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Terms and conditions for the services rendered by INTERNATIONAL BUNKER SERVICES LIMITED

 

EFFECTIVE FROM 1st. May 2014

 

1. DEFINITIONS

a. 'Agreement' – refers to the agreement made between the Buyer and the Seller for the sale of Bunkers, setting forth the particular terms of each sale transaction, all sale transactions being subject to these Terms and Conditions.

 

b. 'Bunkers' – refers to marine bunker fuel oil, marine lubricants and related products of whatever type and description as delivered by the Seller.

 

c. 'Buyer' – refers to any individual or entity (company) placing orders for Bunkers, and shall include any agent, principal, associate, manager, partner, servant, parent, subsidiary, together with the Vessel, her master, owners, operators, charterers and any party benefitting from consumption of the Bunkers, all of whom shall be jointly and severally liable as Buyer.

 

d. 'Seller' – refers to INTERNATIONAL BUNKER SERVICES LIMITED

 

e. 'Terms and Conditions' – refers to these terms and conditions effective from 1 May 2014 and any subsequent amendments thereto.

 

f. 'Vessel' – refers to the Vessel, ship, facility, tank, container or craft to which a delivery of Bunkers is made.

2. APPLICATION OF TERMS AND CONDITIONS

a. In the absence of an explicit written agreement to the contrary, these Terms and Conditions are binding on the Seller and Buyer.

 

3. QUALITY

a. Any implied warranties of merchantability and fitness of the Bunkers for a particular purpose are expressly excluded and disclaimed. The Buyer shall bear sole responsibility for the Bunkers ordered whether or not the same meets the requirements of the Buyer's intended usage. The Seller shall not be under any obligation to check whether the Bunkers ordered by the Buyer are suitable for the Vessel or the Buyer's intended usage.

 

b. The Seller shall not be liable and the Buyer shall be solely liable for any losses or damages arising from and/or caused by the mixing or comingling of the Bunkers with any other oil or product(s) onboard the Vessel.


4. QUANTITY

a. The quantity of Bunkers supplied by the Seller to the Buyer shall be determined by the official Bunker Delivery Receipt signed by the Buyer, and the gauges/ullages of the barge/truck effecting delivery or by gauging/ullages of shore tank if delivery is by pipeline.

 

b. Any adjustment to volume due to temperature shall be guided by ASTM-IP petroleum measurement table.

 

c. In locations where the quantity of Bunkers supplied by the Seller to the Buyer is determined by local customs or authorities, the parties agree that the measurements of the local customs or authorities regarded as the correct and final quantity of Bunkers delivered by the Seller to the Buyer.


5. DELIVERY

a. Delivery shall be carried out in accordance with the Agreement.

 

b. The Seller shall not be liable for demurrage, detention, crew wages, pilotage, towage, port charge, loss or profit or any other losses including but not limited to consequential losses suffered by the Buyer due to congestion, breakdown of or damage to, or shortage in facilities used for production, refining or transportation of the Bunkers, failure of or shortage of barges or other modes of transportation, or to any other delay in delivery of the Bunkers.

 

c. Save for Clause 9, the Seller shall not be liable to the Buyer for any loss or damage including loss of profit or any other consequential losses whatsoever arising from any cause whatsoever whether in contract, tort or otherwise including the negligence of the Seller, its servants, agents or subcontractors.

 

d. The Seller shall not be liable for any loss, damage, costs or expenses arising from the Seller's failure to fulfill or comply with any term or condition of the Agreement if fulfillment or compliance has been delayed, hindered or prevented by any circumstance whatsoever which is not within the immediate and reasonable control of the Seller including but not limited to the generality of the foregoing, any acts of God, fires, floods, perils of the sea, war (declared or undeclared), hostilities, embargoes, sanctions, accidents, strikes, lockouts or labour disputes or reasonable apprehension thereof, any government order, request or restriction, or acts in compliance with requests of persons purporting to act on behalf of a government authority, or any other similar causes, any limitation restriction or interruption to existing or contemplated sources of supply of Product and/or the means of supply and/or the means of delivery.

