General Terms & Conditions – PetrolTrade Philippines Inc.

GENERAL TERMS AND CONDITIONS OF SALE FOR MARINE FUELS

1. Application

These General Terms and Conditions of Sale for Marine Fuels (“Terms of Sale”) in conjunction with a Sales Order Confirmation shall collectively form the Contract and shall contain all agreements, arrangements and stipulations between the Buyer and Seller in respect of the supply of Marine Fuels contemplated herein. The Contract can only be amended or changed by written agreement of both Buyer and Seller, and any attempt to do otherwise shall be considered null and void. In the event of any inconsistency or conflict between the Sales Order Confirmation and the Terms of Sale, the Sales Order Confirmation shall take precedence. The terms and conditions of the Contract shall not be varied by the inclusion of a Buyer’s purchase order number in the Sales Order Confirmation or Confirmed Nomination, or by any terms and conditions that may be contained in any purchase order or other document issued by the Buyer.

The Seller reserves the right to, at its sole discretion, revise and amend the Terms and Conditions herein from time to time and without notice.

2. Definitions

“Affiliates” means any legal entity which controls, is controlled by, or is under common control with, another legal entity, and “control” means legal or beneficial ownership of fifty percent (50%) or more of the shares in a legal entity entitled to appoint directors or the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity.

“Buyer” means the party or parties described in the Sales Order Confirmation and shall include the Vessel, the Owner, her master, operators, any party benefiting from consuming the Products, and any other party ordering the Products, all of whom shall be jointly and severally liable as the Buyer under the Contract. All references to the Buyer shall include their servants, agents, successors, subcontractors, assigns, designated representatives, principals (whether disclosed or undisclosed).

“Confirmed Nomination” shall have the meaning defined in Clause 5 below.

“Contract” means collectively a Sales Order Confirmation and the Terms of Sale.

“Day” means a calendar day, unless stated otherwise.

“Delivery Window” means the date range designated in the Marine Spot Fuel Agreement or Confirmed Nomination (as applicable) which shall begin on the ETA and end on the ETD. The Delivery Window shall not exceed seven (7) days.

“ETA” means the estimated date of arrival of the Buyer’s vessel requiring the delivery of Marine Fuels.

“ETD” means the estimated date of departure of the Buyer’s vessel requiring the delivery of Marine Fuels.

“Government Official” means a government official or an officer or employee of a government or any department, agency or instrumentality of any government including any public sector company or an enterprise in which a government owns a majority or controlling interest or an officer or employee of a public international organization or any person acting in an official capacity for or on behalf of any government or department, agency, or instrumentality of such government or of any public international organization or any political party or official thereof, or any candidate for political office or any other person, individual or entity at the suggestion, request or direction or for the benefit of the aforementioned persons or entities.

“Marine Fuels” means distillate marine fuels and/or residual marine fuels.

“Marine Spot Fuel Agreement” means an agreement entered into between the Buyer and the Seller pursuant to which the Buyer makes a single purchase of Marine Fuels from the Seller.

“Marine Term Fuel Agreement” means an agreement entered into between the Buyer and the Seller pursuant to which the Buyer purchases Marine Fuels from the Seller over a period of time.

“Party” means Buyer or Seller and “Parties” means Buyer and Seller collectively.

“Sales Order Confirmation” means either a Marine Term Fuel Agreement or a Marine Spot Fuel Agreement and is a confirmation in writing from the Seller to the Buyer setting forth the particular terms of each sale of the Products.

“Seller” means the party reflected as “Seller” in the Sales Order Confirmation.

“Supplying Company” means the Seller’s supplier and/or the party delivering the Products physically to the Buyer, including their servants, agents, successors, subcontractors, and assigns.

“Supply Vessel” means the vessel or barge, or bunker tanker nominated by the Supplying Company to deliver the Products.

“Owner” means the registered owner(s), beneficial owner(s) and/or bareboat charterer(s) of the Vessel.

“Products” means the marine bunker fuels and related products of whatever type or grade which the Seller is to sell and supply in accordance with the Contract.

“Vessel” means the vessel nominated by the Buyer to receive Products.

3. Basis of Sale

The Contract for each sale of the Products shall be deemed firm and binding upon the issuance of a Sales Order Confirmation by the Seller. The Sales Order Confirmation may include additional terms and conditions which shall be binding in respect of the particular transaction. Unless expressly set out in the Sales Order Confirmation, no other terms and conditions proposed by the Buyer, whether before or after the Sales Order Confirmation, shall be or become part of the Contract.
The Sales Order Confirmation shall be submitted by Seller by way of fax, telex, electronic communication including but not limited to electronic mail, chat, instant messenger communication or short-messaging service (SMS).
The Seller shall be entitled to correct any typographical or clerical error and/or omission in any quotation, price list, Sales Order Confirmation, invoice or other document or information issued by the Seller upon notice to the Buyer of the said error and/or omission.
Both the Buyer and Seller acknowledge that where the supply of the Products under the Contract is made by the Supplying Company, the Supplying Company supplies the Products as an independent contractor and not as an agent or representative of the Seller.

