1. Definitions
Throughout these Terms and Conditions of Sale, save where the context requires otherwise, the following definitions shall apply:
“Bunker Fuels”
shall mean the products the Seller agreed to sell and the Buyer agreed to purchase.
“Seller”
shall mean ElbOil GmbH
“Buyer”
shall mean the party who agreed to purchase the Bunker Fuels
“Parties”
shall mean both the Seller and the Buyer
“Bunkers”
shall mean the commercial grades of bunker oils as generally offered to the Seller’s customers
“Bunker Confirmation”
shall mean a confirmation in writing (including email and telefax) by the Seller to the Buyer setting forth the particular terms of the Bunker Contract.
“Bunker Contract”
shall mean the agreement between the Buyer and the Seller, as evidenced in the Bunker Confirmation
“Bunker Delivery Receipt”
shall mean the document which is issued by the Buyer or its representative, confirming delivery of the Bunker Fuels
“Nomination”
binding order issued by the Buyer relating to Bunkers to be delivered by the Seller
“Supplier”
shall mean any party instructed by or on behalf of the Seller to supply or deliver bunker, including sub-suppliers
“Vessel”
shall mean the vessel to which the Bunker Fuels are delivered as well as any other facility, as the case may be, to which the Bunker Fuels are delivered
2. Application of Terms and Conditions of Sale
These Terms and Conditions shall apply exclusively to the Bunker Contract and its conclusion. Deviating terms, in particular the Buyer’s deviating terms, are excluded. These Terms and Conditions shall also apply to all future contracts between the Parties for the delivery of Bunkers by the Seller.
3. Price
3.1.
The price for delivery of Bunker Fuels sold hereunder shall be agreed upon by the Parties. The Buyer shall, in addition to the agreed price, pay all applicable duties, taxes and other such costs including but not limited to those costs imposed by governmental authorities and barging and other delivery charges.
3.2.
Prices quoted as “delivered” comprise the ex-wharf price and delivery charges only.
3.3.
All prices and / or tariffs are exclusive VAT, unless specifically stated otherwise.
3.4.
The prices agreed between the Parties shall remain binding for a period of 3(three) days after the agreed time of delivery. If delivery is affected after such three day period, due to reasons the Seller is not responsible for, the Seller shall be entitled to adjust the agreed price in accordance with prevailing market conditions. This right is without prejudice to any claim for damages the Seller may have against the Buyer in respect of the delayed delivery.
4. Nomination
4.1.
The Seller shall confirm the Bunker Contract by a Bunker Confirmation following the Buyer’s Nomination.
4.2.
The Bunker Contract shall supersede any conflicting terms of other contract swhich the Buyer may seek to apply against the Seller. In particular, any terms not directly applicable to bunker transaction may not be applied against the Seller.
5. Deliveries
5.1.
The Buyer, or its agent at the port or place of delivery, shall give the Seller or its representative at the port or place of delivery 72, 48 hours approximate and 24 hours definite written notice of arrival, also advising any change in excess of three (3) hours, and the exact location and time at which deliveries are required.
5.2.
The time of delivery, as agreed upon in the Bunker Contract, shall be an approximate time. The time of delivery will only be binding upon separate notice of the Seller after receiving all information necessary for the Seller to comply with its obligations as mentioned in Section 5.1 of these Terms and Conditions of Sale. In the event the Nomination addresses a spread of dates for delivery, the Seller has the sole discretion to commence the delivery within any time, day/night/sshinc of these dates, always subject to the circumstances set out below in Section 5.4.
5.3.
Vessel shall under all circumstances be bunkered as promptly as the prevailing circumstances permit, having regard to congestion affecting the delivery facilities of Seller, its Suppliers or Agents and to prior commitments of barges. Seller shall not be liable for any consequences or any time lost due to Buyer’s Vessel having to wait for berth for bunkering or for completion of bunkering, and unless otherwise agreed in writing, Seller shall not be obligated to deliver prior to the nominated date or spread of dates as set out in Section 5.2 of these Terms and Conditions of Sale.
5.4.
Where delivery is required outside normal working hours and is permitted by applicable regulations, Buyer shall pay all overtime and extra expenses incurred.
5.5.
The Seller shall not be liable for inability to deliver on public or dock holidays or on customary nonbusiness days of the week.
5.6.
