Bunkerist

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Standard General Terms and Conditions for the Sale and Delivery of Marine Bunker Fuel

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1. Definitions

  • “Bunkerist” means Bunkerist Trading and Brokering Ltd.
  • “Seller” means Bunkerist Trading and Brokering unless Bunkerist Trading and Brokering is acting as a broker.
  • “Broker” means Bunkerist Trading and Brokering unless Bunkerist Trading and Brokering is acting as the Seller.
  • “Buyer” means any party asking offers or quotations for ordering bunkers and/or services and any party on whose behalf the said offers, quotations, orders and subsequent agreements or contracts have been made, for instance but not limited to: (jointly and severally) Master, Registered Owners, Managers/Operators, Disponent Owners, Time Charterers, Bareboat Charterers, Pool Managers, Bunker Traders and Charterers of the supplied vessel.
  • “Marine Fuel” means the type/s, quantity/ies and commercial grade/s of bunker fuel oil, Intermediate Fuel Oil (IFO), Marine Diesel Oil (MDO), Marine Gas Oil (MGO), Lubricants (Marine Lubs), Bio-fuel blends, additives and/or any petroleum products and/or related services specified which Seller has agreed to sell to Buyer.
  • “Vessel” is the marine vessel, ship, barge or off-shore unit to which Marine Fuel to be delivered; either as end-user or as transfer unit to a third party. It includes any on-shore tank, train, truck, rig, helicopter, aircraft or other unit or installation supplied by the Seller.
  • “Bunker Supply Confirmation” or “Order Confirmation” is the document stating nominated and agreed details.
  • “Contract” means the Order Confirmation and the Standard Terms.
  • “Sanctions Laws” means the various export controls and economic sanctions regulations, including but not limited to, any economic or financial sanctions or trade embargoes administered or enforced by various European Governments and the EU, Switzerland, the US Government, and various UN sanctions.

2. Comprehension and Applicability

These conditions constitute an integral part of any offer and/or Contract made for Marine Fuel and/or services provided by Seller to Buyer. The Contract can only be amended or changed by written agreement of both Buyer and Seller, and shall not be varied by any terms and conditions that may be contained in any purchase order or document issued by the Buyer. Should the Contract be entered into by any party acting as an agent for the Buyer, whether such is disclosed or undisclosed, then such party or agent in addition to the Buyer and/or holder of any interest in the Vessel shall be jointly and severally liable for the proper performance of the obligations. It is agreed that all orders, supplies and/or deliveries are considered to be emanating from the Master of the Vessel, even if relayed by the Buyer to the Seller.

3. Prices

Prices shall be deemed to be in US dollars unless otherwise specified. Buyer shall pay any additional costs rather than ex-wharf such as port fees, calling costs, barging, overtime, wharfage and other costs, including whatever imposed by the local authority or government. The Buyer shall be responsible for and shall pay and/or indemnify the Seller and its sub-contractors for any and all federal, state and local taxes, duties, fees levies or penalties. Seller reserves the right to adjust the Price after the date of the Order Confirmation to reflect any liability related to Taxes not included in the Order Confirmation. Seller is entitled to recover from Buyer all direct and indirect losses, costs and expenses incurred as a consequence of cancellation of the Bunker Supply Confirmation by Buyer.

4. Brokerage

It is understood when deals are finalised with Bunkerist acting as the Broker that a fixed commission will be paid by the Seller on every unit to the Broker as per the nomination sent at the conclusion of the deal.

5. Quantity and Quality

The Buyer shall have the sole responsibility for the nomination of the proper grades of Marine Fuel fit for use by the Vessel being supplied. The Marine Fuel supplied shall comply with the latest edition of ISO 8217 and MARPOL Annex VI. The quantity of Marine Fuel delivered shall be determined from the Seller's or its Supplier's measurements taken on the official gauge or meter of the bunkering barge, tank truck or shore tank, and such measurements shall be considered to be the sole valid and binding determination of the quantity supplied. Measurements taken by any other means on board the receiving Vessel shall not be binding on the Seller and shall have no evidential value. Delivered Marine Fuel shall be segregated from Marine Fuel(s) already on board the receiving Vessel.

6. Sampling and Binding Analysis

It is the Master/Chief Engineer's responsibility to ensure that all samples have been drawn as per International Bunkering Practice (continuous drip method) and MARPOL Annex VI. On completion of sampling, all samples are to be sealed, labelled and signed by both Seller or its representatives and Buyer or its representatives, and their seal numbers stated on the bunker delivery note (BDR). In the event of a dispute concerning quality, one of the samples retained by the Seller with a seal number reflected on the BDR shall be forwarded for testing to a mutually agreed independent laboratory. The results of this analysis shall be final, conclusive, and binding on both parties. Method ISO-4259 shall be used in all cases of dispute. No samples subsequently taken shall be allowed as additional evidence.

