GENERAL TERMS & CONDITIONS OF SALES AND DELIVERY
1. APPLICATION
1.1 Unless it is otherwise agreed in writing between the Seller and the Buyer, these General Terms and Conditions of Sales Concerning the Sales of Bunker Oil and Lube Oil (“General T&Cs”) shall apply to any Contract for the sale of Marine Fuel between the Seller and the Buyer of such Marine Fuel. As far as the Seller agrees expressly with the Buyer in writing for a particular term or terms to be included in their Contract which are inconsistent with these General T&Cs, such particular term or terms shall prevail over these General T&Cs only to the extent of such inconsistencies.
1.2 This Agreement shall apply only to an individual order and supply of Products or services between the Seller and the Buyer and shall not be construed as conferring an ongoing relationship or term contract between the Buyer and the Seller. The Seller has no obligation to accept any order from the Buyer and the Buyer has no obligation to place orders with the Seller. The Seller reserves the right to recover any loss it suffers as a result of the Buyer cancelling or amending an order after it has been submitted to and accepted by the Seller.
2. DEFINITIONS
In these General T&Cs, unless the context otherwise requires, the following definitions and meanings shall apply:
2.1 “Seller” means any company in the Navi Maritime Group, namely “Navi Maritime Ltd. Inc.” or “Navi Deniz Hizmetleri Tic. Ltd. Sti.” and their suppliers, branch offices and/or contractors, servants, agents and designated representatives.
2.2 “Buyer” means the party contracting to buy Marine Fuel under each Contract, which in every case includes the entity or entities named in the Sales Confirmation and their servants, agents and designated representatives, together with the Vessel supplied and her master, registered owners, managers, operators, disponent owners, time charterers, bareboat charterers and charterers or any party benefiting in any way from consuming the Marine Fuel, and any party requesting offers or quotations for or ordering Marine Fuel and/or services and any party on whose behalf the said offers, quotations, orders, agreements and contracts have been made, all of whom shall be jointly and severally liable as Buyer under each Contract.
2.3 “Marine Fuel” means the different grades of bunker fuel oil and/or lube oil and/or diesel and/or gas oil and/or lubricant oil delivered or contracted to be delivered or arranged to be delivered by the Seller.
2.4 “Sales Confirmation” means a confirmation in writing from the Seller to the Buyer setting forth the special terms and conditions of each sale of Marine Fuel, or any other equivalent in addition to T&Cs.
2.5 “T&Cs” means the present General Terms and Conditions of Sales and Delivery of the Seller in force as of January 1st, 2020 and any subsequent amendments hereto, which shall apply to any Contract for the sale of Marine Fuel concluded as of now.
2.6 “Contract” means the Sales Confirmation and the hereby T&Cs.
2.7 “Vessel” means the ship to which the marine fuel is to be delivered by the Seller.
3. APPLICABILITY OF T&Cs
3.1 The T&Cs are also deemed to be incorporated in to the Bunker Delivery Receipts and are deemed to be accepted by the Buyer, the Vessel, her master, owners, operators, managers charterers, any party benefiting from consuming the marine fuel, and any other party ordering the marine fuel.
3.2 The T&Cs constitute an integral part of any offer and/or contract made for marine fuels provided by the Seller to the Buyer, and prevail any terms and conditions incorporated or referred to by the Buyer whether in its order or elsewhere unless expressly accepted in writing by the Seller.
4. NOMINATION AND NOTICES
4.1 The Buyer shall give to the Seller nomination with a written e-mail message at least five working days before the Estimated Time of Arrival (ETA). In this nomination the Buyer shall also specify name of vessel, IMO number, eta/etd, port requirement, grades and quantities of marine fuel requested and further details required by the Seller about vessel movements etc.. enabling the Seller perform nomination
4.2 Any information and/or confirmation given by the Vessel’s agent to the Seller or to the Seller’s local representative shall be considered as if such information and/or confirmation is given by the Buyer. Notwithstanding anything to the contrary stated herein, the Buyer unconditionally acknowledges that the Seller shall have no responsibility or liability whatsoever due to any information and/or confirmation is given by the Vessel’s agent.
4.3 If such nomination is accepted and confirmed in writing by the Seller, then the ETA proposed by the Buyer or otherwise agreed between the Buyer and the Seller shall become the Accepted Delivery Date.
4.4 If ETA is given with a time period or approximately but not for an exact date, the Seller then has the ultimate right to consider the first date of such time period/approximate day ETA of the vessel, shall be considered for ETA calculation.
4.5 If the vessel does not arrive on nominated date at the nominated delivery port or not able to take ordered marine fuel, then the Seller keeps the right of cancelling any nomination without liability on the part of the Seller and without prejudice to any rights the Seller may have against the Buyer.
