TERMS & CONDITION
GENERAL TERMS AND CONDITIONS GOVERNING SALE AND DELIVER
OF BULK MARINE OIL BUNKER SUPPLY
OF BULK MARINE OIL BUNKER SUPPLY
- Unless the context otherwise demands:
- A.1 “Seller” means Coral for Bunkering & Services Head Office Port Sudan.
- A.2 “Buyer” means the party requesting the Seller either to sell and deliver to it, or to arrange for the delivery to it, of Marine Fuels.
- A.3 “Supplier” means the party having Marine Fuels available at a port and requested by the Seller to deliver to the Buyer.
- A.4 “Delivery Port” means the port at which the Supplier delivers Marine Fuels against a nomination.
- A.5 “Marine Fuels” means marine fuel oil, intermediate fuel oil, marine diesel oil, light marine diesel oil and gas oil.
- A.6 “Fuels Prices” means those prices quoted by the Seller against the Buyer’s specified requirements.
- A.7 “Owner” means the registered Owner or Bareboat Charterer of the vessel; and
- A.8 “Vessel” means the Vessel, Ship, Barge or Off-Shore Unit that receives the supply/Marine Fuels; either as end-user or as transfer unit to a third party.
- B.1 This is a statement of the terms and conditions according to which Coral Bunkering & Services Co. LTD., (hereinafter called “ Coral “) will sell Marine Fuels and Lubricants.
- B.2 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 Coral.
- B.3 General trading conditions of another party will not apply, unless expressly accepted in writing by Coral.
- B.4 In the case that, for whatever reason, one or more of the (sub)clauses of these general conditions are invalid, the other (sub)clauses hereof shall remain valid and be binding upon the parties.
C. Specification (QUALITY – QUANTITY)
- C.1 The Buyer shall have the sole responsibility for the nomination of the quality and the quantity of the Marine Fuels/Lubricants, which shall correspond to the written confirmation from the Seller.
- C.2 The quality and quantity shall be as agreed between the Seller and the Buyer and correspond to the Seller’s written confirmation.
- C.3 In respect of the quantity agreed upon the Seller shall be at liberty to provide, and the Buyer shall accept a variation of 5% from the agreed quantity, with no other consequence than a similar variation to the corresponding invoice from the Seller.
D. Nomination and final notice of requirement
- D.1 Buyer shall give Seller or Supplier directly or through Buyer’s agents at least 72 hours written notice. (Fridays and holidays excluded) of vessel’s readiness to receive delivery. Buyer shall specify the name of the vessel, the vessel’s agent, the loading port, the estimated arrival date and the exact required quantity and quality of Marine Fuels required so as to enable Seller or Supplier to make any necessary arrangements for the delivery. By making such nomination the Buyer shall be deemed to have accepted and agreed to the terms and conditions herein contained.
- D.2 Buyer shall give Seller or Supplier final notice of requirement directly or through Buyer’s agent at least 48 hours (Friday and holidays excluded) before loading Marine Fuel into barge.
- D.3 Seller on its own behalf may decline a nomination by notice given to the Buyer at least 48 hours before loading Marine Fuels into barge.
- D.4 If the vessel shall not have arrived at the Delivery Port within ten (10) calendar days after the expected date of arrival as notified in C. above the nomination shall be deemed to have been cancelled by the Buyer.
- D.5 Notwithstanding the nomination to the Buyer of a Supplier hereunder the Seller shall be and remain responsible as principal for the performance of the contract subject always to the terms and conditions herein contained. It is specifically and accepted by the Buyer that upon receiving notification from the Seller of the Supplier that nomination shall be accepted by the Buyer and that Supplier so nominated is for the purposes of this contract referred to as “Supplier”.
- E.1 The time of delivery, as given by the Seller, has been given as an approximate time, unless it has been otherwise specifically agreed in writing between the parties.
- E.2 The time of delivery will only be binding upon the Seller when all information necessary for the Seller to comply with its obligations hereunder, have been properly delivered to the Seller in reasonable time before the delivery.
- E.3 Seller’s obligation to make any delivery hereunder is subject to the availability to Seller at the Delivery Port of the particular grades of Marine Fuels desired by Buyer.
- E.4 If Seller or Supplier at any time for any reason believes that there may be such a shortage of supply at any port that it may be unable to meet the demands of all its customers. Seller or Supplier may allocate its available and anticipated supply among its customers in such a manner as it may in its sole discretion determine.
