GENERAL TERMS AND CONDITIONS OF SALE
of Intercontinental Bunkering (Rotterdam) B.V.
1.1 These General Terms and Conditions apply to all legal relationships with the Company. The Terms and Conditions have been registered on 19th November 2013 at the Registry of the District Court of Rotterdam and will be handed or sent over upon first request.
1.2 The applicability of any terms and conditions to which reference is made by either the Customer, the
Supplier or any other party is herewith explicitly rejected.
1.3 In the case that, for whatever reason, one or more of the (sub)clauses of these General Terms and
Conditions are invalid, the other (sub)clauses hereof shall remain valid and binding for all parties.
1.4 Any deviations from these General Terms and Conditions or contracts concluded between parties need to be agreed upon in writing. No rights may be derived from such deviations with respect to later contracts.
1.5 These General Terms and Conditions are also available at the website www.bunkering.nl on which site as well the Company may notify amendments, alterations, changes or clarifications to same. Such amendments, alterations, changes or clarifications are deemed to be a part of the entire terms once same have been posted on the website.
For the purpose of these General Terms and Conditions:
a) The Company means: Intercontinental Bunkering (Rotterdam) B.V.
b) The Supplier means: the person who physically supplies the Marine Bunker Oil to the vessel together with that person’s servants, agents, successors, sub-contractors, assigns and/or the persons from whom the Company buys.
c) The Customer means: on a joint and several basis, the party ordering Marine Bunker Oil or the party on whose behalf the Marine Bunker Oil is being ordered.
d) Marine Bunker Oil means: the marine bunker oil delivered by the Company, including the services rendered in connection thereto.
e) Confirmation means: the bunker confirmation issued by the Company.
3.1 All offers of the Company are without engagement and shall be subject to confirmation.
3.2 No contract shall be concluded until confirmed in writing to the Customer by the Company.
3.3 If the Customer’s confirmation differs from the Confirmation given by the Company, the latter shall be binding.
4. Quality and sampling
4.1 The characteristics of the Marine Bunker Oil will correspond to the commercial grade generally offered at the time and place of the relevant delivery.
4.2 If the Customer requires a Marine Bunker Oil conforming to certain specific characteristics, these must, prior to the ordering, be discussed with the Company and mentioned in the order.
4.3 The selection and acceptance of a particular grade of Marine Bunker Oil for use in the vessel, incl. determination of compatibility with other Marine Bunker Oil already on board the vessel, shall be Customer’s sole responsibility.
4.4 All warranties and all conditions relating to quality, fitness for purpose, description or otherwise, whether expressed or implied by law, statute, or otherwise are hereby excluded.
4.5 The samples drawn at the time of delivery by or on behalf of the Company shall be binding in respect to the quality of the Marine Bunker Oil. The samples will be sealed and labelled for identification purposes. One sample shall be kept on board the vessel and one sample shall be kept by the barge or the Supplier. Samples taken in a manner outside the control of the Company will not be recognized as representative to the Marine Bunker Oil supplied.
4.6 No samples subsequently taken shall be allowed as (additional) evidence. If any of the seals have been removed or tampered with by an unauthorized person, such sample (s) shall be deemed to have no value as evidence.
4.7 In case of a final and binding counter analyses as mentioned in Clause 6.4 hereof, the seal of the representative sample must be broken only in presence of all parties concerned, unless one or more of them has declared in writing that they will not be present; and all parties concerned shall have the right to appoint an independent person or institute to witness seal breaking.
4.8 The analysis of any test results shall make allowances for generally recognized industry standards of repeatability and reproducibility. All grades of Marine Bunker Oil may contain petroleum industry allowed, bio-derived components. Where specifications designate a maximum value, no minimum value is guaranteed unless expressly stated in the Confirmation. Conversely, where minimum values are provided in a specification, no maximum values are guaranteed unless expressly stated in the Confirmation.