4.6 Nominations are accepted and prices agreed to be valid for certain delivery range which is +/-2 (two) days around the delivery date nominated by the Buyer and shown on final confirmation sent by the Seller.
4.7 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 and/or master to the Seller’s local representative, confirming marine fuel quality and quantity and other delivery details and perform all formalities as required by the Seller.
4.8 If the delivery is required during out of regular business hours, the Buyer shall be fully responsible for and pay all overtime and extra expenses incurred, if any.
4.9 All delivery charges, including overtime and relevant charges, shall be for the account of the Buyer, if the delivery is made by barge, truck or coastal tanker. For delays caused by the Buyer, the 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 the Seller.
4.10 If the Buyer fails to take the delivery by any means (such as cancellation of marine fuel request/ nomination by the Buyer etc), in whole or in part, of the quantities nominated, the 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 the right, at Buyer’s risk and expense, either to transport the marine fuel back to the storage or to sell in a downgraded form at a market price without prejudice to the Sellers under this T&Cs for damages. In this case and separately from the forgoing, the Seller shall be further entitled to claim an additional penalty fee of 7,5 percent of the purchase price stated in Sales Confirmation.
5. RISK AND TITLE
5.1 Risk in the Bunkers, including loss, damage, deterioration, evaporation, or any other condition or incidents related thereto shall pass to the Buyer as the marine fuel pass the fixed bunker connections on the delivering vessel. The Buyer further warrants that representatives from the Vessel shall be responsible for ensuring that the marine fuels are received in a safe way.
5.2 Title to the delivered marine fuel shall pass to the Buyers upon payment for the value of the marine oil delivered. Until such time as payment is made, on behalf of itself and the Vessel, the Buyer agrees that they are in possession of the Marine Fuel solely as Bailee for the Seller. If, prior to payment, the Seller’s Marine Fuel are commingled with other marine oils on board the Vessel, title to the Marine Fuels shall remain with the Seller corresponding to the quantity of the Marine Fuels delivered. The above is without prejudice to such other rights as the Seller may have under the laws of the governing jurisdiction against the Buyer or the Vessel in the event of non-payment.
6. PRICE
6.1 The price of Marine Fuel (“Purchase Price”) shall be the price quoted by the Seller and as confirmed in the Sales Confirmation or its equivalent for the relevant type of Marine Fuel delivered or to be delivered.
6.2 Seller’s prices are exclusive of all applicable duties, taxes, fees and other costs including, without limitation, those imposed by Governments and Authorities as in force at the time of conclusion of the Contract, costs of transport, such as barging or other delivery charges.
6.3 The Buyer shall also pay the Seller for all and any taxes, levies, duties, expenses, delivery charges, barging fees, road trucks, jetty fees and other costs (including without limitation, those imposed by the government or authorities or competent organizations at the Delivery Port arising out of and/or incurred in connection with the delivery of such Marine Fuel under the Contract which shall be included in the Seller’s invoice to the Buyer. The Buyer shall furthermore pay any extra costs arising out of and/or incurred in connection with deliveries made on Saturdays, Sundays and Public Holidays, and outside of normal working hours at the Delivery Port or place of delivery/work.
7. SALES CONFIRMATION
7.1 The General T&Cs are deemed incorporated into the Sales Confirmation by reference, and the Sales Confirmation and the General T&Cs together constitute the complete Contract.
7.2 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, whether this is disclosed or undisclosed, then such party or agent in addition to the Buyer and/or the holder of any interest in the Vessel receiving the Marine Fuel shall be jointly and severally liable for and guarantees the proper performance of the obligations of the Buyer under the Contract, and shall be deemed as principal and not only acting as an agent.
7.3 All orders, supplies and deliveries shall always take place for the account of the registered owners of the Vessel and for the account of the current charterers all of whom shall be jointly and severally liable as the Buyers for the purchase price and the other costs of the respective orders, supplies and deliveries.
7.4 The Buyer warrants that it is authorized and has the power and authority to order the Marine Fuel for delivery to the Vessel, and that the Seller has a maritime lien on the Vessel for its claim. Any notice or any stamp in the Bunker Delivery Receipt or similar cannot waive, extinguish or limit the Seller’s maritime lien on the Vessel.
7.4 The Buyer warrants that it is authorized and has the power and authority to order the Marine Fuel for delivery to the Vessel, and that the Seller has a maritime lien on the Vessel for its claim. Any notice or any stamp in the Bunker Delivery Receipt or similar cannot waive, extinguish or limit the Seller’s maritime lien on the Vessel.
8. DELIVERIES
8.1 Wherever the Seller accepts delivery nominations, all such deliveries shall be within port limits, unless delivery outside of such port limits is agreed in advance in writing by the Seller.
