THOR MARINE TRADING SL GENERAL TERMS AND CONDITIONS FOR PETROLEUM PRODUCT PURCHASES AND SALES – TRADING ONLY
In these General Terms and Conditions (hereinafter, “GTC”), the following terms shall, unless the context otherwise requires, have the following meanings:
Abatement Technology: Means any fitting, material, appliance, apparatus or other procedures undertaken, or compliance methods used by the Vessel as an alternative to comply with its obligations in Regulation 4 of MARPOL Annex VI.
Agent: Means the entity nominated by the Client/Buyer to act on their behalf, and/or on behalf of the Vessel and/or Beneficial Owners and/or Operators and/or Managers of the vessel.
Bunker Delivery Receipt/Note – BDR/BDN: Means an official document issued by the Seller or the Seller’s agent or the physical supplier at the point of delivery describing the quantities and specification of each Product delivered the Vessel.
Buyer: Means the party obligated to buy the Product as identified in the Confirmation.
Incoterms: Means the trade terms as most recently published by the International Chamber of Commerce.
Marine Fuels: Means products derived from crude oil, mineral or synthetic lubricating oils or greases, more particularly described in the applicable Confirmation.
Marpol Annex VI: Means RESOLUTION MEPC.176(58) Amendments to the Annex of the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (Revised MARPOL Annex VI).
Order Confirmation: Means the written confirmation note issued by the Seller to the Buyer, setting out the specific details and additional terms of a Contract.
Seller: Means a party obligated to sell Product under this Agreement and as identified in the Contract.
Supply Date: Means the Date or Date Range set out in the confirmation, where the supply of Marine Fuels is agreed to take place
Vessel: Means the marine vessel nominated by the Buyer to receive Marine Fuels delivered by the Physical Supplier, as set out in the applicable Confirmation.
2.1 These Terms and Conditions, in conjunction with the applicable Confirmation, shall constitute the contract (“Contract”) pursuant to which the Seller agrees to sell and procure delivery of Marine Fuels, and the Buyer agrees to accept and pay for such Marine Fuels. The Buyer expressly agrees that it will incur a debt obligation to the Seller for any amounts owed pursuant to that Contract from the time of delivery of such Marine Fuels, irrespective of whether an invoice is issued for such amounts.
2.2 These conditions apply to all offers, quotations, orders, agreements, services and all subsequent contracts of whatever nature, except where otherwise it has been expressly agreed in writing by Thor Marine Trading.
2.3 If for whatever reason, any section of these Terms and Conditions and/or provision(s) of these General Terms and Conditions are deemed invalid, the validity of the rest of the Terms and Conditions are to remain valid.
2.4 Each Contract contains the entire agreement between the Buyer and the Seller and shall supersede all prior agreements, arrangements or stipulations whether oral or written, for the supply of Marine Fuels agreed in that Contract. In the event of any conflict or inconsistency between the provisions of the Confirmation and these Terms and Conditions, the provisions of the Confirmation shall prevail.
2.5 The Contract can only be amended or varied by written agreement of both the Buyer and the Seller.
2.6 Where Seller is not also the Physical Supplier, the terms and conditions which apply between Seller and Physical Supplier will be available on request and will be in any case deemed incorporated into these terms and conditions for the benefit of the Seller in so far as they further limit the liability of the Physical Supplier/Seller or provide more protection and/or grant more security to the Physical Supplier/ Seller for the payment of the supply.
3. ORDER CONFIRMATION
3.1 A Contract shall only be concluded and binding when the Seller sends the Order Confirmation to the Buyer. Each Order Confirmation shall incorporate these GTC’s whether or not the Order Confirmation includes an express reference to the GTC’s.