4. Price

The price of the Marine Fuels shall be in the amount expressed per unit and in the currency stated in the Sales Order Confirmation for each grade of Marine Fuels. The price shall be valid for the Delivery Window.
In addition to the price stated in the Sales Order Confirmation, the Buyer shall pay any and all additional charges associated with the delivery, including but not limited to:
1. wharfage charges, barging charges including demurrage or other similar charges.
2. mooring charges or port duties incurred by the Seller which are for the Buyer’s account;
3. any overtime charges incurred if delivery takes place outside of regular working days and hours at the relevant port of delivery, if such delivery is permitted by port regulations;
4. duties, taxes, charges, freights or other costs in the country where delivery takes place which the Seller incurs. Where the Marine Fuels are supplied without payment by the Buyer of duties and taxes (which shall include, without limitation, customs duty, excise duty, VAT, GST or sales tax), the Buyer shall indemnify the Seller against any duties, taxes, charges, costs, liability, interest and penalties that may be incurred by the Seller, at any time, as a result of the failure of the Buyer, or the vessel, to qualify for such treatment, or the failure of the Buyer to provide any necessary proof or other supporting documentation, within the requisite time period specified by the applicable law, regulation or procedure.
If the Buyer or the vessel fails to take delivery within the Delivery Window, the Seller can choose to:
1. deliver to the Buyer on a date of the Seller’s choice at the price stated in the Sales Order Confirmation plus any additional costs incurred by the Seller in delivering outside the Delivery Window; or
2. accept a new Delivery Window as the basis of a new Contract for which a new price can be agreed upon with the Buyer; or
3. terminate the Contract and the Buyer shall pay to the Seller any costs resulting from the Buyer’s cancellation or failure to take delivery, including without limitation, the lost fuel value and costs to return the Marine Fuels to storage including associated demurrage.
The Buyer’s submission of any complaint or claim under Clause 9 shall not relieve it from its responsibility to make payment in full as required by the Contract, and the Buyer shall not be entitled to deduct from, set off, holdback or otherwise reduce in any manner whatsoever the Invoice Price of the Products or any amount owed to the Seller under the Contract or any other contract between the Seller and the Buyer.

5. Grades and Quality

The Marine Fuels supplied hereunder shall be the Seller’s commercial grades as determined in accordance with ISO 8217 and set out in the Sales Order Confirmation. The Buyer shall be solely responsible for nominating to the Seller the grade of Marine Fuels for each delivery from the range of Marine Fuels supplied by the Seller at the location in question. The quality of the Marine Fuels shall be determined in accordance with Clause 8(a) below.
There are no conditions, guarantees or warranties, express or implied, by common law, statue, or otherwise as to the satisfactory quality, merchantability, fitness, durability or suitability of the Marine Fuel for any particular purpose or otherwise, which extend beyond the description as set out in the Contract.
The Buyer hereby warrants that it has not relied upon any representations made by or on behalf of the Seller but has relied exclusively on its own knowledge and judgement as to the fitness for its purpose of the Marine Fuels nominated.

6. Nomination of Vessels

Under a Marine Term Fuel Agreement, vessels requiring delivery of Marine Fuels shall be nominated in accordance with the following procedure:
1. No later than seven (7) days prior to the arrival of the vessel at the supply port, the Buyer shall send the Seller a notice specifying the following: vessel name and IMO number, supply port, ETA and ETD of the vessel at the supply port, the name and contact details of the vessel agents, the grade(s), quantities and method of delivery of Marine Fuels required. In such notice, the Buyer shall also advise the Seller of any special conditions, difficulties, peculiarities, deficiencies or defects in respect of, and particular to, the vessel which might adversely affect the delivery of the Marine Fuels. Notwithstanding anything to the contrary express or implied elsewhere in the Contract, the Seller shall have the right at the Seller’s sole discretion to decline the nomination of any vessel notified by the Buyer. No vessel shall be deemed to have been nominated unless and until the Seller has confirmed the nomination by sending a notice in writing (a “Confirmed Nomination”) to the Buyer within forty-eight (48) hours of Buyer’s notice. Upon the issue of Seller’s Confirmed Nomination, the Buyer’s vessel shall be treated as if the nomination had been specified in the Marine Term Fuel Agreement.
Under a Marine Spot Fuel Agreement, the vessel name and IMO number, supply port, ETA and ETD of the vessel at the supply port, the quantity, grade and maximum sulfur content, the method of delivery, as well as any special conditions, difficulties, peculiarities, deficiencies or defects in respect of, and particular to, the vessel which might adversely affect the delivery of the Marine Fuels, shall be specified in the Marine Spot Fuel Agreement. Prior to the issue of that Sales Order Confirmation the Buyer shall have provided the Seller with the name and contact details of the vessel agent. The vessel nomination shall be deemed confirmed by the Seller issuing the Marine Spot Fuel Agreement.

