Generel Terms & Conditions effective from 1 June 2015
1. The Parties and Definitions:
The Seller: The term “Seller” provided in the General Terms and Conditions refers to YORK BUNKER
The Buyer: The term “Buyer” provided in the General Terms and Conditions refers to real or legal persons which require the bunker supply, bunker sale or bunker delivery from the Seller, also refers to the vessel to which the delivery is made.
The Bunker (s): The term “bunker(s)” refers all kinds of product that is sold and/or supplied and/or delivered to the Buyer by the Seller.
The Supplier: The terms “Supplier” refers to the party physically supplying the Bunkers to the Vessel together with his servants, agents, succesors, sub-contractors and assigns.
2. The Agreement Between The Parties:
The Agreement between the Parties is the Agreement concluded by way of exchanging fax, telex, electronic mail, telephone, registered and reply-paid letter in written or verbally and containing the quantity, quality, price of the bunker supplied/delivered/sold and the vessel to which the bunker is supplied/delivered/sold, the Estimated Time of Arrival/Estimated Time of Delivery (ETA/ETD) of the vessel, the place of delivery, the terms of payment.
These conditions apply to all offers, quotations, orders, agreements, services and all subsequent contracts of whatever nature, except where otherwise is expressly agreed in writing by Arkas Bunkering. These conditions are deemed to be incorporated in to the Bunker Delivery Notes which is signed by the Vessel and are deemed to be accepted by the Buyer, Vessel, master, owners, bareboat charterers and disponent owners of the Vessel.
(a) These Terms and Conditions constitute an integral part of any offer and/or Contract made for Bunkers provided by Seller to Buyer, and prevail any terms and conditions incorporated or referred to by the Buyer whether in its order or elsewhere.
(b) The supply by Seller of Bunkers and every quotation, order confirmation, pro-forma invoice, price list or other similar documents is made or issued only subject to these Terms and Conditions and no representation or warranty, collateral or otherwise shall bind Seller and as long as such representation, warranty or statement has not been made in writing and signed by an authorized manager of Seller and shall be stated to be made specifically in pursuance of this clause 2 (b), no statement made by any representative by or on behalf of Seller shall vary these Terms and Conditions.
(c) Any changes in these Terms and Conditions shall not prejudice or limit in any way the validity of the rest of these Terms and Conditions of any Contract between Seller and Buyer. Failure by either party at any time to enforce any of these Terms and Conditions shall not be considered as a waiver by such party of such provisions or in any way affect the validity of these Terms and Conditions. If any provision of the Contract is invalid, void, or unenforceable, it will not affect the validity, legality, or enforceability of any other provision of the Contract.
3. Prices:
The price to be paid for Bunkers shall be Seller's spot or posted price offered for a specific delivery. Spot prices offered are for deliveries made on or before or within two (2) days following Accepted Delivery Date, as determined in accordance with Section 4 (a) below, of the vessel being supplied vessel's (hereinafter “Vessel”). Prices for delivery beyond this range are subject to amendment at Seller's option. Buyer is responsible for all taxes, duties and additional delivery charges, including, but not limited to, barging or truck charges, night, weekend or holiday surcharges or overtime charges, or other delivery charges customary for the port. The Buyer shall be responsible for obtaining all necessary documents, including licenses, permits and approvals, etc. that may be required to enable this Agreement and the parties' obligations hereunder to be executed.
4. Nomination and Notices:
(a) A vessel shall be nominated by the Buyer at least five working days before the Estimated Time of Arrival (ETA). In this nomination the Buyer shall also specify
-the delivery port,
-ETA/ETD and
-grades and quantities of Bunkers requested.
If such nomination is accepted and confirmed in writing by the Seller, then the ETA proposed by Buyer or otherwise agreed between Buyer and Seller shall become the Accepted Delivery Date.
If the vessel does not arrive at the nominated delivery port and present itself for the delivery within 4 days after the Accepted Delivery Date, then the Seller shall have a right to cancel any nomination without liability on the part of Seller and without prejudice to any rights Seller may have against Buyer.
(b) At the nominated delivery port, at least a forty-eight (48) hours' advance notice (Saturdays, Sundays and local holidays are excluded) and twenty-four (24) hours final notice (Saturdays, Sundays and local holidays are excluded) shall be given of each delivery by the Buyer or the Vessel's local agent to the Seller's local representative, confirming Bunker and quantities and other delivery details.
(c) Unless it is not prevented by the local regulations, if the delivery is required during out of regular business hours, Buyer shall be fully responsible for and pay all overtime and extra expenses incurred, if any.
