Terms

 

AS BALTIC MARINE BUNKER

 

GENERAL TERMS AND CONDITIONS FOR SALES AND SUPPLY OF MARINE FUELS

Effective as of 01.01.2017

 

PREAMBLE

These "Marine Fuels General Terms and Conditions of Sale and Delivery" (hereinafter "Terms of Sale") apply to and are incorporated into all contracts for the sale of Marine Fuels concluded between AS Baltic Marine Bunker, registered at Ahtri tn 6a, Tallinn city, Harju county, 10151, registry code 12304515 (hereinafter referred to as "Seller") and any other party purchasing the Marine Fuels (hereinafter referred to as "Buyer").  

Each Contract for the sale of Marine Fuels specifically negotiated between the Buyer and Seller shall be evidenced by a Bunker Supply Confirmation. Unless otherwise agreed in the Bunker Supply Confirmation, these Terms of Sale, together with the Bunker Supply Confirmation shall collectively form the Contract and shall contain all agreements between the Buyer and Seller in respect of the supply of Marine Fuels contemplated herein. The Contract can only be amended or changed by written agreement of both Buyer and Seller, and any attempt to do otherwise shall be considered null and void. In the event of any conflict between the documents comprising the Contract, the Bunker Supply Confirmation and any amendments to the Bunker Supply Confirmation shall be given priority over the Terms of Sale. The terms and conditions of the Contract shall not be varied by the inclusion of a Buyer's purchase order (nomination) number in the Bunker Supply Confirmation, or by any terms and conditions that may be contained in any purchase order (nomination) or other document issued by the Buyer.

Unless otherwise agreed in writing, these Terms of Sale, as amended from time to time, together with the Bunker Supply Confirmation, which supersede any earlier terms and conditions issued by AS Baltic Marine Bunker, shall override any terms and conditions stipulated, incorporated or referred to by any other party whether in its order, stamping of documentation or elsewhere.

 

Unless these Terms of Sale expressly require otherwise, any words denoting the regulator/singular shall include the plural and vice-versa.

 

DEFINITIONS AND THEIR INTERPRETATION

 

The below-mentioned terms in the present Terms of Sale including its Preamble shall have the following meanings.

 

"Affiliates" means any legal entity which controls, is controlled by, or is under common control with another legal entity, and "control" means legal or beneficial ownership of fifty percent (50%) or more of the shares in a legal entity, right to appoint directors or the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity.

 

"Bunker Delivery Note" or "Bunker Receipt" means the document signed by the Master or Chief Engineer of the Nominated Vessel or his representative, and by the Seller, and returned to the Seller, as acknowledgement of the delivery of Marine Fuels.

"Bunker Supply Confirmation" means an agreement entered into between the Buyer and the Seller pursuant to which the Buyer purchases Marine Fuels from the Seller.

"Buyer" means the company(ies) named in the Bunker Supply Confirmation buying the Marine Fuels on its own behalf under the Contract with the Seller for the Nominated Vessel including jointly and severally the registered Owner, Disponent Owners, Bareboat Charterers, Time Charterers, Charterers, Operators or Managers of the Nominated Vessel or a Trader (Broker) who is acting on its own behalf or as a principal or as an agent and has contracted to supply Marine Fuels to the Nominated Vessel. Should the Marine Fuels be ordered by an agent or charterer of the Nominated Vessel, then such agent or charterer, as well as the principal, shall be bound and liable jointly for all obligations as fully and as completely as if the agent were itself the principal, whether such principal be disclosed or undisclosed, and whether or not such agent or charterer purports to contract as agent or charterer only. Both principal and agent shall be deemed to be a Buyer for the purposes of the Contract.

 

"Contract" means collectively the Bunker Supply Confirmation and this General Terms and Conditions for Sales and Suply of Marine Fuels.

"Period of Delivery" means the date range designated in the Bunker Supply Confirmation which shall begin on the ETA and end on the ETD

 

"ETA" means the estimated date of arrival of the Nominated Vessel requiring the delivery of Marine Fuels.

 

"ETD" means the estimated date of departure of the Nominated Vessel requiring the delivery of Marine Fuels.

 

"Marine Fuels" means the marine stores (distillate marine fuels and residual marine fuels) delivered to the sea (river) vessel(s), ship(s), or craft(s). The Marine Fuels shall be supplied only for the needs of the Nominated Vessel.

 

"Metric ton" means a quantity equivalent to the mass of One Thousand (1 000,00) kilograms.

 

"Nominated Vessel" means a sea (river) vessel, ship or craft specified as the Marine Fuels' consignee in the Bunker Supply Confirmation.

 

"Party" means the Buyer or Seller and "Parties" means the Buyer and Seller collectively.

"present Terms of Sale" or "the Terms of Sale" shall mean the present originally issued document with all further modifications and/or amendments, made in writing.

 

"Seller" means AS Baltic Marine Bunker, including its servants, agents, brokers, assignees, subcontractors, designated representatives, subsidiaries or affiliates and any and all other persons or entities acting under the Seller's instructions in fulfillment, compliance or observance of the Contract.

The references to clauses and sub-clauses refer to clauses and sub-clauses of the present Terms of Sale.

The titles shall be used only for convenience and shall be ignored for the interpretation of the Terms of Sale.

 

1. MAIN SUBJECT

1.1 The Seller shall deliver and the Buyer shall accept and pay for the Marine Fuels necessary for the technical maintenance of the Nominated Vessel for her normal operation.

 

1.2 The description, range, grade, quality, quantity of the Marine Fuels, the price per unit, terms of payment and delivery shall be agreed by the Parties additionally and stated in the Bunker Supply Confirmation.

 

1.3 The Buyer shall send a purchase order (nomination) to the Seller identifying the quantity and grade of Marine Fuels required, the port or place of delivery, the name of the Nominated Vessel, her IMO number, ETA, ETD, the identity and contact details of the Nominated Vessel's Master, Owners, Manager, Operators, Desponent Owner, Charterers and Agent at the port or place of delivery, and any other special conditions, difficulties, peculiarities, deficiencies or defects in respect of and particular to the Nominated Vessel which might adversely affect the delivery of Marine Fuels to her. Unless agreed otherwise, such order should be received by the Seller no later than five (5) business days' prior to requested delivery.

 

1.4 The Contract shall only be binding on the Seller upon issuance by the Seller and signing by the Buyer of the Bunker Supply Confirmation or Buyer's acceptance in accordance with Clause 16.1.

1.5 The Seller's offer shall be based on the applicable taxes, costs, charges and price level of components for Marine Fuels existing at the time of the conclusion of the Contract. Any rates and additional tax assessment, duty or other charge of whatever nature and however named, or any cost increase of components for Marine Fuels or any additional costs borne by the Seller whatsoever caused by any change in the Seller's contemplated source of supply or otherwise, coming into existence after the Contract has been concluded, shall be added to the agreed purchase price, provided that the Seller shall give the Buyer prior notice of this effect within a reasonable time after the Seller becoming aware of the relevant circumstances.