3.2 The Seller shall not issue a Confirmation unless:
a. It decides in its absolute discretion to do so; and
b. It first receives an email from the Buyer containing the following information relatingto a proposed delivery (a “Nomination”):
3.3 A nomination must contain the following information’s, the vessel name and IMO number, supply port, ETA and ETD of the vessel at the supply port, the quantity, grade
and maximum sulphur content, the method of delivery, as well as 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 Fuels. Furthermore the Buyer shall have provided the Seller with the name and contact details of the vessel agent. The vessel nomination shall be deemed confirmed by the Seller issuing the Order Confirmation back to the Buyer
3.4 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 or Beneficial Owner, whether such is disclosed or undisclosed, then such Agent with actual or constructive notice of the existence of these GTC’s in addition to the Buyer and or holder of any interest in the Vessel receiving the Products shall be jointly and severally liable for and guarantees the proper performance of all the obligations of the Buyer under this Contract, and shall be deemed as a principal and not only acting as an Agent. Agreements entered into via brokers, or any other authorised representative on behalf of the Seller, shall only bind the Seller upon Seller’s written confirmation that the broker acting on behalf of the Seller or other representative is authorised to send Seller’s Order Confirmation to the Buyer or the Buyer’s broker as the case may be.
3.5 It is agreed that all orders of all Products are considered to be emanating from the Master of the vessel, even if relayed by the Buyer to the Seller and even if no written request for the Master of the vessel exists, the dues and cost of such supplies and/or deliveries shall be treated as a primary lien on the Vessel.
3.6 The Buyer shall pay the Price in accordance with the terms of the Contract. Delivery documents may be provided to the Buyer if requested, but payment shall not be conditional upon the Buyer’s receipt of such documents.
3.7 The Seller’s offer is based on the applicable taxes, duties, costs, charges and price levels for Bunkers existing at the time of the conclusion of the Agreement. Any later or additional tax, assessment, duty or other charge of whatever nature and however named, or any increase in the price levels for the Bunkers or any additional costs borne by the Seller whatsoever caused by any change in the Seller’s contemplated source of supply or otherwise, coming into existence after the Agreement has been concluded, shall be added to the agreed purchase price, provided that the Seller shall give the Buyer prior notice of such changes within a reasonable time after the Seller becomes aware of them.
4.1 Subject to Clause 4.2, full payment for the products set out in the order confirmation shall be due immediately upon delivery of the Products or in all other cases immediately upon an invoice being issued.
4.2 The Seller may grant credit deferring payment in which case the credit period shall be stated on the Order Confirmation. The granting of credit is in the Seller’s discretion and the Seller may withdraw credit at any time and demand immediate payment if the Seller has reason to alter its assessment of the credit risk. Withdrawal of credit shall be by written notice, and Seller need not provide reasons. Where the Seller withdraws credit before delivery of Products then the Seller may withhold delivery until payment of the Price or alternatively the Seller may cancel the order, without recourse by the Buyer. Any cost borne from the cancellation is treated same as a cancellation governed by these Terms and Conditions section 8. DELIVERY, AMENDED DELIVERY AND CANCELLATION
4.3 Payment shall be made in full, without set-off, counterclaim, deduction and/or discount free of bank charges to the bank account indicated by the Seller on the respective invoice(s). The price of the Marine Fuels excludes, and the Buyer shall be liable to pay, any and all additional costs incurred in connection with the delivery. Including but not limited to: Taxes, Duties or other charges leviable in the delivery location; and delivery costs applicable for the date of delivery including Mooring fees, Wharfage fees, Barging fees, Barge demurrage, provision of additional hoses and the use of oil pollution control equipment, in each case as determined in the sole discretion of the Seller.
4.4 Payment shall be made in the currency as set out in the confirmation. Payment to be made by a recognised bank by telegraphic transfer to the Designated Bank Account stated on the invoice. If payment is made to any other account, the Buyer shall not be released from its obligation to make payment to the Seller. All payments shall be made net of transfer charges which shall be for the Buyer’s account.
4.5 All sums payable in accordance with a Contract for Products delivered to a Vessel shall constitute a lien on the Vessel.
4.6 Payment shall be deemed to have been made on the date of which the Seller has received the full payment, and such is available to the Seller in their nominated account. If payment falls due on a non-business day, the payment shall be made on or before the business day nearest to the due date. If the preceding and the succeeding business days are equally near to the due date, then payment shall be made on or before the preceding business day.