7. Delivery

The Marine Fuels shall be delivered to the vessel at the port or place stated in the Marine Spot Fuel Agreement or Confirmed Nomination (as applicable) and such delivery shall be subject to the regulations of such port or place. The Seller shall not be liable for any inability to deliver on public/dock holidays.
The vessel’s ETA and ETD shall be as stated in the Marine Spot Fuel Agreement or Confirmed Nomination (as applicable), and this defines the Delivery Window. The Seller shall use its reasonable efforts but shall be under no obligation to make the delivery if the Buyer or its agent requests the supply to be made outside the Delivery Window.
The Buyer, or its agent at the port or place of delivery, shall give the Seller, or its representatives at the port or place of delivery, a minimum of forty-eight (48) hours (the running of which shall exclude non-working days (i.e. Saturdays, Sundays and public/dock holidays)) prior written notice before arrival, indicating the exact location at the port of delivery, the time within the Delivery Window that the delivery is required and confirmation of the receiving rates, grades and quantities of Marine Fuels that are required and if the MARPOL sample is to be drawn in accordance with the MARPOL guidelines. This notice must be received by the Seller or its representative during its regular working hours and business days. If the Buyer or its agent fails to do so, the Seller shall not be liable for any resulting delay in delivery and the Buyer shall reimburse any costs incurred by the Seller.
The Sellers shall be in possession of all permits required to comply with all relevant regulations pertaining to delivery of Marine Fuels at the port or place of delivery subject to local laws and shall render all necessary assistance which may be reasonably required to make connections and disconnections between the delivery hose(s) and the Vessel’s bunker manifold.
The Buyers shall be responsible for making all connections and disconnections between the delivery hose(s) and the Vessel’s bunker manifold and to ensure that the hose(s) are properly connected to the Vessel’s bunker manifold prior to the commencement of delivery. If in the Seller’s opinion the vessel cannot safely receive Marine Fuels, then the Seller has the option to either suspend delivery until, in the Seller’s opinion, the vessel can safely do so or terminate the delivery or the Contract.
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 Marine Fuels at the port or place of delivery and that the Master of the Vessel shall:
1. advise the Sellers in writing, prior to delivery, of the maximum allowable pumping rate and pressure and agree on communication and emergency shut-down procedures;
2. notify the Sellers in writing prior to delivery, of any special conditions, difficulties, peculiarities, deficiencies or defects in respect of and particular to the Vessel which might adversely affect the delivery of the Marine Fuels, and;
3. provide a free side to receive the Marine Fuels and render all necessary assistance which may reasonably be required to moor or unmoor the Bunker Tanker, as applicable.
The Buyer shall be responsible for keeping the Products segregated from any other marine bunker fuels and/or related products of whatever type or grade on board the Vessel or from a different delivery to the Vessel. In no event shall the Seller be responsible for the quality and compatibility of the Products delivered if the Products are mixed or commingled with any other marine bunker fuels and/or related products of whatever type or grade on board the Vessel or from a different delivery to the Vessel. The Buyer shall be solely responsible for any losses caused by mixing or commingling the Products with any other marine bunker fuels and/or related products of whatever type or grade on board the Vessel or from a different delivery to the Vessel, including any damage the Products may cause to the Vessel and/or its components, machinery, equipment and/or appliances.
The Seller shall not be responsible for on-board safety or storage failures that may affect the delivery as requested and shall have the right to recover from the Buyer any resulting cost incurred. In the event of delay in the use of delivery or barging facilities due to the Buyer or to the vessel for any reason whatsoever, the Buyer shall reimburse the Seller for any expenses, including demurrage, incurred due to such delay. The Seller shall not be liable for delays due to congestion in ports, at terminal installations or bunkering pier or delays caused by prior commitments of bunker barges.
The Seller reserves the right to have the delivery made by a third-party supplier if for any reason delivery cannot be made from its own supply; however, the Seller shall remain responsible for the performance of the Contract.
If a spill occurs during supply, the Buyer shall promptly take all action reasonably necessary to remove the spillage and mitigate its effect. If the Buyer fails to promptly take such action, the Seller may, at its option, take such measures it considers to be necessary or desirable in connection with the removal of the spillage and the mitigation of its effects by employing its own resources or contracting with others. Without prejudice to the first sentence of this Clause 7(i), the Seller shall indemnify the Buyer against all liability, costs and expenses (including but not limited to those incurred by the Buyer in accordance with this Clause 7(i)) arising from any spillage to the extent that such spillage has been caused or contributed to by the negligence of the Seller or failure of or defect in the Seller’s equipment. The Buyer shall indemnify the Seller against all liability, costs and expenses (including but not limited to those incurred by the Seller in accordance with the provisions of this Clause 7(i)) arising from any spillage except to the extent that such spillage has been caused or contributed to by the negligence of the Seller or failure of or defect in the Seller’s equipment. The Buyer shall promptly provide the Seller with any requested documents and information regarding a spill including the vessel’s spill contingency plan or any other applicable program for the prevention or mitigation of pollution as required.