- E.5 Deliveries shall be made during normal working hours at the port in question unless required at other times and permitted by port regulations in which event the Buyer shall pay all overtime and extra expenses incurred.
- E.6 Seller shall not be required to deliver Marine Fuels into any of the vessel’s tanks which are not regularly used for bunkers, and shall not be required to deliver any fuel for the export of which a Government permit is required and has not been obtained by the Buyer or its accredited representative.
- E.7 Delivery shall be made at wharf or at shore terminals of Seller or Supplier or by barge where barging facilities are available in Seller’s option: or a combination of the mentioned supply methods.
- E.8 Vessel shall be bunkered as promptly as circumstances permit. Seller or Supplier shall not be liable to Buyer for any loss or demurrage due directly or indirectly to weather, congestion of the port, prior commitment of available barges or any other contingency.
- E.9 In the event of delivery by barges(s). Buyer shall provide free of expense a clear and safe berth for the barge(s) alongside the vessel’s receiving lines. Buyer shall pay Seller the amount due to Seller or Supplier according to it’s current barging rates at the port concerned. Other charges, such as for mooring and unmooring, to be for Buyer’s account.
- E.10 Seller, Supplier, or the barging equipment are in no case whatsoever responsible to any damage, loss or delay to the receiving vessel. Furthermore Buyer agrees to pay and indemnify against all claims and expenses for any loss, damage or
- delay caused by receiving vessel to barging equipment.
- E.11 Terminal or barge deliveries need not be made where in Seller’s or Supplier’s opinion clear and safe berth is not available.
- E.12 Receiving vessel to moor, unmoor, hoist bunkering hose(s) from the barges(s), respectively lower hose(s) day/night, Fridays and holidays included, whenever required by Seller or Supplier; free of expenses, and in any way assist barge equipment to a smooth supply. Buyer shall make the connection between the pipeline(s)/delivery hose(s) and vessel’s lines, and shall provide sufficient tankage and equipment to receive promptly, day/night, Fridays and holidays included, all deliveries hereunder. In case Buyers vessel is not able to receive promptly and smoothly Buyer is to be responsible for and to pay reasonable demurrage claims to the barging facilities.
- F.1 The quantity of the fuel oils delivered hereunder shall be determined from gauge of Seller’s or Supplier’s shore tanks or barge effecting delivery or Seller’s or Supplier’s oil meter, at Seller’s or Supplier’s option.
- F.2 There would be an option to survey the Seller’s or Supplier’s oil meter by a third party inspector. The cost of such inspection shall be compensated solely by the Buyer.
- F.3 In gauging shore tanks or barge, the chief engineer of Buyer’s vessel or his representative, shall jointly with the Seller or Supplier, measure and verify quantities of the Marine Fuels sold and delivered hereunder in tanks or barges from which delivery is made. Should chief engineer or his representative fail or decline to so verify quantities, measurement of quantity made by Supplier as afore said shall be final and conclusive as to quantities sold and delivered hereunder, and no claims for variance shall be allowed subsequent to delivery. In the measurement of the fuel oils, Seller shall make, or cause to be made, allowance for all water and/or non-petroleum sediment in excess of one (1) percent.
- F.4 The Chief Engineer or his representative shall together with the Seller’s representative measure and verify the quantities of Marine Fuels delivered from the tank(s) from which the delivery is made.
- F.5 Should the Chief Engineer or his representative fail or decline to verify the quantities, the measurements of quantities made by the Seller shall be final, conclusive and binding and the Buyer shall be deemed to have waived any and all claims in regard to the variance.
G. Quality Determination
- G.1 Complaint as to quality must be based on tests made as soon as possible by an independent laboratory of samples taken at time of delivery from shore tank or barge from which delivery is made.
- H.1 The Seller shall arrange for four (4) identical representative samples of each grade of Marine Fuels to be drawn throughout the entire bunkering operation. If practically possible such samples shall be drawn in the presence of both the Sellers and the Buyers or their respective representatives.
- H.2 In case that drip sampling is not available onboard barge, tank truck or shore tank, samples shall be taken as a composite of each tank divided with 1/3 from each the top/mid/bottom of the tanks.
- H.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. 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.
- H.4 Two (2) samples shall be retained by the Seller for ninety (90) days after delivery of the Marine Fuels, or if requested by the Buyer in writing, for as long as the Buyer reasonably required. The other two (2) samples shall be retained by the receiving Vessel.