e. Where the Buyer does not, for any reason whatsoever, take delivery of the Bunkers ordered or any part thereof, the Buyer shall compensate the Seller for the losses suffered by the Seller and the Buyer shall bear the costs and expenses incurred for the return transportation of the undelivered Bunkers, the storage and subsequent sale of the undelivered Bunkers, including any price difference in the Agreement and the subsequent sale thereof.

f. The Buyer warrants that representatives from the Vessel shall be responsible for ensuring that the Bunkers are received in a safe way and without any liability incurred whatsoever on the part of the Seller.

g. The Buyer shall be responsible for ensuring that the shipping company observes all health and safety regulations with regard to the receipt and use of the Bunkers and the Seller disclaims any liability whatsoever in relation thereto.

h. In the event of an oil spill occurring when the Bunkers are being delivered, the Buyer and the Seller shall jointly coordinate their efforts in order to control the damage as much as possible, whether or not one party maintains that the other is liable for the incident. Costs and expenses incurred in undertaking pollution control shall be equally borne by the parties at first instance, until liability for the incident has been established either by agreement or a judgment or award issued by a competent Court or Tribunal, and any reimbursement of the said costs and expenses incurred by one party to the other shall fall due thereafter.


6. RISK AND TITLE

a. Delivery shall be considered as having taken place and the risk of the Bunkers, including loss, damage, deterioration, evaporation, or any other condition or incidents related thereto shall pass to the Buyer as the Bunkers passes the fixed bunker connections on the Vessel.

b. Title in the Bunkers shall remain with the Seller until the Buyer has paid for the Bunkers in full. Until that time, the Buyer shall hold the Bunkers as bailee, store it in such a way that it can be identified as the Seller's property and keep it separate from the Buyer's own property and the property of any other person. In the event the Buyer fails to make payment in accordance with Clause 7, the Seller has the right to demand immediate return of the Bunkers and any party other than the Buyer who consumes the Bunkers shall be liable to the Seller in conversion. For the avoidance of doubt, where a mortgagee bank enforces any rights against the Vessel and becomes a mortgagee in possession of the Bunkers, then as bailee, the mortgagee bank is liable to the Seller for fulfillment of the Agreement.


7. PAYMENT

a. The Buyer shall make payment in full, without set-off and/or deduction for any reason whatsoever, within the number of days, in the currency and to the bank specified in the Agreement, net of all bank and remittance charges.

 

b. Any and all outstanding payments are subject to interest accruing per month as per the terms in the Agreement and/or invoice. Accrued interest and/or costs and/or expenses incurred by the Seller in requesting payment of outstanding amounts shall be added at monthly intervals to and become part of the outstanding sum.

 

c. Notwithstanding any agreement to the contrary, payment shall be due immediately and the Seller shall be entitled to cancel all outstanding stems and/or future deliveries in the event of:

i. Bankruptcy, liquidation or suspension of payment or comparable situation of the Buyer,

ii. Arrest of the Buyer's assets including but not limited to the Vessel,

iii. If the Buyer fails to pay any sum and/or invoice due to the Seller at the maturity of the said sum and/or invoice, or

iv. 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.

 

d. Notwithstanding there being any dispute over the quantity and/or quality of the Bunkers, the Buyer must make full payment in accordance with the quantity and price and other terms set out in the Agreement. The Buyer is not entitled to withhold payment, make partial payment, unilaterally reduce or set-off the payment due to the Seller.

 

e. The Bunkers supplied and delivered by the Seller are based on the Vessel's and Buyer's credit, as well as on the promise of the Buyer to pay therefore, the amount due on the purchase price, together with all delivery and other expenses and charges incurred shall form and became a maritime lien against the Vessel immediately upon the delivery of the Bunkers. 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 ship or asset beneficially owned or controlled by the Buyer for any payments due and owing to the Seller. Nothing in the Agreement shall be construed as limiting the rights or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction. For the avoidance of doubt, any notice or stamp in the Bunker Delivery Receipt or similar document shall not waive the Seller's maritime lien on the Vessel.

 

f. Should the Bunkers be purchased by a manager, broker, or agent, then such manger 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 delivered Bunkers as Buyer. The Buyer warrants that it is authorized as agent to order the Bunkers for delivery to the Vessel, and that the Seller
has a lien on the Vessel for its claim.

g. All costs and expenses incurred by the Seller in relation to the collection of overdue payments and unpaid invoices shall be for the Buyer's account. Such costs and expenses include but are not limited to legal or attorney fees.


