GENERAL TERMS AND CONDITIONS OF SALE
Effective Date: 1 January 2001
Except as otherwise agreed to in writing the following prices, terms and conditions shall apply to all sales of Marine Fuels by Isobunkers L.L.C., hereinafter referred to as Seller.
(1) Prices. The price to be paid for Marine Fuels delivered shall be as mutually agreed in writing for each delivery. Prices shall be given in U.S. dollars exclusive of taxes and duties ex-wharf per barrel of 42 U.S. gallons or per metric ton (2204.6 pounds) corrected to 60 F. (15C). Taxes, levies, duties and additional delivery charges are for the account of Buyer. All prices and other charges are subject to change without prior notice. Buyer warrants that all fuel and diesel purchased is exclusively for non-taxable uses.
(2) Quality. Marine Fuels shall be Seller's or Seller's Supplier's commercial grades of Marine Fuels as generally offered to customers at the time and place of delivery. Buyer shall have the sole responsibility for the selection of proper Marine Fuels for use in the vessel being supplied. Any guarantee of any specification must be noted by Seller in writing at the time order is accepted.
(3) Nominations and Deliveries.
a) Buyer shall submit inquiries for fuel oil purchases at least one week in advance of expected date of arrival, specifying loading port, ETA, grades and quantities.
b) At the time an order is accepted by Seller the Buyer shall confirm the following: expected dates of arrival, said period of laydays not to exceed three days; grades and specifications of fuel; maximum quantities required by vessel; and local agent coordinating delivery.
c) Buyer or vessel's local agent shall give Seller's local representative at the delivery port concerned at least forty eight (48) hours advance notice, excluding Sundays and Holidays, of each delivery, confirming product and quantities.
d) Where delivery is required during other than regular business hours, and is permitted by applicable regulations, Buyer shall pay all overtime and extra expenses incurred.
e) Where lighterage is employed, lighterage charges shall be for the account of Buyer. Lighterage will be charged on the quantity delivered to the Buyer's vessel but in no event on less than 90% of the quantity ordered to be loaded aboard the barge. Deliveries of Light Diesel, Gasoil and another grade of Marine Fuel on two or more barges may be subject to separate charges. In the event Buyer fails to take delivery, in whole or in part, of the quantities nominated and not otherwise cancelled, Buyer shall be responsible for applicable charges and penalties posted in the transportation tariff for each port if such costs result from Buyer's failure to take delivery, as well as for any losses incurred by Seller in the purchase, storage, downgrading if any, and transportation of the fuels ordered by Buyer.
f) Seller shall use due diligence in the timely delivery of marine fuels to Buyer's vessels. However, unless otherwise guaranteed in writing Seller does not warrant the availability of barges or the timeliness of delivery. Any costs of delays to Buyer's vessels as a result of late delivery of marine fuel shall be borne by Buyer, unless timeliness of delivery was guaranteed in writing by Seller, in which case Seller will reimburse Buyer for extra costs such as shifting, pilotage and berthing. Buyer hereby agrees that under no circumstances will Seller be liable for costs of off-Charter hire or ship's demurrage.
g) Seller reserves right to withdraw order for fuel if vessel does not present itself for fueling within original laydays of order. Expenses such as shifting, pilotage and berthing incurred in order for Buyer?s vessel to present itself within original laydays of order are for Buyer?s account.
(4) Title and Risk of loss will pass to Buyer at the permanent intake connection of Buyer's vessel and pumping shall be performed under the direction of the receiving vessel.
a) Current Barge Tariff in Hampton Roads and Baltimore Harbors: 1-566 m.t. $4,095.00 minimum; 567-666 m.t., $7.25/m.t.; 667-1,025 m.t., $4,825.00 flat rate; 1,026-1,850 m.t., $4.70/m.t.; 1,851-2,300 m.t., $8,700.00 flat rate; 2,301-2,545 m.t., $3.78/m.t.; 2,546-3,400 m.t., $9,620.00 flat rate; 3,400 m.t. and over, $2.84/m.t. Yorktown flat rate $7,854.00 up to 1,600 m.t., $4.91/m.t. thereafter. Rates based on fuel cost of $.65/gal., fuel surcharge 1% for every $0.02/gal. increase. Any return of product charged at 50% of applicable rate. Demurrage $300.00/hr., free time 1.5 hours plus 235 m.t./hr for total load, time starts from time delivery barge arrives alongside vessel, time ends with last line off.
(5) Inspection and Measurements. Buyer, at his own expense, shall have the right to appoint an approved petroleum inspector to inspect the Marine Fuels to be delivered, and sampling shall be done prior to product leaving shore tanks, tank trucks or barges.
a) The amount of fuel delivered shall be determined by measurements of shore tanks, lighters, or meters, at Seller's
option, and Buyer will be charged on the basis of these measurements. Buyer has a right to have its representative present during measurement but in the event of no such representative determination of quantity shall be made solely by Seller, and such determination shall be conclusive.
(6) Quantity Claims. Any claim by Buyer as to shortage in quantity must be noted on bunker receipt signed on board at the time of delivery. Ship's gauges are not acceptable as a valid basis for quantity dispute. Barge gauges prior to and after discharging to Buyer's vessel, using when applicable trim correction tables and Vessel Experience Factors (V.E.F.), shall be final determination of quantity delivered. It is the Buyer?s responsibility to have vessel?s representative to witness the barge gauges.
