HELEXON BUNKERING S.A. a greek stock company with registered seat in Piraeus (3, Hirodotou & 10, Spyrou Trikoupi streets), Greece.

Transcription

1 HELEXON BUNKERING S.A. a greek stock company with registered seat in Piraeus (3, Hirodotou & 10, Spyrou Trikoupi streets), Greece. GENERAL TERMS AND CONDITIONS FOR THE SALE OF MARINE FUELS (BUNKERS) VALID AS FROM JUNE Introduction. The following are the Standard General Terms and Conditions (hereinafter the S. G.T.C. ), which are applicable to each and every sale, delivery and supply of a vessel with marine fuels/bunkers by HELEXON BUNKERING S.A. (hereinafter the H.B. as this term is defined hereinbelow). Consequently, all and each of the standard terms and conditions contained in these presents, regulate the rights and the obligations of the contracting patties and they will be deemed as incorporated and shall form an integral part of any sale contract (as this term is defined hereinbelow) and shall be binding upon H.B. as Seller and upon any Purchaser of the products (as this term is defined hereinbelow). It is expressly agreed that S.G.T.C., shall supersede and override any other terms and conditions, whether orally or in writing, which the purchaser of the products purports to apply or to invoke, under any purchase order, confirmation of order, specification or under any other related document. The S.G.T.C contained in these presents, as well as any revisions and/or amendments thereof in the future, can be reviewed by any purchaser of the products at H.B. s website and shall regulate the rights and obligations of the parties involved to any sale contract, in the absence of any explicit stipulation and/or written agreement of the parties to the contrary.

2 2. Interpretation. In these presents, the following expressions shall have the following meanings: "Seller" means the H.B. and includes in addition its agents, assignees, and subcontractors. "Buyer or Buyers " means, collectively the contracting party and/or the contracting parties described in the buyers order or nomination and thereafter in the Seller's bunkers sales confirmation and/or the respective invoice. The Buyer(s) are jointly and severally liable to pay the price invoiced and all other additional expenses for the marine fuels/bunkers sold and delivered to the Vessel. In any event Buyer(s), means the registered owner of the Vessel, her demise/bare boat and time Charterer (as the case may be), the Manager of the Vessel as well as any other third party (e.g. any port agent etc.), which has contracted as purchaser of the marine fuels/bunkers with the Seller. The Manager of a Vessel shall be deemed as acting concurrently in his name and as the lawful representative of the owner of the Vessel. Sale contract means, the agreement for the sale and purchase of marine fuels/bunkers, concluded with the written acceptance by Sellers of a Buyer s Order or Nomination for the particular marine fuels/bunkers placed by the Buyer(s). Bunker Delivery Receipt (BDR) means, the document issued by the Seller which is signed and stamped by the Master of the Vessel or his lawful representative after completion of delivery. The BDR shall be taken by the Seller or its representative, who shall hand over one copy to the Buyer, one copy to the Master of the Vessel receiving delivery of marine fuels and one copy to the Master of the lighter/barge or to the driver of the truck delivering marine fuels, as acknowledgement for the delivery of marine fuels in good order and condition.

3 "Buyer's Order" or Nomination, means the order for marine fuels/bunkers, placed by the Buyer in writing and based on the terms of the Seller's Quotation. Bunkers Sales Confirmation means the Seller's written confirmation for the supply, dispatched by him to the Buyer(s), prior to delivery and which has not been contested in writing by the Buyer(s) before the delivery of the products to the Vessel. The Bunkers Sales Confirmation shall be conclusive evidence of the order for the products, placed by the Buyer, his identity and the price and other details of delivery thereof. The party and/or the parties stated in the relevant Bunkers Sales Confirmation as buyer(s), shall be deemed jointly and severally to be the Buyer(s) of the respective products, and shall be jointly and each one of them separately, liable to pay the price invoiced and all other additional expenses for the marine fuels/bunkers sold and delivered. "Delivery Port " means the port or place at which marine fuels are delivered under the sale contract. "Vessel" or receiving Vessel means the vessel, duly nominated, to which the products are physically delivered. "Price" means, the price of the products invoiced by the Seller for the products sold and delivered to the Vessel and payable by the Buyer. 3. Delivery of the Products Seller's obligation to make any delivery is subject to the availability of the products at the delivery port. The Seller shall not be required to deliver products into any of the Vessel's tanks or spaces which are not regularly used for the storage of such products, and shall not be required to deliver any products for the export of which a Government permit is required and has not been obtained Delivery shall be made in one or more consignments by such means and at such particular place of the delivery port, as the Seller may deem appropriate in the circumstances. In the event of delivery by barge, the Buyer shall at its own expense provide a clear and safe berth

