INTERNATIONAL MARINE FUELS BUNKER SUPPLY
TERMS AND CONDITIONS
These Terms and Conditions of Sale apply to every delivery contracted for with the SELLER and override, to the exclusion of, any other terms and/or conditions presented in any form by any other party whatsoever including the Buyer.
For the purposes of the Agreement:
1. "The Seller" shall mean Medstone Limited
"The Buyer" means the party requesting the Seller either to sell and deliver to it or to arrange for the sale and delivery to it of Marine Fuels.
"The Supplier" means that company having Marine Fuels available for sale at a port and being requested by the Seller to deliver such Marine Fuel to the Buyer or its nominee. The Seller may, at its discretion, contract either as a principal for such sales or as a broker an behalf of the Supplier, but in either event the Buyer shall remain liable to the Seller in respect of all the Buyer's obligations herein.
1.4 "Marine Fuels" means Marine Fuel Oil, Intermediate Fuel Oil, Thin Fuel Oil, Marino Diesel Fuel, Light Marine Diesel Fuel and Gas Oil.
Prices quoted for any delivery, unless otherwise stated in the quotation, are:
2.1 for delivery ex wharf, in bond, within normal working hours and are exclusive of wharfage dues, barging, overtime and any other charges leviable in respect of vessel bunkers which, if incurred, shall be for the Buyer's account and shall be payable at the rate applicable to the actual date of delivery and the Buyer shall be liable for the payment of all taxes, dues, duties or other levies;
2.2 valid for only the 6-day range, 3-days before and 3-days after vessel's earliest estimated lifting date as notified by the Buyer to the Seller when requesting the quotation, outside which 6-day range the Seller shall not be bound to the price or to the supply and availability. In the event that after the date of the quotation the estimated lifting date is changed to a date outside the 6-day range aforesaid, the Buyer shall so notify the Seller and the price and availability will be subject to renegotiation and a new quotation, to which the provisions of this subsection (2.2) shall likewise apply.
3. GRADES, QUALITY AND QUANTITY
3.1 Marine fuels shall be the Seller's and/or the Supplier's commercial grades of marine fuels as generally offered to customers at the time and place of supply. The Buyer shall have the sole responsibility for the selection of proper marine fuels for use in the vessel being supplied.
The Buyer warrants that it has not relied upon any representation 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 fuel audits. Accordingly, all other conditions or warranties in respect of such marine fuel relating to merchantability, quality, fitness for purpose or otherwise whether expressed or implied, by statue, common law or otherwise are hereby excluded.
Any dispute as to the quality of Marine Fuel shall be determined exclusively by an independent reputable laboratory, appointed by the Seller, from samples taken at the time of supply. In the event of the results of the analysis of any sample showing that the product falls within the specifications, the costs of the said analysis will be for buyers account.
3.4 No quality claim will be entertained and no action against the Seller shall be taken unless notice in writing is given to the Seller within a period not exceeding seven (7) days from completion of delivery.
The quantities of Marine Fuels delivered shall be measured and calculated in accordance with the ASTMS - IP Petroleum Measurement Tables or the methods of any other recognised standards authority at the discretion of the Supplying Company.
The Supplying Company's weights and measurements shall be accepted as conclusive evidence of the quantities delivered but the Chief Engineer of the vessel may, if he so desires, check or appoint a representative to check such weights and measurements.
3.7 Complaints of short delivery shall only be admissible if made to the Seller and noted on the delivery receipt or by letter during completion of the delivery and before departure of the vessel from the port/alongside.
4.1 If the Buyer causes delays to the Seller's or the Supplier's facilities in effecting deliveries, the Buyer shall pay demurrage or such other damages, to the Seller on the basis of actual costs incurred, and reimburse the Seller or the Supplier for all other expenses arising therefrom.
4.2 Delivery shall be made during normal working hours unless required at other time and permitted by port regulations in which event the Buyer shall reimburse the Seller or the Supplier, at the rates then applicable for such work, for all additional expenses arising therefrom. If a government permission is required for deliveries hereunder, no deliveries shall be made until the permission has been obtained.