The Buyer shall ensure that the Vessel provides a free, safe and always afloat and accessible site for the delivery of bunkers and that all necessary assistance as required by the Seller or the Seller’s representative is rendered in connection with the delivery. If, in Supplier’s opinion clear and safe berth is unavailable, delivery might be delayed or, in Seller’s option, cancelled and all costs related to above will be on account of the Buyer.
5.7.
The Buyer’s Vessel shall moor, unmoor, hoist and lower bunkering hose(s) fromthe barge(s) whenever required by the Seller, Seller’s representative or Supplier, free of expenses, and in any way requested to assist barge equipment to a smooth supply. The Buyer shall make and be responsible for all connections and disconnections between the delivery hose(s) and the Vessel’s bunker intake manifold/pipe and ensure that the hose(s) are properly secured to the Vessel’s manifold prior to commencement of delivery.
5.8.
Local further special requirements for receiving bunkers must be followed strictly by the receiving Vessel, whether advised or not by the Seller, the Seller’s representative or Supplier, as it is always the Vessel and the Buyer who remains solely responsible for the awareness of such eventual additional requirements for safety reasons.
5.9.
Where lightering/barging is employed, lightering/barging charges shall be for the account of Buyer. If Buyer fails to take delivery, in whole or in part, of the quantities nominated, Buyer shall be responsible for any costs resulting from Buyer's failure to take full delivery, as well as for any losses incurred by Seller to downgrade and/or pump back of the fuel.
5.10.
Buyer will be liable for all demurrage or additional expenses incurred by Seller if Buyer causes delays in effecting delivery. Buyer will also pay for mooring, unmooring and port dues incurred. In addition Buyer will be liable for any expenses incurred by Seller resulting from Buyer's failure to take delivery of the full quantity of Bunker Fuels agreed upon, including but not limited to any loss on the resale of the Bunker Fuels. The Buyer shall bear the risk of the return transport, demurrage on the barge or trucks, storage or selling of the Bunker Fuels. This does not apply, if there has been any willful misconduct or gross negligence on part of the Seller.
5.11.
Buyer shall indemnify and hold harmless Seller against all damage and liabilities arising from any acts or omissions of Buyer or its servants, ship's officers or crew in connection with the delivery of the fuel under this agreement.
5.12.
If Buyer cancels the Nomination for any reason whatsoever any charges incurred are for Buyer's account.
6. Quality
6.1.
Buyer shall have the sole responsibility for the selection of the proper grades of Bunker Fuels for use in the vessel being supplied and the Seller shall not be under any obligation to check whether the grade of Bunker Fuels is suitable for the intended purpose. The Bunker Fuels shall be of the same quality generally offered for sale at the time and place of delivery, for the grade of Bunker Fuels ordered by the Buyer.
6.2.
The Buyer shall be responsible to keep the delivered Bunker Fuel segregated from any Bunker Fuel (s) onboard the Vessel or from a different delivery to the Vessel. In no event shall the Seller be responsible for the quality and compatibility of the Bunker Fuel delivered if the Seller’s product is mixed or commingled with any other product(s) onboard the receiving Vessel. The Buyer shall be solely responsible for any losses caused by mixing or commingling the Bunker Fuel with any other oil, including any damage the Bunker Fuel may cause on other products on board the receiving Vessel.
7. Quantity
7.1.
The quantity of Bunker Fuel delivered shall be determined from gauges/ullages of the barge or truck effecting delivery or by gauging/ullages of shore tank if delivery is affected by pipeline.
7.2.
The Buyer’s representative shall together with the Seller’s representative measure and verify the quantities of Bunkers delivered from the tank(s) from which the delivery is made. To determine the quantity supplied the tank calibration and ullage sounding records from the barge are considered to be the sole valid and binding document.
7.3.
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.
7.4.
The Buyer shall not be entitled to complain of an incorrect measurement of the volume of Bunker Fuels delivered unless the Buyer or its representative has witnessed such measurement and has made a complaint in writing at the time of delivery.
7.5.
In the event of complaint/comment on the quantity the Buyer shall give to the Seller or Supplier a letter of protest only. Any comments on the Bunker Delivery Receipt are not permitted.
8. Sampling
8.1.
The Seller or its representatives shall arrange for samples to be drawn at the time of delivery of the Bunker Fuel. Unless otherwise agreed upon by the Parties prior to entering into the Bunker Contract, the samples shall be drawn from a point and in a manner chosen by the Seller or its representatives in accordance with the customary sampling procedures at the port or place of delivery of the Bunker Fuel.