7. Physical Delivery and Arrival Notice

The Buyer must give written notice not less than 72 hours, which is to be followed by 48 hours and 24 hours notice prior to the delivery date of the estimated time/s Vessel will be ready to receive Marine Fuel. The Buyer shall ensure that the Vessel provides a free, safe and always afloat and accessible side for the delivery, and shall make and be responsible for all connections and disconnections between the delivery hose(s) and the Vessel's bunker intake manifold. Seller shall not be liable for demurrage or for any losses due to congestion at Supplier's storage or delivery facilities. Buyer shall be liable for demurrage at rates established by Seller and for losses incurred by Seller as a result of any delay caused directly or indirectly by Buyer or Vessel.

8. Off-Specification Marine Fuel

It is Buyer's responsibility to take all essential actions to be confirmed by Seller in writing to eliminate or minimize any costs associated with an off specification Marine Fuel supply. In any event Seller's obligation hereunder shall not exceed direct expenses incurred for removal and replacement of Marine Fuel.

9. Retention of Title and Maritime Lien (Sui Generis)

  • 9.1. Retention of Title: Title to the Marine Fuel shall not pass to the Buyer until the Seller has received payment in full of the purchase price, accrued interest, and all associated costs. Until such time, the Buyer shall hold the Marine Fuel as a Bailee and fiduciary agent for the Seller.
  • 9.2. Sui Generis Nature & Necessaries: This Contract is not a simple contract for the sale of goods but is a contract Sui Generis for the supply of Marine Fuel and services. The Marine Fuel and services are supplied on the faith and credit of the Vessel. The supply of fuel constitutes a Necessary for the Vessel's operation, safety, and navigation. The Buyer is granted a license to use the Marine Fuel for the propulsion and operation of the Vessel until the due date of payment, but such usage does not constitute a transfer of title.
  • 9.3. Comingling and Co-ownership: If the Marine Fuel is comingled with other fuels on board the Vessel, the Seller shall have a right of Co-ownership in the resulting mixture in proportion to the value of the Marine Fuel delivered.
  • 9.4. Assignment of Claims: In the event the Buyer resells or transfers the Marine Fuel to a third party before full payment, all rights and claims arising from such resale are hereby automatically assigned to the Seller. The Buyer shall collect such proceeds as a Trustee for the Seller.
  • 9.5. Insurance Proceeds: The Buyer is obligated to insure the unpaid Marine Fuel against all risks. In case of loss or accident, any insurance proceeds shall be paid directly to the Seller or held by the Buyer as a Trustee to be transferred to the Seller.
  • 9.6. Irrevocable Vessel Credit and Maritime Lien: The supply of Marine Fuel and/or services is made strictly on the faith and credit of the Vessel. It is expressly agreed that the Vessel itself is the primary obligor for payment, irrespective of the identity of the Buyer or any intermediary. The Seller shall have a maritime lien over the Vessel and shall be entitled to proceed in rem against the Vessel in any jurisdiction where such rights are recognized.
  • 9.7. Direct and Primary Liability of Vessel (In Rem Priority): The Vessel's liability shall be direct, primary and unconditional, and shall not be dependent upon the liability of any other party. The Seller shall be entitled to pursue the Vessel independently of any contractual dispute with the Buyer.
  • 9.8. Authority to Bind the Vessel (Deemed Authority): Any request, order, or acceptance of Marine Fuel shall be deemed to have been made with the full authority of the Master, Owners, and all parties managing or operating the Vessel. The Seller shall have no obligation to verify such authority and shall be entitled to rely fully and conclusively upon the representation of authority by the Buyer.
  • 9.9. Absolute Non-Disclosure Protection: The Seller shall not be bound by any terms or conditions contained in any charter party, management agreement or other arrangement affecting the Vessel, including but not limited to any prohibition of liens, limitation of authority, or restriction of liability, unless: (a) Such terms have been fully disclosed to the Seller in writing prior to the conclusion of the Contract; and (b) The Seller has expressly accepted such terms in writing. Any undisclosed or partially disclosed provisions shall be deemed null, void, and unenforceable as against the Seller.
  • 9.10. Express Rejection of No-Lien Clauses: Any clause in any agreement purporting to prohibit or restrict the creation of a maritime lien, including any “no-lien clause”, shall not apply to the Seller and shall not prejudice or impair the Seller's rights against the Vessel.
  • 9.11. No Constructive Knowledge / Notice Neutralization: The Seller shall not be deemed to have knowledge of any lien prohibition, notice, or restriction unless such notice has been: (a) Clearly communicated in writing to the Seller prior to delivery; and (b) Explicitly acknowledged and accepted by the Seller. Any physical notice posted on board the Vessel shall not be binding on the Seller and shall have no legal effect against the Seller.
  • 9.12. Survival Against Ownership Changes: The Seller's rights, including but not limited to maritime lien and the right to arrest, shall survive: (a) Any change of ownership, (b) Any change of flag, (c) Any change of management or charter status, and shall remain attached to the Vessel until full payment has been received.
  • 9.13. Waiver of Defenses: The Buyer, Vessel, and Owner hereby irrevocably waive any defense based on: Lack of authority, Existence of a charter party restriction, Any no-lien clause, Any undisclosed agreement, Any internal limitation between Owner and Charterer. Such defenses shall not be raised to defeat or delay the Seller's rights of recovery or arrest.
  • 9.14. Independent Right of Arrest: The Seller shall have the independent right to arrest the Vessel or any associated vessel in any jurisdiction, regardless of: The governing law of the Contract, The place of delivery, The identity of the contractual counterparty. The exercise of such right shall not require prior notice to the Owner.
  • 9.15. Associated Vessel / Sister Ship Arrest: The Seller shall also have the right to proceed against any associated, sister, or affiliated vessel owned, controlled, or managed by the same beneficial owner.