 

2. QUALITY

2.1 If otherwise is not stated in the Bunker Supply Confirmation the quality of the Marine Fuels supplied hereunder shall comply with the requirements of ISO 8217:2010 and shall be confirmed with the Passport (Certificate) of Quality for the Marine Fuels provided by the Seller.

 

2.2 The Buyer shall be solely responsible for nominating to the Seller the grade of Marine Fuels for each delivery from range of Marine Fuels supplied by the Seller at the port or place of delivery. The quality of the Marine Fuels shall be determined in accordance with Clause 3 below.

 

2.3 There are no conditions, guarantees or warranties, express or implied, by law, statute, or otherwise as to the satisfactory quality, merchantability, fitness, durability or suitability of the Marine Fuels for any particular purpose or otherwise, which extend beyond the description in Clause 2.1.

 

2.4 The Buyer hereby warrants that it has not relied upon any representations 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 Fuels nominated.

 

2.5 The Seller shall deliver Marine Fuels which meet the specifications as set forth in the Bunker Supply Confirmation. However, due to the wide variety of engine and boiler requirements about which the Seller has no knowledge, as well as possible mixtures of oil or other materials which the Seller has no control over, the Seller does not represent or warrant that the Marine Fuels will function without complication in the specific engine or boiler of the Nominated Vessel, or will be compatible with the fuel products already existing in Nominated Vessel's tanks or fuel products which are later commingled with the Marine Fuels.

 

3. SAMPLING

3.1 Unless otherwise stated in the Bunker Supply Confirmation the sampling procedure as prescribed below shall apply to the Contract.

3.2 During the delivery of the Marine Fuels to the Nominated Vessel sampling should be performed on the bunker barge (or at berth in case of delivery from the shore tanks) with a continuous drip method in accordance with MARPOL 76/78 Annex VI and resolution MEPC.96(47).

 

If there are reasonable grounds and the Nominated Vessel is equipped with proper drip sampler the Parties can agree to perform sampling on the Nominated Vessel at the point closest to the Nominated Vessel's bunker manifold. In this case the Seller should have the right to have its representative to witness the drawing of the samples.

 

3.3 The Seller shall take a minimum of four (4) identical representative samples of not less than 400 ml each of each grade of Marine Fuels delivered. The Buyer shall have the right (and is recommended) to have its representative to witness the drawing of the samples. The absence of the Buyer or its representative shall not prejudice the validity of the sample taken. The Seller reserves the right to appoint an independent surveyor to take such samples. The aforementioned samples shall be securely sealed and labelled by the Seller and at least two (2) of these representative samples shall be given to the Master of the Nominated Vessel, one (1) of which is for MARPOL compliance purposes. Two (2) samples shall be retained by the Seller for at least thirty (30) days following the date of delivery in a safe place for subsequent verification of the quality thereof, if required.

 

3.4 The sample seal numbers shall be recorded into Bunker Delivery Notes and both Parties agree to the fact that the samples referred to thereby are deemed valid and taken in accordance with the requirement as specified in this Clause 3.4. Samples other than those drawn by the Seller or both Parties and indicated in a Bunker Delivery Note shall not be admissible for the purposes of determining quality, notwithstanding that these samples may have been signed by an agent or representative of the Seller, unless expressly agreed in the Bunker Supply Confirmation. Any samples drawn by the Buyer's personnel either at the time of delivery or at any date after delivery shall not be valid as an indicator of the quality of the Marine Fuels delivered.

3.5 The Buyer waives any objections to the sampling procedures actually employed, unless the Buyer had a representative witness sampling and at the time of delivery gave the Seller a written protest about the procedures.

 

 

4. TERMS AND CONDITIONS OF DELIVERY

4.1 The Marine Fuels shall be delivered to the Nominated Vessel within the Period of Delivery, at the port or place stated in the Bunker Supply Confirmation and such delivery shall be subject to the regulations of such port or place and all other applicable local regulations, including without limitations, customs regulations. The Seller shall not be liable for any inability to deliver on public/port or dock holidays.

 

4.2 The Nominated Vessel's ETA and ETD shall be stated in the Bunker Supply Confirmation and it defines the Period of Delivery. The Seller shall use its reasonable efforts, but shall be under no obligation to make the delivery if the Buyer or its agent requests the supply to be made outside the Period of Delivery.

 

4.3 The Buyer, or its agent at the port or place of delivery, shall give the Seller, or its representatives at the port or place of delivery, a minimum of forty-eight (48) and twenty-four (24) hours prior written notices before arrival (ETA) (excluding holidays and other non-working days at the port or place of delivery), indicating the exact location at the port or place of delivery, the exact time within the Period of Delivery that the delivery is required and confirmation of the receiving rates, grades and quantities of the Marine Fuels that are required, failing which the Seller not be liable for any resulting delays. Notice must be given during the Seller's normal business hours (Monday to Friday inclusive, 09.00-18.00 office hours as the case may be). Notice given outside these hours will be deemed to have been given at 09.00 of the first business day thereafter. Delivery time specified by the Buyer in the notice shall be confirmed by the Seller in writing.

If the Buyer fails to give proper notice in time in accordance with this Clause 4.3 than the Seller shall be not liable for any delay in delivering the Marine Fuels.

 

4.4 It is in all circumstances and on all occasions the responsibility and duty of the Buyer to ascertain and where appropriate to comply with terms of:

 

(a) the precise requirements of the Seller and any other person, body or authority in respect of the given notice of the Nominated Vessel's time of arrival at the port or place of delivery;

(b) the exact location of the port or place of delivery;

(c) and particular requirements to enable delivery to be effected as efficaciously as possible.

(d) to present documents required for custom clearance of Marine Fuels as marine stores and confirmation of their actual export.

 

4.5 The Marine Fuels shall be delivered by either ex-pipe, oil tank trucks or bunker barge (which shall include bunkering vessels) in accordance with the Bunker Supply Confirmation. It is expressly agreed that the Seller may (at its option) deliver the Marine Fuels by several bunker barges.

 

4.6 The Buyer warrants that the Nominated Vessel can safely receive Marine Fuels and shall ensure that the Nominated Vessel has all certificates required to comply with all relevant regulations relating to delivery of the Marine Fuels at the port or place of delivery. The Buyer (or its representative) shall, prior to delivery of the Marine Fuels:

 

(a) confirm the quantity and grade of Marine Fuels to be supplied and, if more than one grade of fuel is to be supplied, the order in which grades are to be supplied;

(b) inform the maximum allowable pumping rate and pressure that the Nominated Vessel requires and agree on communication and emergency shut-down procedures;

(c) advise the Seller of any special conditions, difficulties, peculiarities, deficiencies or defects is respect of, and particular to, the Nominated Vessel and which might adversely affect the delivery of the Marine Fuels;

(d) provide a free side of the Nominated Vessel for barge deliveries.

 

The Buyer warrants that the Nominated Vessel is in compliance with all applicable national and international laws and regulations and that the Nominated Vessel has sufficient insurance coverage. The Nominated Vessel is subject to Seller's acceptance and will not be supplied with Marine Fuels unless free of all conditions, difficulties, peculiarities, deficiencies or defects which might impose hazards in connection with her mooring, unmooring or bunkering.

