GENERAL TERMS AND CONDITIONS

Transcription

1 GENERAL TERMS AND CONDITIONS Preamble Except as may otherwise be negotiated by the parties and agreed to in writing, the following terms and conditions shall apply to all sales of marine bunker fuels, and/or lubricants and/or other products by the Suppliers. Each delivery will be as specifically negotiated between the Suppliers and the Buyers as evidenced by the Suppliers Confirmation Note and in the event of any conflict between these terms and conditions and the terms of the Confirmation Note the terms of the latter shall prevail. These terms and conditions may be referred to as "Forum Ltd. Standard Terms". Throughout these Terms and Conditions, save where the context otherwise requires, the following definitions shall be applied: The Confirmation Note shall incorporate the General Terms by reference and the Bunker Confirmation and the General Terms together constitute the complete Bunker Contract. "Product/Marine Fuels" means products, derived from crude oil, delivered or to be delivered to the Vessel. "The Suppliers" means the party contracting to sell and deliver Marine Fuels, and "The Buyers" means the party contracting to purchase, take delivery of and pay for the Marine Fuels. "Bunker Tanker" means bunker barge or tanker supplying marine fuels to the Vessel. "Vessel" means the vessel, ship or craft duly nominated to receive Product as specified in the Confirmation. 1. Delivery of Product Delivery of Product shall be made day and night, Sundays and holidays included, at the port or place of delivery, subject always to the custom of that port or place Delivery of Product is realized according to requests (nominations) for delivery of Product, forwarded by the Buyers. Assortment of Product, price, quantity, delivery and payment terms and conditions for each parcel of Product, the name of recipient s vessel (hereinafter named as «vessel»), time spent in port of loading and name of ship agent, independent surveyor presence during delivery and surveyor name, any other delivery terms agreed upon the Buyers and the Suppliers should be stated in request (nomination) in written form The Buyers shall assume all risks, losses or damages of the Product, as well as all additional expenses in the event that request (nomination), and hence a Confirmation Note were improperly designed, were inaccurate, contained mistakes, or request (nomination) was sent untimely, as well as in the event that vessel, defined by the Buyers, would arrive at the wrong time or wouldn t be able to receive Product, or interrupt receiving product, and also to assume all risks, losses or damages of the Product dating from expiration of agreed date of supply or period of supply The Suppliers shall be in possession of all permits required to comply with all relevant regulations pertaining to delivery of Marine Fuels at the port or place of delivery; subject to local laws, render all necessary assistance which may be reasonably required to make connections and disconnections between the delivery hose(s) and the Vessel's manifold The Buyers shall be responsible for making all connections and disconnections between the delivery hose(s) and the Vessel's manifold and to ensure that the hose(s) are properly connected to the Vessel's manifold prior to the commencement of delivery The Buyers shall assume all expenses concerned with Product, starting from the moment of actual transition of the Product through vessel s manifold in the stated loading port. 2. Price of Product The price of the Marine Fuels shall be in the amount expressed per unit and in the currency stated in the Confirmation Note for each grade of Product delivered into the Vessel's tanks free delivered/ex wharf as applicable and stated in the Confirmation Note Should the Vessel not arrive within the determined time range, the Confirmation Note shall be considered null and void unless the Suppliers elect to accept the new readiness date as the basis of a new contract for which a new price can be agreed upon with Buyers In the event the Buyers fail to take delivery, in whole or in part, of the quantities nominated, the Buyers shall be responsible for any costs resulting from their failure to take delivery, as well as for any losses incurred by the Suppliers to downgrade the fuels. The Suppliers shall have the right to invoice the Buyers for the loss incurred by having to transport the undelivered Bunkers back to the storage or by having to sell the Product in a degraded form at a lower price than that applicable to the grade originally nominated by the Buyers, for 1