8.2 All deliveries under a Contract shall be made ex-wharf or ex-light/barge in accordance with the instructions given by the Buyer or the Master of the Vessel, subject to the Seller’s agreement to such instructions, which agreement shall be reached before the delivery is commenced by the Seller pursuant to the Contract. Without recourse available to the Buyer, the Seller is entitled to suspend delivery of the Marine Fuel under the Contract until such agreement is reached, and if no such agreement is reached within 14 (fourteen) days from the date of delivery intended under the Contract, the Seller shall be entitled to terminate the Contract but without prejudice to the Seller’s rights to claim damages from the Buyer
8.2 All deliveries under a Contract shall be made ex-wharf or ex-light/barge in accordance with the instructions given by the Buyer or the Master of the Vessel, subject to the Seller’s agreement to such instructions, which agreement shall be reached before the delivery is commenced by the Seller pursuant to the Contract. Without recourse available to the Buyer, the Seller is entitled to suspend delivery of the Marine Fuel under the Contract until such agreement is reached, and if no such agreement is reached within 14 (fourteen) days from the date of delivery intended under the Contract, the Seller shall be entitled to terminate the Contract but without prejudice to the Seller’s rights to claim damages from the Buyer
8.3 The Buyer shall solely bear the responsibility and risk for the selection and nomination of the grades of Marine Fuel and the Seller does not warrant and is under no obligation to inspect whether the Buyer’s selection and nomination is suitable for use by the Vessel or any other receiving facility. The Marine Fuel arranged or supplied by the Seller shall be of a homogeneous nature generally available at the place where the Vessel is to take/has taken delivery of the Marine Fuel. The Seller shall bear no responsibility whatsoever for any information which it has given to the Buyer on the characteristics of the Marine Fuel and which shall not in any event be taken to be a specification of the Marine Fuel to be and/ or has been supplied under the Contract.
8.4 Delivery of Marine Fuel by the Seller to the Buyer shall be carried out, inter alia, subject to any regulations, requirements and procedures (including any amendments and revisions thereof) as may be prescribed from time to time by any governmental authority at the port at which the Seller accepts delivery The Buyer shall, in any event, be solely responsible for ascertaining, acquainting itself and complying with, inter alia, all such regulations, requirements and procedures which are applicable at the Delivery Port and for complying with all relevant berth restrictions and requirements and the Buyer agrees to indemnify the Seller for any losses, costs and expenses which have been incurred by the Seller following the Buyer’s failure to comply with such regulations, requirements and procedures.
8.5 It is the duty of the Buyer to notify the 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.
8.6 It is the duty of the Buyer to provide a free and safe side of the Vessel to receive the Marine Fuel and render all necessary assistance which may reasonably be required to moor or unmoor the Vessel and/or the delivery barge, as appropriate.
8.7 The Buyer shall be responsible for making all connections and disconnections of the delivery hose(s) to the Vessel’s bunker manifold and to ensure that the hose(s) are properly connected to the Vessel’s manifold prior to the commencement of delivery. The Buyer shall render all other necessary assistance and provide sufficient tankage and equipment to receive promptly the delivery under the Contract. Where delivery is undertaken ex-wharf, the Buyer shall promptly receive the delivery and shall forthwith withdraw the Vessel from the shore terminal or wharf once delivery is completed, in an appropriate manner.
8.8 The Seller will supply the vessel as promptly as conditions permit, but the Seller shall not be liable for demurrage or for any loses due to congestion at the delivery or barge loading place or prior commitments of delivering barge or delays in completing customs formalities etc.. however receiving ships to take ordered bunker upon barge arrival without any delays. Receiver ships are given 2 hrs free time for usual measurements, documents, formalities onboard of barge, beyond such free time any time used by receiving ship delaying bunker barge subject to barge demurrage charge at USD 3000 per day with minimum charge at USD 2000 lpsm.
9. SAMPLING
9.1 The Sellers shall arrange for a representative sample of each grade of Marine Fuel to be drawn throughout the entire bunkering operation and that sample shall be thoroughly mixed and carefully divided into 4 (four) identical samples. The sampling shall be performed in the presence of both the Sellers and the Buyers or their respective representatives. The absence of the Buyers or their representatives shall not prejudice the validity of the samples taken.
9.2 The samples shall be drawn using a mutually accepted sampling device which shall be constructed, secured and sealed in such a way so as to prevent the sampling device and the sample being tampered with throughout the transfer period.
9.3 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.
9.4 2 (two) samples shall be retained by the Sellers for minimum forty-five (45) days after delivery of the Marine Fuels to the Vessel or, on being requested in writing by the Buyer, for as long as the Buyer may reasonably require. The other two (2) samples shall be retained by the Vessel, one of which being dedicated as the MARPOL sample.