 

4.7 The Buyer shall render all necessary assistance which may reasonably be required to moor or unmoor the bunker barge. The Buyer and Nominated Vessel shall be responsible for all connections and disconnections between the delivery hose(s) and the Nominated Vessel's manifold and shall require the hose(s) to be properly secured and connected to the Nominated Vessel's manifold prior to the commencement of delivery of Marine Fuels. The Buyer is fully responsible for ensuring that the Marine Fuels are delivered at a safe rate and pressure and that all equipment utilized therefore is in a safe and satisfactory condition. If in the Seller's opinion the Nominated Vessel cannot safely receive Marine Fuels, then the Seller has the option to suspend the delivery until, in the Seller's opinion, the Nominated Vessel can safely receive Marie Fuels and/or terminate the delivery or the Contract.

In the event of delivery by bunker barge, the Buyer shall at its own expense provide a clear and safe berth for the barge(s) alongside the Nominated Vessel's receiving lines and shall provide all necessary facilities and assistance required to effect delivery. In the event of delay in the use of delivery or barging facilities due to the Buyer or the Nominated Vessel for any reason whatsoever (including but not limited to the Buyer's failure to give proper notice and/or comply with given notices), the Buyer shall reimburse the Seller for any expenses, including demurrage, incurred due to such delay. The Seller shall not be liable for delays due to congestion in ports, at terminal installations or bunkering pier or delay caused by prior commitments of bunker barges.

 

4.8 The Nominated Vessel shall provide sufficient tankage to receive the quantity of Marine Fuels stated in the Bunker Supply Confirmation. The Buyer shall pay any cost or expenses incurred by the Seller as a result of the Buyer failing to take the specified quantity.

 

4.9 The Seller shall not be responsible for on-board safety or storage failures at the Nominated Vessel that may affect the delivery as requested and shall have the right to recover from the Buyer any resulting cost incurred.

 

4.10 The Seller reserves the right to have the delivery made by a third party supplier if for any reason delivery cannot be made from its own supply, however, the Seller shall remain responsible for the performance of the Contract.

 

4.11 If a spill occurs during supply, the Buyer shall promptly take all actions reasonably necessary to remove the spillage and mitigate its effect. If the Buyer fails to promptly take such action, the Seller may, at its option, take such measures it considers to be necessary or desirable in connection with the removal of the spillage and the mitigation of its effect by employing its own resources or contracting with others. Without prejudice to the first sentence of this Clause 4.11, the Seller shall indemnify the Buyer against all liability, costs and expenses (including but not limited to those incurred by the Buyer in accordance with this Clause 4.11) arising from any spillage to the extent that such spillage has been caused or contributed to by the negligence of the Seller or failure of or defect in the Seller's equipment. The Buyer shall indemnify the Seller against all liability, costs and expenses (including but not limited to those incurred by the Seller in accordance with this Clause 4.11) arising from any spillage to the extent that such spillage has been caused or contributed to by the negligence of the Buyer or failure of or defect in the Buyer's or Nominated Vessel's equipment. The Buyer Shall promptly provide the Seller with any requested documents and information regarding a spill including the Nominated Vessel's spill contingency plan or any other applicable program for the prevention or mitigation of pollution as required by any applicable laws or regulations.

 

4.12 The Nominated Vessel will be bunkered as promptly as circumstances permit, but the Seller shall not be liable for any loss, expense, damage, delay or demurrage whatsoever which may be suffered by the Buyer as a result of any delay arising from congestion or technical failure of any type affecting the Seller's facilities, howsoever caused.

In case of delay or failure to deliver the Marine Fuels the Seller shall not be liable to the Buyer or any other entity for any claim, loss or damage unless such delay or failure to deliver is caused by the Seller's negligence.

 

4.13 The Buyer shall not be entitled to receive Marine Fuels other than into tanks usually used as the fuel bunkers of the Nominated Vessel.

 

4.14 On completion of the delivery of Marine Fuels to the Nominated Vessel, the Master or Chief Engineer of the Nominated Vessel shall give the Seller a signed Bunker Delivery Note in a form required by the Seller.

The Bunker Delivery Note shall be signed by the Master or Chief Engineer of the Nominated Vessel and sealed with the Nominated Vessel's seal.

 

The Bunker Delivery Note shall remain "clean" in all cases and thus it shall not include any kind of protest or remarks of whatever kind. No disclaimer stamp or remarks of any type or form (if not made by the Seller), or wording (including but not limited to "No-lien" stamps or remarks) on the Bunker Delivery Note will be accepted, nor should any such stamp or remark be applied, will alter, change or waive the Seller's lien against the Nominated Vessel or waive the Nominated Vessel's ultimate responsibility and/or liability for the debt incurred through the Contract. All such disclaimer stamp (if not made by the Seller) shall be invalid and of no effect.

 

4.15 The Seller shall have the right to cancel the delivery at least twenty-four (24) hours before the agreed ETA without any penalty or additional fee.

 

5. QUANTITIES

5.1 The quantities of Marine Fuels ordered by the Buyer for delivery shall be those quantities stated in the Bunker Supply Confirmation, subject to confirmation of supply by the Seller. Any attempt to unilaterally change or modify the quantity of Marine Fuels to be delivered under the Bunker Supply Confirmation by a representative of the Buyer or Nominated Vessel prior or during delivery shall be prohibited.

 

Quantity of the Marine Fuels shall be measured by the loading party:

(a) in case of delivery by a bunker barge: on the basis of reading of the bunker barge counter and/or measurements taken form the tanks of the bunker barge;

(b) in case of delivery at berth (ex-pipe): on the basis of measurements from the in-shore tanks and/or berth counter;

(c) in case of delivery by oil tank trucks: according to the consignment note.

 

The Seller shall have right to request that the quantity of the Marine Fuels delivered shall be defined by an independent expert (surveyor). In such case the quantity of the Marine Fuels delivered shall be defined on the basis of measurements taken by the expert (surveyor), whose measurement results shall be binding for the Parties save for manifest error or fraud.

 

5.2 The Seller shall measure the quantity of the Marine Fuels delivered and the Buyer (or its representative) at its own expense may witness such measurement. The Buyer will be charged for Marine Fuels on the basis of these measurements and determination of quantity shall be made solely by the Seller. All such measurements made by the Seller shall be final and binding save for manifest error or fraud. The Seller shall record the quantity of fuel delivered on the Bunker Delivery Note.

 

5.3 The Buyer and the Seller shall both have the right to present or to be represented when such measurements are taken. If the Buyer or its representative fails to avail itself this right, the quantity delivered, as determined by the Seller, shall be binding for charging purposes.

 

6. ACCEPTANCE

6.1 Title and property in the Marine Fuels delivered shall pass from the Seller to the Buyer as the Marine Fuels pass through the flange of the Nominated Vessel's manifold.

Delivery shall be deemed complete when the Marine Fuels have passed the flange connecting the Seller's delivery facilities with the receiving facilities provided by the Buyer.

