Terms & Conditions
GENERAL TERMS AND CONDITIONS FOR THE SALE OF MARINE BUNKER FUEL AND LUBRICANTS
1. GENERAL INTRODUCTION
This is a statement of the general Standard Terms and Conditions under which Axion Energy Trading FZE. (the Seller) is prepared to enter into a bunkering contract (the “Contract”) with another party (the Buyer) to supply to a Vessel, Marine Bunker Fuels, and/or Lubricants ( the “Products”).
These Terms and Conditions may be referred to as “Axion Energy Trading FZE. – General Terms and Conditions for Bunker Sales and Lubricants-Edition 2022”.
These terms and conditions together with the Confirmation Message constitute the entire Contract. No derogation, addition or amendment to the Contract be of any effect unless and until expressly confirmed in writing by the Seller. If any provision of the Contract shall to any extent be invalid or enforceable, it will not affect the validity, legality, or enforceability of any other provision of the Contract.
“Seller” includes in addition to the Seller itself, its servants, agents assigns, subcontractors and any and all other persons acting under the Seller’s instructions in fulfillment, compliance or observance of the Contract unless the context otherwise requires.
“Buyer” means the party contracting to buy Products under this Contract as well as master and/or owners and/or managing owners and/or operators of the vessel in rem
“Vessel” means the vessel, ship or craft duly nominated to receive Products as specified in the Confirmation Message.
“Products” means the Sellers commercial grades of fuel oils or lubricants as currently offered generally to its customers for similar use at the time and place of delivery.
“Services” means agency services or similar attendance to Buyer’s need.
“Supplying Company” means the person/company which physically supplies the Products to the Vessel together with this person’s/company’s servants, agents, successors, sub-contractors and assignees.
“Point of Delivery” means the precise place at which delivery of the Products is to be effected as provided in the Confirmation Message or as thereafter confirmed, advised or revised by the Seller or the Supplying Company.
3. GENERAL DESCRIPTION
3.1 The Seller shall sell and the Buyer shall buy products to be delivered at one or more ports worldwide, for use in the Buyer’s vessels, as the Buyer shall order from the Seller from time to time.
The Buyer’s vessels shall mean any and all vessels owned, operated, time chartered, managed or controlled by the Buyer or an affiliate of the Buyer.
3.2 Each Contract will be as specifically negotiated between the Buyer and the Seller as evidenced by the Buyer’s and/or Seller’s “Confirmation Telex or Telefax or email” (the Confirmation message) which shall be deemed to incorporate: a) all the Terms and Conditions herein contained and b) all the Terms and Conditions of the Supplying Company. In the event of any conflict between these Terms and Conditions and the terms of the Confirmation Message, the terms of the latter shall prevail. In the event of any conflict between these Terms and Conditions and/or the terms of the Confirmation Message on the one hand and the Terms and Conditions of the Supplying Company on the other the latter shall prevail.
4. CONFIRMATION – STEM
4.1 All information regarding the delivery of the Products (i.e. vessel’s name, agents, E.T.A, quantity, grades etc) will be notified by the Buyer to the Seller in writing. Any change to the above will be notified in writing by the Buyer to the Seller on due time prior to the delivery.
4.2 The Buyer shall inform the Seller directly or through the Buyer’s Agent 72/48 and 24 hours prior (excluding of Saturdays, Sundays and holidays) of the earliest estimated Date of the vessels readiness to receive the Marine Fuels, reconfirming the grades and actual quantities of Marine Fuels required, the method of delivery required, and any special limitations on the ship’s ability to receive bunkers.
4.3 Nominations are on firm date of delivery and Seller has the right to cancel without liability to either party if vessel does not arrive at delivery wharf or rendez vous place and present herself for delivery within twenty four (24) hours of indicated E.T.A on Confirmation Message. In the event that Buyer fails to take delivery of the quantities nominated, Buyer shall be responsible for any costs resulting from Buyer’s failure to take delivery, as well as for any losses incurred by Seller to downgrade the fuels.