10. Payment and Collection Costs

Payment shall be made in U.S. dollars in full by means of irrevocable electronic transfer to the bank identified in Seller's invoice within the time specified in the Contract. Seller shall be absolutely entitled to the payment in full without discount, reduction, counterclaim or set-off and free of bank charges. Overdue payments shall bear interest at the rate of 2.5% per month. The Seller shall have the sole discretion to allocate and apply any payments received from the Buyer to any invoice(s) or outstanding amount(s). The Buyer shall be liable for all costs incurred by the Seller in connection with the collection of overdue payments, including but not limited to attorney's fees on a full indemnity basis, court costs, administrative expenses, and any costs related to the arrest of the Vessel or associated assets. Seller may at any time demand adequate security at its sole discretion.

11. Claims

Any claims as to shortage in quantity delivered must be notified by the Buyer or the Master of the Vessel to the Seller immediately upon completion of delivery by way of a written protest. Any claims relating to the quality of the Marine Fuel must be notified to the Seller in writing within five (5) days from the date of delivery. Failure to provide such notice within the above time limits shall constitute an absolute waiver of such claims. The submission of a claim shall not relieve the Buyer from its obligation to make payment in full. In any event, all claims shall be time-barred unless legal proceedings are commenced within one (1) months from the date of delivery.

12. Limitation of Liability and Consequential Damages

Notwithstanding any other provision in this Agreement, the Seller's total aggregate liability to the Buyer, the Vessel, or any third party for any claims, losses, or damages arising out of or in connection with the performance or non-performance of this Contract shall be strictly limited to the lower of: a) The invoice value of the Marine Fuel supplied under the specific transaction, or b) USD 250,000. Seller and Supplier shall not be liable for special, indirect, punitive or exemplary damages of any kind, including without limitations any damage to machinery, time loss claims, loss of profit and loss of contract.

13. Anti-Corruption and Sanctions

By accepting the Seller's offer and Order Confirmation, the Buyer thereby confirms and warrants that the Buyer, the Vessel, and the Vessel's Owners are in full compliance with Sanctions Laws and are not subject to any sanctions (UN, US, EU, or UK). The Bunker Fuel purchased will not be used in any manner whatsoever directly or indirectly in connection with any entities, persons, projects, or payments that contravenes any Sanctions Laws. Both parties shall comply with all applicable anticorruption laws. Any breach of this clause shall entitle the Seller to terminate the Contract immediately without any liability and without prejudice to the Seller's right to claim damages.

14. Force Majeure

Neither Buyer nor Seller nor Supplier shall be responsible for damages caused by delays, failure to perform in whole or in part any obligation hereunder (other than the payment of money), or noncompliance with any of the terms hereof when such delay, failure or noncompliance is due to or result from causes beyond the reasonable control of the affected party.

15. Indemnity, Safety and Environmental Protection

Buyer shall indemnify and hold Seller and Supplier harmless from and against any and all claims, demands, suits or liability for damage to property or for injury or death of any person arising out of or in any way connected with the fault of Buyer or its agents or servants in receiving, using, storing, or transporting Marine Fuel delivered. In the event of a spill or discharge, the 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. All expenses, damages, costs, fines and penalties arising from a spill or any pollution caused thereby shall be paid by the party that caused such spill by a negligent act or omission.

16. Assigning Rights

Buyer may not assign any of its rights or obligations under the agreement without the Seller's prior written consent. Seller may, however, assign any of its rights and obligations hereunder without the Buyer's prior consent.

17. Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the United States of America. Buyer and Seller hereby agree to the jurisdiction of the United States District Courts. The General Maritime Law of the USA shall apply to the determination of any Maritime Lien and the right to arrest the Vessel, regardless of where the arrest is made.

18. Confirmation

It is the responsibility of Buyer and/or Buyer's representative/intermediary to inform vessel's owner of the contract and Bunker Supply Confirmation Terms and Conditions that apply to the sale from Seller. If we are not informed immediately, in writing, of owner's rejection, Bunkerist will consider the owner to be aware of and in acceptance of our Bunker Supply Confirmation Terms and Conditions.