forthwith.
9.8. When paying, Buyers shall not be entitled, without the Seller’s consent in writing, to offset any amounts against Seller, whether or not those claims are connected and whether or not they arise out of the Contract.
9.9. Seller has the right to offset any claims, for whatever legal grounds against claims the Buyer may have against Seller, its holding or subsidiary companies, associated or related companies.
9.10. Payment shall be deemed to have been made in the case of a direct payment to Seller on the date of receipt of good funds at Seller’s address or, in any other case, on the date the payment is credited to Seller’s account at a bank designated by Seller, if payment falls on a non business day, that is, a week-end or other day on which Buyer’s or Seller’s bank is closed, then payment shall be made on or before the preceding business day.
9.11.In case any of circumstances mentioned in clause 13.1 occur, Buyer, Owners, Charterers and any other parties to the Contract will be deprived of the benefit of any agreed terms of payment and will become immediately jointly liable towards the Seller for the payment of the contractual price.
19.12. In case the Buyer fails to effect payment at the time and in the manner prescribed under these General Terms and Conditions of Sale and Delivery, Buyer will be automatically deprived of the benefit of any agreed term of payment which may be applicable to any other contracts subject to these Conditions entered with Seller and shall be therefore bound to effect payment of any prices or other anounts due to under such contracts immediately, upon simple request of Seller.
10. Safety and environmental protection.
10.1. 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. Seller or Seller’s supplier accept no responsibility for any consequence arising from failure to comply such health and safety requirements or arising from such contact or exposure.
10.2. 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 Buyer or Seller is responsible, immediately take such action as is necessary to effect clean up and failing prompt action Buyer (which hereby warrants that it has bee authorized by Vessel’s Owners) authorizes Seller to take whatever measures Seller deems fit to clean up at Buyer’s expenses, 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 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.
11.1. Seller may assign all or any its rights and obligations hereunder. Any assignment by Buyer without Seller’s written consent shall be void.
12. Seller’s liability
12.1. Any express or limited condition, warranty, term, duty or undertaking, statutory or otherwise, not specifically, stated herein is hereby excluded. Without prejudice to the generality of the foregoing, none of the terms implied by the Sale of Goods Act 1979 (or any amendment thereto or re-enactment thereof) shall apply to this Contract. Seller shall not be liable for, and Buyer shall indemnify Seller against, any losses, claims, demands, costs or expenses arising out of any action taken by any third party against the Seller in connection with the supply of Goods under this Contract, whether or not the Seller is in breach of any of its obligations under this Contract.
12.2. If any liability on the part of the Seller to Buyer shall arise under this Contract for any loss or damage of whatever nature, such liability shall not exceed 25 % of the price of the Goods delivered hereunder to Buyer or, where the claim relates to a failure to supply, 25% of the price of the Goods which ought to have been delivered, and in no event shall Seller’s liability hereunder howsoever arising extend to any claim for any consequential or indirect damages, including without limitation, demurrage claims, loss of contract, loss of profit or any other economic losses.
12.3. Seller’s supplier of Marine Fuels and all employees, representatives or agents of Seller and of such Seller’s suppliers will have the benefit of any and all rights stipulated for the Seller under these conditions with respect to exclusion of liability and with respect to indemnification of Seller thereof.
12.4. In the event that suppliers of any other person who may benefit from Seller stipulation in this connection would be held liable, the total liability shall be limited to an amount equal to the net price of the delivery involved and any event Seller shall have no liability for any incidental, consequential or special damages (including but not limited to loss of revenue) arising.
12.5. Where the date of delivery is indicated, the obligation of the Seller shall be to deliver as soon thereafter as is practicable having regard to congestion affecting the Seller’s delivery facilities or the facilities of it’s suppliers or agents or to the prior commitment of bunkering barges or other delivery vehicles. However such date is not guarantee and time shall not be of the essence in respect thereof or of any other obligation on Seller part contained in these conditions. Seller shall not be liable to make good any damage or loss whether arising directly or indirectly out of delays in delivery of Goods.
12.6. The Buyer shall indemnify the Seller against any liability incurred by the Seller in respect of the Buyer’s failure to comply with applicable Government or local Regulations at the part such as these related to fire or in respect of any loss of bunkers or damage to any properly caused by the Buyer’s Vessel during berthing, bunkering and/or unberthing.
12.7. Buyer shall indemnify and hold Seller and Seller’s Supplier harmless from and against any and all claims, demands, suits or liabilities for damage to property or for injury or death of any person arising out of or in any way connected with fault of Buyer or its agents or servants in receiving, using, storing, or transporting Marine Fuels delivered hereunder.
13.1. Notwithstanding anything to the contrary expressed or implied elsewhere herein, the Seller, without prejudice to its other rights, may at its sole discretion terminate the Contract for with on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing in the event that a liquidator (other than for the purpose of amalgamation or reconstruction) trustee in bankruptcy, receiver and manager is appointed in respect of the assets and/or undertaking of the Buyer or any of its associated companies, or the Buyer or any such associated company enters into an arrangements or composition with its creditor, or any similar appointment, arrangement or composition is made under any applicable Law or if the Seller has a reason to anticipate any such appointment, arrangement or composition.