9.5 In the event of a dispute with regard to the quality of the Marine Fuel delivered, the samples retained by the Seller pursuant to the clauses herein shall be deemed to be conclusive and final evidence of the quality of the product delivered. In case of disputes one of the samples retained by the Seller shall be forwarded to an independent laboratory at the port/place of delivery agreed by both the Seller and the Buyer, for final and binding analysis. If the Seller and the Buyer cannot agree on an independent laboratory to perform mutual analysis or if the Buyer fails to reply to the Seller’s notice hereof within 7 (seven) days from receipt of such notice, the Seller can at its sole discretion decide which independent laboratory shall perform the analysis, which shall be final and binding for all parties involved. The costs of any tests and analysis carried out by the independent laboratory shall be borne by the Buyer if the results are in favor of the Seller, or by the Seller if the results are in favor of the Buyer.
9.6 The seal must be breached only in presence of both parties, unless one or both parties have declared in writing that it/they will not be present, or fails to be present at the appropriate time and place despite having been given sufficient and proper notice of at least 7 (seven) days in advance; and both parties shall have the right to appoint independent person(s) or institute(s) to witness the seal breaking. If any of the seals have been removed or tampered with prior to the seal breaking, such sample(s) shall be deemed to have no value as evidence. 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
10. SAFETY AND ENVIRONMENTAL PROTECTIONS
10.1 It shall be the sole responsibility of the Buyer to ensure that the Vessel, its crew and those responsible for its operation and management observe and comply with all health, safety and environmental laws and regulations with regard to the receipt, handling and use of the Marine Fuel. Seller and Seller’s suppliers accept no responsibility for any consequences arising from failure to comply such healthy and safety requirements or arising from such contact of exposure.
10.2 The Buyer warrants that the Vessel now and at all times is and will be in compliance with all governmental, international convention and international shipping association trading and pollution standards and regulations. The Buyer further warrants that the Vessel will not be moored at a wharf or alongside other marine loading facilities of or chosen by the Seller unless free of all conditions, deficiencies or defects. The Buyer shall also facilitate the dissemination of health and safety information to all employees, users, and others potentially exposed to the Marine Fuel sold hereunder. The Buyer shall be responsible for compliance by its employees, agents, and other users with all health and safety requirements or recommendations related to the Marine Fuel 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 Marine Fuel both during and subsequent to delivery. The Seller or the 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
10.3 In case of any spillage (which for the purpose of this clause shall mean any leakage, escape, spillage, discharge or overflow of the Marine Fuel) occurring before, during or after the delivery of the Marine Fuel, regardless as to whether buyer or seller is responsible, the Buyer shall, in addition to any other obligations imposed by law, immediately notify the appropriate governmental authorities and take or arrange whatever action is necessary to respond and clean-up such spillage, and shall pay all costs and expenses incurred in connection therewith. If the Buyer fails to take such prompt action, the Buyer hereby authorizes the Seller, the supplier and/or any other party appointed by the Seller or the supplier, to take such action on behalf of the Buyer, at the Buyer’s sole risk and expense, and the Buyer shall fully indemnify and hold the Seller, the supplier and/or any other party appointed by the Seller or the supplier, harmless against any damages, expenses, claims, fines and any kind of liabilities, of whatever nature, unless such spill or discharge is proven to be solely caused by the Seller’s gross negligence or willful misconduct.
10.4 In the event of a spill during fueling, the Buyer shall provide the Seller with such documents and information concerning the spill and any programs for the prevention of spills as may be required by the Seller or by law or regulations applicable in the port where the spill occurred.
10.5 The Buyer shall fully indemnify and keep fully indemnified the Seller against any liability, fine, claim or proceedings whatsoever arising out of or in connection with any failure by the Buyer to comply with its obligations under hereby clause.
10.6 The Buyer warrants that the Marine Fuels purchased hereunder are for the operation of the nominated Vessel and that Vessel only.
11. QUANTITY
11.1 Quantity shall be determined at the Seller’s option from the gauge or meter of shore or barge tanks. Such determination shall be considered to be the sole valid and binding determination of the quantity supplied. During measurements, the Buyer shall have the right to be represented by a person or a body that is mutually agreed between Seller and Buyer and this must be agreed at the time of confirmation of Contract between Buyer and Seller. Measurements taken by any other means on board the Vessel shall not be binding on the Seller and shall have no evidential value
11.2 The duty officer/chief engineer of the Vessel or the respective person signing the BDR must be present at all times, to supervise the pre-delivery and post-delivery procedures concerning the supply to the Vessel, and he shall be responsible to ensure/check that the documentation is complete and accurate with signatures and stamps as appropriate. Any discrepancies must be immediately notified to the Seller in writing. Failure in proper documentation and/or procedures stated herein will not substantiate a claim.