 

Date of delivery shall be the date stated in the Bunker Delivery Note when the delivery of the Marine Fuels ended.

 

6.2 The Seller's responsibility for the Marine Fuels delivered shall cease and the Buyer shall assume all risks and liabilities relating thereto, including loss, damage, deterioration, depreciation, contamination, evaporation or shrinkage of product and responsibility for loss, damage and harm caused by pollution or in any other manner to third parties once the Marine Fuels have passed the flange connecting the Nominated Vessel's bunker manifold with the delivery facilities provided by the Seller.

 

6.3 In addition to any other security, the Contract is entered into and the Marine Fuels are supplied upon the faith and credit of the Nominated Vessel. It is hereby agreed and acknowledged that maritime lien over the Nominated Vessel, its appurtenances and accessories to secure full payment for the Marine Fuels delivered to the Nominated Vessel is hereby created for the price of the supplied Marine Fuels and that the Seller in accepting delivery of the Marine Fuels to the Nominated Vessel does so relying upon the faith and credit of the Nominated Vessel. The Buyer if not the Owner of the Nominated Vessel hereby expressly warrants that it has the authority of the Owner to pledge the Nominated Vessel's credit as aforesaid and that he has given notice of provisions of this Clause 6.9 to the Owner. The Seller shall not be bound by any attempt by any person to restrict, limit or prohibit its lien or liens attaching the Nominated Vessel. The Seller provides the Marine Fuels to the Nominated Vessel with the express agreement that the provision is authorized and ratified by the Buyer, including the Owners, Operators, Managers, agent, Disponent Owners, and/or Charterers, of the Nominated Vessel. Any attempt to avoid or impair Seller's lien against the Nominated Vessel shall be null, void, and of no effect. Seller's maritime lien shall extend to the Nominated Vessel's freight payments for that particular voyage during which the Marine Fuels were supplied and to freights on subsequent voyages. The Buyer agrees and warrants that the Seller may assert its maritime lien against the Nominated Vessel and may take such other action or procedure against the Nominated Vessel and any other vessel or asset beneficially owned or controlled by the Buyer, for the amount due for the Marine Fuels and the delivery thereof. Nothing in the Contract shall be construed to limit the rights or legal remedies that the Seller may enjoy against the Nominated Vessel or Buyer in any jurisdiction.

 

6.4 If a purchase of the Marine Fuels is contracted for by a broker, an agent, or a manager for the Buyer as a principal, each such broker, agent, or manager shall be bound by, and be fully liable for, the obligations of the Buyer. 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.

6.5 The Buyer warrants as having full authority to act on behalf of the Nominated Vessel; provided however, for the Buyer is not the Owner of the Vessel, the Seller shall have the right to insist as a precondition of sale that an appropriate guarantee or collateral in the form acceptable to the Seller is provided by the Buyer or Owner of the Nominated Vessel. The Seller shall have the right to terminate the Bunker Supply Confirmation with the Buyer at any time, if such guarantee or collateral is not received upon request thereof form the Seller to the Buyer or Owner of the Nominated Vessel at all or at least twenty four (24) hours prior to scheduled delivery, unless otherwise agreed.

 

6.6 Marine Fuels shall be considered to be handed over by the Seller and accepted by the Buyer:

 

(a) by the quantity - the quantity of the Marine Fuels delivered by the Seller and accepted by the Buyer shall be the quantity stated in the Bunker Delivery Note, which shall be final and binding upon the both Parties, except for cases of manifest error or fraud. The measurement of quantity of the delivered Marine Fuels shall be made in accordance with Clause 5.1.

(b) by the quality - according to the Certificate (passport) of Quality for the Marine Fuels issued by a stipulated order in compliance with ISO 8217:2010 if otherwise is not stated in the Bunker Supply Confirmation.

 

6.7 The Buyer has the right to co-ordinate with the Seller the delivery of the confirmed lot of the Marine Fuels to be delivered on the same terms to the other vessel (to replace the Nominated Vessel) within two (2) working days up to the ETA.

 

7. PRICE

7.1 The price of the Marine Fuels shall be fixed in US dollars per one metric ton and stated in the relevant Bunker Supply Confirmation, which shall define the quantity of the Marine Fuels to be supplied as well. The price shall be valid for the Period of Delivery. Other currency can be stated in the Bunker Supply Confirmation.

Without prejudice to the rights of the Seller stated in the Article 8.6, if the Buyer or the Nominated Vessel fails to take delivery within the Period of Delivery, the Seller can choose to:

 

(i) deliver to the Buyer on a date of the Seller's choice at the price stated in the Bunker Supply Confirmation plus any additional costs incurred by the Seller in delivering outside the Period of Delivery, or

(ii) accept a new Period of Delivery as the basis of a new Contract for which a new price can be agreed upon with the Buyer, or

(iii) terminate the Contract and the Buyer shall pay to the Seller any costs resulting from the Buyer's cancellation or failure to take delivery, including without limitation, the lost fuel value and costs to return the Marine Fuels to storage including associated demurrage.

In any case barge/vessel demurrage and/or costs of its services shall be for Buyer's account.

 

7.2 In addition to the price sated in the Bunker Supply Confirmation, the Buyer shall pay any and all additional charges incurred by the Seller and associated with the delivery of the Marine Fuel.

 

8. PAYMENTS

8.1 Payment for the delivery and all other charges shall be made in full (without any abatement, deduction, set-off or counter claim whatsoever) in cleared funds in US dollars (or such other currency as may be stated in the Bunker Supply Confirmation). Unless otherwise stated in the Bunker Supply Confirmation, payment shall be made by the Buyer as an advance payment before the date of delivery and shall be made by the means of bank transfer of same day funds quoting the Seller's invoice number and the Buyer's name to the account specified by the Seller in its invoice to the Buyer, value dated not later than five (5)  banking days from the date of the invoice issue, but in any case before the Period of Delivery.

 

In case in the Bunker Supply Confirmation is stated that the payment shall be due after  the delivery, the payment shall be made by the means of bank transfer of same day funds quoting the Seller's invoice number and the Buyer's name to the account specified by the Seller in its invoice to the Buyer, value dated not later than thirty (30) calendar days (or such other period as is agreed by the Buyer and the Seller) from completion of delivery of the Marine Fuels (BDN date is day 0). 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 period when the Seller's bank is open for business. All bank charges in respect of payments shall be for the remitter's account.

 

8.2 The Buyer shall notify (or shall instruct its bank to notify) the Seller as soon as payment has been made, quoting the date on which payment was made, the amount, the name of the bank effecting the payment and details of each invoice to which the payment relates. Such notification shall be sent to the Seller's contact as stated in Clause 14.4 or in the Bunker Supply Confirmation.

 

The Buyer undertakes to indicate the number and the date of its corresponding Bunker Supply Confirmation, as well as the number and the date of the invoice in all correspondence with the acquiring banks and in the interbanking documents, including but not limited to SWIFT, which refer to the payment for the Marine Fuels delivered under the Contract.