8. Quantities

The quantities of Marine Fuels ordered by the Buyer for delivery shall be those quantities stated in the Sales Order Confirmation, subject to confirmation of supply by the Seller. Any attempt to unilaterally change or modify the quantity of Marine Fuels to be delivered under the Marine Spot Sales Order Confirmation or Confirmed Nomination (as applicable) by a representative of the vessel prior to or during delivery shall be prohibited.
The quantity of Marine Fuels delivered shall be the quantity specified in the Marine Spot Fuel Agreement or in the Confirmed Nomination (as applicable) with a tolerance at Seller’s option of +/- 5 Metric Tonnes if the quantity specified is less than 100 Metric Tonnes, +/- 5% of the quantity specified if in the range 100 to 700 Metric Tonnes and +/- 35 Metric Tonnes if the quantity specified is in excess of 700 Metric Tonnes.
The Seller or its representative shall measure the quantity of the Marine Fuels delivered and the Buyer (or its representative) at its own expense may witness such measurement. The Buyer will be charged for Marine Fuels on the basis of these measurements and determination of quantity shall be made solely by the Seller. All such measurements made by the Seller shall be final and binding save for manifest error or fraud. The Seller shall record the quantity of fuel delivered on the Bunker Delivery Note.

9. Sampling

Sampling by the Seller shall be accomplished throughout the Marine Fuels delivery process. The Seller or its representative shall take a minimum of four (4) representative samples of each grade of Marine Fuels delivered. The Buyer shall have the right (and is encouraged) to have its representative witness the drawing of the samples. The aforementioned samples shall be securely sealed and labelled by the Seller and at least two (2) of these representative samples shall be given to the Buyer, one (1) of which is for MARPOL compliance purposes. Two (2) samples shall be retained by the Seller or its representative for at least twenty-one (21) days following the date of delivery in a safe place for subsequent verification of the quality thereof, if required.
If the Buyer issues a claim regarding the quality of the Marine Fuels in accordance with Clause 9(c) below, and provided the claim is legitimate in accordance with ISO 8217, one (1) of the two (2) Seller’s retained samples shall be submitted by the Seller for relevant analysis to a mutually agreed local independent laboratory. The independent laboratory’s analysis shall, absent manifest error or fraud, be conclusive and final and binding on both Buyer and Seller as to the quality of the Marine Fuels delivered. The analysis shall be established by tests in accordance with ISO 8217 and/or any other tests agreed to between the Buyer and the Seller in writing. Any cost associated with the Buyer appointing a representative to witness the sample seal-breaking and/or analysis at the independent laboratory shall be the sole responsibility of the Buyer.
When the Buyer (or its representative) or the Master of the vessel requests that sampling is carried out in accordance with the MARPOL guidelines and the Seller confirms it is safe to do so, the Seller reserves the right to appoint an independent surveyor to take such sample. The costs incurred by the Seller for this service and any consequential costs will be charged to the Buyer. In making such arrangements, no liability for delaying the vessel will be accepted by the Seller.
Samples other than those drawn by the Seller, or its representative shall not be admissible for the purposes of determining quality, notwithstanding that these samples may have been signed by an agent or representative of the Seller, unless this has been expressly agreed in the Sales Order Confirmation.

10. Claims and Liabilities

Claims
1. Quantity
  1. Any dispute as to the quantity delivered must be noted at the time of delivery in accordance with sub-clause 7(c). If no claim for such quantity dispute is presented to the Sellers by the Buyers in writing within twenty-one (21) days from the date of delivery, any such claim shall be deemed to be waived and barred.
  2. The Sellers shall have the right to charge the Buyers for all proven additional expenses incurred by the Sellers in connection with the Buyers’ failure to take delivery of the full quantity of the Marine Fuels ordered by the Buyers.
  3. The Buyers shall have the right to charge the Sellers for all proven additional expenses incurred by the Buyers in connection with the Sellers’ failure to deliver the full quantity of the Marine Fuels agreed as per the Confirmation Note, unless the quantity is amended by the Master in writing.
2. Quality/Specification
  1. Any claim as to the quality or specification of the Marine Fuels must be submitted by the Buyer to the Seller in writing within twenty-one (21) days, failing which, such claim shall be deemed waived and forever barred.
  2. Claims with respect to the quality of Marine Fuels shall analyzed by a mutually agreed, qualified and independent laboratory. The Buyers have the option to request a full ISO 8217 analysis in a laboratory with ISO 17025 accreditation or equivalent and the Marine Fuels tests should be part of the accreditation schedule. The Buyers’ surveyor retained BDN sample shall be sent to the agreed laboratory for final and binding testing. In the absence of a Buyers’ surveyor retained BDN sample, Buyers and Sellers shall agree on one of the BDN samples that will be sent to the agreed laboratory and the results derived shall be final and binding.
    The analysis shall be established by tests in accordance with ISO 8217 and ISO 4259 or any subsequent amendments thereof. Unless otherwise agreed, the expenses of the analysis shall be for the account of the Party whose claim is found wrong by the analysis.
3. Delay In the event of any delay resulting from:
  1. the Buyers’ failure to give proper notices and/or to comply with the notices given pursuant to Clause 7(c) and/or the Buyers’ Vessel failing to receive Marine Fuels at the pumping rate and pressure referred to in Clause 7(e), or;
  2. the Sellers’ failure to commence delivery of the Marine Fuels promptly in accordance with the Buyers’ required delivery time as notified pursuant to sub-clause 7(c) and confirmed by the Seller in writing and/or the Sellers’ failure to deliver the Marine Fuels in accordance with the minimum hourly pumping rate and pressure referred to in the Confirmation Note, then the Party suffering such delay shall be entitled to compensation from the other Party for any documented loss suffered as a result of that delay.
Liabilities
1. The liability of the Seller for any loss, damage, claim or other expenditure arising out of or in connection with the failure by the Seller to perform its obligations under this Contract shall not exceed and shall be limited to:
  1. the removal at a reasonable location to be agreed between the Seller and Buyer of any Marine Fuels delivered which is not in accordance with the Contract and is unsuitable for use onboard the vessel, and either (aa) the replacement by the Seller of such Marine Fuels, or (bb) reimbursement of the cost of such Marine Fuels; and
  2. the reasonable repair costs of any components that are physically damaged as a direct result of using any Marine Fuels supplied by the Seller which is not in accordance with the Contract; and
  3. those losses, damages, claims or expenses arising from the death or personal injury to any person caused by the Seller’s sole negligence.
2. The Seller shall not be liable for any of the following:
  1. indirect, special, punitive, exemplary, incidental or consequential losses, damages or expenses; or
  2. loss of actual, projected and/or prospective profits, anticipated cost savings, contracts or financial or economic loss; or
  3. any demurrage or deviation costs.
3. The Seller shall not be responsible for any claim arising from commingling of Marine Fuels delivered by the Seller with other fuel(s) onboard the vessel.
4. The Buyer shall indemnify and hold the Seller, Seller’s Affiliates and the directors, employees and agents of the Seller and Seller’s Affiliates harmless against all claims, liabilities, loss, damage, costs, fines, penalties and expenses whatsoever and by whomsoever brought arising in connection with any delivery of Marine Fuels except to the extent that such claims, liabilities, loss, damage, costs, fines, penalties and expenses are caused by the negligence of the Seller or Seller’s Affiliates, or breach by the Seller of its obligations under the Contract.