11.3 The Buyer’s claim and notice on short delivery after the delivery of the Marine Fuel shall not be valid and acceptable. The Buyer irrevocably accept final quantity to be barge/custom figure and confirm by signing pre-bunkering documents not to claim anything (any shortage etc..) based on ship figures. For the avoidance of doubt, any notification or reservation inserted in the BDR shall not qualify as a notice under this clause and the Seller shall under no circumstances be deemed to have accepted such notice or protest to the physical supplier.
12. QUALITY
12.1 The Marine Fuels supplied hereunder shall be the Seller’s commercial grades as determined in accordance with ISO 8217 and set out in the Contract. Where standard specifications are being given or referred to, tolerances of 5% in quality are to be accepted without compensation or other consequences whatsoever.
12.2 There are no conditions, guarantees or warranties, express or implied, by common law, statue, or otherwise as to the satisfactory quality, merchantability, fitness, durability or suitability of the Marine Fuel for any particular purpose or otherwise, which extend beyond the description as set out in the Contract. The Buyer hereby warrants that it has not relied upon any representations made by or on behalf of the Seller but has relied exclusively on its own knowledge and judgement as to the fitness for its purpose of the Marine Fuels nominated.
12.3 Marine Fuels delivered under the Contract shall be segregated from marine fuels already on board the receiving Vessel. Any consequences arising from commingling Marine Fuels aboard the Vessel shall remain the joint and several responsibilities 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 and all loss, damage or expenses whatsoever 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 Marine Fuels if caused by lack of information or misinformation given by the Buyer on the use or application of the Bunkers.
13. CLAIMS
13.1 Any claim regarding the quality of the Marine Fuel delivered shall be presented in writing together with full details of the claim and all the relevant supporting documentation to the Seller as soon as an alleged problem has occurred or as soon as the Buyer is notified of any alleged problem, and in any event by no later than 15 (fifteen) days from the delivery to the Vessel, failing which any such claim shall be deemed to be irrevocably waived and time barred.
13.2 Any claim regarding the quantity of the Marine Fuel delivered under the Contract shall be notified in writing by the Buyer or the Master or the Chief Engineer of the Vessel to the Seller immediately at the conclusion of the delivery of the Marine Fuel while the delivery hoses are still connected. Further, the Buyer or the Master of the Vessel shall give to the Seller a letter of protest which must also state the full details of such claim and must be accompanied by all the relevant supporting documentation, by no later than 15 (fifteen) days from the date of delivery of the Marine Fuel to the Vessel. In the event that the procedures set out in this clause are not complied with, any such claim shall be deemed irrevocably waived and time barred.
13.3 In the event of any claim presented in accordance T&Cs, the Buyer shall:
a. Cooperate with the Seller and make all necessary arrangements for the Seller or its representatives to investigate such claim, including but not limited to the boarding and inspection of the Vessel, the interviewing of crew and the inspection, review and copying of Vessel’s relevant documents, logs and records; and
b. Take all reasonable steps and actions to mitigate any damages, losses, costs and expenses related to any claim of alleged off-specification or defective Marine Fuel; and
c. Take all reasonable steps to preserve the Seller’s recourse against the supplier of the Marine Fuel or any other third party possibly liable. The Seller shall not be liable to pay damages if the Buyer has failed to safeguard the Seller’s recourse against the supplier of the Marine Fuel or any other third party possibly liable or has failed to ensure the existence of the necessary evidence.
13.4 A breach of any part of hereby clause by the Buyer shall constitute a waiver and bar of any such claim, and the Seller shall not be liable to pay any loss or damages to the Buyer. Further or alternatively, the Seller shall be entitled to set off losses caused by the Buyer’s breach of the said clause against any liability to the Buyer
13.5 In any case, the Buyer expressly agrees that any and all kind of his claims shall be time-barred unless legal proceedings have been initiated before the competent court within 3 (three) months after the date of delivery or the date that delivery should have commenced pursuant to the written confirmation from the Seller; failing which such claims shall be deemed to be irrevocably waived and time barred.
13.6 It is expressly agreed that any compensation or other amount relevant to a claim by the Buyer shall only become payable upon the mutual agreement of Seller and Buyer or the issuance of a final and unappealable competent award or judgment.
14. PAYMENTS
14.1 Payments shall be made by the Buyer as directed by the Seller to the Seller’s bank nominated on original invoice or stated by e-mail sent by the Seller to the Buyer, net as of invoice amount excluding bank transfer charges etc..
14.2 Unless otherwise agreed payment shall be affected by the Buyer by tested telegraphic transfer in American dollars (USD) If the Purchase Price has been agreed in a currency other than United States Dollars (“USD”), the Buyer shall at all times bear any and all currency fluctuation risks and the Buyer shall consequently indemnify the Seller in USD for any shortfall arising from the conversion of this other currency into USD at the time of payment when compared to the prevailing rate of the conversion on the date of the subject invoice together with any bank charges. Any gains resulting from an improvement in the currency conversion between the date of the subject invoice and payment shall go to the Seller.