 

8.3 The Seller's invoice(s) (which may be sent by facsimile transmission, e-mail, mail or courier) shall be based on the quantity delivered (or to be delivered in case of prepayment) and shall contain other applicable charges associated with the delivery.

 

8.4 The obligations of the Buyer related to payment for the Marine Fuels delivered shall be considered as fulfilled when 100% of the amount stated in the invoice of the Seller, are credited at the account of the Seller in the Seller's bank.

 

8.5 If the Buyer fails to pay for the Marine Fuels delivered at due time, it, on demand of the Seller, shall pay the interest to the Seller in the amount of 0.1% of the cost of the unpaid Marine Fuels delivered for each day of delay. Moreover, the Buyer shall compensate the Seller all confirmed charges and losses incurred by it in connection with the Buyer's violation of the payment terms.

 

If the maximum permissible rate of interest by the laws of the country of any court (including arbitral tribunal) where a claim under the Contract is brought is lower than the contractual rate specified herein then the contractual rate shall be substituted by the maximum permissible rate.

 

8.6 Should the Buyer deny receiving the agreed lot of the Marine Fuels delivered stated in the relevant Bunker Supply Confirmation in full or in part, the Buyer, on demand of the Seller, shall pay a penalty to the Seller in the amount of 1% of the cost of that lot. Moreover, the Buyer shall compensate the Seller all confirmed charges and losses incurred by him in connection with the Buyer's deny.

 

8.7 Originals of the documents such as the invoice and the Bunker Delivery Note may be provided to the Buyer if requested, but payment shall not be conditional upon the Buyer's receipt of such originals.

 

8.8. Payments received by the Seller notwithstanding any specific request to the contrary will be applied on the Seller's sole discretion in the following order in diminution of:

 

(i) accrued penalties, fines and other charges and costs in respect of transactions for which the principal amount has been previously paid;

(ii) accrued penalties, fines and other charges and costs arising from all other transactions;

(iii) any principal amount or amounts due and outstanding commencing with the oldest and proceeding chronologically thereafter to the most recent;

(iv) any principal sum which the Seller knows or reasonably expects will fall due at a future date.

 

8.9 The Seller may in good faith vary, amend, withdraw, substitute or add the terms relating to payment at any time in the course of a transaction in such a manner as it shall in its absolute discretion consider necessary to protect its interests.

 

8.10 If at any time the reputation, standing, creditworthiness, liquidity or solvency of the Buyer or any subsidiary, parent, associate or affiliate thereof should give the Seller any reasonable cause for concern (including but not limited to bankruptcy, liquidation or suspension of payment or comparable situation of the Buyer or any subsidiary, parent, associate or affiliate thereof; arrest of assets of the Buyer or any subsidiary, parent, associate or affiliate thereof; if the Buyer fails to pay any invoice to the Seller at the time of maturity set forth in such invoice; if the Buyer fails to comply with any other obligation pursuant to the Contract, including, but not limited to, the Buyer's failure to take delivery of the Marine Fuels in full or in part, or in case of any other situation, which in the sole discretion of the Seller is deemed to adversely affect the financial position of the Buyer or any subsidiary, parent, associate or affiliate thereof), the Seller may without prejudice to all other rights and remedies which it may have, give notice to the Buyer that credit facilities from the Seller to the Buyer are withdrawn or suspended as the case may be and all sums outstanding shall thereupon fall due for immediate payment or to request the Buyer for appropriate guarantees of payment.

 

Additionally, in any of the foregoing situations the Seller shall have the option to either

 

(i) cancel the Contract,

(ii) to store the Marine Fuels in full or in part for the Buyer's account and risk,

(iii) to demand that the Buyer complies with its obligations pursuant to the Contract or

(iv) to make use of any other remedy available under the law.

 

9. CLAIMS

9.1 Any dispute as to the quantity of the Marine Fuels based on the density of the Marine Fuels delivered shall be submitted by the Buyer to the Seller in writing within fifteen (15) days of the date of delivery, failing which, such claim shall be deemed waived and forever barred.

 

The claims about the quantity shall be considered by the Seller provided that the Buyer presents the Seller the duly issued documents as follows:

 

(a) the claims; and

(b) the acts confirming the shortage and executed with the participation of the Seller's representatives or acts signed by the qualified and independent expert organization.

 

All claims shall be made only in writing. The failure of fulfill such requirement shall be considered as the failure to submit (the absence) of the claim.

No claim will be admissible if the Marine Fuels delivered are found to have been mixed with another product on board the Nominated Vessel supplied.

9.2 Any dispute as to short delivery which does not fall under Clause 9.1 above shall be presented by the Buyer to the Seller at the time of delivery and the Buyer's representative shall have witnessed such measurement in accordance with Clause 5 above, failing which any such claim shall be deemed to be waived and forever barred. All quantity claims shall be barred and absolutely waived unless:

 

(a) the Master of the Nominated Vessel issues a letter of protest and hands the same over to the Seller on the day of delivery; and

(b) the Buyer formally notifies its claim in writing to the Seller with evidence of such shortfall within fifteen (15) calendar days of the Bunker Delivery Note.

 

All claims shall be made only in writing. The failure of fulfill such requirement shall be considered as the failure to submit (the absence of) the claim.

The Seller will not accept a claim for short delivery based upon figures obtained by measuring the Marine Fuels in the Nominated Vessel's tanks.

 

9.3 Any claim as to the quality of Marine Fuels delivered must be submitted by the Buyer to the Seller in written within fifteen (15) days of the date of delivery, failing which, such claim shall be deemed waived and forever barred.

 

All claims shall be made only in writing. The failure of fulfill such requirement shall be considered as the failure to submit (the absence) of the claim.

The Buyer shall furnish the Seller with the results of testing of the retained sample provided to the Nominated Vessel by the Seller together with full supporting evidence of its claim to enable the Seller to properly evaluate the claim failing which the Seller shall have the right to treat the claim as waived and forever barred.

 

No claim will be admissible of the Marine Fuels delivered are found to have been mixed with another product on board the Nominated Vessel supplied.

 

9.4 If the Buyer issues a claim regarding the quality of the Marine Fuels (including on the density which effecting the quantity), and provided the claim is legitimate in accordance with ISO 8217, one (1) of the two (2) Seller's retained samples shall be submitted by the Seller for relevant analysis to a mutually agreed independent laboratory. The independent laboratory's analysis shall, absent manifest error or fraud, be conclusive and final and binding on both Buyer and Seller as to the quality of the Marine Fuels delivered. The analysis shall be established by tests in accordance with ISO 8217 and/or any other tests agreed to between the Buyer and the Seller in writing. Any cost associated with the Buyer appointing a representative to witness the sample seal-braking and/or analysis at the independent laboratory shall be the sole responsibility of the Buyer.

 

If non-ISO grades have been agreed, tests will be made in accordance with standards corresponding to the aforementioned ISO standards.

 

The cost of the services of the independent laboratory shall be paid by the interested Party. Subsequently, if according to results of the analysis the claim shall be recognized as untenable, the Party at fault shall compensate the charges for the services paid by the interested Party.