11. Risk and Title

Risk in the Marine Fuels shall pass to the Buyers once the Marine Fuels have passed the Sellers’ flange connected to the Vessel’s bunker manifold.
Title to the Marine Fuels shall pass to the Buyers upon payment for the value of the Marine Fuels delivered, pursuant to the terms of Clause 15 (Payment) hereof. Until such time as payment is made, on behalf of themselves and the Vessel, the Buyers agree that they are in possession of the Marine Fuels solely as Bailee for the Sellers. If, prior to payment, the Sellers’ Marine Fuels are commingled with other marine fuels on board the Vessel, title to the Marine Fuels shall remain with the Sellers corresponding to the quantity of the Marine Fuels delivered. The above is without prejudice to such other rights as the Sellers may have under the laws of the governing jurisdiction against the Buyers or the Vessel in the event of non-payment.

12. Lien

Deliveries and loading of the Products hereunder are made not only on the credit of the Buyer but also on the faith and credit of the Vessel and the Buyer agrees and warrants that the Seller will have and may assert a maritime lien against such Vessel in respect of all claims arising under the Contract 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 any amounts due under any Contract including all interest and costs that may be payable. No acceptance of any other or additional security measures by the Seller shall operate as a waiver of this provision.
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 the full benefit of local legislation granting the Seller a maritime lien on the Vessel and/or providing for the right to arrest the Vessel. Nothing in the Contract shall be construed to limit the rights and/or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.

13. Health, Safety and the Environment

The Seller shall provide the receiving vessel with Safety Data Sheets (“SDS”) appropriate to the grade of Marine Fuels delivered. The Buyer shall provide its employees, users and customers with health, safety and environmental information, such information together with the SDS shall hereinafter be referred to as the “HSE Data”. The Buyer shall ensure that its employees comply fully with all requirements, obligations and recommendations relating to the handling and use of the Marine Fuels delivered hereunder and shall impose upon all of its customers to whom the Marine Fuels are to be supplied the same obligation to comply fully with the requirements, obligations and recommendations of HSE Data.
Except for death or personal injury caused by the Seller’s negligence, the Seller shall not be responsible in any respect whatsoever for any loss, damage or injury resulting from any hazards inherent in the nature of any Marine Fuels.
The Buyer and the Seller shall each, at all times, comply with any obligations, requirements or recommendations contained in any applicable law, statute, directive or regulation of any territory, state or jurisdiction in or through which the Marine Fuels may be delivered, sold, transported or used and all Government, state or local regulations at the port such as, but not limited to, those related to fire, transportation, handling and storage or spillage or loss of Marine Fuels. Compliance by the Buyer with the recommendations in HSE Data shall not excuse the Buyer from its obligations under this Clause 10(c).
The Buyer shall indemnify and keep indemnified the Seller against any liability, claim or proceedings whatsoever arising out of or in connection with any failure by the Buyer to comply with its obligations under this Clause 13.

