MARINE FUELS & MARINE LUBRICANTS

Terms and conditions of sale – February 2010

 

1. Definitions

Throughout this GTC, except where the context otherwise requires, the following definitions shall be applied:

Products: Derived from crude oil and/or lubricants, i.e. lubricating oils, greases and other marine lubricating products, delivered or to be delivered to the Vessel and;

*Bunkers: means the commercial grades of bunker oils as generally offered to the Seller’s customers for similar use at the time and place of delivery and/or services connected thereto;

*Lubricants: means the commercial grades of lubricating oils as generally offered to the Seller’s customers for similar use at the time and place of delivery and/or services conntected thereto;

Buyer: means the vessel supplied and jointly and severally her Master, Owners, Managers  / Operators, Disponent Owners, Time Charterers, Bareboat Charterers and Charterers. Or any party requesting offers or quotations for or ordering Bunkers and/or lubricants and any party on whose behalf the said offers, quotations, orders and subsequent agreements or contracts have been made;

*Owner: means the registered Owner or Bareboat Charterer of the vessel; and

*Vessel: means the Vessel, Ship, Barge or Off-Shore Unit that receives the supply bunkers/lubricants; either as end-user or as transfer unit to a third party.

Confirmation Note: means the document stating the agreement made between the Seller and the Buyer and

Contract: means the Confirmation Note, the GTC, the Suppliers Terms and Conditions and any other documents referred to therein and;

Seller: the party contracting to sell the Product, WORLDWIDE ENERGY SERVICES LTD.

Due Date: means the day payment shall be credited to the Sellers account and the Sellers receives interest from same date and;

Product delivery receipt: means the document where the vessel’s representative signs as a confirmation of volumes/quantities received from the Physical Supplier.

2. Application of Terms and Conditions of Sale

(a) These terms and conditions shall apply to all deliveries contracted for unless the Seller expressly agrees otherwise in writing. Each delivery shall be a separate contract and the Buyer shall be deemed to have read and accepted the terms and conditions contained herein.

(b) If a purchase of Products are contracted for by a broker, an agent or a manager for a principal, each such broker, agent or manager shall be bound by and be fully liable for the obligations of the Buyer. Furthermore, delivery shall always take place for the account of the registered owners and for the account of the current charterers all of whom shall be jointly and severally liable for the payment of the delivery as Buyers. The Buyer warrants that it is authorized as agent to order the Products for delivery to the Vessel, and that the Seller has a lien in the Vessel for its claim.

3. Price

(a) Unless otherwise stated in the Seller’s quotation, the Seller’s prices are for delivery ex-wharf in bond and exclude taxes, duties, wharfage dues, delivery and any other charges leviable in respect of Products for the time of delivery. Any such taxes, duties, wharfage dues, delivery charges and other charges shall be paid by the Buyer at the rate applicable for the actual date of delivery.

(b) Prices quoted as “delivered” comprise the ex-wharf price and delivery charges only.

(c) Prices will be valid for delivery within 5 days of concluding the Contract and the Buyer take delivery within the said 5 days.

(d) If after the contract is concluded, the Buyer begins to take delivery, or requires delivery to begin, outside the 5 day range referred to in sub-section

(e), the Seller shall be entitled to amend its quoted price to take account of prevailing market prices. This right is without prejudice to any claim the Seller may have against the Buyer for damages for failing to take delivery within the 5 day period.

4. Grades

(a) The Marine Fuels supplied hereunder shall be the Seller’s commercial grades offered to customers at generally the time and delivery location from time to time. The Buyer shall be solely responsible for nominating to the Seller the grade of Products for each delivery from the range of Products supplied by the Seller at the location in question.

(b) Information regarding the typical characteristics of the Products at any delivery location shall only be indicative of the Products that have been available at that location from time to time and shall not form part of the specification of Products to be delivered.

(c) All other warranties and all conditions relating to quality, fitness for purpose, description or otherwise, whether expressed or implied by common law, statute, or otherwise are hereby excluded.

(d) 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 judgment as to the fitness for its purpose of the Products ordered.

(e) The Seller expressly reserves the right to supply Products blended by the Seller at any time prior to delivery provided always that the Products delivered are in accordance with the grades and specifications contracted for by the Buyer.