5.1 Delivery of the Products shall be effected in one or more consignments at the Point of Deliver by such means as the Seller shall deem appropriate in the circumstances.
5.2 The Buyer shall make all connections or disconnections and provide all necessary equipment to receive promptly each and every consignment of the delivery.
5.3 Seller shall not be liable for any loss or demurrage due to congestion of the terminal, or prior commitments of the available barges.
5.4 The seller shall not be required to deliver Products into any of the Vessel’s tanks, which are not regularly used for bunkers.
5.5 If the Buyer causes delays to Seller’s or Supplying Company’s facilities in effecting deliveries , Buyer shall pay demurrage at Seller’s or Supplying Company’s established rates and reimburse the Seller or the Supplying Company for all the expenses in connection therewith.
5.6 Where delivery is required during other than regular business hours, and it’s permitted by applicable regulation then Buyer pay all overtime and extra expenses incurred
5.7 The Seller’s responsibility shall cease and delivery of the Products shall be deemed completed ,and risk of loss, damage, deterioration, depreciation, evaporation, etc shall pass to the Buyer at Vessel’s permanent flange connection.
5.8 The Buyers shall ensure that the Vessel is in possession of all certificates required to comply with all relevant regulations pertaining to delivery of the Products at the port or place of delivery and shall instruct the Master of the Vessel to:
- Advise the Sellers in writing, of the maximum allowable pumping rate and pressure and to agree on communication and emergency shut-down procedures;
- Notify the Sellers in writing, prior to delivery, of any special known conditions, difficulties peculiarities, deficiencies or defects in respect of and particular to the Vessel which might adversely affect the delivery of the Products;
- Provide a free side to receive the Products and to render all necessary assistance which may reasonably be required to moor or unmoor the delivery Vessel or to connect or disconnect the delivery hose(s).
On completion of the delivery the Master of the Vessel or Buyer’s representative shall give to the Supplying Company any form required by the Supplying Company properly signed and stamped of which one copy shall be retained by the Master or the representative of the Buyer.
7. PRODUCT’S QUALITY & QUANTITY DETERMINATION
7.1 Products shall meet specifications that are applicable at the time and the place of Delivery, the Buyer shall be solely responsible for the selection and the acceptance of Products tendered for Delivery to the Vessel. All quantities referred to in the Contract are understood to be approximate with a margin of 10 per cent more or less at Seller’s option.
7.2 The Seller may discharge its obligation to deliver Products as specified in the Confirmation Message by supplying substitute products, i.e. products of a different grade and/or brand name provided always that such substitute products are of an equivalent or superior specification to those specified in the Confirmation Message.
7.3 Three representative sample- bottles, of each grade fully sealed and stamped, shall be taken throughout the delivery operation prior to the Products leaving either shore tanks, tank truck, or barge. The Vessel’s tank samples will not be accepted. One sealed sample shall be handed to the Master of the Vessel receiving the Products and the other two will be retained by the Supplying Company. Any dispute as to the quality of the Products shall be determined finally and conclusively by analysis of the third representative sample retained by the Supplying Company by an expert appointed jointly by the Buyer and the Seller.
7.4 Bulk deliveries ex –barges, wagon, and vehicles must be checked by tank- dipping to measure the contents and ensure full turnout. Flow meters must be checked for seals correct setting 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.
7.5 An officer of the Vessel’s crew or other senior representative of the Buyer is requested to witness the opening and closing meter readings and road truck/ barge soundings or ullages before and after 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. No quantity dispute will be accepted should vessel’s representative refuse to witness barge figures (ullages or soundings)
7.6 Surveyors appointed by the Buyer are always subject to Seller’s approval.
8. RESTRICTIONS TO USE
Unless otherwise agreed the Buyer undertakes that the products supplied under the Contract will be used solely for the bunkering requirements of the Vessel to which they are delivered.
9.1 Where a price is stated on the Confirmation message, such price is valid only for the E.T.A defined on the Confirmation Message. In the event that the estimated lifting date is changed the Seller reserves the right to change the quotation or cancel the order, as per the provisions of para. 3.3 above.