2 storage cost of the Product originally nominated by the Buyers, for costs of tugs renting (whether necessary by port s authorities orders) if the bunker barge starts moving to the Buyer s vessel. The Suppliers may use this right without prejudice to the Suppliers other rights for damages or otherwise pursuant to these terms. 3. Payment terms Payment for the supplied Product is effected by means of bank transfer without any delays, compensations or counterclaims or rebates. Payment for the supplied Product is effected according to the invoice, issued by the Suppliers Payment shall be deemed to have been made on the date the payment is credited to the counter of the bank designated by the Suppliers. If payment falls on a non-business day, then payment shall be made on or before the business day nearest to the due date. If the preceding and succeeding business days are equally near to the due date, then payment shall be made on or before the preceding business day 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 Buyers, or arrest of assets and/or claims of the Buyers, or in case of any other situation, which in the sole discretion of the Suppliers, is considered to adversely affect the financial position of the Buyers Any delay in payment shall entitle the Suppliers to interest at the rate of 0.05% per day or any part thereof In the event of non-payment, the Suppliers reserve the right to pursue such legal remedies as may be available to them to recover the amount owed Until full payment has been received in Sellers bank/account, the Buyers accept and agree that the Suppliers hold a lien on the Bunkers onboard and in the Vessel itself. 4. Supply Supply of the Product under the Contract is fulfilled in the harbour waters of Saint-Petersburg port, comprising ports of Lomonosov, Kronshtadt, Vysotsk, Ust -Luga, Primorsk, harbours and anchoring berths of above mentioned ports Supply is fulfilled on FOB Saint-Petersburg port (INCOTERMS 2010) terms Product supply date shall be the date stated in Bunker receipt. 5. Documentation 5.1. Before commencement of delivery the Suppliers shall present for written acknowledgement by the Master of the Vessel or his representative, a certificate of quality (passport of the Product), which shall contain actual values for: - viscosity - density - sulphur content - flash point - delivery temperature In addition, and if available, similar information shall be provided for vanadium, ash content, water content and pour point Once the delivery is completed and quantities measured, a receipt shall be signed and stamped by the Master of the Vessel or his representative, and returned to the Suppliers, or their representative, as acknowledgement of the actual volume and the actual delivery temperature only and a duplicate copy shall be retained by the Master of the Vessel. This receipt shall contain the following minimum information that is warranted by the Suppliers: - delivered quantity in volume units - density in kg/m3 at 15 C as per ISO delivery temperature - flash point - sulphur content in % m/m as per ISO viscosity 5.3. In the event the Master is not satisfied with the sampling, quality, quantity or any other matter concerning the Marine Fuels or their delivery, he shall make appropriate remarks in the receipt referring to a separate letter of protest to be issued and delivered immediately. Verification of the information provided under Clause 5.2. may be obtained by analysis of the Vessel's retained sample. 6. Quantity of Product. 2

3 6.1. Quantity of delivered Product is determined and stated in the Bunker receipt according to tank measurements of the bunker-barge carried out before and after delivery of Product on vessel. Measuring devices should be calibrated and certificated. Measurements of the tanks of the bunker-barge are carried out on the bunkerbarge in presence of representative of the administration of vessel and/or nominated independent surveyor, however if the representative of the administration of vessel refuse to take part in mutual measurements on the bunker-barge, the quantity of delivered Product based on the measurements of the bunker-barge tanks should be recognized by the ship owner and the Buyers as valid proof of the Product delivered and should be stated in the Bunker receipt signed by captain of the vessel which is bunkered and certified by stamp of the vessel. Proper cargo tank measurement report should be drawn up according to measurements and signed by both representatives of the bunker-barge and the representative of vessel, which is bunkered Delivery according to Marpol Regulation 73/78 Annex VI effective Specifications of Product supplied are to conform to ISO 8217:2005(e) or any subsequent amendments thereof Product to be delivered under these Terms and Conditions shall be measured and calculated in accordance with the ISO-ASTM-API-IP Petroleum Measurement Tables. 