- H.5 In the event of a dispute in regard to the quality of the Marine Fuels delivered, the samples drawn pursuant to clause H.4 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 a by both Sellers and Buyers agreed independent laboratory for final and binding analyses. The seal must be breached 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.
- I.1 Payment shall be made by the Buyer as directed by the Seller within the period agreed in writing.
- I.2 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).
- I.3 Notwithstanding any agreement to the contrary, payment will be due immediately in case of bankruptcy, liquidation or suspension of payment or comparable situation of the Buyer, or arrest or assets and/or claims of the Buyer, or in case of any other situation, which in the sole discretion of the Seller, is deemed to adversely affect the financial position of the Buyer.
- I.4 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. 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.
- I.5 Any delay in payment shall entitle the Seller to interest at, presently, the rate of 2 (two) per cent per month or any part thereof without prejudice to any rights or remedies available to the Seller, and furthermore the Seller is entitled to charging administrational penalty fee of USD 1.00 per mton supplied, or the equality thereof in local currency, thus minimum penalty fee of USD 250.00.
- I.6 Payments made by the Buyer shall at all times be credited in the following order: (1) costs, (2) interest and administrational fee, and (3) invoices in their order of age, also if not yet due.
- I.7 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.
- I.8 The Seller shall at all times be entitled to require the Buyer to grant the Seller what the 5 Seller deems to be proper security for the performance of all its obligations under the agreement. Failing immediate to provide such security upon request, the Seller shall be entitled to stop any further execution of any agreement(s) between the parties until such time as the Buyer has provided the required security.
- J.1 The Seller may at any time demand that payment be made before the date due for payment whether before or after delivery of the Marine Fuels or may demand the giving of such security as it may specify.
- J.2 If at any time the Buyer has failed to make any payment or give any security required (whether in terms of this clause or not), the Seller shall, in addition to any other remedy, be entitled to suspend or terminate deliveries (insofar as they have not already taken place) and to assert all their rights against the vessel. The Seller may also procure that any other deliveries be suspended or terminated. In the event of such suspension or termination the Buyer shall have no recourse against the Seller.
- K.1 On completion of the delivery of Marine Fuel to a vessel, the Master of the vessel or the Buyer’s accredited representative shall give the Supplier a signed receipt therefore in a form required by the Supplier.
- L.1 Any claim by Buyer of any nature arising under these terms shall be notified to Seller in written form within eight days after delivery and no such claim shall be made or allowed after eight days from delivery.
- M.1 Neither the Seller nor the Supplier, shall be responsible for any failure to fulfil their obligations (other than the payment of money) hereunder if fulfillment has been delayed, hindered, interfered with, curtailed or prevented by :-
- (a) any circumstances whatsoever whether or not foreseen which are not within the immediate control of the Seller or the Supplier or,
- (b) any curtailment, failure or cessation of supplies of Marine Fuels or the petroleum from which such Marine Fuels are derived or of any of the Seller’s or the Supplier’s sources of supply, (whether in fact sources of supply for the Marine Fuels to be delivered against a nomination or not) or,
- (c) compliance with any order, demand or request of any international, national, port, transportation, local, or other authority or agency or of any body or person purporting to be or to act for such authority or agency, breakdown of or accident to plant, machinery or facilities, or weather conditions or,
- (d) any strike, lock-out or labor dispute (whether or not the Seller or the Supplier is a party thereto or would be able to influence or procure the settlement thereof) war, hostilities, or any local or national emergency (or the threat or apprehension of any of the foregoing events).
- M.2 Seller or Supplier shall not be required to remove any such cause set out in M.1. above or replace any effected source of supply or facility if doing so shall involve additional expense or a departure from Seller or Supplier’s practices. Seller or Supplier shall not be required to make up any deliveries omitted in accordance with this clause.
- N.1 Seller may assign all or any part of its rights and obligations. Any assignment by Buyer without Seller’s written consent shall be void.
O. Liability and indemnity
- O.1 Buyer shall hold Seller harmless from any and all expense, claims, loss, damage and liability arising out of :
- (a) all charges for any delivery by Barge including any barging charges, similarly charges provided for Bulk Lorry, Rail Tank Wagon and Drum deliveries,
- (b) Any mooring or unmooring charges or port dues which may be incurred by the Supplier in connection with any vessel to which Marine Fuels are delivered hereunder.
