Except as otherwise
agreed in writing by Seller (SK Corporation), all sales of Marine Fuel
shall be made according to the following conditions.
and Buyer must mutually agree on the price before there is any obligation
to sell or buy such Marine Fuels as Buyer shall order from Seller and
Seller may accept to sell to Buyer. The prices so agreed shall apply to
deliveries made at Seller's terminal into Buyer's vessel. Buyer shall pay
for any and all applicable duties, goods and service tax, taxes, fees,
costs (including those imposed by
government authorities), barging fees, delivery charges and such other costs
and expenses arising from the delivery which shall be included in Seller's
invoice to Buyer.
2. Order and Confirmation of Order
shall submit an order for purchase of Marine Fuel to Seller which contains
at least the following information with respect to the Marine Fuel desired:
price, quantity, quality, name of delivery port and date of delivery, name
of vessel, account to be charged and name of local agent.
Seller shall accept such order by a Confirmation of Order, which shall
constitute the terms and conditions of the sales contract for the delivery
of Marine Fuel. The conditions of the Confirmation of Order, to the extent
that they are contrary to any of the conditions of Buyer's order for
purchase of Marine Fuel or the conditions contained herein, shall control.
quality of Marine Fuel shall be within the Min/Max limits of the
international standard ISO 8217:1996 (E) (except TOTAL EXISTENCE
SEDIMENT and TOTAL SEDIMENT, POTENTIAL), unless Seller agrees to other
specifications in the Confirmation of Order, in which case such
specifications shall represent the only quality characteristics which the
Marine Fuel is required to meet.
Buyer has the sole responsibility for the selection, acceptance and use of
Marine Fuel including but not limited to determination of compatibility
with the machinery, equipment and marine fuel used or to be used of the
EXCEPT AS PROVIDED ABOVE, SELLER MAKES NO GUARANTEES OR
WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS OR SUITABILITY
OF MARINE FUEL FOR ANY PARTICULAR PURPOSE OR OTHERWISE.
quantities of Marine Fuel delivered shall be measured and calculated in
accordance with API/ASTM-IP Petroleum Measurement Tables by barge
measurements at the time and place of delivery to the vessel and the amount
so determined shall be conclusive and binding on the Buyer, regardless of
measurements taken by Buyer's vessel. Buyer's representative or an approved
petroleum inspector commissioned by Buyer shall have the right to be
present at the time of measurement, provided that if such an inspector is
commissioned by Buyer, all costs of commissioning the inspector shall be
borne by Buyer and any delays caused or occasioned by the inspector,
including but not limited to demurrage at the loading port shall be for the
sole account of Buyer.
Buyer has the sole responsibility for determining the amount of Marine Fuel
TERMS AND FINANCIAL RESPONSIBILITIES
shall pay Seller, whether in receipt of delivery documents, the full amount
stated in Seller's invoice, telegraphic report or other notification of
quantity delivered and amount due without any deduction, offset or
counterclaim whatsoever, in US Dollars, within thirty (30) days of delivery
of Marine Fuel.
In the event payment by Buyer to Seller is delayed, Buyer shall pay
interest at eighteen percent (18%) per annum, calculated daily
starting on the 31st day from the date of delivery of Marine Fuel, on the
sum of the amount delayed and accrued interest until full payment of all
amounts due from Buyer to Seller have been received by Seller.
If a final invoice cannot be, or is not, dispatched in time for payment to
be made within 30 days of delivery of Marine Fuel, Seller may invoice Buyer
on a provisional basis.
A final invoice will be dispatched to Buyer by Seller as soon as
practicable thereafter. Any resultant overpayment or additional payment
shall be due to or by Seller, as the case may be within 30 days of issuance
of the final invoice.
At any time before the scheduled delivery date, should Seller determine in
its sole discretion that it would be inadvisable to make deliveries to
Buyer on credit, Seller may request that Buyer pay cash in advance or put
up security acceptable to Seller.