(d) All delivery charges, including overtime and relevant charges, shall be for the account of Buyer, if the delivery is made by barge, truck or coastal tanker (hereinafter collectively "Seller's vessel"), For delays caused by Buyer in the use of Seller's vessel, Buyer is responsible for all demurrage and detention charges and costs and shall pay any demurrage or detention charges at such rate as may be invoiced by Seller.
(e) Before commencement of delivery, the Seller shall be notified by the Buyer in writing of the maximum allowable pumping rate and pressure and Buyer and Seller shall agree on communication and emergency shutdown procedures.
(f) It is the duty of the Buyer to notify Seller, in writing, before commencement of delivery, of any special conditions, difficulties, deficiencies or defects in respect of or particular to the Vessel which might adversely affect the delivery.
(g) The Vessel shall provide for a free and safe berth alongside to receive the Bunkers if the delivery is made by the Seller's vessel, and the Vessel shall render all necessary assistance which may reasonably be required to safely moor and unmoor the Seller's delivery vessel or to connect or disconnect the delivery hose(s).
(h) If the Buyer fails to take the delivery, in whole or in part, of the quantities nominated, Buyer shall be responsible for any costs resulting from such failure, including any and all costs and expenses whatsoever incurred by Seller. The Seller, then shall have a right, at Buyer's risk and expense, either to transport the Bunkers back to the storage or to sell in a downgraded form at a market price without prejudice to Sellers under this Contract for damages.
(i) Vessels shall be supplied as promptly as circumstances permit. Any supply date within the Contract is not guaranteed, and time shall not be of the essence in respect thereof. Seller shall not be liable for demurrage or for any losses due to congestion at Supplier's storage or delivery facilities or due to any prior commitment of available transportation . The Seller's obligation to make any delivery hereunder is subject to the availability to the Seller at the port at which delivery is requested of the particular grade of Products requested by the Buyer.
(j) If possible, the Vessel shall provide segregated tankage to receive the contracted quantity of Bunkers
5. Title and Risk:
(a) Before the full payment of all amounts due to the Seller in connection with respective delivery has been received by the Seller, no title in and to the Bunkers and/or property rights in and to Such Bunkers shall pass to the Buyer and the Seller shall have a right to take the Bunkers delivered and Buyer expressly agrees that the delivered Bunkers shall not be mixed and/or blended on board before the payment of all dues to the Seller.
(b) If the Buyer mixes or blends the Bunkers onboard the Vessel, before the payment of all amounts due to the Seller, then the Seller shall have a right of lien on the Bunkers mixed or blended.
(c) If, partially or fully, it would be impossible to determine the delivered Bunkers for attachment by the Seller in respect of any claim s at all, then the Seller shall have a right to attach the Vessel and/or sister ship and/or any other assets of the Buyer (or the Owner of the Vessel) without prior notice.
(d) All risks and liabilities concerning the Bunker pass on the Buyer simultaneously as of the Bunker reaches into the pipe or hose of the bunker barge or the terminal or other facilities delivering the Bunker.
It shall be the sole responsibility of Buyer to comply, and advise its personnel, agents and/or customers to comply, both during and after delivery, with all health and safety requirements and all environmental regulations and legislation, both national and international, applicable to the Bunkers supplied. Seller accepts no responsibility for any consequences arising from failure to comply with such health and safety requirements or environmental regulations and legislation.
6. Payment:
(a) Payment shall be made by the Buyer as instructed by the Seller within the period agreed in writing.
(b) The Buyer shall make the Payment in full, without set-off, counter claim , deduction and/or discount free of bank charges to the bank account shown by the Seller on the respective invoice(s).
(c) If the Buyer would undergo bankruptcy, liquidation or suspension of payment, arrest of the assets and/or the vessel, or a similar condition, notwithstanding any agreement to the contrary, all and any amounts owed to the Seller by the Buyer shall be immediately be due without prior notice.
(d) No payment shall be deemed to have been made up and until the date of which the Seller has received the full payment and it is available to the Seller. If payment falls due on a non-business day, the payment shall be made on the next business day.
(e) In case of any delay the Seller shall be entitled to an interest at the rate of 2 (two) per cent per month.
(f) Buyer's payments 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.
(g) The Buyer shall be responsible for 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.
(h) The Buyer is under the obligation to provide a proper security which the Seller should find agreeable, in order to secure the performance of the Buyer's duties imposed on him by these terms and conditions. Failing to grant such a security the Seller shall have a right to halt the execution of any and all kind of transactions commenced with the Buyer without prejudicing the rights and claim s of the Seller until such time as the Buyer has provided the required security.