14.3 Unless otherwise stated in the invoice or agreed with the Contract, the Buyer accepts and confirms to effect payment within max 30 (thirty) days after date of delivery without any deduction, counter claim and/or off-set.
14.4 Unless a different interest is set out in the Sales Confirmation, in case any payment is not timely received by the Seller, whether in part or in full the Buyer shall be charged and obliged to pay to the Seller default interest/late payment charges at the rate of 1,5% per month on the principal amount due, from the due date of payment to the date of actual full payment of the principal, without prejudice to the Seller’s right to claim full payment forthwith. The Buyer hereby agrees and accepts that the quantum of the default interest/ late payment charges as calculated hereinabove in this clause is not a penalty, but constitutes the agreed damages suffered by the Seller as a result of the latter being deprived of the timely payment of the principal amount (inclusive of, but not limited to, the element of interest), without prejudice to all other rights and entitlements of the Seller under the Contract and these T&Cs or under the applicable Law or otherwise.
14.5 In addition to interest, the Seller is entitled to charge a delayed payment administration fee of USD 1.50 per metric ton supplied with a minimum administration fee of USD 500 for each delivery made.
14.6 The Buyer’s submission of any claim does not relieve it of the responsibility and obligation to make full payment as required under the Seller’s invoice pursuant to the Contract, and the Buyer shall not be entitled to set off or deduct any claim from payment.
14.7 Payments received by the Seller from or on the behalf of the Buyer, notwithstanding any specific request to the contrary, will be applied in the following order in diminution or extinction of:
a. any costs (including attorneys’ fees) incurred by the Seller in pursuing such payment,
b. default interest/late charges incurred and
c. the principal amount due.
All payments effected by the Buyer are considered on account and in no particular order against due invoices for all vessels operated by the vessel’s managers and the Seller may allot such incoming payments against any overdue the Seller’s invoices regardless of due dates.
14.8 If not otherwise specifically agreed between the Buyer and the Seller at time of ordering, the confirmed costs, including possible additional extra charges, are only valid for delivery performed to the Vessel on the agreed and confirmed delivery date(s) as set out in the Sales Confirmation. Should the date(s) of delivery for any reason change from those as set out in the Sales Confirmation, the Seller shall be entitled to charge any such additional costs and/or charges.
14.9 The Buyer shall not be entitled, without the Seller’s prior consent in writing, to set off any claims against the Seller whether in law or equity, whether or not these claims are connected with, and/or whether or not they arise out of the Contract. If payment is withheld or set off by the Buyer, partially or in full, due to alleged short delivery, quality dispute or any other reason whatsoever or not paid on time, the Buyer shall pay, in addition to the outstanding amount, a compensation to the Seller of 20 (twenty) percent of the outstanding amount.
14.10 The Buyer shall be responsible for all costs and expenses whatsoever, including –but not limited to attorneys’ fees-, borne by the Seller in connection with the collection of overdue payments, whether made in or out of court.
14.11 If at any time the Seller is of the opinion before delivery to the Buyer that adequate assurance of the Buyer’s ability to perform its obligations under these General T&Cs is lacking and/or becomes doubtful, or that the financial ability of the Buyer is impaired or unsatisfactory, the Seller may, in its sole and absolute discretion, require the Buyer to pay cash in advance or to put up security acceptable to the Seller, and the Seller may refuse and/or withhold delivery until the Buyer complies with such requests, or failing the Buyer’s compliance with such request within three (3) working days from the date of request, the Seller shall be entitled to terminate the Contract but without prejudice to the Seller’s rights to claim damages from the Buyer. In such circumstances, the Buyer shall have no recourse against the Seller. Additionally, if Seller determines, since the date of the Contract, that there has been any material adverse change in the financial condition, business operation, or condition of the Buyer or any subsidiary, which has a material adverse effect on the ability of Buyer to perform its obligations herein, Seller may amend the payment terms in its sole discretion including claiming immediate payment notwithstanding that credit has been granted.
14.12 For the protection against fraud schemes, the Buyer shall obtain oral and written confirmation from its usual contact person within the Sellers organization prior to effecting any payment pursuant to changed payment instructions. If for any reason the Buyer receives payment information from anyone purporting to represent the Seller or purporting to be part of Sellers organization, which deviates from the account information previously received from the Seller, the Buyer must immediately contact its usual contact person within the Seller’s organization both by telephone and e-mail to ensure that the new bank account information is correct. The Seller undertakes no liability for payments made to accounts not identified by the Seller in invoices which are not Seller’s genuine invoices.
15. FORCE MAJEURES
15.1 In case of extraordinary events which are beyond the control of the Seller and which are unforeseeable in spite of 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 economically unreasonable conditions, the Seller shall be entitled for the duration of such obstruction to restrict or discontinue the deliveries or-in the case of case of prolongs obstruction to withdraw from the contract or terminate it without notice.