The Buyer or the Buyer's local agents shall give to the Supplying Company at each port where deliveries are required at least three (3) days advance notice (unless otherwise stated in specific agreement) religious and public holidays excluded, of the exact quantity required and exact location and time at which delivery is required. The Buyer agrees to reimburse the Seller or the Supplier for overtime and/or other additional expenses incurred due to the failure of the Buyer, its servants or local representatives/agents to provide the Supplier with sufficient prior notice of amendments of delivery time, quantity changes or cancellations and in any case the Seller shall bear no liability for delay and/or loss incurred directly or indirectly by the Buyer consequent upon such failure.
The Buyer shall make all connections and disconnections between the delivery hose and vessel's intake pipe, and shall render all other necessary assistance and provide sufficient tankage and equipment to receive promptly all deliveries hereunder.
All deliveries shall be deemed to be complete and title shall pass to the Buyer when the Marine Fuel has reached the flange connecting the delivery facilities provided by the Sellers or the Supplier with the receiving facilities provided by the Buyer. The Marine fuel shall be pumped at the risk and peril of the Seller or the Supplying Company up to that flange only and thereafter the Seller or the Supplying Company shall not be responsible for any loss, damage or injury to any property or person or in respect of the consequences or costs arising from any pollution howsoever caused.
The Seller or the Supplier shall not be required to deliver Marine Bunker Fuels into any of the receiving vessel's tanks which are not regularly used for Bunkers and shall not be required to deliver any Marine Bunker Fuels for export and for which a Government Permit is required and has not been obtained.
Unless otherwise specified, prices quoted shall exclude barging and will be for supply ex pipeline at a pipeline berth and shall supply by barge be required, the booking of such barge will be the responsibility of the Buyer or his agent, except in respect of ports for which it is specified that delivery by barge is the only method of delivery available.
In the event of an oil spill, the vessel shall promptly take such action as is reasonably necessary to remove the oil and mitigate the effects of such spill and shall supply the Seller with all documents and any other information concerning the spill or as required by law regulation applicable at the supply port.
5. SHORTAGE OF SUPPLIES
If at the port or location where delivery is to be made, supplies of Marine Fuel available to the Seller or the Supplier are curtailed, deliveries of Marine Fuel may at the Seller's discretion be suspended or cancelled or allocated among customers in such a manner as the seller deems appropriate; and the Seller shall not be required to increase supplies from some other source of supply or to purchase Marine Fuel to replace the supplies so curtailed. In such case the Supplier shall not be liable for any damages or loss incurred by the Buyer.
Anything herein contained to the contrary notwithstanding, deliveries at all ports are subject to stocks being available; if it is necessary to deliver a premium grade of Marine Fuel in lieu of the product ordered, the Buyer shall pay the then current price for the Grade actually supplied.
The Seller is not liable for demurrage or loss or damage of whatsoever nature and however caused including the negligence of the Seller or Supplier or their servants and agents, incurred by the Buyer or any third party, due to or resulting from (but not limited to) delays in availability of bunkering berth, barge, road tanker, weather or late delivery of fuels.
7. ASSIGNMENT AND NON WAIVER
7.1 The Seller may assign all or any of its rights and obligations hereunder.
7.2 The Buyer shall not assign the contract or any of its rights and obligations thereunder.
7.3 No waiver or amendment by either party or any provisions of the contract shall be binding unless made expressly and reduced to writing. Further, any such waiver or amendment shall relate only to such matter, non-compliance or breach as it expressly relates to and shall not apply to any subsequent or other matter, non-compliance or breach. No employee or agent of the Seller has the authority to conclude such an agreement to waive or amend any provision hereof save an executive member of the Seller.
The Buyer shall hold the Seller harmless from any and all expense, claims, loss, damage and liability arising out of the Buyer's receipt, use, storage and transportation of Marine Fuel delivered hereunder, unless the same be due in its entirety to the Seller's personal gross negligence. The Buyer shall indemnify the Seller or the Supplier against all damage and liabilities arising from any acts or omissions of the Buyer or its servants, agents, subcontractors, ship's officers or crews in connection with the delivery of Marine Fuel.