8. CLAIMS

a. Any claim presented to the Seller must be in writing ("Notice of Claim") and must be presented within the time limit specified in this Clause. Any claim not notified in writing and within the specified time limit shall be deemed waived and absolutely debarred and the Seller shall be discharged of all liability whatsoever and howsoever arising. It is the Buyer's responsibility to ensure that the Notice of Claim is received by the Seller whose confirmation of receipt should always be sought.

b. The Notice of Claim must contain sufficient information and supporting documents to enable the Seller to identify the relevant transaction, the nature of the claim and the loss or damage alleged. Any Notice of Claim which does not contain sufficient information and supporting documents shall not be deemed as a valid claim for the purpose of compliance with the relevant time limit.

 

c. Notice of Claim relating to quality of the Bunkers shall be presented by the Buyer to the Seller within 14 days of delivery.

 

d. In the event of a dispute over the quality of the Bunkers supplied, the parties agree that the analysis results of the sealed samples drawn by the Seller or its representative on delivery of the Bunkers, such analysis to be conducted by an independent laboratory mutually appointed by the Buyer and Seller, shall be conclusive and the sole binding evidence in determining the quality of Bunkers supplied.

 

e. The quantity of Bunkers delivered shall be determined in accordance with Clause 4. Any claim regarding the quantity of Bunkers delivered shall be notified by the Buyer to the Seller immediately and prior to the signing of Bunker Delivery Receipts. In any event, if formal written notice is not sent by the Buyer to the Seller within 24 hours of delivery, such claim shall be considered waived and absolutely time-barred.

 

f. Without prejudice to the above sub-clauses of this Clause, the Seller shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any of the Bunkers delivered or which the Seller has undertaken to supply and/or provide unless suit be brought and written notice thereof is given to the Company within 6 months from the date of delivery and/or date of the Seller's undertaking.


9. LIMITATION OF AND EXCLUSION OF LIABILITY

a. Where it is proven that the Bunkers are not delivered in due time in accordance with the Agreement, the Seller shall be liable for any documented loss thereof, subject to the Seller's liability for damages being limited to a maximum time loss of four days, calculated at the Vessel's daily time charter hire rate or if this is not available, the Vessel's market daily time charter hire rate.

 

b. Where it is proven that the quality of the Bunkers delivered are not in accordance with the Agreement, the Seller shall be liable for any documented loss thereof, subject to the Seller's liability for damages being limited to a maximum time loss of four days, calculated at the Vessel's daily time charter hire rate or if this is not available, the Vessel's market daily time charter hire rate and the reasonable repair or replacement costs of damaged machine parts / components. In assessing reasonable repair / replacement costs, 15% of the invoice value of the machine parts / components shall be deducted for each year or fraction of a year that the said part / component has been in use.

 

c. Under no circumstances whatsoever shall the Seller be liable for consequential losses including but not limited to delay, detention, demurrage, charter hire, crew wages, pilotage, towage, port charges, loss of profits or increase cost or expenses for obtaining replacement fuel.

 

d. Notwithstanding Clauses 8 and 9, the Seller shall not be liable to pay any damages if the Buyer failed to safeguard the Seller's recovery rights against any third party wrongdoer.


10. INDEMNITY

a. The Buyer hereby indemnifies the Seller against any claim for injury and/or death occurring to any person and/or all damage and/or damage to any property and against all actions, suits, claims, demands, costs, charges or expenses arising in connection therewith to the extent that the same shall have been occasioned by the negligence or default of the Buyer, his servants, representative, or agents or any third party in the course of performance of or arising out of or in connection with the Agreement.


11. ENTIRE AGREEMENT

a. The parties hereby agree the Agreement constitute the entire agreement and understanding between the parties and supersedes all prior agreements, understandings, negotiations, representations, and discussions, whether oral or written, between the parties. Further, for the avoidance of doubt, any local guidelines in relation to warranty, price, quality or other customs of the trade are inapplicable and are not herewith incorporated nor relied upon.

 

b. The Agreement is to be construed as a whole, and all parts of it are to be read and construed together. If any Clause in the Agreement is adjudged by a Court or Tribunal of competent jurisdiction to be invalid, illegal, unenforceable, the validity, legality and enforceability of the remaining Clauses in the Agreement shall not be affected or impaired thereby.