14. Force Majeure

In addition to any other relief provided by law, no failure or omission by either Party to comply with any of its obligations under the Contract (save for any obligation to make payment) shall give rise to any claim against that Party, or be deemed to be a breach of contract, insofar as the failure or omission is caused by force majeure, which is defined as any cause not reasonably within the control of that Party, whether or not foreseen, including (without limitation and to the extent that they are not reasonably within the control of the relying Party) such causes as labor disputes, strikes, governmental intervention, compliance with any law, regulation or ordinance or with any order, demand or request of an international, national, port, transportation, local or other authority or agency or of anybody or person purporting to be or to act for such authority or agency or any other corporation directly or indirectly controlled by any of them, acts of administrative authorities, decisions of the courts, riot, wars, military operations, terrorism actions, civil commotion, hijacking, fire, explosion, flood, storm, natural disasters, epidemic or pandemic, or any act of God. Any curtailment, failure or cessation of supplies of Marine Fuels from any of the Seller’s sources of supply (whether in fact sources of supply for the purpose of any Contract or not), provided that such curtailment, failure or cessation is related to a circumstance which is outside the control of the Seller, shall be considered as an event of force majeure for the purpose of the Contract.
If by reason of any event of force majeure, either the availability from any of the Seller’s sources of supply of Marine Fuels or the normal means of transport of such Marine Fuels is delayed, hindered, interfered with, curtailed or prevented, then the Seller shall be at liberty to withhold, reduce or suspend deliveries under any contract to such extent as the Seller may in its absolute discretion think fit and the Seller shall not be bound to acquire by purchase or otherwise additional quantities from other suppliers. Any additional quantities which the Seller does acquire from other suppliers or from alternative sources may be used by the Seller at its complete discretion and need not to be taken into account by the Seller for the purpose of determining the extent to which it is to withhold, reduce or suspend deliveries under any contract. The Buyer shall be free to purchase from other suppliers any deficiencies of deliveries of Marine Fuels caused by the operation of this Clause 14 but the Seller shall not be responsible for any additional cost thereby incurred by the Buyer.
The Seller reserves the right to increase the price charged for any Marine Fuels if there is any increase in the costs incurred or to be incurred by the Seller in making the relevant supply due to factors which constitute a force majeure event pursuant to Clause 14(a).
Where the event of force majeure continues for a continuous period of more than one (1) month, and unless agreed otherwise between the Buyer and the Seller, each of them may then terminate the Contract, by written notice to the other. Such termination shall not give rise to any liability, compensation or indemnity of any kind. In the case of a Marine Term Fuel Agreement, such termination shall apply only in respect of deliveries at ports affected by the force majeure event.

15. Payment

Payment for the Marine Fuels shall be made by the Buyers within thirty (30) days or, if otherwise agreed, within the number of days stated in the Confirmation Note after the completion of delivery. In the event payment has been made in advance of delivery, such payment shall be adjusted on the basis of the actual quantities of Marine Fuels delivered and additional payment and/or refund shall be made within seven (7) days after the completion of delivery.
Payment shall be made in full, without set-off, counterclaim, deduction and/or discount, free of bank charges.
Payment shall be deemed to have been made on the date the payment is credited to the bank account designated by the Sellers.
If payment falls due on a non-Banking Day, then payment shall be made on or before the last Banking Day before the due date.
Any delay in payment and/or refund shall entitle either Party to interest at the rate of two (2) per cent per month or any part thereof or as otherwise agreed as per the Confirmation Note.
In the event of non-payment or non-refund, the non-defaulting Party reserves the right to pursue such legal remedies as may be available to them to recover the amount owed.

16. Arbitration and Governing Law

Without derogation from Clause 16 (g), the Contract shall be governed by and construed in accordance with the laws of Singapore.
Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore Chamber of Maritime Arbitration (“SCMA”) in force at the commencement of the arbitration, which rules are deemed to be incorporated by reference in this Clause (the “SCMA Rules”). The Seller may however, at its sole option, commence proceedings against the Buyer in any other jurisdiction. Any submission to the Singapore jurisdiction or arbitration shall not prejudice or restrict the Seller’s rights to commence proceedings in any jurisdiction, in particular, in the jurisdiction where the Vessel is located at any point in time for the purposes of obtaining security.
A party wishing to refer a dispute to arbitration shall serve on the other party a written Notice of Arbitration in accordance with the SCMA Rules. The reference shall be to a sole arbitrator, who shall be appointed by the Chairman of SCMA.
Nothing in this Clause shall prejudice the parties’ rights to seek injunctive relief or preservative relief or security in aid of arbitration from any relevant courts in any jurisdiction.
The Buyer and Seller hereby irrevocably waives actual personal service of process in connection with any action initiated in any court or tribunal to whose jurisdiction the Parties have submitted, and agrees to accept, in lieu of personal service, written notice of such action, given by hand or by certified or registered pre-paid mail or by electronic communication (such as electronic mail), to its address as set out in these Terms and Conditions or otherwise notified pursuant to the Contract, or to its principal place of business, and addressed to the party in question, provided that either party may cause service of process to be effected in any other lawful manner rather than by use of the aforesaid procedure.
The United Nations Convention on Contracts for the International Sale of Goods 1980 shall not apply to this Contract.
Notwithstanding the Clauses above, the Seller is free to bring a suit in any jurisdiction and shall be entitled to avail itself of all remedies under maritime or other law to obtain jurisdiction and/or security for its claims against Buyer, its agents or affiliates, the Vessel, the Owners and charterers and any of their respective agents, servants or assigns, including but not limited to vessel arrest and attachment procedures, similar laws, rules or statutes in any jurisdiction. Further, the Seller may apply and benefit from any law in any jurisdiction which grants the Seller a maritime lien and/or right to arrest the Vessel and the parties’ rights and remedies under the Contract shall at the Seller’s election be resolved by that law to the exclusion of Singapore law.