4.7 The Buyer shall not be entitled to insist upon receipt of the BDR before making payment, but the Seller shall nevertheless use reasonable endeavours to provide a BDR with its invoice. In any case, Seller will provide a PDF electronic copy of the original invoice and BDR due for payment.
4.8 Any delay in payment of the full sum due shall entitle the Seller to interest at, the rate of 3 (Three) per cent per month (compounded monthly for each month (or part thereof) of non-payment) without prejudice to any rights or remedies available to the Seller. Furthermore, the Seller holds the full right to involve internal and external legal assistance and to charge those costs for same against Buyers.
4.9 Payments made by the Buyer shall at all times be credited in the following order: (1) costs, (2) interest and (3) invoices in their order of age, also if not yet due, or in Seller’s sole discretion to specify a payment to any such invoice Seller considers relevant.
4.10 All costs borne by the Seller in connection with the collection of overdue payments, whether made in or out of court and in general all costs in connection with breach of this agreement by the Buyer, shall be for the sole account of the Buyer.
4.11 The Seller shall be entitled to allocate payments from the Buyer at its sole discretion and regardless of any allocation stipulated by the Buyer and shall be entitled to extinguish claims for compensation, interest, legal fees or any other sums due from the Buyer in priority to invoices for products provided and regardless of the date that the respective obligations arose.
5. RISK AND PROPERTY
5.1 The Buyer shall become liable for the Marine Fuel immediately upon the Marine Fuel passing the Sellers’ flange connected to the Vessel’s bunker manifold, and risk of the Marine Fuel shall pass to the Buyer at that time. The Buyer shall become liable for Lubricants and related products immediately upon them passing the Vessel’s rail or being delivered to the designated place of delivery, and risk shall pass to the Buyer at that time. Title to the Products shall pass only when the Products have been fully paid for by the Buyer and until such time the Seller shall retain title to the Products.
5.2 If the party requesting Bunkers is not the Owner of the Vessel, the Seller shall have the right to condition the sale on a payment guarantee provided by the Owner. If such payment guarantee is not promptly received upon the Seller’s request and in any event before the Bunkers are supplied, the Seller shall have the right to refuse to proceed with the sale and/or may cancel any Agreement with the Buyer at any time.
5.3 “No-Lien” stamps (or any similar notification which could prejudice the Seller’s rights on any document including to the BDN, whether used by the Buyer, the Vessel, beneficial owners (or its representatives) or any third party shall not vary the terms of the Contract, and shall in no way prejudice any right of lien, attachment.
6. QUALITY AND SAMPLING
6.1 The Buyers shall have the sole responsibility for the nomination of the specifications and grades of Marine Fuels fit for use by the Vessel and determine (if applicable) the potential compatibility with any bunkers already on board the Vessel, as well as to assure that the Marine Fuels do not jeopardize the safety of the Vessel, adversely affect the performance of the Vessel’s machinery, harm personnel or contribute to additional air pollution.
6.2 The Sellers warrant that the Marine Fuels shall be of a homogeneous and stable nature and shall comply with the specifications and grades agreed between the Parties and stated in the Confirmation Note, but save for the aforesaid, any warranties whatsoever, whether statutory or otherwise, including the warranties or merchantability and fitness for a particular purpose or a condition and any oral or implied agreements are expressly excluded and disclaimed.
6.3 Information regarding the typical characteristics of the Bunkers at any delivery location shall only be indicative of the Bunkers that have been made available at that location and shall not form a part of the specification of the Bunkers to be delivered.