5.1 With respect to the quantity to be supplied the Company reserves the right at all times to deviate up to ten (10) pct. from the quantity contracted for with no other consequence than corresponding invoicing. Furthermore the Company reserves the right to deliver in one consignment or to make more than one part delivery. Each part delivery will be considered a separate contract with same conditions.
5.2 The quantity of Marine Bunker Oil sold in each transaction shall be as agreed between the Customer and the Company as per the Confirmation. Notwithstanding acceptance of the Customer’s order, the Companies’ obligation to supply such quantities shall be subject to availability of Products from the Companies’ source of supply at the time and place delivery is requested.
5.3 Quantity shall be determined at the Companies’ or the Companies’ Suppliers option from the gauge or meter of shore or barge tanks and such determination shall be conclusive and binding. The Customer has the right to be represented at the time of measurement. If the Customer is not represented at the time of measurement any right of complaint of incorrect measurement or short delivery shall be deemed to be waived.
5.4 The quantity shall be measured under the prevailing ASTM – IP Petroleum Measurement Tables or the methods of any other recognized standards authority at discretion of the Company. Measurements taken on board of the supplied vessel shall not be accepted.
5.5 Densities determined for the purpose of converting volumes into weight shall always be determined in vacuum.
6.1 Any complaint or claim as to the quantity or volume of Marine Bunker Oil delivered must in the first instance be made by the master of the vessel or the representative appointed by issue of a letter of protest and handing such protest letter to the Supplier at the time of, or immediately upon completion of delivery, in the absence of which any complaint or claim shall be deemed absolutely waived. In the event that the Customer, after having timely complained, intends to claim that there was short delivery of Marine Bunker Oil, and the letter of protest has been handed to the Supplier as aforesaid, the Customer must, within seven (7) days of delivery of such fuel to the vessel, submit to the Company a formal claim in writing, specifying precisely the extent of short delivery in respect of which he intends to claim, in the absence of which any claim or complaint shall be deemed absolutely waived.
6.2 If Customer submits a complaint against the Company with respect to the quantity or quality of the Marine Bunker Oil supplied, the Company shall be entitled and the Customer shall allow, or where the Customer has chartered the vessel, shall obtain authorization from the Owner to allow, the Company to board the vessel and investigate the vessel’s records and to make copies of documents which the Customer may consider necessary for its investigations. Failure to allow boarding and/or to produce copies of documents shall constitute a waiver of the Customer’s complaint. It is the duty of the Customer to take all reasonable actions to eliminate or minimize any damages or costs associated with any off-specification or suspected off-specification Products.
6.3 To this end Customer shall cooperate with the Company in achieving the most cost effective solution including the consumption of the Product after treatment and/or special handling. In the event that the Product is off-specification and cannot be consumed by the vessel, Customer’s remedies shall be limited exclusively and solely to replacement of the nonconforming Marine Bunker Oil in a port chosen by the Company. If Customer removes Product without the express written consent of the Company, then all such removal and related costs shall be solely for Customer’s account.No claim will be admissible if the Marine Bunker Oil delivered is found to have been mixed with another product on board the vessel supplied.
6.4 In case of a claim the quality of the Marine Bunker Oil supplied shall be determined exclusively by an independent reputable laboratory, acceptable to the parties, outcome of which shall be binding. The costs of analysis shall be for the party who is at fault. Analyses shall be made from the sample as drawn by or on behalf of the Company, mentioned in Clause 5.5 hereof.
6.5 Claims about the quality of the Marine Bunker Oil supplied shall only be considered if notified to the Company in writing not later than seven (7) days after delivery thereof, in the absence of which any such claim shall be deemed absolutely waived.
7.1 Delivery shall be effected by means of delivery from land tank, tanker, lighter or road tanker and shall be completed on the relevant Marine Bunker Oil passing the railing of the vessel to be delivered at.