5. Notice to Port

The Buyers, or their agents at the port or place of delivery, shall give the Sellers’, or their representatives at the port or place of delivery, 72 and 48 hours approximate and 24 hours definite written notice of arrival, also advising any change in excess of three (3) hours, and the exact location and time at which deliveries are required.

6. Reception

(a) The Buyer shall be responsible for providing safe reception of the full quantity of Products contracted for without risk, to the Buyer, the Seller, any agent, employee or supplier of the Buyer or Seller or to the property of any such parties (negligence by the Seller or failure of or defect in the Seller’s equipment being solely excepted). The Buyer shall ensure that the vessel to be supplied with Products shall be free from all conditions or detects which might give rise to any hazard in connection with the delivery of Products to such vessel. The Buyer shall ensure that the vessel has sufficient tankage and equipment to receive the Products promptly and safely, and shall be responsible to make all connections and disconnections between the delivery hose(s) and the vessels intake pipe and ensure the hose(s) are properly secured to the Vessels manifold prior to commencement of delivery.

(b) The Buyer shall provide a free side for barge deliveries and prompt and safe passage between the public roadway and the actual place of unloading for road vehicles. The Seller shall not be obliged to deliver in locations or over roadways which in its opinion are unsafe for its barges or vehicles.

(c) 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 and upon notice to the Buyer or the agent for the Buyer’s vessel take such measures it considers to be required in connection with the removal of the spillage and the mitigation of its effects by employing its own resources or contracting with others. 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 sub-clause (c) 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 by any applicable laws or regulations.

(d) If the Buyer fails to take delivery of or rejects any amount of the Bunkers and/or Lubricants contracted for, the Buyer shall be liable for all expenses and loss incurred by the Seller and arising out of such failure or rejection by the Buyer.

7. Delivery

(a) If delivery is to be made by barge or road vehicle the Buyer shall notify the Seller when making its enquiry. The Seller undertakes to provide such delivery only within normal harbour limits. If the Buyer or its representative requests delivery by barge or road vehicle after conclusion of the contract such delivery shall be subject to the reasonable availability of the necessary facilities and payment by the Buyer of any additional costs.

(b) Where the Buyer or its representative requests a time of delivery, the Seller’s obligation shall be to deliver as soon thereafter as reasonably practicable having regard to congestion affecting the delivery facilities of the Seller, its suppliers or agents and to prior commitments of barges and vehicles. The Buyer shall not be entitled to demurrage or other compensation for delay unless expressly agreed and confirmed by the Seller in writing.

(c) The Seller shall not be liable for inability to deliver on public or dock holidays or on customary non-business days of the week.

(d) The Buyer shall pay the Seller for delivery services at the rates applicable on the date of delivery and for all additional charges incurred in connection with the delivery, including but not limited to, port dues, wharfage, demurrage, provision of additional hose in excess of that normally available and the use of all oil pollution control equipment required to effect delivery. Where work is carried out in connection with deliveries outside normal working hours at the port or outside normal harbour limits the Buyer shall be liable for all additional charges.

(e) Unless otherwise specifically agreed, the Seller shall be under no obligation to supply the Vessel immediately on its arrival in Port.

(f) In the event of the Buyer’s Vessel through no fault of the Seller not being available to accept delivery of the Bunkers and/or Lubricants at the time and date agreed between the parties, the Seller shall incur no liability whatsoever for any subsequent delay in delivery of the Bunkers and/or Lubricants.

(g) If the Seller at any time for any reason believes that there may be a shortage of supply at any place and that it as a result thereof may be unable to meet the demands of all its customers, the Seller may allocate its available and anticipated supply among its customers in such a manner as it may determine most reasonable in its sole discretion.

(h) Delivery shall be deemed completed and all risk, including loss damage, deterioration, depreciation, evaporation, or shrinkage as to the Bunkers delivered shall pass to the Buyer from the time the Bunkers reaches the flange connecting pipe lines/delivery hoses provided by the Seller.

(i) If the Buyer for whatever reason is unable to receive the full quantity ordered and rendered, the Seller shall have the right to invoice the Buyer for the loss incurred by having to transport the Bunkers back to the storage or by having to sell the bunkers in a degraded form at a lower price than that applicable to the grade originally nominated by the Buyer. The Seller may use this right without prejudice to the Seller’s other rights for damages or otherwise pursuant to these terms.