6.4 Product delivered under this Agreement shall be subject to the receiving party’s inspection and approval prior to delivery. Payment may not be withheld pending inspection, but payment shall not constitute acceptance of Product or limit the receiving party’s remedies. If any delivered Product fails to meet the minimum specifications stated in the Contract, the receiving party may reject same or, at its option and upon notice to the delivering party, may accept such Product, in which case a price adjustment shall be made as provided in the Contract, or lacking such provision, by mutual agreement.
a. The Sellers shall request / invite the Buyers or their representatives to witness the sampling of Marine Fuels to be delivered. During bunkering a primary sample, other than the MARPOL sample, shall be drawn at a point, to be determined solely by the Sellers, closest to the Bunker Tanker’s manifold and otherwise in accordance with the procedures set out in IMO Resolution MEPC.182(59) Guidelines for the Sampling of Fuel Oil for Determination of Compliance with MARPOL 73/78 Annex VI or any subsequent amendments thereto. Each sample shall be thoroughly mixed and carefully divided into a minimum of four (4) identical samples and one sample of each grade of Marine Fuels shall be given by the barge to be retained on board the Vessel for MARPOL purposes. The absence of the Buyers or their representatives to witness or verify the samples and their sampling procedure shall not prejudice the validity of the samples taken. In the event that local bunkering rules and regulations apply mandatorily, these shall take precedence over the this provision
b. 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 point of sampling and seal number, authenticated with the Vessel’s stamp and signed by the
Sellers’ representative and / or the Master of the Vessel or the Master’s authorized representative. Only the samples taken, sealed and distributed as per this sub clause and stated in the BDN are valid in respect of the Marine Fuels’ quality determination. No other eventual samples however and whensoever’s drawn either previously or subsequently or additionally taken shall be allowed as (additional) evidence or deemed to have any value as evidence.
c. Two (2) samples shall be retained by the Sellers for forty-five (45) days after delivery of the Marine Fuels to the Vessel or, on being requested in writing by the Buyers, but no later than thirty (30) days after delivery of the Marine Fuels to the Vessel, for as long as the Buyers may reasonably require, and the other two (2) samples shall be retained on board the Vessel (one of which shall be for MARPOL purposes).
d. If the quantity is delivered by more than one Bunker Tanker, the sampling procedure shall be repeated as outlined in this Clause.
e. eller shall be notified in writing of any claimed defect in the quality immediately after such alleged defect is discovered. Each of the foregoing preliminary notices shall be followed by a formal written notice of claim to Seller containing all details necessary to allow evaluation of the claim. lf Buyer fails to give any initial notice or if the formal written notice is not received by the Seller within fourteen (14) days after delivery of the marine fuel to vessel, any claim shall be conclusively deemed to have been waived and absolutely barred (and in such case the Buyer shall be deemed to have accepted the quality of Products delivered).
6.6 Claims, if any, are to be settled separately from payment of the invoice, which, in all cases, has to be honoured in full without off set of any kind and without delay.
6.7 In the event a claim is raised regarding the quality of the products supplied, the Parties hereto shall have the quality of the Marine Fuels analysed by a mutually agreed, (and failing such agreement by an independent laboratory solely chosen by the Sellers) qualified and independent laboratory. The Buyers may request a full analysis of the parameters of the Marine Fuels, but only with respect to the characteristics (physical specifications) specified by ISO and not otherwise, in accordance with the specification set out in the Confirmation Note. The Sellers shall provide the laboratory with one of the samples retained by them and related to a sample number on the BDN and the test methods used by the laboratory shall be in accordance with those set out in ISO 8217. Unless otherwise agreed, the cost of the analysis shall be for the account of the Party whose claim/case is found unproven by the analysis. In the event that the Laboratory’s results of the analysis of the final and binding sample fall within the reproducibility and/or repeatability of the test method as set out in ISO 4259, then such results shall not be considered as constituting the Marine Fuels being off-spec.
6.8 In the event that the Buyers were to consider a potential de-bunkering of the Marine Fuels, based on full and undisputable written evidence that the Marine Fuels are unsuitable for use by the Vessel, the advice of the Sellers must first be sought and obtained. The Buyers are further obliged to closely work and co-operate with the
Sellers in relation to every single specific action to be taken in respect of the de- bunkering operation. All damages, losses, costs, and expenses which may result from any unilateral decision taken by the Buyers shall be solely and exclusively born by the Buyers.