To enable the Seller inter alia to take steps that it may deem necessary it is expressly agreed that any claim in respect of the delivery of Marine Fuel not already covered by Section 4 of these General Terms and Conditions must be notified in writing to the Seller immediately and in any case not later than fourteen (14) days after the delivery with respect to which the claim is made, failing which any such claim shall be deemed to be waived and shall be absolutely barred. Under no circumstances whatsoever may a claim contended for by the Buyer be set off against amounts due to the Seller whether in respect of the specific supply to which the claim relates or in respect of any other supply whatsoever.
10. FORCE MAJEURE
Neither the Seller nor the Supplier shall be responsible for any failure to fulfil their respective obligations hereunder or under a Bunkering Commitment or these conditions if fulfilment has been delayed, hindered, interfered with, curtailed or prevented by:
10.1 Any circumstances whatsoever which is not within the personal and direct control of the Seller including but not limited to governmental intervention, wars, civil commotion, fire, flood, storm or any act of God; and the term Seller shall also include the Supplier and its subsidiary and affiliated companies, or
10.2 Any shortage, 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 Supplier's sources of supply;
10.3 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; or
10.4 Any strike, lock-out, stayaway, go-slow or labour dispute, whether or not the Seller or the Supplying Company as the case may be is a party thereto or would be able to influence or procure the settlement thereof, and whether or not alternative labour is provided or could have been provided, or the cause is only partial.
11.1 If the delivery is contracted for by an agent or the Buyer on behalf of a principal or principals, disclosed or undisclosed, or by the Buyer on behalf of itself and as agent on behalf of another principal or principals, disclosed or undisclosed, such agent or the Buyer, as the case may be, shall be jointly and severally liable with such principal or principals, or other principal or principals, as the case may be, for the due and proper performance of the contract.
11.2 Deliveries of Marine fuels made hereunder are delivered not only on the credit of Buyer, but also an credit of the vessel receiving the Marine fuels and it is agreed and Buyer warrants that Seller will have and may assert a lien against the receiving vessel for the amount of the purchase of said Marine fuels.
11.3 Except as expressly provided in the contract the Seller shall not be liable for consequential, indirect or special losses or special damages of any kind arising out of or in any way connected with the performance of or failure to perform the contract.
Unless otherwise agreed payment in respect of any supply of Marine Fuel will be due and payable immediately on delivery. In any event overdue payment, shall bear interest at a rate as notified from time to time, calculated day by day from the date the payment is due until payment is received, inclusive. Payments shall be made in full, without deduction by telegraphic transfer, to the Seller's nominated bank account, net of any charges and any indulgence granted shall be without prejudice to the Seller's rights at any time to take action deemed necessary for recovery of the amounts due. Any communications (including without limitation invoices) by either party to the other shall, unless otherwise provided herein, be sufficiently made if sent by telex, facsimile transmission, post or telegraph to the address of the other party.
If the Buyer has not paid by the due date any amount due to the seller in respect of any other delivery of bunkers by the Seller to the Buyer, the Seller, in addition to and without prejudice to any other rights it may have, shall have the right: (a) if the delivery hereunder has been made notwithstanding the credit period referred to above, to notify the Buyer that the amount due in respect of the delivery hereunder is immediately due and payable whereupon it shall be so paid, and (b) if the delivery hereunder has not been made, to notify the Buyer of the termination with immediate effect of the contract for such delivery whereupon it shall so terminate.
13. ARBITRATION AND GOVERNING LAW
The governing Law of this Agreement and the making thereof shall be the Law of England, exclusive of its rules on choice of law, except that a reference to "applicable law" is a reference to the law that would be applicable in the absence of a choice of law by the parties. The High Court of Justice in England shall have exclusive jurisdiction to entertain actions relating to this Agreement or the making thereof, or both, and Buyer and Seller submit to its jurisdiction for such purposes. Each provision hereof is to be deemed severable and if any provision contravenes any applicable law, the same shall be deemed to be amended so as to conform to such law or to be deleted if it cannot be amended so as to conform.
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