In such event, Buyer's compliance with Seller's request shall be a
condition precedent to Seller's performance of any of its obligations under
the Confirmation of Order. Notwithstanding anything to the contrary herein,
failure by Buyer to comply with its obligations hereunder shall constitute
a breach of condition, in which case Seller may at any time by notice to
Buyer forthwith terminate any agreement for the delivery of Marine Fuel or
suspend any actual supplying or scheduled supply of Marine Fuel.
In event of such breach by Buyer, Buyer shall be liable for all losses
suffered by Seller as a result of Buyer's breach, provided that Seller's
election to terminate any agreement for the delivery of Marine Fuel or
suspend any actual supplying or scheduled supply of Marine Fuel shall be
without prejudice to any other rights in law or equity accrued on or before
the date of termination.
shall give Seller at least seventy-two (72) hours notice (exclusive of
Saturday, Sunday and public holidays of the delivery port) of the vessel's
readiness to receive delivery of Marine Fuel, specifying in such notice the
exact quantity, quality, place and date of delivery, name of vessel and
other terms consistent with the delivery port authority's requirements for
delivery of Marine Fuel.
Delivery and Loading Conditions
warrants that it will comply with all applicable laws, regulations and
customs at the delivery port and have a full and efficient complement of
master, officers and crew.
Delivery shall be made by barge at the discretion of Seller and the vessel
will be bunkered as promptly as circumstances will permit, provided at
least that, the vessel's estimated time of arrival at the delivery port is
of such manner and at such intervals such that it complies with the rules,
regulations and customary practices of the delivery port's authority,
Sellers and Seller's suppliers.
In no event whatsoever shall Seller be obligated to purchase marine fuel or
its equivalents from others in order to enable it to Marine Fuel to Buyer.
Seller may, without liability, during any period in which it is unable to
perform as set out in this Article, allocate its available supply of Marine
Fuel in such a manner as Seller deems fair and equitable.
In the event Seller's capacity to perform becomes impracticable for any
reason, Seller may reduce or stop deliveries in such a manner as it may in
its sole discretion determine and shall be relieved of its obligation to
Risk and Title
shall be deemed completed, and title and risk for Marine Fuel shall pass to
Buyer at the permanent intake connection of Buyer's vessel whether the
Marine Fuel conforms to applicable specification requirements.
Buyer shall be responsible for connection to intake of Buyer's vessel and
pumping shall be performed under the direction of the receiving vessel.
of Marine Fuel is made on the credit of receiving vessels as well as on
Buyer's promise to pay. Seller shall have and may assert a lien against
such receiving vessel for the invoiced amount resulting from delivery of
Marine Fuel to same. Additionally, Seller shall have and may assert a lien
for said invoiced amount against such receiving vessel if the laws
applicable at the place of delivery of Marine Fuel or at the place of
seizure of such receiving vessel grant or recognize a lien for Marine Fuel
delivered to a vessel.
The taking of any additional security measures by Seller shall not operate
as a waiver of this provision. Disclaimer stamps of any type or form on
delivery documents, should any stamp be applied, shall be void and without
any effect and meaning if it attempts to alter, change, or waive Seller's
lien against the vessel or waives the vessel's ultimate responsibility and
liability for debt incurred from the delivery of Marine Fuel.
claim for shortage in the quantity of Marine Fuel delivered shall only be
valid if notice is made to Seller by Buyer and noted on the Note of Protest
at the time of delivery and Seller receives written notification of claim
within fourteen (14) days from the date of delivery.
Any complaints of defect in quality must be notified to Seller in writing
within thirty (30) days of delivery and must be supported by proper
evidence failing which such claim is time-barred. If the claim of defect in
quality is duly notified to Seller, Seller shall send a representative
sample within Seller's custody to an independent and internationally
recognized laboratory of Buyer's own choice to test the specification of
the Marine Fuel.