(j) If possible, the Vessel shall provide segregated tank to receive the contracted quantity of bunkers;

8. Quality, Quantity and Sampling

(a) The Seller shall measure quantity and take samples of the Bunkers and/or Lubricants delivered. The Seller shall takefour samples in accordance with its normal sampling procedures. Two samples shall be retained by the Seller and two samples shall be passed to the Buyer (or itsrepresentative) for its retention. The Buyer (or its representative) shall witness such measurement and sampling but the absence of the Buyer or its representatives during all or any part of the sampling process shall not prejudice the validity of the samples. The measurements of volume and calculations of quantity quantity taken by the Seller shall be conclusive of the volume and quantity of Bunkers and/or Lubricants delivered. The results of the analysis of the Seller’s samples shall be conclusive of the quality of the Bunkers and/or Lubricants delivered.

(b) The aforementioned samples shall be securely sealed and provided with labels showing the Vessel’s name, identity of delivery facility, product name, delivery date, and place and seal number, authenticated with the Vessel’s stamp and signed by the Sellers’ representative and the Master of the Vessel or his authorized representative. Two samples shall be retained by the Sellers for sixty days after delivery of the Bunkers and/or Lubricants to the Vessel and the other sample shall be retained by the Vessel.

(c) The Buyer shall not be entitled to complain of an incorrect measurement of the volume of Bunkers and/or Lubricants delivered unless the Buyer or its representative has witnessed such measurement and has made a complaint in writing at the time of delivery. Any claim as to short delivery shall be presented by the Buyers in writing within 14 days from the date of delivery including full supporting documentation and providing Suppliers were notified in writing at the time of delivery, failing which any such claim shall be deemed to be waived and absolutely barred.

(d) The Seller shall not entertain any claim for any defects in the quality of Bunkers and/or Lubricants unless the Seller receives notice in writing of a complaint within 14 days of delivery and receives full details of the claim with supporting evidence. Failing this any such claim shall be deemed to be waived and absolutely barred. In the event of a dispute regarding the quality of Bunkers and/or Lubricants the parties hereto shall have the quality of the Bunkers and/or Lubricants analysed, by a mutually agreed, qualified and independent laboratory under witness on one of the samples retained by the supplier as detailed in clause 8(a). The results of testing this sample shall be final and binding on both Parties.

(e) In the event of a dispute in regard to the quality of the Bunkers and/or Lubricants delivered, the samples shall be deemed to be conclusive and final evidence for the quality of the product delivered. In case of disputes one of the samples retained by Sellers shall be forwarded to a by both Sellers and Buyers agreed independent laboratory for final and binding analyses. The seal must be breached only in presence of both parties unless one/both in writing have declared that they will not be present; and both parties shall have the right to appoint independent person(s) or institute(s) to witness seal breaking. 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.

(f) The quantities of Bunkers and/or Lubricants shall be determined from the official gauge or meter of the barge or tank delivery or of the shore tank in case of delivery ex wharf.

9. Risk and Property

(a) The Seller retains title to the Bunkers and/or Lubricants delivered to the Vessel until the Invoice has been paid in full in so far as the Seller has the right according to the law of the place of delivery or according to the law of the Vessel’s flag state or according to the law at the location where the Vessel is found

(b) Until full payment of any amount due to the Seller has been made, the Buyer shall not be entitled to use the Bunkers and/or Lubricants other than for the propulsion of the Vessel, nor mix, blend, sell, encumber, pledge, alienate, or surrender the Bunkers and/or Lubricants to any third party or other Vessel.

(c) In case of breach hereof by the Buyer, the Seller is entitled to take back the Bunkers and/or Lubricants without prior juridical intervention, without prejudice to all other rights or remedies available to the Seller.

(d) In the event that the Bunkers and/or Lubricants have been mixed with other bunkers onboard the Vessel, the Seller shall have the right of lien to such part of the Bunkers and/or Lubricants as corresponds to the quantity or net value of Bunkers and/or Lubricants delivered.