7. Quality of Product The Suppliers warrants that the Marine Fuels shall be of a homogeneous and stable nature, shall comply with the grades nominated by Buyer and be of satisfactory quality. Unless otherwise agreed in the Confirmation Note, the Marine Fuels shall in all other respects comply with ISO Standard ISO 8217:2005(e) or any subsequent amendments thereof The Suppliers can in no circumstances be held responsible for the consequences of the misuse or defective application of any such product, if caused by lack of information or miss-information given by Buyer on the use or application of any such product It is the duty of Buyer to take all reasonable actions, including retention and burning of Marine fuels, in order to eliminate or minimize any costs associated with an off specification or suspected off specification supply. To this end Buyer shall cooperate with The Suppliers in achieving the most cost effective solution. In any event, The Suppliers ' obligation hereunder shall not exceed direct expenses incurred for removal and replacement of fuel and shall not include any consequential or indirect damages or injuries, including without limitations, demurrage claims, loss of contract or loss of profit. If Buyer removes such Marine fuels without the consent of The Suppliers, then all such costs shall be for Buyers' account. 8. Sampling At the time of loading of each parcel of Product the Suppliers is obliged to take 4 (four) official samples in presence of authorized representatives of administration of vessel and/or authorized representatives of the Buyers, and samples report is drawn up for each Party. Then official samples are blended, bottled in 4 (four) containers and sealed. 2 (two) samples go to The Suppliers and 2 (two) samples go to Buyer. Samples are taken in accordance with Annex IV Marpol 73/ The The Suppliers and Buyer should keep official samples (two samples for each party) during 30 (thirty) days since date of sampling; In case of dispute regarding Product quality, each party should keep official samples until the dispute is settled. 9. Claims Any dispute as to the quantity delivered must be noted at the time of delivery in the receipt or in the letter of protest referred to in Clause 5.3. above. Any claim as to short delivery shall be presented by Buyer in writing within 7 days from the date of delivery, failing which any such claim shall be deemed to be waived and barred These are the most easily avoided by ensuring high standards of checking before, during and after Delivery by an Officer of the Vessel's crew or other senior representative of the Customer Flow meters must be checked for seals, correct settings and calibration and general condition. All of these checks must be carried out before and after delivery of each consignment and each barge, wagon or vehicle tank load. The Delivery must be supervised at all times and care must be recorded on the Physical Suppliers delivery receipt. Unless these procedures are followed it is nearly always impossible for a claim to be substantiated. The Company regrets therefore that it will be obliged to reject claims for shot delivery where these receiving procedures are not followed Buyer shall be charged for all proven additional expenses incurred by The Suppliers in connection with the Buyers' failure to take delivery of the full quantity of Marine Fuels ordered by Buyer Any claim as to the quality or description of the Marine Fuels must be notified in writing, as per Clause 5.3. or promptly after the circumstances giving rise to such claim have been discovered. If Buyer does not notify The Suppliers of any such claim within 15 days of the date of delivery, such claim shall be deemed to be waived and barred. 3

4 9.6. In the event a claim is raised pursuant to Clause 8.5. the parties hereto shall have the quality of the Marine Fuels analysed by a mutually agreed, qualified and independent laboratory. The Suppliers shall provide the laboratory with the sample retained by them as per Clause 7.2. If ISO grades have been specified the analysis shall be established by tests in accordance with ISO 8217:2005(e) and ISO 4259 or any subsequent amendments thereof. If non-iso grades have been agreed, tests will be made in accordance with standards corresponding to the aforementioned ISO standards. Unless otherwise agreed the expenses of the analysis shall be for the account of the party whose claim is found wrong by the analyses Neither party shall be liable for indirect or consequential loss and/or damage arising from this Contract. 10. Force-majeure Neither Party shall be liable for full or partial failure in the performance of this Contract due to acts of God, i.e. strikes, fire, accident damages, ice conditions, war, any military operations, blockade, embargo, commotion and any similar cause beyond the control of Parties, which arose after date of signing a contract, and couldn t be foreseen or prevented (force majeure) The Party, which was not able to perform this Contract due to mentioned causes, should immediately advise another Party of beginning and ending of such causes, but not later than five days after their beginning (ending). Certificates, issued by plenipotentiary institutions, act as documents, which confirm the forcemajeure conditions. If acts of God come into effect, terms of performance of this Contract postpone according to period of validity of such conditions. 