The result of such testing shall be conclusive and binding on Seller and
Buyer. The costs of testing the representative sample shall be on the
losing party's account. Any sample taken in a manner outside the control of
Seller shall not be recognized as representative of Marine Fuel delivered.
The submission of any claim to Seller shall not release Buyer of
responsibility to make full payment of the invoiced amount as required in
Clause 5 above and no right of offset or counterclaim is allowed to Buyer.
after submission of a proper claim by Buyer and inspection by independent
and internationally recognized laboratory, the quality of Marine Fuel
delivered is determined to not conform to the specifications contained in
the Confirmation of Order, Buyer must debunker the Marine Fuel and receive
conforming Marine Fuel from Seller. For debunkering of the Marine Fuel,
Seller shall, at its sole expense, arrange the necessary barging and
receivable facilities to receive such Marine Fuel, provided that Buyer
shall to the greatest extent possible, limit the losses of Seller in
arranging the debunkering of Marine Fuel.
In the event of debunker, title and risk of loss shall pass to Seller upon
the Marine Fuel's passing the outlet flange of Buyer's nominated vessel and
delivery of replacement Marine Fuel shall be subject to the applicable
provisions herein and the Confirmation of Order.
Seller shall not, in any event, be liable to Buyer for consequential,
special or economic loss or damage, including but not limited to loss of
profit or business, or demurrage charges at any port. Seller's total
liability, regardless of method of calculation, directly or indirectly
resulting from the single delivery of Marine Fuel pursuant to a
Confirmation of Order, in no event shall be greater than the total
invoiceable amount for that delivery
Notwithstanding anything to the contrary contained in this section, the
Seller and Buyer may resolve by mutual agreement any situation which may
arise as a result of Seller's delivery of non -conforming Marine Fuel.
reserves the right to revise the contract price if (1)the vessel fails to
arrive or receive Marine Fuel within five (5) days from the latest date of
the nominated estimated time of arrival, (2) Buyer changes the order
quantity by more than ten (10) percent or (3) Buyer requests a material
change in the terms and conditions of the Confirmation of Order.
If Buyer, for any reason, after Seller has accepted an order for delivery
of Marine Fuel, should fail to receive the Marine Fuel according to the
terms and conditions contained hereunder, in the Confirmation of Order or
the notice of nomination, Seller shall have no obligation to supply Marine
Fuel to Buyer.
Further, in such case, Buyer shall be liable to Seller for all costs,
damages or expenses incurred by Seller as a result of Buyer's failure to
receive the Marine Fuel, including, but not limited to, any demurrage.
Any loss of or damage to Marine Fuel or to property of Seller or its
supplier or any other party caused by Buyer or its nominated vessel shall
as between the parties hereto, be borne by Buyer and Buyer shall to such
extent indemnify Seller or its supplier for the same.
Without prejudice to any other rights that Seller may have hereunder or in
law or equity, if Buyer cancels the order or nomination for any reason or
otherwise acts or fails to act in such a manner that the order or
nomination is effectively canceled, Seller shall have the right to charge
Buyer three (3) US Dollars per metric ton of Marine Fuel ordered or one
thousand (1,000) US Dollars, whichever is greater, as compensation for
Seller's loss of profit. Buyer shall pay such cancellation charge within
seven (7) days following issuance of Seller's invoice for the cancellation
shall indemnify and hold harmless Buyer and the nominated vessel's owner
and operator against any claims, losses, costs, damages, or expenses
directly incurred by Buyer and the nominated vessel's owner and operator
directly resulting from the supply of the Marine Fuel to the extent that
such claims, losses, costs, damages, or expenses are directly caused by the
gross negligence, error, omission, or violation of law by Seller, its
agents or subcontractors or affiliated entities.