12. TERMINATION

a. The Seller reserve the right to terminate the Agreement immediately if one of the following circumstances arise:

i. Buyer is in breach of the agreement or any of these Terms and Conditions.

ii. Buyer fails to accept partial or full delivery of the Bunkers at the time and location as per the Agreement.

iii. The reputation, standing, creditworthiness, liquidity or solvency of the buyer or any subsidiary, parent, associate or affiliate thereof gives the Seller reasonable cause for concern and/or if any amount due remains outstanding for 7 days or more, the Seller may without prejudice to all other rights and remedies which it may have give notice to the Buyer that credit facilities extended by the Seller to the Buyer are withdrawn or suspended as the case may be and all sums outstanding and/or due for payment at a future date shall thereupon fall due for immediate payment.

iv. Any circumstance whatsoever which is not within the immediate and reasonable control of the Seller including but not limited to the generality of the foregoing, any acts of God, fires, floods, perils of the sea, war (declared or undeclared), hostilities, embargoes, sanctions, accidents, strikes, lockouts or labour disputes or reasonable apprehension thereof, any government order, request or restriction, or acts in compliance with requests of persons purporting to act on behalf of a government authority, or any other similar causes, any limitation restriction or interruption to existing or contemplated sources of supply of Product and/or the means of supply and/or the means of delivery.


13. ARREST OF VESSEL

a. The Bunkers 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 Bunkers 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 in the Vessel and/or providing for the right to arrest the Vessel. Nothing in this Agreement shall be construed to limit the rights or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.

 

14. GOVERNING LAW AND JURISDICTION

a. This Agreement and all claims and disputes arising under or in connection with the Agreement shall be governed by the law of the United States including the Marine Law of the United States. Any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. For the avoidance of doubt, nothing in this Clause shall, in the event of a breach of the Agreement by the Buyer, preclude the Seller from taking any such action as it shall in its absolute discretion deem necessary, including but not limited to any action against the Buyer in any Court or Tribunal in any state or country at the Seller's sole discretion.

 

 

 

Terms and conditions for the services rendered by INTERNATIONAL BUNKER SERVICES K.K.

 

EFFECTIVE FROM 1st. May 2014

 

1. DEFINITIONS

a. 'Agreement' – refers to the agreement made between the Buyer and the Seller for the sale of Bunkers, setting forth the particular terms of each sale transaction, all sale transactions being subject to these Terms and Conditions.

 

b. 'Bunkers' – refers to marine bunker fuel oil, marine lubricants and related products of whatever type and description as delivered by the Seller.

 

c. 'Buyer' – refers to any individual or entity (company) placing orders for Bunkers, and shall include any agent, principal, associate, manager, partner, servant, parent, subsidiary, together with the Vessel, her master, owners, operators, charterers and any party benefitting from consumption of the Bunkers, all of whom shall be jointly and severally liable as Buyer.

 

d. 'Seller' – refers to INTERNATIONAL BUNKER SERVICES K.K.

 

e. 'Terms and Conditions' – refers to these terms and conditions effective from 1 May 2014 and any subsequent amendments thereto.

 

f. 'Vessel' – refers to the Vessel, ship, facility, tank, container or craft to which a delivery of Bunkers is made.

2. APPLICATION OF TERMS AND CONDITIONS

a. In the absence of an explicit written agreement to the contrary, these Terms and Conditions are binding on the Seller and Buyer.

 

3. QUALITY

a. Any implied warranties of merchantability and fitness of the Bunkers for a particular purpose are expressly excluded and disclaimed. The Buyer shall bear sole responsibility for the Bunkers ordered whether or not the same meets the requirements of the Buyer's intended usage. The Seller shall not be under any obligation to check whether the Bunkers ordered by the Buyer are suitable for the Vessel or the Buyer's intended usage.

 

b. The Seller shall not be liable and the Buyer shall be solely liable for any losses or damages arising from and/or caused by the mixing or comingling of the Bunkers with any other oil or product(s) onboard the Vessel.


4. QUANTITY

a. The quantity of Bunkers supplied by the Seller to the Buyer shall be determined by the official Bunker Delivery Receipt signed by the Buyer, and the gauges/ullages of the barge/truck effecting delivery or by gauging/ullages of shore tank if delivery is by pipeline.