4 for the barge(s) alongside the Vessel's receiving lines and shall provide the means required to accept such delivery. The Buyer shall pay to the Seller the amount due to him according to its current barging rates at the port concerned, also other charges, if incurred, such as for mooring and unmooring; the Buyer further agrees to pay the Seller for any overtime that may be necessary to effect the supply of the products at the time(s) agreed as well as any other expenses incurred as a result of the Master s of the Vessel and/or his representatives rejection to accept the whole quantity of the delivery The Buyer shall make connection between the pipelines or delivery hoses and Vessel's intake lines, and shall render all other necessary assistance and provide sufficient tank volume and equipment to receive promptly all deliveries. The Buyer is responsible for ensuring that products are received at a safe rate and pressure and that all equipment utilized therefore is in a safe and satisfactory condition Delivery shall be deemed completed when the bunkers have passed the flange connecting the Seller's delivery facilities with the receiving facilities provided by the Buyer, at which point Seller's responsibility shall cease and the Buyer shall assume all risks, including for loss, damage, deterioration, depreciation, evaporation or shrinkage as to the Products delivered. The Seller retains title to the delivered products until the price and all and any additional charges related to the sale and delivery, which are due and payable by the Buyer have been paid by the buyer in full and on time. 4. Quality and Quantity of Products Products shall meet specifications that are applicable at the time and place of delivery; the Buyer shall be solely responsible for the selection and acceptance of Products tendered for delivery to the Vessel Seller shall arrange for four (4) identical representative samples of not less of 400 ml each for each grade of marine fuels to be drawn. The Buyer s

5 accredited representative shall be at liberty to witness the sampling. Three (3) of these samples are taken for quality purposes (quality samples). The fourth sample is known as the MARPOL control sample. One sealed quality sample and the MARPOL control sample shall be handed to the Master of the Vessel receiving the marine fuels and the other two quality samples will be retained by the Seller for the minimum period allowable under applicable law. The Vessel s samples will not be accepted Bulk deliveries ex-barges, wagons and vehicles must be checked by tank dipping to measure the contents and ensure full turn-out. Flow meters must be checked for seals correct settings and calibration and general condition. All these checks must be carried out before and after delivery of each consignment and each barge, wagon or vehicle tank load. The delivery must be supervised at all times and care must be taken in ensuring that all documentation is complete and accurate before signing and stamping. Any alleged discrepancies can only be accepted in the form of a Letter of Protest. No comments will be allowed to be written on the delivery receipt. The Seller will not accept any claims for short delivery or bad quality where these receiving procedures are not followed. 4.4 An Officer of the Vessel s crew or other senior representative of the Buyer is requested to witness and closing meter readings and road truck/barge soundings or ullages before and after the completion of the bunkering operations. These readings will be used as a final mean of measurement. The Seller will not accept a claim for short delivery based upon figures obtained by measuring Products in the receiving Vessel s tanks. 4.5 Surveyors appointed by the Buyers are always subject to Seller s approval, before placing bunker nomination and their findings will not be considered as final and binding. 4.6 Any complaint or claim on the part of the Buyer with regard to the quality of the Products delivered under a Commitment must be made to the Seller in writing with all supporting evidence as soon as possible and in any event

6 within 12 calendar days after the date of delivery, in default of which the Buyer shall be deemed to have waived all complaints or claims in relation to the quality of Products delivered. 5. Restrictions to use. The Buyer undertakes that the Products supplied to the Vessel will be used solely for the bunkering requirement of the Vessel to which they are delivered. 6. Price. 6.1 The prices quoted for any delivery of a Product, unless otherwise stated in any written quotation or confirmation of the Seller are : (a) Valid only for the date(s) of the expected delivery of the Product as same appear(s) in the relevant quotation or confirmation or - in the lack thereof as provided by the Buyer and agreed by the Seller. Outside such date(s), the Seller shall notify in writing the Buyer of the availability or not of the Product and the new price thereof. (b) Wharfage, barging and/or pipeline dues (as may be applicable at the place of delivery), overtime, any environmental surcharges, as well as any and all taxes or other charges imposed on any Product shall be paid extra by the Buyer together with the price of the Product. (c) Following the agreement on the price and before delivery of the Products, any increase in the meantime occurred on the price of the Products due to the change of the legislation or to the refinery prices or to the market conditions, shall be added to the price originally quoted by the Seller to the Buyer. 7. Payment and Financial Responsibility The price of products together with extra charges, if any, shall be paid by the Buyer to the Seller in full, within thirty (30) calendar days from the date of delivery and always according to Seller s payment instructions and in the currency shown in relevant invoice. Should the due date for payment fall on Saturday, Sunday or Public Holiday then, payment should be received by the previous working day.