9.2 In all cases having agreed the Price of the Products the Seller will endeavour to refrain from making any increase. However, the cost of Marine bunkering products is volatile and the Seller therefore reserves the right to increase the nominated price at any time before delivery. Where possible, prior notice of the increase will be given during the Seller’s normal business hours, Monday to Friday, inclusive 08:00- 17:00 GMT. Notice given outside these hours will be deemed to have been given at 08:00 on the first working day thereafter. In such event the Buyer may forthwith give written notice to the Seller of cancellation of the Contract. If no such notice is received within one hour of the Seller advising the Buyer of the increase of the Price the Buyer shall be deemed to have agreed to the revised Price and the Contract so revised shall remain in full force and effect. Notwithstanding whether, following the increase of the Price of the Products, the Contract is cancelled by the Buyer or revised as per the Price of the Products, the Seller shall not be liable to the Buyer for any loss or damage of the latter, including loss of profit or any other consequential loss whatsoever, allegedly arising from the increase of the Price of the Products and its consequences to the Contract.
9.3 Pricing policy is subject to the pricing policy of the Supplying Company which is involved to the Contract in each case.
10. FURTHER COSTS
10.1 In addition to the Price of the Products the Buyer agrees to pay for any charges raised in respect of taxes, freight, barge, vehicle, wagon or clean up costs including overtime, mooring/unmooring charges or port dues etc. Also, any expenses created for the calling- in of an independent surveyor in order to settle any quantity dispute, as well as laboratory analyses for any quality dispute raised by the Buyer but eventually not verified.
10.2 In the event that the Vessel is unable for any reason to receive the nominated Products
and no sufficient notice has been given to the Seller for such inability the Buyer is liable to pay cancellation charges that are estimated according to the cancellation fees of the Supplier (minimum cancellation fee USD 300.00)
11. PAYMENT FOR MARINE FUELS AND OTHER CHARGES
11.1 The value of the Products together with extra charges , if any, shall be paid by the Buyer to the Seller in full, Latest 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.
11.2 Unless otherwise agreed, payment shall be made by irrevocable telegraphic transfer and all banking charges will be for Buyer’s account. Delivery documents shall be provided to Buyer wherever possible, however payments shall not be conditional upon receipt of such documents.
11.3 If at any time between the receipt of the Buyer’s and/or Seller’s Confirmation Message and the delivery of the Products the Buyer’s credit is deemed by the Seller to be impaired or unsatisfactory, the Seller may (without prejudice to its other rights) require the Buyer at the Seller’s option either to pay cash before delivery, or to provide security satisfactory to the Seller. In the event of failure by the Buyer to comply with the Seller’s requirement, the Seller shall have no obligation to make delivery and may terminate the Contract by giving notice to this effect to the Buyer.
11.4 If at any time between the delivery of the Products and the expiry of the agreed credit period the reputation, standing, creditworthiness, liquidity or solvency of Buyer or any subsidiary, parent, associate or affiliate thereof should give the Seller reasonable cause for concern, the Seller may without prejudice to all other rights and remedies which it may have give notice to the Buyer that credit facilities from the Seller to the Buyer are withdrawn or suspended as the case may be and all sums outstanding shall thereupon fall due for immediate payment.
11.5 Seller shall not be liable to the Buyer for any loss or damage including loss of profit or any other consequential loss whatsoever allegedly arising from the exercise of the contractual rights described in paras 10.3 and 10.4 above, whether in contract, tort or otherwise.
11.6 Without prejudice to the foregoing, or the Sellers other rights under the contract or otherwise, the Seller shall have the right to require, in respect of any payment not Made by the due date, the payment by the Buyer to the Seller of interest thereon at 2.0 (two) per cent per calendar month on the outstanding sum calculated on a daily basis from the due date until receipt by the Seller of full payment. Such interest will be added to and become part of the outstanding sum at monthly intervals. In the event that the contractually agreed rate of interest specified hereunder is in excess of that permitted by relevant law there shall be substituted by the maximum rate so permitted.
11.7 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 debt incurred through the Contract.
