CONDITIONS OF SALE
ORLAN - ECO JSC
1. ORLAN-ECO JSC agrees to sell, deliver or arrange to sell or deliver marine Fuels subject to the following terms and conditions.
a. "The Company" means ORLAN - ECO JSC.
b. "The Customer" means any party requesting the Company either to sell and deliver or to arrange to sell and deliver Marine Fuels.
c. "Marine Fuels" means all types and grades of fuels, oils, lubricants and goods of whatever description.
d. "Conditions" means the terms and conditions of sale set out in this document and in the confirmation of stem message. In the event of any conflict between these Conditions and the confirmation of stem message, the latter shall prevail.
e. "Supplier" means the physical supplier of Marine Fuels delivered to a vessel.
a. These Conditions shall apply to all contracts for the sale and delivery or the arrangement of sale and delivery of Marine Fuels by the Company to the Customer to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar documents.
b. All orders for Marine Fuels shall be deemed to be an offer by the Customer to purchase marine Fuels pursuant to these Conditions.
c. Acceptance of delivery of the marine Fuels shall be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
d. Any variation of these Conditions (including any special terms and conditions agreed between parties) shall be applicable unless agreed in writing by the Company.
a. The Customer shall ensure that the Company and its employees vehicles have full and free access to any storage facility to which Marine Fuels are to be delivered and the Customer undertakes to provide, in the case of bulk quantities a tank or tanks suitable for the purpose of storing the Marine Fuels supplied.
b. The Customer shall ensure the delivery point is safe for vehicle delivery and the Company shall not be bound to deliver over roadways which in its opinion are unsafe for the delivery vehicle and the Customer shall indemnify the Company against all damages costs claims or expenses whatsoever arising from a breach of this condition.
c. In any case where delivery is ex lighter or ex bare the Customer shall provide????????????????????????????????? or barge(s) alongside the vessel’s receiving lines.
d. Is an estimate only and the Company shall not be liable for any damages costs claims loss or demurrage or expenses whatsoever including consequential loss arising out of any delay occasioned thereby. Nonetheless, if the vessel to be supplied is delayed in arriving or is likely to be so delayed, the Customer shall promptly advise the Company. At the Customer’s request the Company will endeavor to supply a vessel so delayed on the terms originally agreed but the Company reserves the right to pass on to the Customer all additional costs consequences upon the delay including any increases in the price as defined in clause 4 below.
e. In the case of deliveries in bulk the Company does not accept responsibility for the dipping, checking or testing the Customer’s tanker, tank or tanks. Therefore, the Customer is responsible for ensuring sufficient ullage to take the quantity ordered.
f. All black oils delivered not at ambient temperature are sold by volume at temperature of delivery.
g. Subject to clause 11 below which excludes the Company’s liability for negligence and for breach of either contract or statutory duty, if in the course of any delivery under a Contract there is any escape or spillage of Marine Fuels:
I The Customer shall promptly take and shall assist and co-operate with the Company in taking any necessary action to remedy or mitigate the consequences thereof.
II The Customer shall supply the Company with all such documents and information concerning the same or any programme for the prevention thereof as are requested by the Company or are required by law or regulations applicable at the Delivery Port.
a. The price quoted by the Company or comprised in any order or contract is based on prices ruling at the time of quotation (“the Commodity Price”).
b. In addition to the Commodity Price payable for Marine Fuels the Customer shall pay the following charges:
I Any expenses incurred as a result of the Master of the vessel reflecting the whole or any part of the delivery.
II Any mooring or unmooring charges or port dues which may be incurred by the Company in connection with any vessel to which Marine Fuels are delivered.
III Any other applicable charges provided for in the price quoted by the Company.
IV If the Company (not having duty-free stocks available and having first notified the Customer that this is the case) delivers to the Customer from duty paid stocks, the amount of that duty.
V Any additional costs at the rates then applicable for such work incurred by the Company in respect of deliveries made under a contract including payments for work outside normal working hours or on public or dock holidays or Sundays or Saturdays or outside normal harbor limits.
VI Any demurrage charges on barges or lighters or road tank wagons caused by any circumstances whatsoever outside the control of the Company.
C. The Company reserves the right to alter the prices to take full account of:
I Any increase by the Supplier in the Commodity Price.