7.2 Delivery charges, notably but not limited to those of lighters used for the purpose shall be for
7.3 Unless a specific place and time of delivery has been agreed between parties pursuant to contract the Customer shall be bound to give notice to the Company not later than 72 hours before the time of desired delivery. Failing this, the Company shall not be bound to deliver at the time desired by the Customer; moreover the Company shall be free in such a case to cancel the contract, the Customer being obligated to reimburse the Company for all those expenses which the Company has already incurred in preparation of the execution of the contract. The notice given should not only contain place and time of delivery but also the name of the ship’s agent, and all such data as necessary or expedient for the execution of the delivery. The term of 72 hours referred to above shall apply thus that Saturdays, Sundays, public holidays and festive days at the place of delivery or at the place of establishment of the Company shall be left unconsidered for this term.
7.4 The Company shall not be liable for any delay in delivery and therefore only undertakes to do its utmost to effect the delivery stipulated within the terms agreed upon.
7.5 Vessels will be bunkered as promptly as circumstances permit but the Company shall not be liable for demurrage and/or for any loss due to congestion at the terminal and/or port and/or to prior commitments and/or unforeseen inflicted delay of available transportation.
7.6 The Customer warrants that the receiving vessel will be ready and freely accessible for taking delivery of the Marine Bunker Oil at the agreed time and place of delivery.
7.7 If the Customer should wish delivery to be made at other than the usual hours the additional charges caused as a result thereof shall be for Customer’s account.
7.8 If the Customer should take up less than Customer undertook to take up pursuant to the contract, the Company shall have the right to charge loss of profits together with the additional expenses of taking back or not supplying the Marine Bunker Oil contracted for.
7.9 Unless agreed upon to the contrary in writing, any expenses incurred to make the execution of the delivery possible, such as dock-dues, customs duties, towage, lighter facilities and so on, shall be for Customer’s account.
7.10 If the Customer should be in default, wholly or partly, to take delivery of the Marine Bunker Oil, by which also to be understood failure to take delivery at the time stipulated and at the place and in the way agreed upon, the Company shall be entitled to cancel the contract in whole or in part, in Company’s option, without notice of default being required, the Company in such a case being empowered to claim damages from the Customer which it will have sustained in the relevant case; the Company shall be entitled in such cases to store the Marine Bunker Oil not accepted on account and at the risk of the Customer.
8.1 The price to be paid shall be the price stated in the Confirmation and/or invoice, plus any additional costs as set out in this Clause.
8.2 Without prejudice to Clause 7.1 hereof, in the event that delivery does not take place at the agreed location or during the delivery date range, the Company shall have the right to adjust the price taking into account the change of location and/or any market fluctuations since acceptance of the order.
8.3 Price may change if quantity actually delivered is less than quantity ordered and such quantity falls under the minimum barging fees in effect at time and place of delivery, unless the shortage in quantity is due to Companies’ fault to deliver the complete quantity ordered.
8.4 The Customer shall pay any additional expenses or costs such as barging, demurrage, wharfage, port dues, duties, taxes, fees and any other costs including, without limitation, those imposed by governmental authorities.
8.5 Taxes and Assessments:
(a) The Company’s prices are based on taxes, duties, costs and charges and on the price level of crude oil or components for Marine Bunker Oil existing and being levied at the time of the conclusion of the agreement. Any later or extra tax, assessment, duty or other charge, of whatever nature and however named, or any increase thereof, or any price increase of crude oil or components for Marine Bunker Oil and any increase in additional costs borne by the Company caused by any charge in the Company’s contemplated source of supply or means of delivery, coming into existence after the agreement has been concluded, shall be added to the agreed purchase price.
(b) The Customer will present the Company with any required documentation, including but not limited to registrations, exemptions, certifications, claims, refunds, declarations or otherwise, in a form and format, and on or before whatever due date the Company shall require, to satisfy the Companies concerns in connection with any of the above taxes or assessments. Further, the Customer shall indemnify and hold the Company harmless for any damages, claims, liability or expense the Company might incur due to the Customer’s failure to comply with this requirement.