17. Sanctions and Boycotts

Notwithstanding anything to the contrary elsewhere in the Contract:
1. Nothing in the Contract is intended, and nothing herein should be interpreted or construed, to induce or require either party hereto to act in any manner (including failing to take any actions in connection with a transaction) which is inconsistent with, penalized or prohibited under any laws, regulations, decrees, ordinance, order, demand, request, rules or requirements of the United States of America applicable to such party which relate to international boycotts of any type.
2. Neither party shall be obliged to perform any obligation otherwise required by the Contract (including without limitation an obligation to (aa) perform, deliver, accept, sell, purchase, pay or receive monies to, from, or through a person or entity, or (bb) engage in any other acts) if this would be in violation of, inconsistent with, or expose such party to punitive measure under, any laws, regulations, decrees, ordinances, orders, demands, requests, rules or requirements of the European Union, any EU member state, the United Nations or the United States of America applicable to the parties relating to trade sanctions, foreign trade controls, export controls, non- proliferation, antiterrorism and similar laws (the “Trade Restrictions”).
Where any performance by a party would be in violation of, inconsistent with, or expose such party to punitive measures under, the Trade Restrictions, such party (the “Affected Party”) shall, as soon as reasonably practicable give written notice to the other party of its inability to perform.
Once such notice has been given the Affected Party shall be entitled:
1. immediately to suspend the affected obligation (whether payment or performance) until such time as the Affected Party may lawfully discharge such obligation; and/or
2. where the inability to discharge the obligation continues (or is reasonably expected to continue) until the end of the contractual time for discharge thereof, to a full release from the affected obligation, provided that where the relevant obligation relates to payment for goods which have already been delivered, the affected payment obligation shall remain suspended (without prejudice to the accrual of any interest on an outstanding payment amount) until such time as the Affected Party may lawfully resume payment; and/or
3. where the obligation affected is acceptance of the vessel, to require the nominating party to nominate an alternative vessel; in each case without any liability whatsoever (including but not limited to any damages for breach of contract, penalties, costs, fees and expenses).
Nothing in this Section shall be taken to limit or prevent the operation, where available under the governing law of the Contract, of any doctrine analogous to the English Common Law doctrine of frustration.

18. Anti-Corruption

The Buyer and the Seller each agree and undertake to the other that in connection with the Contract, they will each respectively comply with all applicable Law(s), rules, regulations, decrees and/or official government orders of the United Kingdom and the United States of America or any other relevant jurisdiction relating to anti-bribery and anti-money laundering and that they shall each respectively take no action which would subject the other, to fines or penalties under such laws, regulations, rules or requirements.
The Buyer and the Seller each represent, warrant and undertake to the other that they shall not, directly or indirectly pay, offer, give or promise to pay or authorize the payment of any monies or the transfer of any financial or other advantage or other things of value to:
1. a government official or an officer or employee of a government or any department, agency or instrumentality of any government;
2. an officer or employee of a public international organization;
3. any person acting in an official capacity for or on behalf of any government or department, agency, or instrumentality of such government or of any public international organization;
4. any political party or official thereof, or any candidate for political office;
5. any director, officer, employee or agent/representative of an actual or prospective counterparty, supplier or customer of Buyer or Seller; or
6. any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities; or
7. engage in other acts or transactions; in each case if this is in violation of or inconsistent with the anti-bribery or anti-money laundering legislation of any government, including without limitation the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, the U.K. Anti-Terrorism, Crime and Security Act 2001, the Money Laundering Regulation 2007 and the Proceeds of Crime Act 2002 and the applicable country legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
In particular, the Seller represents and warrants to the Buyer that it has not made any payments or given anything of value to officials, officers or employees of the government of the country in which the Marine Fuels originated or any agency, department or instrumentality of such government in connection with the Marine Fuels which is the subject of the Contract which would be inconsistent with or contravene any of the above- referenced legislation.
The Buyer or the Seller may terminate the Contract forthwith upon written notice to the other at any time, if in their reasonable judgement the other is in breach of any of the above representations, warranties or undertakings.