(i) Deliveries of Bunkers made hereunder, if sold on a credit basis, are delivered not only on the credit of Buyer, but also on credit of the Vessel and Buyer warrants that Seller will have and may assert a lien against the Vessel for the amount of the purchase of said Bunkers.
7. Quality and Sampling:
The bunker to be supplied by the Seller shall comply with the ISO standards unless it is agreed otherwise. Where standard specifications are being given or referred to, tolerances of 5% in quality are to be accepted without compensation or other consequences whatsoever. Any implied conditions and warranties, including the warranties of merchantability and fitness for a particular purpose, are expressly excluded and dis claim ed. Buyer, having greater knowledge than Seller of his own requirements, shall have the sole responsibility for the prior selection of the particular grade(s) and acceptance thereof.
Products delivered under the Contract shall be segregated from Product(s) already on board the receiving Vessel. Any consequences arising from commingling Products aboard the Vessel shall remain the joint and several responsibility of the receiving Vessel and the Buyer. In any event, the Seller shall not be responsible for any on-board safety or storage failure that may affect the delivery as requested and shall have the right to recover from Buyer any loss, damage or expenses incurred as a result of such failures.
The Seller can in no circumstances be held responsible for any consequences of the misuse or defective application of the Products if caused by lack of information or misinformation given by the Buyer on the use or application of the Products.
(a) Receiving of Four identical representative samples of each grade of Bunkers shall be arranged by the Seller and these samples shall be drawn throughout the entire bunkering operation. These samples shall be drawn in the presence of both the Sellers and the Buyers or their respective representatives.
(b) In case that drip-sampling is not available onboard barge, tank-truck or shore tank, samples shall be taken according to ISO 3170 standarts (Petroleum Liquids-Manuel Sampling) as a composite of each tank.
(c) The samples shall be securely sealed and provided with labels showing the Vessel's name, identity of delivery facility, product name, delivery date and place and seal number, authenticated with the Vessel's stamp and signed by the Seller's representative and the Master of the Vessel or his representative. The seal numbers shall be inserted into the BDR/Bunker Delivery Receipts, and by signing the BDR both parties agrees to the fact that the samples referred to therein are deemed valid and taken in accordance with the requirements as specified in this clause. Samples taken in a manner which is not defined in this article and whose seal numbers has not been inserted on the BDR/Bunker Delivery Receipts shall not be valid and shall not bind the parties.
(d) Two (2) of samples so received shall be retained by the Seller for ninety (90) days after delivery of the Bunkers. If the Buyer would request the Seller to retain them for longer time, the Seller my keep them for a longer time provided that the request of the Buyer is reasonable. The other two (2) samples shall be retained by the receiving Vessel.
(e) In the event of a dispute in regard to the quality of the Bunkers delivered, the samples drawn pursuant to sub-clause “d” hereof and retained by the Seller shall be deemed to be conclusive and final evidence for the quality of the product delivered. In case of disputes one of the samples retained by Sellers shall be forwarded to an independent laboratory at the port/place of delivery agreed by both Sellers and Buyers, for final and binding analyses. The seal must be broken only in presence of both parties unless one/both in writing have declared that they will not be present; and both parties shall have the right to appoint independent person(s) or institute(s) to witness seal breaking. No samples subsequently taken shall be allowed as (additional) evidence. If any of the seals have been removed or tampered with by an unauthorized person, such sample(s) shall be deemed to have no value as evidence. The analyze costs shall be born by the Buyer.
8. Delivery and Measurement:
(a) The measurement of the bunker quantity shall be made by the Seller before the supply when the bunker is in the bunker barge. The Buyer may assign an independent company for the measurement of the bunker before the actual delivery has taken place, if he wishes. Should there be an inconsistency between the two measurements; the measurement made by the Seller shall prevail. The Buyer's claim and notice on short delivery after the delivery of the bunker shall not be valid and acceptable.
(b) The bunkering of the subject Vessel shall be carried out as promptly as the circumstances allow. In case of congestion at the terminal where the bunkering takes place, the Seller shall not be responsible and liable for the demurrage or detention charges, loss, damage or delay which would be incurred and/or paid by the Vessel.
9. Claims:
(a) Claims concerning the quality of the bunkers delivered shall be submitted to the Seller in writing within 7 (seven) days after delivery. After expiry of 7 day-period after delivery, the rights to complain or claim compensation of whatever nature shall be deemed to have been waived and barred for all times.