9. Cancellation Clause:
If subsequent to the Confirmation, the Customer cancels the order for any reason whatsoever, including circumstances entirely outside of Customers’ control, then the Company without prejudice to any other rights it may have, shall be entitled to recover a) cancellation fees imposed by the Supplier if any; b) any difference between the contract price of the undelivered product and the amount received by the Company upon resale to another party (or, if another buyer cannot be found, any market diminution in the value of the product as reasonably determined from available market indexes); c) all costs and damages arising from the non-delivery, and d) any underlying physical or derivative paper contracts which the Company has entered into in order to effect supply.
10.1 The Company shall only be liable for losses or damages which can be attributed to its own willful misconduct or gross negligence.
10.2 The Companies aggregate liability hereunder for any damage, whether arising from quality, quantity, accident, delay, spill or other cause, shall not exceed the price of that portion of the Marine Bunker Oil sold hereunder on which liability is asserted. Furthermore the Company shall not be liable for any demurrage or other vessel delay or for indirect, special, incidental or consequential damages, including, but not limited to, damages arising from the exercise of Companies’ right to suspend and/or terminate delivery of Marine Bunker Oil, or for any acts or omissions of agents and/or subcontractors of the Company, including, without limitation, fuel transporters or fuelling agents. Without prejudice to Clauses
6.1 and 6.2, all claims against the Company will cease to exist unless legal proceedings have been instituted before the competent court within six (6) months after the date of delivery or the date on which delivery should have been made.
10.3 All statutory and contractual defenses that it can invoke to reject its own liability to the Customer the
Company also stipulates for the benefit of its subordinates and non-subordinates.
The Customer shall indemnify the Company against any and all actions, liabilities, suits, demands, costs, charges, losses, damages, claims, any defects of the vessel or vessel’s receiving equipment and other expenses of third parties (including employees and agents of the Company) which the latter could enforce against the Company pursuant to the contract between parties. This obligation to indemnify shall likewise apply towards the employees of the Company and all those engaged by the Company during or in connection to the execution of the contract.
12. Force Majeure
12.1 In case of force majeure the Company shall be released from all its obligations under the contract during the time when the force majeure lasts or shall be released forever, in Company’s option.
12.2 Force majeure is understood to have the meaning given to it by Dutch law. The following circumstances hampering the delivery by the Company, the Supplier, terminal, barge or other at the time of loading or unloading–shall constitute force majeure: strike, interruption of work or any other employees’ actions disturbing the ordinary course of business, war, state of war, imminent war, siege or mobilization, riot, government bans on import, export or transit, regulations imposed by the Government or person purporting to act thereof, in respect of the volume of deliveries, making transport in the intended way impossible, withdrawal of license, refusal or default of proceeding Suppliers, Government or person purporting to act thereof, measures in respect of production, storage and distribution of goods, weather conditions (frost, storm, fog, etc.) water level, explosions, fire, chemical reactions, industrial catastrophes, shortage in raw material/transportation/manufacturing of Marine Bunker Oil from Company’s contemplated source of supply, and in any other respect all such events that impede the Company to fulfill the contract in an unreasonable way.
12.3 Nothing in this provision shall be deemed to excuse Customer from its obligation to make payment for
Marine Bunker Oil already received under the contract.
13.1 Payment is due immediately, but interest shall not accrue before the value date mentioned on the Company’s invoice. Payment shall be made by means of swift or rapid electronic transfer in cleared funds to the banking-account stated by the Company, free of bank charges. In case payment shall be made before delivery the Company shall not be bound to deliver until full payment has been received by it.
13.2 Payment shall be effected in the currency agreed upon and failing this in the currency customary in trade. The Company shall be entitled to set off or deduct amounts receivable from the Customer against everything it should have to pay to the Customer on whatever account, also when the currencies are different.