19. Termination or Suspension in the event of Liquidation, etc.

Notwithstanding anything to the contrary, express or implied herein, the Seller, without prejudice to its other rights, may at its sole discretion either terminate the Contract immediately or immediately suspend delivery under the Contract until further notice, on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing, if one of the below Default Events occurs. The following events and circumstances shall constitute “Default Events” with respect to the Buyer:
1. The Buyer or its immediate or ultimate parent or the party which has issued any credit support in favor of the Buyer:
  1. is dissolved (other than pursuant to a consolidation, amalgamation or merger);
  2. becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
  3. makes a general assignment, arrangement or composition with or for the benefit of its creditors;
  4. institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation and is not withdrawn, dismissed, discharged, stayed or restrained within fifteen (15) days of the institution or presentation thereof;
  5. has a resolution passed for its winding up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
  6. seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;
  7. has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within fifteen (15) days thereafter;
  8. causes or is subject to any event with respect to it, which, under the applicable law(s) of any jurisdiction, has an analogous effect to any of the events specified in sections (1) to (7) above; or
  9. takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;
2. The Buyer commits a repudiatory or renunciatory breach of the Contract;
3. The Buyer fails to deliver to the Seller any credit support complying with the requirements of the Contract within the time set out in Contract;
4. The Buyer fails to take delivery in accordance with the quantity or delivery provisions of the Agreement; or (v) A change of Control of the Buyer occurs, save where it is a transfer of Control to an entity which is itself subject to the direct or indirect Control of an entity that currently has direct or indirect Control of the Buyer.
  “Control” for the purposes of this Section means the ability to direct the activity of a corporation or an entity, excluding an ability deriving merely from holding an office of director or another office in the corporate or entity, and a person shall be presumed to control a corporation or entity if that person holds half or more of a certain type of means of control of that corporation or entity.
In the case of multiple deliveries under the Contract, notwithstanding anything else to the contrary express or implied elsewhere herein, (but always without prejudice to Seller’s other rights at law and under the Contract including, without limitation, Seller’s rights under clauses 15(e) and (f), the Seller may at its sole discretion either terminate the Contract immediately or immediately suspend delivery under the Contract until further notice, on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing, if the Buyer fails to make any payment due to the Seller under the Contract in full and punctually by the due date.

20. Notices

Any Party giving notice under this Contract shall ensure that it is effectively given, and such notice shall be treated as received during the recipients’ office hours. If such notice is sent outside the recipients’ office hours, it shall be treated as received during the recipients’ next working day.

21. Non-Disclosure

The Parties shall

use reasonable efforts to maintain the confidentiality of the information and materials, whether oral, written or in any form whatsoever, of the other that may be reasonably understood, the nature of such information itself and/or the circumstances of such information’s disclosure, to be confidential and/or proprietary thereto or to third parties to which either of them owes a duty of nondisclosure;
take reasonable action in connection therewith, including without limitation at least the action that each takes to protect the confidentiality of its comparable proprietary assets;
to the extent within their respective possession and/or control, upon termination of this Agreement for any reason, immediately return to the provider thereof all Confidential Information not licensed or authorized to be used or enjoyed after termination or expiration hereof. The foregoing shall not require separate written agreements with employees and agents already subject to written agreements substantially conforming to the requirements of this Section nor with legal counsel, certified public accountants, or other professional advisers under a professional obligation to maintain the confidences of clients.

22. Additional Provisions

If any provision of the Contract is declared illegal, invalid or otherwise unenforceable by a court of competent jurisdiction the remainder of such provision and the Contract shall remain in effect to the fullest extent permitted at law.
A waiver by either Party of any right or remedy or of any breach of the Contract shall be effective only if given in writing and shall in no way preclude or restrict the further exercise of that or any other right or remedy, nor constitute a waiver of any subsequent breach.
Assignment of any right or delegation of any obligation hereunder by the Buyer without the Seller’s prior written consent shall be void. The Seller may assign any of its rights or, delegate or sub-contract any of its obligations hereunder to others, including any Affiliate of the Seller, however, the Seller shall remain responsible for the performance of the Contract.
The Contract contains the entire Agreement of the Parties and supersedes all prior Agreements whether oral or written with respect to the delivery of Marine Fuels under this Contract and there are no other promises, representations or warranties affecting it. This Contract shall not be modified or amended in any way unless mutually agreed between the Buyer and Seller and evidenced in writing. Each Party warrants that it has not entered into the Contract in reliance on any representation, whether oral or in writing, which is not set out in the Contract.
In the event of conflict or inconsistency between these Terms of Sale and the Sales Order Confirmation, the Sales Order Confirmation shall prevail over these Terms of Sale.
If any order shall be placed by an agent for a principal as the Buyer hereunder, then such agent shall be liable not only as agent but also for the performance of all obligations of the principal hereunder.
Where sales are concluded through a broker or an agent, commissions may be paid by the Seller to such broker or agent. Any brokers’ commission payable by the Seller shall only be paid after confirmation of receipt in full of all outstanding invoice amounts without set-off into the Seller’s instructed bank under Clause 15(c).
Except for the provisions of Clause 10(d) of these Terms of Sale which may be enforced by the Seller, Seller’s Affiliates and assignees of Seller or Seller’s Affiliates and the directors, employees and agents of the Seller, Seller’s Affiliates and assignees of Seller or Seller’s Affiliates, the Parties do not intend any term of the Contract to be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person (a “third party”) who is not a Party to the Contract. The Parties may rescind or vary the Contract, in whole or in part, without the consent of any third party including, without limitation, those listed above.