11. Indemnity Without prejudice to any other claims arising hereunder or in connection herewith, if loss is suffered or a liability is incurred by either party hereto as a direct result of compliance with directions given by the other party hereto, during or for the purposes of the parties' obligations hereunder, then the injured party is to be indemnified by the other in respect of such loss or liability The Buyers shall hold harmless and indemnify the Suppliers against all claim(s), loss(s), damage(s) and liability(s) arising from or in consequence of any acts and/or omissions of Buyers and/or its employee(s), servant(s), ships' officer(s), agent(s), representative(s) and/or crew(s) in connection with the delivery of Product. 12. Risk/Title Risk in the Marine Fuels shall pass to the Buyers once the Marine Fuels have passed the Suppliers flange connecting the Vessel s bunker manifold with the delivery facilities provided by the Suppliers. Title to the Marine Fuels shall pass to the Buyers upon payment for the value of the Marine Fuels delivered, pursuant to the terms of Clause 3 hereof. Until such time as payment is made, on behalf of themselves and the Vessel, the Buyers agree that they are in possession of the Marine Fuels solely as Bailee for the Suppliers. If, prior to payment, the Suppliers Marine Fuels are commingled with other marine fuels on board the Vessel, title to the Marine Fuels shall remain with the Suppliers corresponding to the quantity of the Marine Fuels delivered. The above is without prejudice to such other rights as the Suppliers may have under the laws of the governing jurisdiction against the Buyers or the Vessel in the event of non-payment. 13. Safety & environmental protection It shall be the sole responsibility of the Buyers 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 Product. The Buyers warrant that the Vessel is in compliance with all national and international trading and pollution regulations In the event of a spill or discharge occurring before, during or after the delivery of the Bunker Oil, the Buyers 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 spill or discharge, and shall pay all costs and expenses in connection therewith. If the Buyers fail to take such prompt action, the Buyers authorize the Suppliers and others appointed by the Suppliers, to take such action on behalf of the Buyers, at the Buyers risk and expense, and the Buyers shall indemnify and hold the Suppliers and others harmless against any damages, expenses, claims, or liabilities, of whatever nature, unless such spill or discharge is proven to be solely caused by the Suppliers negligence. 4

5 14. Termination Without prejudice to accrued rights hereunder, either party shall be entitled to terminate this contract in the event of Any application being made or any proceedings being commenced, or any order or judgement being given by any court, for: -the liquidation, winding up, bankruptcy, insolvency, dissolution, administration or re-organisation or similar, or - the appointment of a receiver, liquidator, trustee, administrator, administrative receiver or similar functionary of the other party or all or a substantial part of its assets (otherwise than for the purpose of a reconstruction or amalgamation); The other party suspending payment, ceasing to carry on business or compounding or making any special arrangement with its creditors; Any act being done or event occurring which, under the applicable law hereof, has a substantially similar effect to any of the said acts or events described above The Suppliers shall have the right to terminate this Contract in the event of a material breach (including without limitation anticipatory breach) by the Buyers of any of its terms and conditions of this Contract and/or in the event the Buyers are threatened with or are in the process of liquidation, winding-up and/or receivership. 15. Law and arbitration This contract shall be governed by and construed in accordance with the laws of the place indicated in the Confirmation Note and any dispute arising out of this Contract shall be referred to arbitration at the place indicated in the Confirmation Note, subject to the procedures applicable there If no place of arbitration is indicated in the Confirmation Note, Clause shall apply This contract shall be governed in accordance with Law of Russian Federation and any dispute arising out of it shall be determined by the Arbitration Court of St. Petersburg and Leningrad region (Russian Federation) and the award shall be final and binding upon both Parties. 5