12.1 The Buyer agrees to indemnify the Seller against all damages and liabilities arising from any acts or omissions of the Buyer or its agents and servants or the Vessel’s officers or crews in connection with the sale and supply of the Products
12.2 In the event that this Contract is signed by an Agent acting for and on behalf of a principal be 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 this Contract.
13.1 The Products shall remain the Seller’s property until Buyer has paid for them in full. Until that time, Buyer shall hold them as bailee, store them in such way that they can be identified as Seller’s property, and keep them separate from Buyers’ own property and the property of any other person. Although the products remain the Seller’s property until paid for, they shall be at Buyer’s risk from the time of delivery and Buyer shall insure them against loss or damage accordingly and in the event of such loss or damage it shall hold the proceeds of such insurance on behalf of Seller as trustee of Seller.
13.2 Buyer’s right to possession of the Products shall cease if:
- a. Buyer has not paid for them in full by the expiry of any credit period allowed by the Contract or
- b. Buyer is declared bankrupt or makes any proposal to his creditors for a reorganization or other voluntary arrangement or
- c. A receiver, liquidator or administrator is appointed in respect of Buyer’s business.
13.3 Upon cessation of Buyer’s right to possession of the Products in accordance with clause 12.2, the Buyer shall at his own expense make the product available to the Seller and allow Seller to repossess them.
13.4 Buyer hereby grants Seller, his agents and employees an irrevocable license to enter any premises where the Products are stored in order to repossess them at any time.
13.5 In case of breach of the Contract by the Buyer the Seller shall be entitled to take back the Products without prior judicial intervention and without prejudice to all other rights or remedies available to the Seller.
13.6 In the event that Products have been commingled with other products already in the possession of the Buyer, the Seller shall be entitled to take back such quantity of commingled products as the one corresponding to the quantity of Product delivered.
Where Products are supplied to a vessel, in addition to any other security, the Contract is entered into and Products are supplied upon the faith and credit of the Vessel. It’s agreed and acknowledged that a lien over the Vessel is thereby created for the value of Products supplied and that the Seller is agreeing to deliver Products to the Vessel so relying upon the faith and credit of the Vessel. The Buyer if not owner of the Vessel hereby expressly warrants that he has authority of the owner to pledge the Vessel’s credit as aforesaid and that he has given notice of the provisions of this clause to the owner. The Seller shall not be bound by any attempt by any person to restrict, limit or prohibit its lien or liens attaching to a Vessel unless notice in writing of the same is given to the Seller before it send its Confirmation message to the Buyer.
15.1 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 claim shall be deemed to be waived and absolutely barred.
15.2 Claims concerning quality shall have to be submitted to the Seller in writing within 7(seven) days from delivery, failing which the rights to complain or claim compensation of whatever nature shall be deemed to have been waived and absolutely barred for all times. If it’s alleged that any equipment or machinery has been damaged by defective Products, full details must be given to the Seller at the earliest opportunity and the 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.
16.1 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.
16.2 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 not exceed the value charged to the Buyer for the Products supplied under this Contract . It’s a precondition to the payment of any compensation by the Seller that all sums standing due to the Seller from the Buyer are first paid and settled.
17. FORCE MAJEURE
17.1 All orders hereunder shall be filled with reasonable promptness, but neither party shall be liable for damages or any failure to fulfil any term or condition of this Contract (except the obligation to pay the Products and related charges hereunder), if fulfillment has been delayed, hindered or prevented:
17.1.1 By compliance with any regulation or other government restriction or by compliance with any order or request of any government authority or person purports to act therefore which in the opinion of the Seller is or purports to be applicable to any Performance hereunder regardless of whether or not any such order, regulation, request or control is in fact legally enforceable against the Seller.
17.1.2 By wars, acts of enemies, strikes, lock-outs, terrorism, embargoes, labor disputes 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 Sellers 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 Products.