6.9 The Buyers shall always be obliged to mitigate their losses and minimise the consequences of having received non-compliant Marine Fuel by treating the Marine Fuels e.g. by using additives or extra heating. The Sellers shall be liable towards Buyers for the cost of such mitigation, subject to all other defences, limitations and exclusions contained in these General Terms and Conditions, provided and to the extent the mitigation costs exceeds USD 1,000. Sellers shall not be liable for such costs in excess of USD 10,000.
7. QUANTITY and MEASUREMENT
7.1 The quantities of Marine Fuels delivered shall be measured from the official gauge or manual sounding or meter of the Bunker Tanker effecting delivery, or in case of delivery ex-wharf, of the shore-meter or the such like equipment.
7.2 The Sellers shall invite the Buyers or their representatives to witness the opening and closing gauge, or manual sounding or meter reading and the taking of bunker temperature of all bunker tanks on the Bunker Tanker and shall be given sufficient information and access to the official gauge or manual soundings or meter of the Bunker Tanker or shore-meter and relevant documentation to verify the volume delivered. The absence of the Buyers or their representatives shall not prejudice the validity of the measurement of the quantities of Marine Fuels delivered. In the event that local bunkering rules and regulations apply mandatorily, these shall take precedence over this provision.
7.3 The Marine Fuels to be delivered under the Contract shall be measured and calculated in accordance with the ISO- ASTM-API-IP Petroleum Measurement Tables.
7.4 Seller will supply the quantity agreed within 5%, plus or minus, of the quantity stated in the Bunker Confirmation, which lesser or greater quantity, Buyer accepts as full performance under the Agreement with no consequence other than a corresponding adjustment in the invoice price to reflect the actual quantity supplied.
7.5 Buyer waives all claims against Seller with respect to any claimed shortage in quantity, unless Buyer or Buyer’s representative shall give written notice both to the terminal operator and to the Seller / Barge at the time of loading / supplying.
7.6 Any claim for such quantity dispute must be presented to the Sellers by the Buyers by means of an official L.O.P (Letter of Protest) at the final completion of supply that same day, with full supporting evidence documentation in writing within seven (7) days from the date of delivery, failing either/both of which such claim shall be deemed to be waived and barred.
8. DELIVERY, AMENDED DELIVERY AND CANCELLATION
8.1 Any sale shall be subject to ex works (EXW) conditions INCOTERMS. Seller shall have the right to require Buyer to shift vessel to another berth or anchorage, and to deliver the Product by using extra barges whenever it is deemed necessary by Seller, depending on the barges capacity and the prior commitments of available barges or existing facilities.
8.2 Buyer shall make all connections and disconnections between the delivery hose and vessel’s intake pipe and shall be responsible to ensure that the hose is properly connected to the vessel’s manifold prior to the commencement of delivery. Buyer shall furnish steam, if necessary, and provide sufficient tankage equipment to receive promptly all deliveries.
8.3 Buyer shall ensure that either the master of a nominated Vessel or vessel’s agent gives not less than three (4) working days advance notice to the Seller’s local office at each delivery port or supply location, which notice shall identify the Buyer and specify the place where and the time when delivery is required.
8.4 The master or the vessel’s agent shall give immediate notice to Seller of any delays in time of arrival. In case of failure to arrive at the supply date set out in the confirmation for whatever reason, the Seller can choose to:
1. deliver to the Buyer on a date of the Seller’s choice at the price stated in the Fuels Agreement plus any additional costs incurred by the Seller in delivering outside the agreed supply date; or
b. accept a new supply date as the basis of a new Contract for which a new price can be agreed upon with the Buyer; or
c. Cancel the contract
8.5 If the contract is cancelled for any reason, including but not limited to: a. buyers outright cancellation; b. failure to take delivery; c. buyers failure to comply with all applicable conventions, laws and sanction laws; d. cancelation due to lack of payment, whether due to unpaid invoices or change in Buyers credit provided by the Seller, the Buyer shall pay to the Seller any costs, including but not limited to:
a. Any charges and expenses levied by a third party (including any Physical Supplier)
b. Any difference in price between the Contract price and the market price at the delivery location on the date of such purported cancellation, termination or failure;
c. Losses, costs and damages associated with terminating, liquidating, obtaining or re- establishing any hedging arrangement, derivative transactions or related trading position;
d. Costs of selling any undelivered Marine Fuels;
e. Additional operational expenses such as pump-back fees, inspection charges and storage; and
8.6 The delivery shall be made during normal working hours unless required and available at other times (holidays, Saturday afternoons and Sundays) and permitted by port regulations, in which event Buyer shall reimburse Seller for any and all additional expenses incurred in connection therewith, including overtime.