Notwithstanding any other provision, Seller will not indemnify or hold
harmless Buyer or Vessel Owner/Operator against any claims, losses, costs,
damages, or expenses caused by the act or omission of any third party that
is not an agent or subcontractor of Seller. Further, Seller's total
liability amount, to any or all parties, shall in no case be greater than
the total invoiceable amount for that delivery, applicable insurance
proceeds or proceeds received by Seller from its indemnitors, whichever is
and the nominated vessel's owner and operator will jointly and severally
indemnify and hold harmless Seller and its supplier against any claims,
losses, costs, damages or expenses incurred by Seller and its supplier and
resulting from the supply of the Marine Fuel to the extent that such
claims, losses, costs, damages, or expenses are caused by the negligence,
error, omission, or violation of law by Buyer, the nominated vessel's owner
or operator, their agents or subcontractors or affiliated entities.
Notwithstanding any other provision herein, Buyer and nominated vessel's
owner and operator will not indemnify or hold harmless Seller against any
claims, losses, cost, damages or expenses caused by the act or omission of
any third party that is not an agent, subcontractor or affiliated entity of
with respect to the obligations for the payment of money due hereunder, the
Confirmation of Order or invoice for delivery of Marine Fuel, neither party
shall be liable or be in breach of any provision hereof or the Confirmation
of Order for any failure or delay on its part to perform any obligation due
to any cause beyond its reasonable control, including, without limitation,
production cutbacks or embargoes on the export of crude oils or products,
Acts of God, flood, fire, explosion, breakdown of plant, strike, lockout,
labor dispute, work stoppage, war, insurrection, riot, civil commotion,
rebellion, sabotage, or any injunction, law, regulation, ordinance or
demand or requirement of any governmental authority, inability to procure
or use materials, labor, equipment, transport, services or energy sufficient
to meet manufacturing needs from customary sources at customary prices and
without litigation, or any other cause whatsoever, whether similar or
dissimilar to those enumerated herein, beyond the reasonable control of
Seller shall not be responsible for any delay or failure to deliver Marine
Fuels where performance is delayed, prevented or made substantially more
expensive by circumstances beyond Seller's control, including but not
limited to labor strife, social disorder or riot, compliance with any
order, demand or request of any international, national, port,
transportation, local, or other authority/agency. Seller shall not be
liable for any demurrage resulting from such delay or failure to perform.
otherwise in writing agreed to by the parties, the construction, validity
and performance of the terms and conditions governing the delivery of
Marine Fuel shall be governed by the laws of Korea in Agreement Korean
court, provided that, Seller may select, at its sole and absolute
discretion, another forum with competent jurisdiction, in which case, the
law of that forum shall govern.
escape, spillage or discharge of oil (hereinafter referred to as a
"spill") occurs while Marine Fuel is being delivered to Buyer
hereunder, Buyer will promptly take such action as is reasonably necessary
to remove the oil and mitigate the effects of such spill.
Notwithstanding the cause of such spill, Seller or its supplier is hereby
authorized, at its option, upon notice to Buyer, or the receiving vessel,
to take such measures, either in cooperation with 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 Seller or its suppliers to remove the oil and mitigate the
effects of such spill.
Buyer agrees to cooperate and render such assistance as is required by
Seller in the course of such action. Any expenses, damages, costs, fines
and penalties arising from escape, spillage, discharge or pollution of oil
shall be paid by the party that caused such escape, spillage, discharge or
pollution by a negligent act or omission. If both parties have acted
negligently, any such expenses, damages, costs, fines and penalties shall
be allocated between the parties in accordance with the respective degree
of negligence. Buyer also agrees to give, or cause to be given, to Seller,
all such document and other information concerning any spill, or any
program for the prevention thereof, which are requested by Seller, or
required by law or regulation applicable at the time and place where Seller
delivers Marine Fuel to Buyer.
Seller's right to require strict performance by Buyer of any obligations
imposed upon Buyer herein or by the Confirmation of Order shall not in any
way be affected by any previous waiver, forbearance, or course of dealing.
6th Edition January 1999