(e) In case the Bunkers and/or Lubricants, in part or full, are no longer present or can no longer be identified or distinct from other Bunkers and/or Lubricants, the Seller has the right to attach the Vessel and/or sister ship and/or any other assets of the Buyer (or the Owner of the Vessel), wherever situated in the world without prior notice.

(f) Where title in and to the Bunkers and/or Lubricants delivered has passed to the Buyer and/or any third party before full payment has been made to the Seller, the Buyer shall grant a pledge in such Bunkers and/or Lubricants to the Seller. The Buyer shall furthermore grant a pledge in any other Bunkers and/or Lubricants present in the respective Vessel, including any mixtures of the delivered Bunkers and/or Lubricants. Such pledge will be deemed to have been given for any and all claims, of whatever origin and of whatever nature that the Seller may have against the Buyer.

(g) “No-Lien” stamps or the use of any wording similar in nature and/or meaning on any document including but not limited to bunker delivery receipt(s) whether used by the Buyer or any third party shall be invalid and have no legal effect, and shall in no way prejudice any right of lien the Seller may have against the Buyer over the Bunkers and/or Lubricants.

10. Health, Safety and the Environment

(a) The Buyer shall ensure that its employees comply fully with all requirements, obligations and recommendations relating to the handling and use of the Bunkers and/or Lubricants delivered hereunder and shall impose upon all of its customers to whom the Bunkers and/or Lubricants “are to be supplied the same obligation to comply fully with ‘the requirement, obligations and recommendations.

(b) 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 Bunkers and/or Lubricants.

(c) The Buyer shall at all times comply with any obligations, requirements or recommendations contained in any 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, or spillage or loss of Bunkers and/or Lubricants. Compliance by the Buyer with the recommendations referred to in sub-section (a) shall not excuse the Buyer from its obligations under this sub-section (c).

(d) 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 Section.

11. Seller’s and Buyer’s Liabilities and Consequential Loss

(a) The Seller shall not be liable for damages of whatever nature, including physical injury, nor for delay of delivery of Bunkers and/or Lubricants or services, no matter whether such damages or delay has been caused by fault or negligence on the side of the Seller. The Seller shall furthermore not be liable for damages or delay as described above when such damages or delay has been caused by the fault or negligence of its personnel, representatives or (sub)contractors.

(b) Liabilities of the Seller for consequential damages is excluded. In any event and not with standing anything to the contrary herein, liability of the Seller shall under no circumstances exceed the invoice value of the Bunkers and/or Lubricants supplied under the relevant agreement to the relevant Vessel.

(c) The Buyer shall be liable towards the Seller and herewith undertakes to indemnify the Seller for any and all damages and/or costs suffered or otherwise incurred on the Seller due to a breach of contract and/or fault or neglect of the Buyers, its agents, Servants, (sub)contractors, representatives, employees and the officers, crews and/or other people whether or not onboard of the respective vessel(s). The Buyer furthermore undertakes to hold the Seller harmless in case of any third party institutes a claim of whatever kind against the Seller with direct or indirect relation to any agreement regulated by these terms and conditions. Third party shall mean any other (physical or legal) person/company than the Buyer.

(d) No servant or agent of the Seller (including independent (sub)contractors from time to time employed by the Seller) shall be liable to the Buyer for loss, damage or delay, while acting in the course of or in connection with its employment and/or agency for the Seller. Without prejudice to the above every exemption, limitation, condition and liberty herein contained, and every right, exemption from liability, defense or immunity of whatever nature applicable to the Seller or to which it is entitled hereunder shall also be available and shall extend to protect every such servant, representative or agent of the Seller acting as aforesaid.

12. Agency

If the delivery is contracted for by the Buyer as an agent of any other person or by any person as an agent of the Buyer, whether such agency is disclosed or not, such agents and principals shall be jointly and severally liable with the Buyer for all obligations expressed to be those of the Buyer under the contract and for the due and proper performance of the contract.