8.7 Seller does not warrant nor shall be deemed to warrant the safety of any place (s) or
facility (ies) where Buyer’s vessel loads and assumes no liability in respect thereof.
8.8 Buyer shall ensure that vessel will be in full compliance with all applicable international conventions, all applicable laws, regulations and/or other requirements of the country of the port and/or place of delivery and all applicable regulations and/or requirements of any terminal or facilities in such port or place where vessel shall be supplied. Buyer shall also instruct Master of the nominated vessel as follows:
a. To be fully aware of Seller’s/Suppliers General Terms and Conditions of Sale and Delivery of Marine Fuels;
b. To advise Seller in writing, prior to delivery, of maximum allowable pumping rate and pressure. Master also has to acknowledge the communication and emergency shut- down procedures;
c. Has all the certificates required to comply with all relevant regulations relating to the delivery of Marine Fuels at the delivery location;
d. Is entered with a P&I Club which is a member of the International Group of P&I Clubs and maintains H&M insurance for the Vessel’s full declared value and maintains pollution coverage for the Vessel commensurate with coverage for similar vessels in the trade.
8.9 The Buyer and Vessel and all of their personnel and Agents shall obtain any necessary permits and comply with all regulations applicable to the receipt, handling and use of the Products to be supplied at the Supply Place and a failure to do so shall entitle the Seller to cancel the Contract. The Buyer shall indemnify the Seller for all consequences, losses and or damages (including fines and penalties) suffered by the Seller as a result of the Buyer or the Vessel or its crew failing to observe any such regulations or obtain any such permits.
8.10 Vessels will be bunkered as promptly as possible, but Seller shall not be liable for demurrage, detention nor any other different damages due to any delay caused by weather (whether usual or unusual), congestion at the terminal or prior commitments of available barges or existing facilities, howsoever caused.
8.11 In the event that the supply is made by ship-to-ship transfer, any damage caused by contact, collision, swell or any other weather or sea related condition shall be dealt with by the Buyer directly with the owners of the supply barge and their P+I Club. The Seller shall not be held liable for any such damages and the Buyer shall indemnify the Seller against any claims arising out of such incident.
8.12 Where lightering/barging is employed, lightering/barging charges shall be for the account of the Buyer. The Buyer will be liable for all demurrage or additional expenses incurred by Seller if Buyer causes delay in the supply of Products. Buyer will also pay for mooring, unmooring and port dues incurred and or any other costs/losses thereby incurred.
8.13 If Buyer fails to take delivery, in whole or in part, of the quantities specified in the Order Confirmation, Buyer shall be responsible for any costs resulting from Buyer’s failure to take full delivery, as well as for any losses incurred by Seller including but not limited to any loss of profit and any loss on the resale of the Products. The Buyer shall bear the risk of the return transport, demurrage on the barge or trucks, storage or selling of the Products.
8.14 Seller will not be liable for any loss incurred by Buyer due to a failure or delay in supply due to (a) congestion affecting the physical supplier of Products at the delivery facilities, (b) prior commitments of available barges, (c) local customs, pilots, port or other authorities or (d) shortage of Products of the required specification or (e) failure or under-performance of the SE, or (f) any circumstances out of the direct control of the Seller.
8.15 The Buyer shall indemnify and hold harmless the Seller against all damage and liabilities arising from any acts or omissions of Buyer or its servants, ship’s officers or crew in connection with the delivery of Products or the bunkering operations.