13.3 Set-off or deduction by the Customer in any form is excluded. The Customer waives the right to withhold payment in case of a complaint or alleged claim.
13.4 In case of expiry of a term of payment the Company has the right to charge the Customer with all costs that it incurs in respect of collection and with an interest over the amount due. Interest of Libor rate plus
1.5%, per month or part thereof, or the maximum rate permitted by applicable law. If the Company is compelled to instruct third parties to undertake collecting the account, the Customer will have to bear all judicial and extra-judicial costs thereof.
13.5 Any payment of the Customer, notwithstanding the description, primarily covers any interest due and judicial and extra-judicial costs and will subsequently be deducted from the oldest claim.
13.6 The Company may at any time in good faith vary, amend, withdraw, substitute or add to the terms relating to payment at any time in the course of a transaction in such manner as it shall in its absolute discretion consider necessary to protect its interests, including at any time requiring the Customer to put up security for the due performance of its obligations in form and substance as advised by the Company. Expenses connected to such security shall be for Customer’s account.
13.7 Without prejudice to any right or remedies available to the Company, in case of non-payment or the non- providing of security when so required, the Company shall be empowered at all times to terminate any or all contracts between the parties with immediate effect, and the Company shall not be held liable to the party defaulting on payment for any loss, damage, delay, inconvenience or cost caused to the party defaulting on payment or any other party by reason of such termination. The party in default of payment shall render the Company harmless for such loss, damage, delay, inconvenience or costs as aforesaid.
13.8 Until full payment has been received in Companies’ bank/account, (I) the Customer accepts and agrees that the Company holds a lien on the Bunkers on board and in the vessel itself and (II) where title to the Marine Bunker Oil has passed to the Customer the Customer additionally grants a right of pledge on the Marine Bunker Oil in favour of the Company.
14. Title and risk
14.1 The title to the goods which the Company has delivered to the Customer will even after delivery only pass to the Customer if and when the Customer has fulfilled all its obligations towards the Company, including payment of all costs and interests. The Customer shall not be permitted to invoke a right of retention in relation to storage costs and to set off these costs against the performance at his obligations
14.2 Marine Bunker Oil is delivered not only on the credit of the Customer but also on credit of the vessel receiving the Marine Bunker Oil, and the amount due shall become a maritime lien against the vessel immediately on each delivery.
14.3 In case the Marine Bunker Oil, in part or in full, are no longer (definable) present, the Company has the right to attach the vessel to which the Marine Bunker Oil has been supplied and/or any other vessels owned, operated or controlled by the Customer, and/or any other assets of the Customer wherever situated in the world without prior notice.
14.4 Risk in the Marine Bunker Oil shall pass to the Customer upon passing of the Marine Bunker Oil of the
Suppliers bunker barge flange.
14.5 Disclaimers of lien stamps and/or the use of any wording similar in nature on bunker delivery notes or other documents shall be invalid and have no legal effect, and shall in no way prejudice any right of lien.
15. Transfer of rights
The Company shall be entitled to transfer or encumber its rights from the contract with the Customer to third parties. The Customer shall not be entitled to transfer or encumber its rights from contracts with the Company and/or the Marine Bunker Oil to third parties without prior written consent of the Company.
16. Applicable law and competent Court
16.1 The contract and any other legal relationship to which the present Terms and Conditions are applicable shall be governed by Dutch law. The federal laws of the United States of America shall apply to the substantive issue of whether a maritime lien exists. The applicability of the CISG is excluded.
16.2 Any disputes emanating from legal relationships with the Company shall exclusively be decided by the competent Court in Rotterdam. Notwithstanding this provision, the Company shall at all times be entitled to start legal action before courts which would otherwise have jurisdiction.
17. Filling and final text
The present General Terms and Conditions have been filed in English at the registry at the District Court of Rotterdam.
Capelle aan den IJssel, 19th November 2013