17.1.3 For any other cause whatsoever which is not within the control of the Seller, without prejudice to the foregoing, the Seller shall not be required, if the Seller suffers any loss of tanker or barge tonnage, or if compliance with an order or request of any governmental authority shall reduce the tanker or barge tonnage available for the normal movement of the Products to fulfill any deliveries omitted. The obligation to make deliveries thereunder may be reduced at the Sellers option approximately in proportion to such loss of tonnage. The Seller shall not be required to remove any such cause or replace the affected source of supply or facilities if it shall involve additional expense or a departure from its normal practices.
18. SAFETY AND ENVIRONMENT
18.1 Provided that the Seller shall not in any way participate in the physical delivery of the Products, which shall take place between the third party nominated by the Buyer to receive the Products as end buyer (i.e. the owners of the Vessel), the Buyer hereby undertakes the obligation to include in his contract with the said third party the following term, which shall also be directly and solely applicable between the latter and the Supplying Company of the Products (hereinafter “the Safety and Environment Clause”:
- “(a) In the event of any spillage (which for the purpose of this Clause shall mean any leakage, escape, spillage or overflow of the Marine Fuels) causing or likely to cause pollution occurring at any stage of the bunkering operation, the Buyer’s vessel and the Supplying Company shall jointly, and regardless the party being responsible, immediately take such actions as are necessary to effect clean up and minimize the effects of such spills.
- (b) Supplying Company 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 other)as are reasonable necessary in the judgment of the Supplying Company to remove the spilled Products and minimize the effects of such spills.
- (c) Buyer shall cooperate and render such assistance as is required by the Supplying Company 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, i.e the Buyer and/or the Supplying Company. If both parties have acted negligently, all expenses, claims, loss, damage, liability and penalties shall be divided between the parties in accordance with the respective degree of negligence. The burden of proof to show Seller’s negligence shall be on the Buyer.”
18.2 In the event that the Buyer nominates another intermediate trader instead of an end buyer-owner of the Vessel, his obligation under this Clause shall be to include in his respective contract the entire present Clause having the same effect between him as seller and the nominated party as buyer.
Failure of the Buyer to comply with their above obligation shall result in his being considered to be bound by the Safety and Environment Clause as Buyers against the physical supplier.
19. TERMINATION IN THE EVENT OF LIQUIDATION
Notwithstanding anything to the contrary expressed or implied elsewhere herein, the Seller (without prejudice to its other rights) may at its sole discretion terminate the Contract, on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing in the event that a liquidator (other than for amalgamation or
reconstruction purposes) trustee in bankruptcy, receive or receiver, and manager or equivalent officer is appointed in respect of any assets and/or undertaking of the Buyer or any of its associate companies, or the Buyer or any of its associate companies enters into an arrangement or composition with its creditors, or any similar appointment, arrangement or composition is made under any applicable Law, or if the Seller has a reason to anticipate any such appointment, arrangement or composition.
Seller may terminate the Contract in whole or in part, as its own discretion upon the breach of any provision hereof by Buyer. Seller reserves the right to recover from Buyer all damages and costs (including not limited to loss of profit) resulting from any breach of the Contract.
21. GENERAL CLAUSE
21.1 These terms contain the entire Contract between the parties covering the subject matter and may not be amended except in writing signed by both parties.
21.2 The right of either party to require strict performance shall not be affected by any prior waiver or course of dealings.
21.3 The failure by any party to the Contract to enforce any right against any other party shall not be construed as a waiver of that right or in any way affect the validity of the Contract. In particular, the granting by the Seller of any additional time to make payment or the waiving or reducing of any financial or other charge shall not prevent the Seller at any time thereafter from relying upon its strict contractual rights.
21.4 All rights and remedies are cumulative and election of one remedy shall not exclude another. Any termination shall be without prejudice to accrued rights.
22. APPLICABLE LAW AND JURISDICTION
The proper law of these conditions shall be English Law and any dispute arising there under shall except where otherwise herein provided be dealt with exclusively by the Courts of Limassol-Cyprus save that Seller shall be entitled to bring proceedings against Buyer in the Maritime Division of the Courts of Piraeus Greece.
P1-ELOB Office No.
Hamriyah Free Zone
United Arab Emirates