8.16 Where it is necessary according to the regulations or practice of the Supply Place that a port agent be appointed to facilitate the delivery of Marine Fuel and the Buyer does not have an appointed agent for that purpose then the Seller may appoint a port agent on the Buyer and Vessel’s behalf or the Seller may authorize its sub-contracted supplier to appoint said port agent. Any such appointment by Seller shall be strictly on behalf of the Buyer and the Vessel who shall be jointly and severally liable for the port agent’s fees and for any expenses, charges, taxes, duties or fines incurred by the port agent on behalf of the Vessel and Buyer.
8.17 In the event of any delay resulting from:
a. the Buyers’ failure to give proper notices and/or the Vessel’s failure to be in Actual Readiness within six (6) hours of the Confirmed Delivery Time and/or the Vessel failing to receive Marine Fuels at the advised pumping rate and pressure; or
b. the Sellers’ failure to deliver the Marine Fuels in accordance with the minimum hourly pumping rate and pressure referred to in the Confirmation Note (provided always that the Vessel’s receiving capacity and the safety of the bunkering operation allow such minimum pumping rate and pressure); or
c. the Seller’s failure to commence delivery of the Marine Fuels within the Required Supply Time,
Then the Party suffering such delay shall be entitled to compensation from the other Party for any actual loss suffered as a result of that delay.
8.18 Any claims by Buyers for delay/demurrage shall be submitted with full original supporting documents within seven (7) days of the date of delivery failing which such claim(s) shall be deemed waived and barred.
8.19 Time Bar. In each and every case any and all claims, by the
Buyers shall be time barred unless arbitration proceedings have been commenced within six (6) months of the date of delivery of the Marine Fuels or the day that delivery should have commenced as per the Confirmation Note.
9. POLLUTION PREVENTION AND RESPONSIBILITY
9.1 The Buyer shall be responsible for ensuring that it complies with all national and international trading and pollution regulations, and all environmental and health and safety regulations with regard to the receipt and use of Products and shall indemnify the Seller for all financial consequences, including clean-up costs and fines, of a breach of this provision.
9.2 The Buyer shall provide its employees and the Vessel with all relevant health, safety and environmental information concerning the Marine Fuels (including any Material Safety Data Sheets provided by the Physical Supplier). The Buyer shall ensure that its employees and the Vessel shall comply fully with all requirements, obligations and recommendations relating to the handling and use of the Marine Fuels.
9.3 The Seller shall not be responsible in any respect whatsoever for any loss, damage or injury resulting from the Buyer’s or the Vessel’s failure to account for any hazards inherent in the nature of any marine fuels.
9.4 All Vessels shall comply with and meet any financial responsibility requirements under oil pollution and spill prevention laws or regulations as may be applicable to the transaction as described in the Agreement, or any Contract hereunder.
9.5 If an escape, spillage or discharge of Products (“Spill”) occurs while a delivery of Products is being made to the Vessel, the Buyer and the Vessel shall promptly take all such action as is reasonably necessary to mitigate the effects of such Spill. However, notwithstanding the cause of such Spill, the Seller is entitled at its option to take such measures and incur such expenses (whether by employing Seller’s own resources or by contracting with others) as are reasonable in the sole judgment of the Seller to remove the oil and mitigate the effect of such Spill. If the Seller has exercised its option to itself take measures in response to a Spill the Buyer agrees to cooperate and render such assistance as is required by the Seller in the course of such action. The Buyer shall indemnify and hold the Seller and its representatives harmless against any damages, expenses, claims or liabilities of whatever nature, unless such Spill or discharge is proven to be caused solely by the Seller’s negligence. The Buyer agrees to give or cause
to be given to the Seller upon demand or as required by applicable laws or regulations all documents and information concerning any Spill.
10.1 Neither Party shall disclose to third parties any confidential information relating to pre- contractual discussions and/or the terms and conditions of the Contract. Except with the prior written consent of the other Party, which shall not be unreasonably withheld, or to the extent required by law, or by a request of a government or its agency thereof.