(7) Quality Claims. Seller shall supply to Buyer a Certificate of Quality at time order is stemmed if possible, and always prior to delivery to Buyer's vessel. By allowing delivery of product to its vessel Buyer accepts quality of product described in Seller's aforementioned Certificate of Quality. Seller's barge will draw three representative samples according to approved methods, one of which will be delivered to Buyer's vessel, one to be retained in Buyer's storage, and one delivered to Buyer's contracted laboratory for possible analysis. If laboratory analysis is ordered by Buyer results will be forwarded to Buyer immediately upon receipt. Any claim by Buyer with respect to deficiency in quality of Marine Fuels delivered by Seller must be made as soon as possible and in any event no more than seven (7) days from date of delivery in question. Quality complaints are valid only for
specifications that vary substantially from the Certificate of Quality delivered prior to delivery according to results obtained by either Buyer's contracted laboratory or Seller?s contracted laboratory.
(8) Bonded Marine Fuels. Marine Fuels in Bond, when available to Seller, will be delivered provided Buyer qualifies to receive such fuel. Buyer shall reimburse Seller for any tariff, tax, duty and other charges subsequently assessed for any reason, including the failure of Buyer to furnish the necessary qualifying proof within 30 days of delivery.
a) Payment shall be made by Buyer, in U.S. dollars, without discount or deduction upon receipt by Buyer of written, telegraphic or other notification of quantities delivered and amounts due. Subsequent adjustments, if any, will be made upon receipt by Seller of the Marine Delivery Receipt. When remittance is made by telegraphic transfer, payment should be forwarded to:
Wells Fargo Bank Minnesota, N.A.
For Account of: Isobunkers L.L.C.
When remittance is made by check, payment should be mailed to: Isobunkers L.L.C., P. O. Box 218, Mechanicsville, VA U.S.A. 23111.
b) Should Marine Fuels be ordered by an Agent, then such agent,as well as the principal, shall be bound by, and liable for, all obligations as fully and as completely as if he were himself the principal, whether such principal be disclosed or undisclosed, and whether or not such agent purports to contract as agent only.
c) Payment shall be considered past due if not received by Seller within thirty (30) days from date of delivery. Overdue payments shall be subject, at Seller's sole discretion to a service charge at the rate of 2% per thirty day period or the maximum rate permitted under applicable law, whichever is less. If at any time Seller considers Buyer's financial condition inadequate to meet Buyer's obligation hereunder, cash payment in advance or security acceptable to Seller may be required before delivery.
d) In consideration of Seller's extending credit for sale of marine fuels to Buyer's vessels, it is understood that Seller is relying on the credit of the Buyer's vessels as provided under U.S. law and Seller expressly retains its right of a maritime lien against the vessel, and any attempt to impair said lien against the vessel shall not be allowed. No disclaimer stamp of any type or form will be accepted on Seller's or Seller's supplier's bunkering receipt, nor should any such stamp be used that will alter, change or waive Seller's maritime lien against the Buyer's vessel and the vessel?s ultimate responsibility for the debt incurred through any transaction with the vessel.
(10) Indemnity. Buyer shall indemnify and hold Seller and Seller's Supplier harmless from and against any and all claims, demands, suits or liability for damage to property or for injury or death of any person arising out of or in any way connected with fault of Buyer or its agents or servants in receiving, using, storing, or transporting Marine Fuels delivered hereunder.
(11) Environmental Protection.
a) In the event of a spill during fueling, Buyer shall immediately take what action is necessary to effect cleanup and failing prompt action Buyer authorizes Seller to conduct such cleanup at Buyer's expense.
b) Buyer warrants that the Marine Fuel Purchased hereunder is for the operation of the receiving vessel and that vessel only.
c) Buyer warrants that the Marine Fuel purchased hereunder will be used exclusively for non-taxable purposes under both federal and state standards.
d) Buyer warrants the vessel fueled is in compliance with all applicable national statutes and regulations. Furthermore, it is the responsibility of the Master to notify the Seller or Seller's Supplier of any special conditions, difficulties, peculiarities, deficiencies or defects with respect to engines, boilers, navigational equipment, mooring lines, tackle gear, any other types of equipment, which might impose hazards in connection with or otherwise jeopardize handling, mooring, unmooring or bunkering of the vessel(s). Buyer's vessel(s) will not be moored at wharf or alongside other marine loading facilities of Seller or Seller's Supplier unless free of the aforesaid conditions, difficulties, peculiarities, deficiencies or defects.
(12) Force Majeure. 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. Seller shall not be liable for any demurrage resulting from such delay or failure to perform.
(13) Miscellaneous. In the event Seller's capacity to perform becomes impracticable for any reasons, including, but not limited to, requests or suggestions by any official body relating to supplies, priorities, rationing or allocations of any product, 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 perform hereunder.
(14) Disclaimer of Warranties. Any implied warranties including the warranties of merchantability and fitness to a particular purpose, conditions and agreements whatsoever (whether statutory or otherwise) are expressly excluded and disclaimed.
(15) Arbitration. Any controversy or claim arising out of or relating to Marine Fuels delivered or to be delivered hereunder shall be settled by arbitration in Norfolk, Virginia USA in accordance with the rules of the American Arbitration Association and judgment upon the award rendered may be entered in the appropriate court of record of the State or U.S. Federal District having jurisdiction.
(16) Notice: Notice to Seller must be sent by certified mail or confirmed facsimile to the following address:
5353 E. Princess Anne Rd., Suite E
Norfolk, VA 23502
Phone: (757) 855-0900
Fax: (757) 855-6200
(17) Governing Law. This agreement shall be governed and construed in all particulars by the laws of the Commonwealth of Virginia, United States of America, all as if the same were both made and performable in said state.
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