8.2.
The sampling mentioned in paragraph 8.1 shall be performed in the presence of the Seller or its representatives and the Buyer or its representatives, but the absence of the Buyer or its representatives during all or any part of the sampling process shall not prejudice the validity of the samples.
8.3.
The Seller shall take four samples in accordance with its normal sampling procedures at the port in question. Two (2) samples shall be retained by the Buyer or its representatives, one of these shall be the MARPOL compliant sample. The remaining samples shall be retained by the Seller or its representatives.
8.4.
The aforementioned 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 Sellers’ representative and the Master of the Vessel or his authorized representative.
8.5.
In case of a dispute in regard to the quality of Bunker Fuels delivered one (1)of the samples retained by Sellers shall be forwarded to an independent laboratory to perform a set of tests, the result of which are to be made available to both parties. Those test results shall be final and binding upon both Buyer and Seller as to the parameters tested. The parties are to use best endeavours to agree the independent laboratory to perform the tests. The independent laboratory should be at the port in question or at the closest place to the port in question. If the Seller and the Buyer cannot agree on an independent laboratory to perform mutual analysis or if the Buyer fails to reply to the Seller’s notice hereof within five (5) days from receipt of such notice, the Seller can at its sole discretion decide which laboratory to perform the analysis, which shall be final and binding for all parties involved.
8.6.
The seal must be breached only in presence of both parties unless one/both inwriting have declared that they will not be present.
9. Assignment of Risk, Reservation of Title
9.1.
Risk in the Bunker Fuel, including loss, damage, deterioration, evaporation, or any other condition or incidents related thereto shall pass to the Buyer as the Bunker Fuel passes the delivering vessel’s or truck’s manifold. The Buyer warrants that representatives from the Vessel shall be responsible for ensuring that the Bunker Fuel is received in a safe way.
9.2.
The Seller shall retain ownership of the supplied products until payment has been received in full of all current and future receivables of the Buyer arising from the supply relationship in existence between the contractual parties (including balance claims from a limited current account relationship arising from this supply). If the Buyer is in breach of the contract, in particular but not only in the case of payment default, the Seller shall be entitled to reclaim the purchased goods and to take possession of them. If the purchased goods are returned this is considered to be a withdrawal from the contract by the Seller.
10. Payment
10.1.
Payment for the delivery and of all other charges shall be made in full (without any abatement, deduction, set-off or counter claim whatsoever) in US Dollars. Payment shall be due with effect from the date of delivery and shall be made by means of Telegraphic transfer, automated credit transfer or electronic transfer of same day funds quoting the Seller’s invoice number and the Buyer’s name. Any amounts owed under the Bunker Contract shall be received no later than 30 days (or such other period as is agreed by the Parties) from the date of delivery, failing which, the Buyer shall be in default. If, however, the Seller’s bank is closed for business on the last day of the applicable credit period the Buyer shall make its payment by the last day within such credit period when the Seller’s bank is open for business. All bank charges in respect of such payments shall be for the remitter’s account.
10.2.
In the event that any Invoice is not paid in due time, the Buyer shall indemnify the Seller against any loss which is caused by adverse currency fluctuations between the invoice currency and the value of the US Dollar from the latest due date of the invoice until the date on which payment is made. Furthermore, in case the Buyer does not pay any invoice in time and is in default, the Buyer is obliged to pay interest at 2 % per month on the respective amounts overdue.
10.3.
Notwithstanding any agreement to the contrary, payment will be due immediately and the Seller shall be entitled to withhold future deliveries (Section 321 paragraph 1 German Civil Code) in case of:
(a) any application being made or any proceedings being commenced, or any order or judgment being given by any court, for
(i) the liquidation, winding up, bankruptcy, insolvency, dissolution, administration or re-organisation, or similar, or
(ii) 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);
(b) the Buyer suspending payment, ceasing to carry on business or compounding or making any special arrangement with its creditors;
(c) 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 Seller shall not have this right, if the Buyer deposits a sufficient security or if a liquidator demands delivery in accordance with § 103 InsO and guarantees payment.
The Seller shall be to require the Buyer to effect payment or deposit a security within a reasonable time. If the Buyer fails to comply in time, the Seller shall be entitled to revoke its obligation towards any future delivery.