II Any variation after the date of the quotation that might occur in the costs of labour, materials, overheads of the Company and transport and;
III Any change in duty, tax, surcharge or levy of any kind whatsoever affecting the supply of goods; and
IV Any variation in the rate of VAT which shall be charged in addition at the rate appropriate to the relevant tax point.
a. Delivery shall occur when the Marine Fuels pass the flange of the receiving vessel. However, risk of loss or damage to the Marine Fuels and responsibility for loss or damage caused by pollution or in any other manner to a third party passes to the Customer when the Marine Fuels leave the Suppliers refinery or place of storage.
b. Notwithstanding that risk may have passed in accordance with clause 5a above ownership of the Marine Fuels shall remain with the Company until all sums due to the Company on any account whatsoever shall have been paid for. If Marine Fuels are added to or mixed with other goods which are not the property of the Company before payment as aforesaid, the property in the whole of the goods shall be and remain with the Company.
a. if Marine Fuels are supplied or are to be supplied under a contract on credit and if the financial condition of the Customer becomes in the opinion of the Company impaired or unsatisfactory, the Company may demand that payment be made at any time before the date due for payment whether before or after delivery of the Marine Fuels or may demand the giving of such security as it may specify.
b. Marine Fuels are supplied under a contract on the faith and credit of the vessel to which they are supplied as well as on the faith and credit of the Customer. It is agreed, accepted and acknowledged that a lien over the vessel is thus created for the priced of the Marine Fuels supplied. The Customer if not the owner, whether by demise or otherwise, of the vessel expressly warrants that the Customer has the authority of the said owner to pledge the vessel’s credit and that the Customer has given notice of the provisions of this clause to the owner.
c. Further or in the alternative to 6(b) above, where the Company has paid the Supplier’s invoice, that payment will act as an assignment of the Supplier’s maritime or statutory lien, as appropriate, on the vessel to the Company to the extent of the amount of the Supplier’s invoice.
d. If at any time the Customer has failed to make any payment or give any security required (whether in terms of this clause or not) the Company shall, in addition to any other remedy, be entitled to suspend or terminate deliveries under the contract concerned (insofar as they have not already taken place) and to start all their rights against the vessel. The Company may also procure that any other contract between the Customer and the Company be terminated. In the event of such suspension or termination the Buyer shall have no recourse against the Company.
7. On Completion of the delivery of goods to a vessel under a contract, the Master of the vessel or the Customer’s accredited representative shall give the Company or its agents signed receipt therefore in a form required by the Company or its agents of which a copy shall be retained by the Master or such representative.
8. Terms of payments shall be as agreed between the Company and the Customer. The Company reserves the right to invoice the Customer by means of telex, telegraphic message, fax or electronic mail. All amounts due from the Customer to the Company shall be due in full without any deduction or set off whatsoever. If any invoices are unpaid by the date stated thereon a late payment charge of 1.5 per cent per month or pro-data may be levied by the Company with a minimum of 10 days. If the Customer fails to comply with the agreed terms of payment the Company reserves the right to discontinue delivery of any Marine Fuels whether agreed or otherwise and the Company shall be entitled to claim against the Customer for any loss or damage sustained in consequence of the non-completion of any contract.
9. The Customer undertakes with the Company to accept delivery of the whole of orders placed with and accepted by the Company at the time the Company is able to make delivery (subject to the conditions of clause 3 above).
10. The Company shall at the request of the Customer provide the Customer with samples representative of the delivered product. Only the sample taken on board the bunker barge in the presence of both parties and properly signed and sealed by both parties shall form the basis of analysis documentation that bunker oil was substandard or “off spec” when delivered. Samples taken in manner outside the control of the Company will not normally be recognized as representative of the product supplied.
11. a. The Marine fuel to be supplied hereunder shall be the Company’s or the Suppliers normal commercial grades offered generally to its customers for similar use at the time and place of delivery, details of which are available upon request. The Customer shall accept the Company’s measurement of quantities delivered as stated on the consignment not issued by the Company or Supplier as conclusive evidence of the quantities of Marine Fuels delivered. No other warranties, express or implied, as to the merchantability of the Marine Fuels, their fitness for purpose or as to whether Marine Fuels will correspond to the description given in the stem confirmation message are given or form part of these Conditions.
c. Where the sale and delivery of Marine Fuels or the arrangement for sale and delivery of Marine Fuels is an international supply contract as defined by Section 26 of the Unfair Contract Terms Act 1977, the implied conditions as to title, freedom of encumbrance from undisclosed charges and buyer’s right to quiet possession are all excluded.