7 If products are supplied or to be supplied on credit and the financial condition of the Buyer(s) becomes in the opinion of the Seller impaired or unsatisfactory, the Seller may either, demand that payment the price of products together with extra charges, to be made at any time before the date due for payment, whether before or after delivery of the products, or may demand the grand of such equivalent security which the Seller will consider appropriate under the circumstances. If at any time the Buyer(s) has exceeded any credit limit as set by the Seller or has failed to make any payment or give any security required, the Seller in addition to any other remedy, is entitled at his discretion either, to suspend further deliveries of products or terminate the commitment concerned and to assert all his rights against the vessel. In the event of such suspension or termination the Buyer(s) shall have no recourse and or any right of compensation for direct or indirect damages against the Seller Unless otherwise agreed, payment shall be made by means of irrevocable electronic wire transfer to the bank account designated by the Seller and all banking charges will be for Buyer s account. Payment shall be deemed to have been made on the date the payment is credited to the Seller s bank account. Delivery documents shall be provided to Buyer wherever possible; however payment shall not be conditional upon receipt of such documents Non payment by the Buyer(s) on the due date of the products price and of all other extra delivery charges (or of any part thereof), will accrue a pro rata default interest at the rate of 2% per month, calculated from the due date of payment to the date of actual full settlement of the above amounts invoiced together with the accrued interest, without prejudice to Seller's right to claim forthwith full payment thereof In addition to the fact that the Buyer(s) shall be jointly and each one of them separate liable for the full payment of the price of products together with extra charges and costs and taking into account that the products are supplied upon the faith and credit of the particular Vessel, in addition to any

8 other security, it is agreed and acknowledged that a lien over the Vessel is thereby created for the price of the products supplied and that the Seller in agreeing to deliver products to the Vessel, does so relying upon faith and credit of the Vessel. The Buyer if not owner of the Vessel hereby expressly warrants that he has the authority of the owner to pledge the Vessel s credit as aforesaid and that he has given notice of this clause to the owner. The Seller reserves all legal rights to take legal measures and to provisionally arrest the particular vessel in every jurisdiction she will found, for securing his maritime claim for the non payment of the price of products together with extra charges and costs and shall not be bound for any reason whatsoever, to restrict, limit or prohibit his maritime lien for attaching the said Vessel, unless notice in writing of the same is given to the Seller before it sends its nomination to the Buyer No disclaimer stamp of any type if applied on the delivery receipt, will change or waive the Seller s rights against the Vessel, or waive the Vessel s ultimate responsibility for the dept incurred through the sale contract. 8. Title Title over and to the products delivered and/or property rights in and to such products shall remain vested on the Seller, until full payment by the Buyer of all amounts due in connection with the respective delivery Until full payment of any amount due to the Seller for whatever nature, has been made, the Buyer shall not be entitled to use the products other than for the propulsion of the Vessel, nor mix, blend, sell, encumber, pledge, alienate, or surrender the products to any third party In case of breach of the sale contract by the Buyer, the Seller is entitled to take back the products without prior judicial intervention and without prejudice to all other rights or remedies available to the Seller.

9 8.4. In the event that the Products have been commingled with other products on board the Vessel, the Seller shall have the same rights as above to such part of the commingled product as corresponds to the quality of products delivered. 9. Indemnities. 9.1 The Buyer agrees to indemnify the Seller against all damages and claims arising from any acts or omissions of the Buyer or its agents and servants or the Vessel s officers or crew, in connection with the sale and supply of the products In the event that a sale contract is signed by an agent, acting for and on behalf of a principal whether disclosed or undisclosed, then such agent shall be liable not only as agent but also for the performance of all the obligations of a principal under the sale contract. 10. Claims Any dispute as to the quantity delivered must be noted at the time of delivery in a letter of protest. Any claim as to short delivery shall be presented by the Buyer immediately upon completion of delivery, failing which any such claim shall be deemed to be waived and absolutely barred Claims concerning quality, shall have to be submitted to the Seller in writing within ten (10) days from delivery, failing which the rights to complain or to claim compensation of whatever nature, shall be deemed to have been waived and absolutely barred for all times. If it is alleged that any equipment or machinery has been damaged by defective products, full details must be given in writing to the Seller at the earliest opportunity and in any case not later than ten (10) days after delivery and the alleged damaged item must be preserved and made available for inspection on demand at any reasonable time or times to the Seller or its representative, otherwise no such claim shall be accepted by the Seller.