(b) The Buyer shall be obliged to make payment in full and fulfill all other obligations in accordance with the terms hereof, whether or not they have any claim s or complaints.
(c) In any case, Buyer expressly agrees that any and all kind of his claim s in regard of quality shall be time-barred unless legal proceedings have been initiated before the competent court within 6 (six) months after the date of delivery or the date that delivery should have commenced pursuant to the written confirmation from the Seller.
10. The Limitation of Liability:
The Buyer and the vessel expressly agree that, in regard of quality claim s, the liability of the Seller towards the Buyer and/or third persons concerning the bunker shall by no means exceed the bunker price and shall not include any consequential or indirect damages, including, without limitation, demurrage claim s, loss of opportunity or loss of profit. Should the Buyer remove the Bunkers without the prior consent of the Seller, all such costs incurred in doing so shall be for Buyer's account. This consent can only be given in written signed by the authorized managers of the Seller. In regard of above duty, the Buyer undertakes to hold the Seller harmless in respect of any actions and claim s of third persons against the Seller and the Suppliers.
11. Safety and Environmental Protection:
(a) Buyer is familiar with the health effects related to the Bunkers supplied hereunder and with relevant protective safety and health procedures for the handling and use of such Bunkers. Buyer shall adhere to such safety and health procedures while using or handling Seller's Bunkers. Buyer shall also facilitate the dissemination of health and safety information to all employees, users, and others potentially exposed to the Bunkers sold hereunder. Buyer shall be responsible for compliance by its employees, agents, and other users with all health and safety requirements or recommendations related to the Bunkers supplied hereunder and shall exert its best efforts to assure that any of its employees or agents, users, and others avoid frequent or prolonged contact with or exposure to the Bunkers both during and subsequent to delivery. Seller or Seller's supplier accepts no responsibility for any consequence arising from failure by Buyer, its employees or agents, any users, or any other party to comply with relevant health and safety requirements or recommendations relating to such contact or exposure.
(b) If a spill occurs while Bunkers are being delivered, Buyer and Seller shall promptly take such action as is reasonably necessary to remove the spilled Bunkers and mitigate the effects of such spills. Seller is hereby authorized, at its option and at the expense of Buyer, to take such measures and incur such expenses (whether by employing its own resources or contracting with others) as are reasonably necessary in the judgment of Seller to remove the spilled Bunkers and mitigate the effects of such spills. Buyer shall cooperate and render such assistance as is required by Seller in the course of such action. All expense, claim s, loss, damage, liability and penalties arising from spills shall be borne by the party that caused the spill. If both parties are at fault, all expense, claim s, loss, damage, liability and penalties shall be divided between the parties in accordance with the respective degrees of fault.
(c) In the event of a spill during fueling, Buyer shall provide Seller with such documents and information concerning the spill and any programs for the prevention of spills as may be required by Seller or by law or regulations applicable in the port where the spill occurred.
(d) Buyer warrants that the Bunkers purchased hereunder are for the operation of the nominated Vessel and that Vessel only.
(e) Buyer warrants that the Vessel is in compliance with all applicable national and international laws and regulations. The Vessel is subject to Seller's acceptance and will not be supplied fuel unless free of all conditions, difficulties, peculiarities, deficiencies or defects which might impose hazards in connection
12. Assignment:
Seller may assign/transfer any/all all of its right and obligations under the Contract. Buyer shall not assign/transfer any/all of its right under the Contract, without written consent of the Seller.
13. Force Majeure:
Neither Buyer nor Seller shall be responsible for damages caused by delays, failure to perform in whole or in part any obligation hereunder (other than the payment of money), or non-compliance with any of the terms hereof when such delay, failure or non-compliance is due to or results from causes beyond the reasonable control of the affected party, including without limitation acts of God, fires, flood, adverse weather, perils of the sea, war (declared or undeclared), terrorist actions (threatened or actual), embargoes, accidents, strikes, labor disputes, failure of, or shortage of vessels, or barge services normally available to Seller, breakdown of or damage to, or shortage in facilities used for production, refining or transportation of Bunkers, acts in compliance with requests of any government authority or person purporting to act on behalf thereof, or any similar causes. Notwithstanding the provisions of this clause, the Buyer shall not be relieved of any obligation to make payments for all sums due hereunder.
14. Governing Law And Jurisdiction:
This agreement shall be governed and construed in accordance with the laws of Netherlads .
All disputes arise in connection with or out of this agreement or any agreement relating hereto, shall be finally settled by Netherlands Courts.
YORK MARİNE BUNKER
|