10.4.
Sales shall be made on the credit of the receiving vessel, as well as on the credit of the Buyer, and the amount due on the purchase price, together with all delivery and other charges forming part of the Bunker Contract, shall become a maritime lien against the vessel immediately upon delivery.
10.5.
Any notice or any stamp in the Bunker Delivery Receipt or similar cannot waive the Seller’s maritime lien on the Vessel.
10.6.
Should the Bunker Fuel be purchased by a manager, broker or agent then such manager, broker or agent as well as the Buyer shall be bound by and liable for all obligations as fully and completely as if they were themselves the Buyer whether such principal be disclosed or undisclosed and whether or not such manager, broker or agent purports to contract as manager, broker or agent only.
Furthermore, delivery shall always take place for the account of the registered owners and for the account of the current charterers all of whom shall be jointly and severally liable for the payment of the delivery as Buyers. The Buyer warrants that it is authorized as agent to order the Bunker Fuel for delivery to the Vessel, and that the Seller has a lien on the Vessel for its claim.
11. Arrest of Vessel
The Bunker Fuel supplied to the Vessel is sold and delivered on the credit of the Vessel, as well as on the promise of the Buyer to pay therefore, and the Buyer agrees and warrants that the Seller shall have and may assert a maritime lien against the Vessel and may take such other action or procedure against the Vessel and any other vessel or asset beneficially owned or controlled by the Buyer, for the amount due for the Bunker Fuel and the delivery thereof. The Seller is entitled to rely on any provisions of law of the flag state of the Vessel, the place of delivery or where the Vessel is found and shall, among other things, enjoy full benefit of local rules granting the Seller maritime lien on the Vessel and/or providing for the right to arrest the Vessel. Nothing in the Bunker Contract shall be construed to limit the rights or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.
12. Claims
12.1.
(a) The quantity of Bunker Fuel delivered shall be determined in accordance with Section 7.1. Any claim regarding the quantity of the Bunker Fuel delivered shall be notified verbally as well as in writing by the Buyer or the master of the Vessel to the Seller immediately upon delivery of the Bunker Fuels, while the delivery hoses are still connected. In any event if written notice is not made within 24 hours of delivery, such claim shall be deemed to be waived and barred.
(b) A notification inserted in a separate protest handed to the physical supplier of the Bunker Fuel shall not qualify as notice under this Section 12.1 and the Seller shall in no circumstances be deemed to have accepted such notice or protest issued to the physical supplier.
(c) Additionally, any claim for short delivery shall be waived and barred if it is not presented by the Buyer in writing within 7days from the date of delivery including full supporting documentation. Section(a) above shall remain unaffected.
12.2.
All claims regarding the quality of the bunkers delivered shall be submitted to the Seller in writing within 14 (fourteen) days after delivery with a clear statement as to the nature or the claim(s) along with supporting documentation in support. Should the Buyer fail to make timely notification of any claim regarding the quality of the Bunker Fuel the claim shall be deemed waived and barred.
12.3.
The Buyer shall be obliged to make payment in full and fulfil all other obligations in accordance with the terms hereof, whether or not they have any claims or complaints. However, the Buyer shall be entitled to set off or withhold payment in case it holds claims against the Seller which are either undisputed or determined without further legal recourse.
12.4.
In the event of any claim presented in accordance with Section 12.1 and 12.2,the Buyer shall:
(a) Cooperate with the Seller and make all necessary arrangements for the Seller or its representatives to investigate such claim, including but not limited to the boarding and inspection of the Vessel, the interviewing of crew and the review and copying of Vessel documents.
(b) Take all reasonable steps and actions to mitigate any damages, losses, costs and expenses related to any claim of alleged off-specification or defective Bunker Fuel. If the Bunker Fuel deviates from specifications, the Buyer shall use all reasonable endeavours to mitigate the consequences hereof and shall burn the Bunker Fuel if possible even if this requires employment of purification tools or other similar measures.
(c) Take all reasonable steps to preserve the Seller's recourse against the physical supplier of the Bunker Fuel or any culpable third party.
12.5.
A breach by the Buyer of any part of Section 12.4 above will entitle the Seller to set off losses caused by the breach against any liability to the Buyer.
12.6.