 

b. Any adjustment to volume due to temperature shall be guided by ASTM-IP petroleum measurement table.

 

c. In locations where the quantity of Bunkers supplied by the Seller to the Buyer is determined by local customs or authorities, the parties agree that the measurements of the local customs or authorities regarded as the correct and final quantity of Bunkers delivered by the Seller to the Buyer.


5. DELIVERY

a. Delivery shall be carried out in accordance with the Agreement.

 

b. The Seller shall not be liable for demurrage, detention, crew wages,
pilotage, towage, port charge, loss or profit or any other losses including but not limited to consequential losses suffered by the Buyer due to congestion, breakdown of or damage to, or shortage in facilities used for production, refining or transportation of the Bunkers, failure of or shortage of barges or other modes of transportation, or to any other delay in delivery of the Bunkers.

 

c. Save for Clause 9, the Seller shall not be liable to the Buyer for any loss or damage including loss of profit or any other consequential losses whatsoever arising from any cause whatsoever whether in contract, tort or otherwise including the negligence of the Seller, its servants, agents or subcontractors.

 

d. The Seller shall not be liable for any loss, damage, costs or expenses arising from the Seller's failure to fulfill or comply with any term or condition of the Agreement if fulfillment or compliance has been delayed, hindered or prevented by any circumstance whatsoever which is not within the immediate and reasonable control of the Seller including but not limited to the generality of the foregoing, any acts of God, fires, floods, perils of the sea, war (declared or undeclared), hostilities, embargoes, sanctions, accidents, strikes, lockouts or labour disputes or reasonable apprehension thereof, any government order, request or restriction, or acts in compliance with requests of persons purporting to act on behalf of a government authority, or any other similar causes, any limitation restriction or interruption to existing or contemplated sources of supply of Product and/or the means of supply and/or the means of delivery.

e. Where the Buyer does not, for any reason whatsoever, take delivery of the Bunkers ordered or any part thereof, the Buyer shall compensate the Seller for the losses suffered by the Seller and the Buyer shall bear the costs and expenses incurred for the return transportation of the undelivered Bunkers, the storage and subsequent sale of the undelivered Bunkers, including any price difference in the Agreement and the subsequent sale thereof.

f. The Buyer warrants that representatives from the Vessel shall be responsible for ensuring that the Bunkers are received in a safe way and without any liability incurred whatsoever on the part of the Seller.

g. The Buyer shall be responsible for ensuring that the shipping company observes all health and safety regulations with regard to the receipt and use of the Bunkers and the Seller disclaims any liability whatsoever in relation thereto.

h. In the event of an oil spill occurring when the Bunkers are being delivered, the Buyer and the Seller shall jointly coordinate their efforts in order to control the damage as much as possible, whether or not one party maintains that the other is liable for the incident. Costs and expenses incurred in undertaking pollution control shall be equally borne by the parties at first instance, until liability for the incident has been established either by agreement or a judgment or award issued by a competent Court or Tribunal, and any reimbursement of the said costs and expenses incurred by one party to the other shall fall due thereafter.


6. RISK AND TITLE

a. Delivery shall be considered as having taken place and the risk of the Bunkers, including loss, damage, deterioration, evaporation, or any other condition or incidents related thereto shall pass to the Buyer as the Bunkers passes the fixed bunker connections on the Vessel.

b. Title in the Bunkers shall remain with the Seller until the Buyer has paid for the Bunkers in full. Until that time, the Buyer shall hold the Bunkers as bailee, store it in such a way that it can be identified as the Seller's property and keep it separate from the Buyer's own property and the property of any other person. In the event the Buyer fails to make payment in accordance with Clause 7, the Seller has the right to demand immediate return of the Bunkers and any party other than the Buyer who consumes the Bunkers shall be liable to the Seller in conversion. For the avoidance of doubt, where a mortgagee bank enforces any rights against the Vessel and becomes a mortgagee in possession of the Bunkers, then as bailee, the mortgagee bank is liable to the Seller for fulfillment of the Agreement.


7. PAYMENT

a. The Buyer shall make payment in full, without set-off and/or deduction for any reason whatsoever, within the number of days, in the currency and to the bank specified in the Agreement, net of all bank and remittance charges.