15.2 The Seller shall not be liable for any loss, damage or demurrage howsoever arising and/or for any breach, delay or non-performance of the Contract to the extent such is caused (without limitation:
a. directly or indirectly by delays due to or resulting from weather (whether unusual or not) or affects of the weather, local customs/procedures, local congestion at the delivery location affecting the Seller’s or the Supplier’s delivery equipment, local congestion at loading facilities, the prior commitment, non-availability and/or malfunction of delivery equipment; or
b. by any governmental act or compliance with any order, request, or control of any governmental authority or person purporting to act thereof whether or not such order or request is later determined to be invalid (including compliance with or implementation of any order, request, plan or programme of any authority created by governments); and/or
c. the interruption, unavailability, or inadequacy of Marine Fuel, or any constituent thereof, or any facility of production, manufacture, storage, transportation, distribution or delivery, because of wars, hostilities, public disorders, acts of enemies, sabotage, strikes, lockouts, labor or employment difficulties, fires, acts of God, accidents, breakdowns, or any other cause whatsoever which is not within the control of the Seller including, but not limited to, the failure, cessation, termination or curtailment in whole or in part of any of the existing or contemplated sources of supply of the Seller of Marine Fuel, or the crude oil or petroleum products from which such Marine Fuel is derived.
15.3 If by reason of any event of force majeure, either the availability from any of the Seller’s sources of supply of Marine Fuels or the normal means of transport of such Marine Fuels is delayed, hindered, interfered with, curtailed or prevented, then the Seller shall be at liberty to withhold, reduce or suspend deliveries under any contract to such extent as the Seller may in its absolute discretion think fit and the Seller shall not be bound to acquire by purchase or otherwise additional quantities from other suppliers. Any additional quantities which the Seller does acquire from other suppliers or from alternative sources may be used by the Seller at its complete discretion and need not to be taken into account by the Seller for the purpose of determining the extent to which it is to withhold, reduce or suspend deliveries under any contract. The Buyer shall be free to purchase from other suppliers any deficiencies of deliveries of Marine Fuels caused by the operation of this Clause, but the Seller shall not be responsible for any additional cost thereby incurred by the Buyer.
15.4 The Seller reserves the right to increase the price charged for any Marine Fuels if there is any increase in the costs incurred or to be incurred by the Seller in making the relevant supply due to factors which constitute a force majeure event pursuant to this Clause.
15.5 The Buyer shall have no right of cancellation of the Contract due to Force Majeure.
16. ARREST OF THE VESSEL
16.1 The Marine Fuel supplied to the Vessel is sold and delivered on the credit of the Vessel, as well as on the promise of the Buyer to pay therefore, and the Buyer agrees and warrants that the Seller shall have and may assert a maritime lien against the Vessel and may take such other action or procedure against the Vessel and any other vessel or asset beneficially owned or controlled by the Buyer, for the amount due for the Marine Fuel and the delivery thereof
16.2 Nothing in the Contract shall be construed to limit the rights and/or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.
17. MARITIME LIEN
17.1 Where Marine Fuel is supplied to a Vessel, in addition to any other security, the Contract is entered into and Marine Fuel is supplied upon the faith and credit of the Vessel. It is agreed and acknowledged that a maritime lien over the Vessel is thereby created for the Purchase Price of the Marine Fuel supplied and other rights and damages of the Seller as per T&Cs; and that the Seller in agreeing to deliver Marine Fuel to the Vessel does so relying upon the faith and credit of the Vessel.
17.2 The Buyer, if not the owner of the Vessel, hereby expressly warrants that he has the authority of the owner to pledge the Vessel’s credit as aforesaid and that he has given clear notice of the provisions of this clause to the owner. The Seller shall not be bound by any attempt by any person or entity to restrict, limit or prohibit its lien or liens attaching to the Vessel, either by clausing the respective BDR, or otherwise howsoever.
18. TERMINATION BY DEFAULT
18.1 The following shall constitute events of default by the Buyer, entitling the Seller to terminate by written notice to the Buyer any Contract for the sale of Marine Fuel forthwith and claim and receive damages from the Buyer:
18.1 The following shall constitute events of default by the Buyer, entitling the Seller to terminate by written notice to the Buyer any Contract for the sale of Marine Fuel forthwith and claim and receive damages from the Buyer:
a. failure by the Buyer to perform any obligations under the Contract;
b. arrest/seizures of assets of the Buyer, including but not limited to, the Vessel;
c. the Buyer becomes insolvent according to the laws of the place of incorporation or establishment of the Buyer or has a liquidator, receiver, or judicial manager appointed or enters into any arrangement or composition with its creditors;
c. liquidation/bankruptcy or any other changed financial or legal position of the parent company, sister companies or affiliated companies to the Buyer, which the Seller deems in its sole discretion to adversely affect the financial position of the Buyer.
d. the Buyer fails to pay any invoice to the Seller at the time of maturity set forth in such invoice;
e. the Buyer fails to pay any invoice to the Seller at the time of maturity set forth in such invoice;
f. the Buyer fails to comply with any other obligation pursuant to the Contract, including but not limited to, the Buyer’s failure to take delivery of Marine Fuel in full or in part; and/or
g. in case of any other situation, which the Seller deems in its sole discretion to adversely affect the financial position of the Buyer.