10.2 The Parties shall take reasonable precautions to ensure that no unauthorised disclosure of confidential information takes place.
10.3 If a Party is uncertain as to whether information is confidential, the Sellers or the Buyers (as the case may be) shall consult with the other Party.
10.4 Should either Party be required by law to disclose confidential information, the disclosing Party will, where permitted, notify the other Party and shall disclose only the minimum confidential information required to satisfy legal requirements.
10.5 Information is not confidential for the purposes of this Clause if it was in the possession of the Party prior to receipt from the other Party; becomes publicly available other than as a result of a breach of the Contract by one of the Parties; or is lawfully received from a third party.
10.6 This Clause shall survive termination of the Contract.
11. FORCE MAJEURE
11.1 Neither the Seller nor the Buyer shall be responsible for any failure to fulfil their respective obligations under a contract governed by these terms and conditions (other than the payment of money) if fulfilment has been delayed, hindered, interfered with, curtailed or prevented by compliance with any regulation or other government restriction or by compliance with any order or request of any government authority or person purporting to act therefore, or other disorders, wars, acts of enemies, strikes, lockouts, fires, floods, acts of God, perils of the sea, accidents of navigation, breakdowns or injury to ships, failure of or interference with supply from Sellers’ sources of supply, breakdown or injury to, or expropriation or confiscation of the facilities used for the production, transportation, receiving, manufacturing, handling or delivery of the Product.
11,2 The Seller reserves the right to increase the price charged for any Product
(whether the price was originally determined by reference to the Seller’s prices or
separately agreed in writing) if there is any increase in the costs incurred or to be incurred by the Seller or the Delivering Company in making the relevant supply due to factors which are beyond the control of the Seller or the Delivering Company. These factors include without limitation any increased taxes, duties, the making of any law, order, bye-law or other regulation, the occurrence of any currency fluctuation affecting the cost of any imported items.
12. SANCTIONS COMPLIANCE CLAUSE
12.1 “Sanctions Laws” means any sanction, prohibition or restriction imposed by the United Nations, the European Union, the United Kingdom or the United States of America, including but not limited to the US Department of the Treasury Office of Foreign Asset Control (“OFAC”) including the OFAC Specially Designated Nationals or Blocked Persons List (SDN) and the US Department of State.
12.2 The Buyers and the Sellers each warrant that at the date of entering into the Contract and continuing until delivery of the Marine Fuels and payment by the Buyers to the Sellers in full;
a. neither Party is subject to any of the Sanctions Laws referred to in the Sanctions Laws Clause which prohibit or render unlawful any performance under the Contract;
b. the Sellers are selling, and the Buyers are purchasing the Marine Fuels as principals and not as agent, trustee or nominee of any person with whom transactions are prohibited or restricted under the Sanction Laws Clause
13. GOVERNING LAW AND JURISDICTION
13.1 Any legal issue relating to the agreement and each and every provision incorporated in the agreement or further agreements resulting of the agreement shall be governed by laws of Spain, with the exclusion of any other laws or other sort of regulations, either national or international.
13.2 The United Nations Convention on Contracts for the International Sale of Goods shall not apply and shall be expressly excluded from this Agreement.
13.3 Disputes shall be referred to the Spanish Court of Justice in Madrid. Alternatively and at the Seller’s sole option, the Seller may commence proceedings against the Buyer at a competent court of a place of business of the Buyer.
13.4. In addition to the above clause, 13.3 and in case of breach of contract by the Buyer, the Seller shall moreover be entitled to take any legal action in any court of law or commence arbitration in any state or country which the Seller may freely choose and which the Seller finds relevant in order to safeguard or exercise the Seller’s rights in pursuance of this present Agreement. The Seller shall be entitled to assert its rights of lien or attachment or other rights, whether in law, in equity, or otherwise, in any jurisdiction where the Vessel may be found.
13.5 As soon as the bunkers have been supplied to the buyer’s vessel, these Terms & Conditions shall be automatically deemed accepted by the buyer and binding to the buyer.