 

In the event that the Seller proposes an independent laboratory and the Buyer takes no action to either accept this proposal or to suggest an alternative laboratory within three (3) days from the date of Seller's proposal, then the Seller's choice of laboratory shall be binding and any task performed by such laboratory shall be similarly binding, regardless of whether or not the Buyer choose to send a representative to such testing.

 

9.5 The Buyer shall take all reasonable measures, including retention and/or burning of Marine Fuels in accordance with the Seller's instructions, to eliminate or minimize any costs associated with an off-specification or suspected off-specification supply.

 

9.6 The liability of the Seller for any loss, damage, claim or other expenditure arising out of or in connection with the failure by the Seller to perform its obligations under this Contract shall not exceed and shall be limited to:

 

(a) the removal and returning to the Seller at a reasonable location to be agreed between the Seller and Buyer of any Marine Fuels delivered which is not in accordance with the Contract and is unsuitable for use onboard the Nominated Vessel, and either

(i) replacement of by the Seller of such Marine Fuels, or

(ii) reimbursement of the cost of such Marine Fuels; and

(b) the reasonable repair costs of any components that are physically damaged as a direct result of using any Marine Fuels supplied by the Seller which is not in accordance with the Contract; and

(c) those losses, damages, claims or expenses arising from the death or personal injury to any person caused by the Seller's negligence.

 

Despite of the raised claim, the Buyer is obliged to pay for the Marine Fuels delivered completely in the amount and within the terms specified in the Invoice and the Bunker Supply Confirmation. The Seller shall have no obligation to make any payment to the Buyer under Clause 9.6 (a) and (b) unless and until the Seller has received full payment from the Buyer of all sums in accordance with Clause 8.

 

9.7 The Seller shall not be responsible for any of the following:

 

(a) indirect, special, punitive, exemplary, incidental or consequential losses, damages or expenses, or

(b) loss of actual, projected and/or prospective profit, anticipated cost savings, contracts or financial or economic loss, or

(c) any demurrage or deviation costs.

 

9.8 The Seller shall not be responsible for any claim arising from commingling of Marine Fuels delivered by the Seller with other fuel aboard the Nominated Vessel.

 

9.9 If the Buyer removes Marine Fuels without the consent of the Seller, all removal and related costs shall be for the Buyer's account. Nothing in the Contract shall in any way limit the Buyer's obligations to mitigate any of its losses in accordance with Clause 9.5.

 

9.10 The Buyer shall indemnify and hold the Seller, Seller's Affiliates, and the directors, employees and agents of the Seller, Seller's Affiliates harmless against all claims, liabilities, loss, damage, costs, fines, penalties and expenses whatsoever and by whomsoever brought arising in connection with any delivery of Marine Fuels except to the extent that such claims, liabilities, loss, damages, costs, fines, penalties and expenses are caused by the negligence of the Seller or Seller's Affiliates and the directors, employees and agents of the Seller, Seller's Affiliates, or breach by the Seller of its obligations under the Contract.

It is hereby expressly agreed that no servant (including without limitations directors and employees) or agent of the Seller, Seller's Affiliates (including every independent contractor from time to time employed by the Seller, Seller's Affiliates) shall in any circumstances whatsoever be under any liability whatsoever to the Buyer for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing provisions of this Clause 9.10, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the Seller, Seller's Affiliates or to which the Seller, Seller's Affiliates is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the Seller, Seller's Affiliates acting as aforesaid and for the purpose of all the foregoing provisions of this Clause 9.10 the Seller, Seller's Affiliates is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the Contract.

9.11. The provisions of this Section 9 shall continue to apply notwithstanding the termination or expiry of the Contract for any reason whatsoever.

 

9.12 The basis for the Seller to evaluate the Buyer's claim about as to the quality and/or quantity of the Marine Fuels delivered shall be:

 

* As to the quality - ISO 8217:2010 if otherwise is not stated in the Bunker Supply Confirmation;

* As to the quantity - discrepancy between the quantity stated in the Bunker Delivery Note and the actually delivered quantity.

 

9.13 The Seller shall have the option to cancel the Contract in full or in part, by way of a cancellation notice with a five (5) days remediation period, or to store or procure the storage of the Marine Fuels in whole or in part for the account and risk of the Buyer pursuant to the agreement between Parties, or take any other measures the Seller deems appropriate, without prejudice to its rights to indemnification, without any liability on the side of the Seller, in any (but not limited) on the following cases:

(a) when the Buyer fails in part or in full to comply with its obligations to pay any amount due to the Seller and/or provide security as set out herein;

(b) when, before the date of delivery, it is apparent in the opinion of the Seller that the financial position of the Buyer entails a risk for the Seller;

(c) when, in case of force majeure, the Seller is of the opinion that the nature or the duration of the circumstances is such, that the execution of the agreement shall be cancelled.

 

9.14 The cancelation of the Contract in full or in part, as per the provisions of Clause 9.13 above, shall be effective as from the date of expire of the remediation period mentioned in the cancellation notice given by the Seller.

9.15 The full legal and other costs and expenses incurred by the Seller in connection with any breach by the Buyer of any term of the Contract including but not limited to actions for debt collection shall be for the Buyer's account.

 

9.16 The Seller reserves the right at all times whether prior to or after confirmation of nomination of a vessel to decline to supply the Marine Fuels to the Nominated Vessel if the Seller reasonably considers that such supply could cause the Seller to be in violation of, or exposed to punitive measures under any applicable laws, regulations, decrees, ordinance, order, demand, request, rules or requirements.

 

9.17 Notwithstanding the foregoing, in the event that the Seller is found to be liable to the Buyer, the total amount payable by way of compensation other than in respect of personal injury or death shall not exceed the price charged to the Buyer for Marine Fuels supplied under the Contract. It is a pre-condition to the payment of any compensation by the Seller that all sums standing due to the Seller from Buyer are first paid and settled.

 

9.18 The Buyer shall indemnify and hold the Seller harmless from and against any and all claims, demands, suits or liabilities for damage to property or for injury or death of any person, or for non?compliance with any requirement of any governmental entity arising out of an act or omission of the Buyer or its agents or servants in receiving, using, storing or transporting Marine Fuels delivered hereunder, including exposure thereto, unless the same be due to the sole negligence of the Seller.

 

10. FORCE MAJEURE

10.1 In addition to any other relief provided by law, no failure or omission by either Party to comply with any of its obligations under the Contract (save for any obligation to make payment) shall give rise to any claim against that Party, or deemed to be a breach of the Contract, insofar as the failure or omission is caused by force majeure, which is defined as any cause not reasonably within the control of that Party, whether or not foreseen, including (without limitation and to the extent that they are not reasonably within the control of relying Party) such causes as labor disputes, strikes, governmental intervention, compliance with any law, regulation or ordinance or with any order, demand or request of an 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 any other corporation directly or indirectly controlled by any of them, acts of administrative authorities, decisions of the courts, riot, wars, military operations, terrorism actions, civil commotion, hijacking, fire, explosion, flood, bad weather, storm, natural disasters or any act of God or other unforeseen circumstances including changes of national or other applicable legislation on customs, tax law and other affairs. Any curtailment, failure or cessation of supplies of Marine Fuels from any of the Seller's sources of supply (and whether in fact sources of supply for the purposes of any Contract or not), provided that such curtailment, failure or cessation is related to a circumstance which is outside the control of the Seller, shall be considered as an event of force majeure for the purposes of the Contract.