10 11. Liability To the extent permitted by law, the Seller shall not be liable to the Buyer for any loss or damage including loss of profit or any other consequential loss whatsoever arising from any cause whatsoever whether in contract, tort or otherwise, including the negligence of the Seller, its servants, agents or subcontractors 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 shall be limited and will not exceed the price of the products supplied under sale contract. It is a precondition to the payment of any compensation by the Seller that all sums standing due to the Seller for the Buyer are first paid and settled. 12. Force Majeure. All orders hereunder shall be filled with reasonable promptness and neither Seller or Buyer shall be held responsible for any losses resulting, if the fulfillment of any terms or provisions hereof shall be delayed or prevented by compliance with any regulation or other government restriction or by compliance with any other request of any governmental authority or person purporting to act therefore, or other disorders, wars, acts of enemies, strikes, lockouts, fires, floods, acts of God, arrest or restraint of princes, perils of the sea, accidents of navigation, breakdowns or injury to ships, failure of or interference with supply from Seller s sources of supply, breakdown or injury to, or expropriation or confiscation of the facilities used for the production, transportation, receiving, manufacturing, handling or delivery of the products. If the Seller shall suffer any loss of tanker or barge tonnage, or if compliance with an order or request of any governmental authority shall reduce the tanker of barge tonnage available for the normal movement of the products, the obligation to make deliveries hereunder may be reduced at Seller s option approximately in proportion to such loss or reduction. Seller shall not be required to make upon any deliveries omitted in accordance with this section.

11 13. Delays. Seller shall not be liable for any demurrage or loss incurred by the Vessel due to congestion affecting delivery facilities or to prior commitments of barges or to restrictions imposed by Port of Customs and other Government Authority. Allocation of the individual deliveries shall be made to buyer s Vessels on a first come-first served basis, subject to Seller s final decision. Deliveries are always subject to weather permit. 14. Environmental Protection If a spill occurs while products are being delivered hereunder, Buyer shall promptly take such action as is reasonably necessary to remove the spilled products and minimize the effects of such spills. Seller is hereby authorized, at its option on notice to and at the expense of the Buyer, to take such measures and incur such expenses (whether by employing its own resources or by contracting with others) as are reasonable necessary in the judgment of the Seller to remove the spilled products and minimize the effects of such spills. Buyer shall cooperate and render such assistance as is required by Seller in the course of such action. All expenses, claims, loss, damage liability and penalties arising from spills shall be borne by the party that caused the spill by negligence or omission. If both parties have acted negligently, all expenses, claims, loss, damage, liability and penalties shall be divided between the parties in accordance with their respective degree of negligence. The burden of proof to show Seller s negligence shall be on the Buyer. 15. Governing Law and Jurisdiction. The general terms and conditions contained herein and the sale contracts concluded hereby shall in all respects be govern and interpreted in accordance with the pertinent provisions of Greek Law applicable from time to time.

12 For the exclusive benefit of the Seller, the parties to the present general terms and conditions contained and to the sale contracts concluded hereby, irrevocably agree that the competent Courts of Piraeus, Greece as first instance Courts and, on appeal therefrom, the Court of Appeal of Piraeus, Greece, are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the present general terms and conditions contained and to the sale contracts concluded hereby and that any suit, action or proceedings arising out of or in connection with the sale contracts concluded hereby may be brought in those Courts PROVIDED THAT nothing contained in this Clause shall limit the right of the Seller to take any suit, action or proceedings against the Buyers of the products and the Vessel in any other court of competent jurisdiction nor shall the taking of any suit, action or proceedings against the Buyers of the products and the Vessel, in one or more jurisdictions preclude the taking of any suit, action or proceedings in any other jurisdiction, whether concurrently or not. The Seller shall in addition have the right to arrest and take any action against the Vessel and/or any other vessel to which the Buyers shall for the time being have the legal title of ownership, wherever it or they may be, for which purpose the Buyers irrevocably agree that any writ, notice, judgment or other legal process may be served on them or on the Vessel on the Managers and / or on the port Agent and/or on the master (or anyone acting as the master) of the vessel against which the action is taken, which shall be deemed good and sufficient service on the Buyers, the Vessel or such other vessel for all purposes..