- P.1 If an escape, spillage or discharge of oil (hereinafter called a ‘spill’) occurs while a delivery of Marine Fuel is being made on behalf of a the Buyer, the Buyer will promptly take such action as is reasonably necessary to remove the oil and mitigate the effects of such spill. However, notwithstanding the cause of such spill the Seller or the Supplier is hereby authorised, at its option upon notice to the Buyer, or the Buyer’s operator of, or agent for, the receiving vessel, to take such measures, either in co-operation with the Buyer, or exclusively as the sole party, and incur such expenses (whether by employing its own resources or by contracting with others) as are reasonably necessary in the judgment of the Seller or the Supplier, to remove the oil and mitigate the effects of such spill. If the Seller has exercised its option to remove the oil and mitigate the effects of such spill, the Buyer agrees to co-operate and render such assistance as is required by the Seller in the course of such action. Any expenses, damages, costs, fines and penalties arising from the escape, spillage, etc. by its negligent act or omission. If both parties have acted negligently, any expenses, etc. shall be divided between the parties in accordance with their respective degrees of negligence. The burden of proof to show the Seller’s negligence shall be on the Buyer. The Buyer also agrees to give or cause to be given, to the Seller, all such documents, and other information concerning any spill, or any programme for the prevention thereof, which are requested by the Seller, or required by laws or regulations applicable at the time and place where the Seller or the Supplier delivers Marine Fuel to the Buyer.
- (but such exceptions subject always to clauses C, E.3, E.4, E.8, E.12, G, I, M. 1 and P.1 above).
- Q.1 The Buyer will indemnify the Seller and the Supplier against any claims, losses, costs (including costs as between Attorney or Solicitor and Client), damages, liabilities, fines, penalties and expenses incurred or sustained arising out of or in connection with the delivery of Marine Fuels against a nomination except to the extent the such claims, losses, costs, damages, liabilities and expenses arise through the negligent act or omission of the Seller or the Supplier
- R.1 Any waiver by the Seller, the Supplier or the Buyer, or any of their respective rights hereunder or against a nomination in any particular instance shall not prejudice their respective rights to enforce the same strictly and in full on any subsequent occasion.
- S.1 The Seller shall have the option to immediately cancel the agreement in full or in part, or to store or produce the storage of the Marine Fuels in whole or in part for the account and risk of the Buyer and to charge the Buyer the expenses thereby incurred, or to hold the Buyer fully to the agreement, or take any other measures which the Seller deems appropriate, without prejudice to its rights of indemnification, without any liability on the side of the Seller, in any (but not limited to) one of the following cases:
- a) when the Buyer, for whatever reason, fails to accept the Marine Fuels in part or in full at the place and time designated for delivery;
- b) when the Buyer fails in part or in full to comply with its obligations to pay any amount due to the Seller and/or provide security as set out herein;
- c) when, before the date of delivery, it is appearant in the opinion of the Seller that the financial position of the Buyer entails a risk for the Seller;
- d) when, in case of force majeure, the Seller is of the opinion that the execution of the agreement shall be cancelled.
- S.2 The Seller may terminate any agreement with the Buyer in whole or in part, in its full discretion, upon the breach of any provisions hereof by the Buyer.
- T.1 If the nomination is made by an agent acting for or on behalf of the Buyer, whether such agency is disclosed or undisclosed then such agent shall be liable, as well as the Buyer, not only as agent but also as principal for the performance of all the obligations of the Buyer.
- U.1 Notices to be given hereunder shall be addressed to the addresses specified from time to time by the party to whom the notice is addressed.
- U.2 Where a nomination is made by any agent acting for the Buyer then notice may be given either to the agent or to the Buyer at the option of the party giving the notice.
V. Arbitration and governing law
V.1 This agreement shall be governed in all matters by English Law.
V.2 Notwithstanding anything in this agreement, including, without limit, sub-clause V.1, upon delivery of the Marine Fuels to the vessel(s), Seller shall have a maritime lien on such vessel(s) for any amounts owed to the Seller, and nothing herein shall affect or prejudice the right of Seller to take action and/or commence proceedings to enforce its right of lien on such vessel(s) or to otherwise obtain security by seizure, attachment or arrest of vessel(s) or any other assets for any amounts owed to Seller in any jurisdiction in accordance with local law in such jurisdiction