 

b. Any and all outstanding payments are subject to interest accruing per month as per the terms in the Agreement and/or invoice. Accrued interest and/or costs and/or expenses incurred by the Seller in requesting payment of outstanding amounts shall be added at monthly intervals to and become part of the outstanding sum.

 

c. Notwithstanding any agreement to the contrary, payment shall be due immediately and the Seller shall be entitled to cancel all outstanding stems and/or future deliveries in the event of:

i. Bankruptcy, liquidation or suspension of payment or comparable situation of the Buyer,

ii. Arrest of the Buyer's assets including but not limited to the Vessel,

iii. If the Buyer fails to pay any sum and/or invoice due to the Seller at the maturity of the said sum and/or invoice, or

iv. 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.

 

d. Notwithstanding there being any dispute over the quantity and/or quality of the Bunkers, the Buyer must make full payment in accordance with the quantity and price and other terms set out in the Agreement. The Buyer is not entitled to withhold payment, make partial payment, unilaterally reduce or set-off the payment due to the Seller.

 

e. The Bunkers supplied and delivered by the Seller are based on the Vessel's and Buyer's credit, as well as on the promise of the Buyer to pay therefore, the amount due on the purchase price, together with all delivery and other expenses and charges incurred shall form and became a maritime lien against the Vessel immediately upon the delivery of the Bunkers. 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 ship or asset beneficially owned or controlled by the Buyer for any payments due and owing to the Seller. Nothing in the Agreement shall be construed as limiting the rights or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction. For the avoidance of doubt, any notice or stamp in the Bunker Delivery Receipt or similar document shall not waive the Seller's maritime lien on the Vessel.

 

f. Should the Bunkers be purchased by a manager, broker, or agent, then such manger 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 delivered Bunkers as Buyer. The Buyer warrants that it is authorized as agent to order the Bunkers for delivery to the Vessel, and that the Seller has a lien on the Vessel for its claim.

g. All costs and expenses incurred by the Seller in relation to the collection of overdue payments and unpaid invoices shall be for the Buyer's account. Such costs and expenses include but are not limited to legal or attorney fees.


8. CLAIMS

a. Any claim presented to the Seller must be in writing ("Notice of Claim") and must be presented within the time limit specified in this Clause. Any claim not notified in writing and within the specified time limit shall be deemed waived and absolutely debarred and the Seller shall be discharged of all liability whatsoever and howsoever arising. It is the Buyer's responsibility to ensure that the Notice of Claim is received by the Seller whose confirmation of receipt should always be sought.

b. The Notice of Claim must contain sufficient information and supporting documents to enable the Seller to identify the relevant transaction, the nature of the claim and the loss or damage alleged. Any Notice of Claim which does not contain sufficient information and supporting documents shall not be deemed as a valid claim for the purpose of compliance with the relevant time limit.

 

c. Notice of Claim relating to quality of the Bunkers shall be presented by the Buyer to the Seller within 14 days of delivery.

 

d. In the event of a dispute over the quality of the Bunkers supplied, the parties agree that the analysis results of the sealed samples drawn by the Seller or its representative on delivery of the Bunkers, such analysis to be conducted by an independent laboratory mutually appointed by the Buyer and Seller, shall be conclusive and the sole binding evidence in determining the quality of Bunkers supplied.

 

e. The quantity of Bunkers delivered shall be determined in accordance with Clause 4. Any claim regarding the quantity of Bunkers delivered shall be notified by the Buyer to the Seller immediately and prior to the signing of Bunker Delivery Receipts. In any event, if formal written notice is not sent by the Buyer to the Seller within 24 hours of delivery, such claim shall be considered waived and absolutely time-barred.

 

f. Without prejudice to the above sub-clauses of this Clause, the Seller shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any of the Bunkers delivered or which the Seller has undertaken to supply and/or provide unless suit be brought and written notice thereof is given to the Company within 6 months from the date of delivery and/or date of the Seller's undertaking.


9. LIMITATION OF AND EXCLUSION OF LIABILITY

a. Where it is proven that the Bunkers are not delivered in due time in accordance with the Agreement, the Seller shall be liable for any documented loss thereof, subject to the Seller's liability for damages being limited to a maximum time loss of four days, calculated at the Vessel's daily time charter hire rate or if this is not available, the Vessel's market daily time charter hire rate.