13.2. Seller may terminate this Contract in whole or in part, at its own discretion upon the breach of any provision hereof by Buyer.
13.3. Seller reserves the right to recover from Buyer all damages and costs (including but not limited to loss of profit) resulting from any breach of them of the Contract.
13.4. In case the Buyer fails to effect payment at the time and in the manner prescribed under these General terms and Conditions of Sale and Delivery, Seller, without including in any liability, shall have the right to terminate any other Contracts subject to these Conditions entered with Buyer.
14. Force majeure
14.1 In the case of extraordinary events which are beyond the control of the Seller and which are unforeseeable in spite of the necessary care and which do not allow the Seller, with due consideration of its other delivery obligations, to make contractual deliveries or which would allow the Seller to make such deliveries only at economical unreasonable conditions, Seller shall be untitled for the duration of such obstruction to restrict or discontinue the deliveries – or in the case of prolonged obstruction – to withdraw from the Contract or terminate it without notice. This shall apply without limitation for instance in the case of war or warlike conditions and their consequences, unrest, sabotage, operational disturbances, labour dispute, measures by Law or order of the authorities, obstructions or delay in transportation, disturbance in the supply of Seller with crude oils, in particular by events in the area of the crude oil producing Countries. The same shall also apply if Seller is forced by market conditions to change its source of resource in such a way that Seller can no longer reasonably be expected to continue deliveries. The quantity of Marine Fuels which has not been delivered for the reason stated in this clause 14.1. shall be deducted from the quantity of Marine Fuels to be sold and purchased under this Contract. Failure to deliver or accept delivery of marine fuels which is excused by, or results from the operating of this Clause 14.1. shall not extend the term of this Contract.
14.2. Seller shall be entitled to recover from the Buyer all additional costs including, but not limited to acquisition and transportation costs as a result either direct or indirect from the consequences of such extraordinary events.
14.3. Under no circumstances, however, shall Buyer be excused under this paragraph of Buyer’s obligation to make payment for all amounts due on account of Marine Fuels previously delivered hereunder.
15. Resale and exchange
15.1. Buyer undertakes that Marine fuels supplied under the Contract will be used solely for the bunkering requirements of the Vessel to which they are delivered.
16.1. Failure by other party at any time to enforce any of these conditions shall not be considered as a waiver by such party of such provisions or in any way affect the validity of these conditions.
17.1. The supply by Seller of Goods and every quotation, pro-forma invoice, order confirmation, price list or other similar document relating to Goods are made or issued solely subject to these conditions and no representation or warranty collateral or otherwise shall bind Seller and no statement made by any representative by or on behalf of Seller shall vary these Conditions unless such representation warranty or statement shall be made in writing and signed by a Director of Seller and shall be stated to be made specifically in pursuance of this article 17.
17.2. Seller shall not be bound by any conditions of business of Buyer unless such conditions are expressly accepted by Seller by a Statement made in writing signed by a Director of Seller and stated to be made specifically in pursuance to Art.17. Where there is any variance between these Conditions and Buyer’s Conditions of business these Conditions shall prevail.
17.3. The Conditions embody all the terms and conditions and supersedes and cancel in all respects all previous agreements or conditions and undertakings, if any, whether such will be written or oral.
17.4. No oral explanation or oral information by the parties hereto, or any of them, shall alter the moaning or interpretation of these conditions.
17.5. Seller’s offers and estimates of costs and to be understood as being conditional and subject to availability and alternation and shall include only such services as are expressly specified.
17.6. The Contract shall be deemed to be made with effect from the date that Seller provides to buyer notice or reconfirmation of Buyer’s order for Marine Fuels. This same provision shall also apply with regard to additions and alternations to the Contract.
17.7. Save where otherwise expressly provided for in the Contract specifications all particulars notified to the Buyer (e.g. Analytical Data) and all documents to which access has been given shall be deemed to contain only those approximate values customary in the trade. Seller reserves the right to make alterations to such particulars or documents of the Goods. This same provision shall apply also to changes in the quantity of Goods, in so far as these do not involve basic alteration if the altered quality will not affect or is generally so regarded in the trade as not effecting its ordinary and customary use.
17.8. Agreed commercial terms shall be deemed to have the meaning in the most recent version of incoterms.
17.9.In the case of improved Goods the Contract shall be deemed to be concluded subject to the provision that seller is granted any export or import licences which may be necessary. Without prejudice to clause 3 above Buyer shall indemnify Seller for any such expenses incurred in connection with the securing or delay in securing of the aforementioned licences.
17.10. The seller shall be entitled to recover from Buyer all losses, costs and expenses incurred as a consequence of cancellation for whatever reason.
18. Law and jurisdiction
18.1. Except as otherwise expressly agreed to in writing this Contract shall be governed by the laws of England and the parties hereto accept the exclusive Jurisdiction of the Court of England in reason to any claim which may arise in connection with this Contract save that the Seller shall be entitled to bring proceedings against the Buyer in the Courts of the Jurisdiction where the buyer resides or carries on business or in the Courts of the Jurisdiction where delivery of the goods was or ought to have been effected.