Any claims against the Seller in respect of this contract shall be brought before the competent court within 6 (six) months of the date of delivery of the Bunker Fuel, failing which such claims shall be deemed waived time barred.
13. Liability
13.1.
In case of intent or gross negligence on the Seller’s part or by its agents or assistants in performing, the Seller shall be liable according to the provisions of the applicable law; the same applies in case of breach of fundamental contract obligations. In all other cases, the Seller’s liability for damages shall be limited to the typically foreseeable damage.
13.2.
The Seller’s liability for culpable damage to life, body or health as well as the liability under the Product Liability Act shall remain unaffected.
13.3.
Any liability not expressly provided for in Section 13.1 or 13.2 shall be excluded.
13.4.
The Seller’s servants and independent sub-contractors as well as their servants, including but not limited to the Supplier, may rely on all exclusions and limitations of liability afforded to the Seller both by the law applicable and in this Bunker Contract.
14. Force Majeure
Neither party shall be responsible for any loss, damage, delay or failure in performance under the contract resulting from act of God, or the port of delivery being affected by war, civil commotion, riot, quarantine, strikes, stoppages, lock-outs, arrests, restraints or detainments of Kings, Princes, Rulers and the People or any other event whatsoever arising after conclusion of the Bunker Contract which cannot be avoided or guarded against by the exercise of due diligence, or the consequences of which, as may affect the performance of the contract cannot be avoided or guarded against by the exercise of due diligence.
15. Environmental Protection
In the event of a spill or discharge, before, during or after supplying the Bunker Fuel, Buyer and the vessel shall, at their own expense, immediately take whatever action is necessary to give prompt notice to the official bodies and to effect cleanup. Failing prompt action, Buyer and thevessel authorize Seller to conduct and/or contract for such cleanup at Buyer's and vessel's expense. Buyer warrants that the vessel supplied is in compliance with all national, state and local statutes, regulations and ordinances, including those requiring proof of financial ability in regard to spills or discharges of oil. Buyer shall hold Seller harmless as to any delays, claims, losses, expenses or penalties arising from breach by Buyer of this warranty, including attorney’s fees.
16. Salvage, General Average, Limitation of Liability
16.1.
In case a salvage claim arises in respect of the Bunker Fuels after their delivery to the Vessel for which the Seller is responsible, the Buyer shall hold harmless and indemnify the Seller in respect of these claims. The same applies if the Seller is subject to claims for general average contributions.
16.2.
If the Bunker Fuels are delivered by bunker barge, the Seller’s right to limit liability in accordance with international law such as the Convention on Limitation of Liability for Maritime Claims, 1976, and any subsequent amendments, or the Strasbourg Convention on Limitation of Liability in Inland Waterway Shipping (CLNI), and any subsequent amendments, or any national law applicable in this regard shall remain unaffected by the provisions of the Bunker Contract.
17. Applicable Law, Place of Performance, Jurisdiction
17.1.
This Agreement shall be governed and construed in accordance with the laws of the Federal Republic of Germany. The 1980 UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
17.2.
Place of performance shall be Hamburg.
17.3.
Any and all disputes arising out of or in connection with this Contract or concerning its validity shall be finally settled by arbitration in accordance with the Arbitration Rules of the German Maritime Arbitration Association (GMAA) current at the time when the arbitration proceedings are commenced. The arbitration tribunal shall consist of two arbitrators unless the parties agree that it shall consist of three arbitrators or a sole arbitrator. If the two arbitrators cannot agree on a decision in the proceedings they shall appoint a third arbitrator. If a party fails to appoint an arbitrator within two weeks after being requested to do so in writing (e.g. by letter, fax or e-mail) by the other party, the Chairman or Vice Chairman of the Board of GMAA shall appoint the arbitrator at the request of the other party. The foregoing shall apply correspondingly in respect of the appointment of a substitute arbitrator. The place of arbitration shall be Hamburg.
17.4.
However, the Seller is also entitled to commence proceedings against the Buyer at the courts of the Buyer’s principle place of business or any other competent court as long as the Buyer has not already started arbitration proceedings beforehand in the same matter by appointing an arbitrator and having notified the Seller thereof.
18. Miscellaneous
If any part of this agreement is invalid, it shall not affect the validity of the remainder of the agreement or any part thereof.
These terms and conditions shall apply to any Bunker Contracts concluded between the Buyer and the Seller/ElbOil GmbH.