12. Except as provided for in clause 11, the Company shall not be liable for any consequential or indirect loss, arising out of the Company’s breach of contract or statutory duty or negligence. In the event of any breach of these Conditions by the Company, the Customer’s remedy shall be limited to damages. Under no circumstances shall the liability of the Company exceed the price of the Marine Fuels supplied.
13. The benefit of any agreement or contract shall not be assigned by the Customer without the Company’s consent.
14. The Company reserves the right to subcontract the fulfillment of the supply of Marine Fuels or any part thereof on such conditions as such others may stipulate to perform part or all of the services.
15. The Company reserves the right to amend these Conditions at any time without prior notice to any Customer.
16. If the Customer shall make default or commit a breach of the contract or any of his obligations whatsoever to the Company or any distress or execution shall be levied on the Customer’s property or assets or if the Customer shall make any arrangements with creditors or commit an act of bankruptcy or if any petition of receiving order of bankruptcy shall be presented or make against him or if the Customer is a limited company and any resolution to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or if the receiver of such company undertaking property or assets or any part thereof shall be appointed or if the Customer shall suffer any analogous proceedings under foreign law the Company shall have the right forthwith to determine any contract then subsisting and on written notice of such determination being posted to the Customer’s last known address or sent by fax transmission, or by electronic mail, or by telex to the Customer’s last known fax/telex number or electronic mail address any subsisting contract shall be deemed to be determined without prejudice to any claim or right the Company may otherwise make or exercise.
17. In making these Conditions the Company does so both for itself and for and on behalf of every employee servant or agent of the Company and the Customer hereby confirms that any exemption or liability granted to the Company by these Conditions shall extend to every employee servant or agent of the Company whom the Company hereby agrees to indemnify fully against any such liability.
18. Neither the Company nor the Customer shall be responsible for any failure to fulfill their obligations (other than the payment of money) hereunder or under a contract if fulfillment has been delayed, hindered, interfered with, cancelled or prevented by:-
a. Any force majeure act such as, but not limited to, congestion of traffic on sea and land, war, hostilities, civil commotions, ship wrecks, tires, floods, acts of God or any other circumstances which are not within the control of the Company or the Company’s Suppliers, or;
b. Any curtailment, failure or cessation of supplies of Marine Fuels or the petroleum from which such Marine Fuels are derived or of any of the Company’s or Company’s Suppliers sources of supply (whether in fact sources of supply for the Marine Fuels to be delivered under the contract or not) or;
c. Compliance with any order, demand or request of any international, national, port, transportation, local or other authority or agency or of any body or person purporting to be r to act for such authority or agency or;
d. Any strike, lock out, labour dispute or industrial action (whether or not the Company or the Company’s Suppliers or the Customer as the case may be is a party thereto or would be able to influence or procure the settlement thereof).
19. The Customer will indemnify the Company against any claims, losses, including consequential losses, costs, damages, liabilities, fines, penalties and expenses incurred or sustained by the Company and arising out of or in connection with the delivery of Marine Fuels except to the extent that such claims, losses including consequential losses, claims, costs, damages, liabilities and expenses arise through the negligent act or omission of the Company.
20. Any waiver by the Company of any of its rights hereunder in any particular instance shall not prejudice their respective rights to enforce the same strictly and in full on any subsequent occasion.
21. If the Contract is made by an agent acting for and on behalf of the Customer, whether such agency is disclosed or undisclosed, then such agent shall be liable, as well as the Customer, not only as agent but also as principal for the performance of all the obligations of the Customer.
22. a. Any claim by the Customer against the Company arising in respect of the Marine Fuels supplied shall be made in writing and notified to the Company within 7 days of the date the Marine Fuels were delivered or should have been delivered to the vessel. Any claim not made and notified as aforesaid shall be deemed to be waived and thereafter absolutely barred.
c. Notwithstanding the provisions of clause (a) above the Company shall in any event be discharged of all liability whatsoever howsoever arising in respect of the Marine Fuels delivered unless suit is brought and written notice thereof given to the Company with 9 months from the date the Marine Fuels were delivered or should have been delivered to the vessel.
22. Any provision of this Contract which is or may be void or unenforceable shall to the extent of such unenforceability or invalidity be deemed severable and shall not affect any other provision of this Contract.
23. Any dispute under the Contract shall be governed by English law and subject to the jurisdiction of the English courts, except that the Company shall have the option to take any such action or actions as it in its absolute discretion shall consider necessary to enforce its rights under these Conditions in any court or tribunal in any state or country including the instigation of proceedings in rem against any vessel.
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