 

10.2 If by reason of any event of force majeure, either the availability from any of the Seller's sources of supply of Marine Fuels or the normal means of transport of such Marine Fuels is delayed, hindered, interfered with, curtailed or prevented, then the Seller shall be at liberty to withhold, reduce or suspend deliveries under any contract to such extent as the Seller may in its absolute discretion think fit and the Seller shall not be bound to acquire by purchase or otherwise additional quantities from other suppliers. Any additional quantities which the Seller does acquire from other suppliers of from alternative sources may be used by the Seller at its complete discretion and need not to be taken into account by the Seller for the purposes of determining the extent to which it is to withhold, reduce or suspend deliveries under any contract. The Buyer shall be free to purchase from other suppliers any deficiencies of deliveries of Marine Fuels caused by the operation of this Clause 10.2 but the Seller shall not be responsible for any additional cost thereby incurred by the Buyer.

 

10.3 The Seller reserves the right to increase the price charged for any Marine Fuels if there is any increase in the costs incurred or to be incurred by the Seller in making the relevant supply due to factors which constitute a force majeure event pursuant to Clause 10.1 above.

 

10.4 The Party for which it becomes impossible to execute its obligations under the Contract due to any event of force majeure shall immediately notify in written the other Party about the beginning and termination of the above-mentioned circumstances.

 

Such notice shall contain information about the nature of these circumstances and an explanation of why these circumstances hinder the performance by that Party of its obligations hereunder. If the Party which was affected by the force majeure circumstances has not notified the other Party about those circumstances, as mentioned in Clause 10.1 above, immediately but in any case within five (5) days after the Party have known about those circumstances, such Party shall not be entitled to refer to the circumstances stipulated in Clause 10.

 

The declaration about the force majeure as abovementioned shall affect only the individual delivery, to which it applies and shall have no effect whatsoever on the obligations of the Parties in respect of all remaining deliveries under the Contract.

10.5 Where the event of force majeure continues for a continuous period of more than one (1) month, and unless agreed otherwise between the Buyer and the Seller, each of them may then terminate the Contract, by written notice to the other. Such termination shall not give rise to any liability, compensation or indemnity of any kind. However, such termination shall not release the Buyer from its obligation to pay for the Marine Fuels delivered or other charges invoiced in accordance with terms of the Contract.

When the Contract is terminated due to abovementioned events the Buyer is obliged to pay for  the Marine Fuels delivered and other charges incurred before the Contract termination date.

 

11. APPLICABLE LAW. ARBITRATION        

11.1.   This agreement shall be governed in all matters by the laws of Estonia.

11.2.   Any and all disputes including without limitation any disputes on reasonable existence, invalidity, default, termination or inadequacy arising out of or in connection with the present Terms of Sale and/or the Contract, if not solved by means of negotiations of the Parties within 30 (thirty) days from the moment of occurrence, shall be submitted to ad hoc arbitration. The place of arbitration shall be Tallinn, Estonia, and the language of arbitrage shall be English.

Each Party shall appoint its arbitrator and both appointed arbitrators shall appoint a third arbitrator, who will act as chairman of the arbitration tribunal.

The Arbitration procedure shall be conducted in accordance with the provisions of the Rules of the Court of International Commercial Arbitration under the Tallinn Chamber of Commerce and Industry of Estonia (the "Arbitration Rules") which shall apply in their entirety, except for the provisions of such Arbitration Rules on appointment of arbitrators, arbitrators who will be chosen as referred above. However, in case the arbitrators appointed by the two Parties fail to appoint the third arbitrator, the Arbitration Rules shall be used for appointment of a third arbitrator. The Parties expressly agree that any reference to such Arbitration Rules does not eliminate the ad hoc nature of the arbitration. Resolution passed by the Arbitration tribunal shall be considered final and incontestable and binding upon the Parties of the present Terms of Sale and/or the Contract.

 

12. ANTI-CORRUPTION

12.1 Each Party warrants and undertakes to the other that in connection with the sale and purchase of Marine Fuels under this Contract they will each respectively comply with all applicable laws, regulations, rules, decrees and/or official government orders and requirements of any relevant jurisdiction relating to anti-bribery or anti-money laundering.

 

12.2 Each Party represents, warrants and undertakes to the other that they shall not, directly or indirectly pay, offer, give or promise to pay or authorize the payment of, any moneys or other things of value to: (i) a Government Official; (ii) any director, officer, employee, or agent/representative of an actual or prospective counterparty, supplier or customer of the Buyer or Seller; or (iii) any other person individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities, or engage in other acts or transactions, in each case if this is in violation of or inconsistent with the anti-bribery or anti-money laundering legislation of any government, including without limitation, the applicable country legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

 

12.3 Each Party may terminate the Contract forthwith upon written notice to the other Party at any time, if in its reasonable judgment the other Party is in breach of the presentations, warranties or undertakings in Clauses 12.1 or 12.2 above.

 

13. TERMINATION OR SUSPENSION IN THE EVENT OF LIQUIDATION, ETC.

13.1 Notwithstanding anything to the contrary express or implied herein, the Seller (without prejudice to its other rights) may at its sole discretion either terminate the Contract immediately or immediately suspend delivery under the Contract until further notice, on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing, if a liquidator, administrator, trustee in bankruptcy, receiver or manager or equivalent officer is appointed in respect of the assets and/or undertaking of the Buyer, or the Buyer enters into an arrangement or composition with its creditors, or any similar appointment, arrangement or composition is made under any applicable law, or if the Seller has a reason to anticipate any such appointment, arrangement or composition.

 

13.2 In the case of multiple deliveries under the Contract, notwithstanding anything else to the contrary express or implied elsewhere herein, (but always without prejudice to Seller's other rights at law and under the Contract including, without limitation, Seller's rights under Clauses 8.5 - 8.6 above) the Seller may at its sole discretion either terminate the Contract immediately or immediately suspend delivery under the Contract until further notice, on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing, if the Buyer fails to make any payment due to the Seller under the Contract in full and punctually by the due date.

 

14. NOTICES

14.1 Any notice or other communication (including, without limitation, invoices) by either Party to the other shall, unless otherwise provided in the Contract, be sufficiently made if sent by post (by airmail where airmail is possible), postage paid, by facsimile transmission, e-mail or by courier to the address of the other Party.

 

14.2 Any notice or communication given in accordance with Clause 14.1 shall, unless otherwise provided herein, be deemed to have been given on the day on which such communication ought to have been delivered in due course of postal communication and in the case of communication by e-mail or facsimile transmission or by courier on the day of transmission delivery.