 

b. Where it is proven that the quality of the Bunkers delivered are not in accordance with the Agreement, the Seller shall be liable for any documented loss thereof, subject to the Seller's liability for damages being limited to a maximum time loss of four days, calculated at the Vessel's daily time charter hire rate or if this is not available, the Vessel's market daily time charter hire rate and the reasonable repair or replacement costs of damaged machine parts / components. In assessing reasonable repair / replacement costs, 15% of the invoice value of the machine parts / components shall be deducted for each year or fraction of a year that the said part / component has been in use.

 

c. Under no circumstances whatsoever shall the Seller be liable for consequential losses including but not limited to delay, detention, demurrage, charter hire, crew wages, pilotage, towage, port charges, loss of profits or increase cost or expenses for obtaining replacement fuel.

 

d. Notwithstanding Clauses 8 and 9, the Seller shall not be liable to pay any damages if the Buyer failed to safeguard the Seller's recovery rights against any third party wrongdoer.


10. INDEMNITY

a. The Buyer hereby indemnifies the Seller against any claim for injury and/or death occurring to any person and/or all damage and/or damage to any property and against all actions, suits, claims, demands, costs, charges or expenses arising in connection therewith to the extent that the same shall have been occasioned by the negligence or default of the Buyer, his servants, representative, or agents or any third party in the course of performance of or arising out of or in connection with the Agreement.


11. ENTIRE AGREEMENT

a. The parties hereby agree the Agreement constitute the entire agreement and understanding between the parties and supersedes all prior agreements, understandings, negotiations, representations, and discussions, whether oral or written, between the parties. Further, for the avoidance of doubt, any local guidelines in relation to warranty, price, quality or other customs of the trade are inapplicable and are not herewith incorporated nor relied upon.

 

b. The Agreement is to be construed as a whole, and all parts of it are to be read and construed together. If any Clause in the Agreement is adjudged by a Court or Tribunal of competent jurisdiction to be invalid, illegal, unenforceable, the validity, legality and enforceability of the remaining Clauses in the Agreement shall not be affected or impaired thereby.


12. TERMINATION

a. The Seller reserve the right to terminate the Agreement immediately if one of the following circumstances arise:

i. Buyer is in breach of the agreement or any of these Terms and Conditions.

ii. Buyer fails to accept partial or full delivery of the Bunkers at the time and location as per the Agreement.

iii. The reputation, standing, creditworthiness, liquidity or solvency of the buyer or any subsidiary, parent, associate or affiliate thereof gives the Seller reasonable cause for concern and/or if any amount due remains outstanding for 7 days or more, the Seller may without prejudice to all other rights and remedies which it may have give notice to the Buyer that credit facilities extended by the Seller to the Buyer are withdrawn or suspended as the case may be and all sums outstanding and/or due for payment at a future date shall thereupon fall due for immediate payment.

iv. Any circumstance whatsoever which is not within the immediate and reasonable control of the Seller including but not limited to the generality of the foregoing, any acts of God, fires, floods, perils of the sea, war (declared or undeclared), hostilities, embargoes, sanctions, accidents, strikes, lockouts or labour disputes or reasonable apprehension thereof, any government order, request or restriction, or acts in compliance with requests of persons purporting to act on behalf of a government authority, or any other similar causes, any limitation restriction or interruption to existing or contemplated sources of supply of Product and/or the means of supply and/or the means of delivery.


13. ARREST OF VESSEL

a. The Bunkers 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 Bunkers 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 in the Vessel and/or providing for the right to arrest the Vessel. Nothing in this Agreement shall be construed to limit the rights or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.

 

14. GOVERNING LAW AND JURISDICTION

a. This Agreement and all claims and disputes arising under or in connection with the Agreement shall be governed by the law of the United States including the Marine Law of the United States. Any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. For the avoidance of doubt, nothing in this Clause shall, in the event of a breach of the Agreement by the Buyer, preclude the Seller from taking any such action as it shall in its absolute discretion deem necessary, including but not limited to any action against the Buyer in any Court or Tribunal in any state or country at the Seller's sole discretion.