18.2 Upon the occurrence of an event of default as set out above, all sums owed by the Buyer shall become immediately due and payable and the Seller shall also be entitled to:
a. cancel all outstanding stems and/or withhold future deliveries;
b. store the Marine Fuel in full or in part for the Buyer’s account and risk;
c. demand that the Buyer complies with its obligations pursuant to the Contract; and/or
d. make use of any other remedy available under the law.
19. LIMITATION OF LIABILITY
19.1 The Seller’s liability for any losses or damages that may be suffered by the Buyer or the Vessel or any third party whatsoever, whether based in tort or contract, shall be limited to the Purchase Price of the Marine Fuel as set out in the Seller’s invoice issued pursuant to the Contract.
19.2 Furthermore, the Seller shall under no circumstances be liable for any indirect or consequential loss or damage that may be suffered by the Buyer or the Vessel whatsoever, including but not limited to:
a. any loss of hire or freight and/or loss of income or profit, howsoever caused;
b. any delay, detention or demurrage howsoever caused;
c. any indirect, special or consequential losses and/or damages, including but not limited to damages arising from the exercise of the Seller’s rights to suspend and/or to withhold and/or to terminate delivery of the Marine Fuel; and/or
d. any damages or losses as a result of any acts or omissions of the Seller’s agents and/or subcontractors including but not limited to those transporting the Marine Fuel and/or fueling agents
19.3 Any liability for damage to the receiving Vessel shall be limited to documented cost of engine repairs and in any event be reduced by 20 percent of the invoice value of spare parts for each year or fraction thereof in which the replaced part has been in use. Further, any time loss shall be limited to 5 days’ time charter hire equivalent. However, the Seller shall not be liable to pay damages if the Buyer has failed to safeguard the Seller’s recourse against the physical supplier or any other wrongdoer or has failed to ensure the existence of the necessary evidence or has not objected to the Seller immediately.
19.4 The Buyer shall in addition be obliged to take all appropriate steps in order to mitigate any losses, such steps to include but without limitation the close co-operation and discussing with the Seller of all available options to this effect. Any loss due to Buyer’s failure to mitigate and unilateral actions cannot and shall not be claimed against the Seller
19.5 The Seller shall only be liable for the documented/proven direct loss of the Buyers
20. LIMITATION OF LIABILITY
20.1 The Contract, these General T&Cs and all claims and disputes arising under or in connection therewith shall be governed by the Turkish Law
20.2 However, for maritime liens only, The General Maritime law of United States of America shall apply with respect to the existence of maritime liens, regardless of the country in which Seller takes legal action. Besides, the Seller is entitled to rely on any provisions of law of the flag state of the Vessel, the place of delivery and/or where the Vessel is found and shall, among other things, enjoy the full benefit of local legislation granting the Seller maritime lien on the Vessel and/or providing for the right to arrest the Vessel.
20.3 Any disputes arising out of, or in connection with the present contract shall be finally settled through arbitration under the Istanbul Arbitration Centre Arbitration Rules. Arbitration language shall be in English and the seat of Arbitration shall be in Istanbul.
20.4 Notwithstanding the provisions of clauses herein above, for the sole benefit of the Seller, it is further agreed that the Seller, without prejudice to any of its rights, has the right to proceed against the Buyer and/or the Vessel and/or any other party in such jurisdiction worldwide as the Seller in its sole discretion sees fit, inter alia, for the purpose(s) of securing any payment due to it or proceeding in the main or any other proceedings in order to enforce and/or collect any claim or cause the issuance of any Court judgment whatsoever. Where the Seller elects to take such action, the Seller has the option to submit to the jurisdiction of the Court where security is obtained and to the laws of that jurisdiction. The Buyer agrees and acknowledges that the nature of the transaction and of the respective business concerned is such, to the effect that the foregoing which are set for the benefit of the Seller, are absolutely reasonable and fully acceptable by the Buyer.
21. MISCELLANEOUS
21.1 Headings of the T&Cs are descriptive only and for convenience only and do not affect the interpretation of the T&Cs. Words importing the singular include the plural and vice versa, and the masculine, feminine and neuter genders include all genders.
21.2 If any part of this T&Cs is declared invalid, it shall not affect the validity of the remainder of the T&Cs or any part thereof.