 

14.3 Notices and other communications issued hereunder may be sent by e-mail by the relevant Party to the relevant operational and commercial contacts of the other Party. The documents such as Bunker Supply Confirmation, Bunker Delivery Note, Invoice, and other documents related to the Contract may be sent by e-mail by the Parties to each other to the relevant operational and commercial contacts.

 

14.4 Unless otherwise specified by the Seller, the address of the Seller to which communications shall be sent by post or courier is Ahtri tn 6a, Tallinn city, Harju county, 10151 and e-mail address is info@bmbunker.com.

14.5 Any notice of any claim by the Buyer under Clause 9 of these Terms of Sale, any notice of arbitration under Clause 11 and any notice of termination of the Contract by the Buyer, shall not be effective unless sent by post or courier or email to the address of the Seller specified in Clause 14.4 provided that in the case if notice sent by e-mail only, such notice shall not be deemed effective unless and until such time as the Seller acknowledges receipt and such acknowledgment shall not to be unreasonably denied or withheld.

 

15. CONFIDENTIALITY

15.1 Each Party shall treat as confidential all information obtained as a result of entering into or performing the Contract which related to:

 

(a) the subject matter of the Contract; or

(b) the other Party,

and that is claimed to be confidential by the Party.

 

15.2 Each Party shall:

 

(a) not to disclose any such information to any person other than any of its directors or employees who needs to know such information in order to discharge his/her duties;

(b) not use any such information other than for the purpose of satisfying its obligations under the Contract;

(c) procure that any person to whom any such confidential information is disclosed by it complies with the restrictions contained in this Clause 15 as if such person were a party to the Contract.

 

15.3 Notwithstanding the other provisions of this Clause 15, either Party may disclose any such confidential information:

 

(a) if find to the extent required by law or for the purpose of any judicial proceedings;

(b) to its Affiliates, professional advisers, auditors and bankers;

(c) if find to the extent the information has come into the public domain through no fault of that Party;

(d) if and to the extent the other Party has given prior written consent to the disclosure, such consent not to be unreasonably withheld.

 

15.4 The restrictions contained in this Clause 15 shall continue to apply after the termination of the Contract without limit in time.

 

15.5 The Party breaching its obligations to protect the confidential information shall indemnify the other Party for the losses incurred thereby.

 

16. OTHER TERMS

16.1 Each delivery is to be formalized in a Contract, which becomes effective as of the date of signing by the Buyer the Bunker Supply Confirmation issued and signed by the Seller, or by the Buyer's written acceptance of the terms of the Bunker Supply Confirmation that is sent electronically to the Seller or otherwise as can be stated by the Seller in the Bunker Supply Confirmation.

 

16.2 In case of changing of any requisites (such as addresses and bank details or other requisites important to the performance of the Contract), the Parties undertake to notify in writing each other on it immediately.

 

16.3 Assignment of any right or delegation of any obligation hereunder by the Buyer without the Sellers's prior written consent shall be void. The Seller may assign any of its rights or, delegate or sub-contract any of its obligations hereunder to others, including any Affiliate of the Seller, however, the Seller shall remain responsible for the performance of the Contract.

However, payment for the Marine Fuels delivered under the Contract may be made by the Buyer as well as by any other third party, unless otherwise additionally agreed by the Parties.

 

The Seller shall accept performance of Buyer's obligation to pay for the Marine Fuels by a third party as due and proper if such performance is made in accordance with the provisions of the Contract.

 

16.4 The Seller and the Buyer are really existing legal entities and have all corresponding corporate powers and rights to own and operate their property, as well as to carry on their business, which they run at present.

 

16.5 If at any time any of the provisions of the Contract is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the validity, legality, or enforceability of the remaining terms of the Contract shall not be affected or weakened (unless otherwise required according to the applicable law). In that case, the Parties agree to replace such invalid, illegal, or unenforceable provisions with the valid, legal, and enforceable ones within the limits permitted by the law. If it is impracticable, the Parties shall conduct negotiations to find an alternative and mutually satisfactory solution, and thereby accomplish the initial intention of the Parties as far as it is possible, so that the transactions contemplated hereby shall be executed in the best way.

 

Termination (cancelation) of the Contact and /or its expiry does not cancel the Buyer's obligations for money transfer including obligations defined in Sections 7 (Price), 8 (Payments) and 9 (Claims) of the Terms of Sale.

 

16.6 The Contract contains the entire agreement of the Parties and supersedes all prior agreements whether oral or written with respect to the delivery of Marine Fuels under this Contract and there are no other promises, representations or warranties affecting it. This Contract shall not be modified or amended in any way unless mutually agreed between the Buyer and Seller and evidenced in writing. Each Party warrants that it has not entered into the Contract in reliance on any representation, whether oral or in writing, which is not set out in the Contract.

 

16.7 The Seller shall provide the Buyer with Material Safety Data Sheet (MSDS) [1] and shall also provide the receiving Vessel with the MSDS appropriate to the grade of Marine Fuels delivered. The Buyer shall ensure that its employees comply fully with all requirements, obligations and recommendations relating to the handling and use of the Marine Fuels delivered hereunder.

 

16.8 The Parties have agreed to deem the documents issued under this Contract, which are signed by the Parties and send via facsimile or e-mail (where it is possible to verify in a reliable manner, that the relevant document originates from a Party to this Contract) legally valid, until they are replaced by originals.

Such documents transmitted by fax or e-mail, as well as e-mail correspondence of the Parties, may be used as evidence in court.

16.9 The failure by any Party to the Contract to enforce any right against the other Party shall not be construed as a waiver of that right or in any way affect the validity of the Contract. In particular, the granting by the Seller of any additional time to make payment or the waiving or reducing of any penalties or other charges shall not prevent the Seller at any time thereafter from relying upon its strict contractual rights.

 

A waiver by either Party of any right or remedy or of any breach of the Contract shall be effective only if given in writing and shall in no way preclude or restrict the further exercise of that or any other right or remedy, nor constitute a waiver of any subsequent breach.

 

16.10 If any order shall be placed by an agent for a principal as the Buyer hereunder, then such agent shall be liable not only as agent but also for the performance of all obligation of the principal hereunder.

16.11 Nothing in the Contract and no action taken by the Parties under the Contract shall constitute a partnership, association, joint venture or other co-operative entity between any of the Parties.

16.12 It is understood by the Parties that they are entering into the Contract in reliance upon the laws, rules, regulations, decrees, agreements, concession and arrangements ("Regulations") in effect on the date of the Contract with governments or public authorities affecting the Marine Fuels sold under the Contact including, but not limited to, those relating to the production, acquisition, gathering, manufacturing, transportation, storage, trading or delivery thereof, insofar as such Regulations affect the Seller.

 

16.13 The Seller reserves the right at all times whether prior to or after confirmation of nomination of a vessel to decline to supply Marine Fuels to the Nominated Vessel if the Seller reasonably considers that such supply could cause the Seller to be in violation of, or exposed to punitive measures under any applicable any laws, regulations, decrees, ordinance, order, demand, request, rules or requirements.

 



[1] EU Regulation (EC) No. 1907/2006 (REACH Regulation).