13. Force Majeur

(a) The Seller or the Seller’s supplier shall not be liable for any loss, damage or demurrage due to any delay or failure in performance (a) because of compliance with any order or request of any government authority, or person purporting to act therefore, or (b) when supply of the Bunkers or Lubricants or any facility of production, manufacture, storage, transportation, distribution or delivery contemplated by the Seller’s supplier is interrupted, unavailable or inadequate for any cause whatsoever is not within the immediate control of the Seller or the Seller’s supplier, including (without limitation) if such is caused by labour disputes, strikes, governmental intervention, wars, civil commotion, fire flood, earthquake, accident, storm, swell, ice, adverse weather or any act of God. The Seller or the Seller’s supplier shall not be required to remove any such cause or replace any effected source or supply or facility if doing so shall involve additional expense or a deviation from the Seller’s or the Seller’s supplier’s normal practices. The Seller, or the Seller’s supplier shall not be required to make any deliveries omitted in accordance with this clause at any later time.

(b) If the Buyer exercises reasonable diligence, the Buyer shall not be liable for failure to receive any particular delivery if prevented therefrom by force majeure. The Buyer shall indemnify the Seller or the Seller’s supplier for any damage caused by the Buyer, the Buyer’s agent or employees in connection with deliveries hereunder.

(c) In the event that the Seller, as a result of force majeure, can only deliver a superior grade of bunkers, the Seller is entitled to offer the said grade, and the Buyer must accept delivery thereof and pay the applicable price.

14. Payment Terms

(a) Payment shall be made by the Buyer as directed by the Seller within the period agreed in writing.

(b) Payment shall be made in full, without set-off, counterclaim, deduction and/or discount free of bank charges to the bank account indicated by the Seller on the respective invoice(s).

(c) Notwithstanding any agreement to the contrary, payment will be due immediately in case of bankruptcy, liquidation or suspension of payment or comparable situation of the Buyer, or arrest or assets and/or claims of the Buyer, or in case of any other situation, which in the sole discretion of the Seller, is deemed to adversely affect the financial position of the Buyer.

(d) Payment shall be deemed to have been made on the date of which the Seller has received the full payment and such is available to the Seller. If payment falls due on a non-business day, the payment shall be made on or before the business day nearest to the due date. If the preceding and the succeeding business days are equally near to the due date, then payment shall be made on or before the preceding business day.

(f) Any delay in payment shall entitle the Seller to interest at, presently, the rate of 5 (five) percent per month or any part thereof without prejudice to any rights or remedies available to the Seller.

(g) Payments made by the Buyer shall at all times be credited in the following order: (1) costs, (2) interest and (3) invoices in their order of age, also if not yet due.

(h) All costs borne by the Seller in connection with the collection of overdue payments, whether made in or out of court and in general all costs in connection with breach of this agreement by the Buyer, shall be for the sole account of the Buyer.

(i) The Seller shall at all times be entitled to require the Buyer to grant the Seller what the Seller deems to be proper security for the performance of all its obligations under the agreement. Failing immediate to provide such security upon request, the Seller shall be entitled to stop any further execution of any agreement(s) between the parties until such time as the Buyer has provided the required security.

15. Termination

The Seller shall have the option to immediately cancel the agreement in full or in part, or to store or produce the storage of the Bunkers/Lubricants in whole or in part for the account and risk of the Buyer and to charge the Buyer the expenses thereby incurred, or to hold the Buyer fully to the agreement, or take any other measures which the Seller deems appropriate, without prejudice to its rights of indemnification, without any liability on the side of the Seller, in any (but not limited to) one of the following cases:

(a) when the Buyer, for whatever reason, fails to accept the Bunkers/Lubricants in part or in full at the place and time designated for delivery;

(b) when the Buyer fails in part or in full to comply with its obligations to pay any amount due to the Seller and/or provide security as set out herein;

(c) when, before the date of delivery, it is apparent in the opinion of the Seller that the financial position of the Buyer entails a risk for the Seller;

(d) when, in case of force majeure, the Seller is of the opinion that the execution of the agreement shall be cancelled. The Seller may terminate any agreement with the Buyer in whole or in part, in its full discretion, upon the breach of any provisions hereof by the Buyer.

16. Waiver, Amendments and Severability

(a) No waiver by either party of any provision of the contract shall be binding unless made expressly and expressly confirmed in writing. Any such waiver shall relate only to such matter, non-compliance or breach as it expressly relates to and shall not apply to any subsequent or other matter, noncompliance or breach.

(b) No amendment to any provision of the contract shall be binding unless expressly confirmed in writing by the Seller.

(c) If any provision of the contract is invalid, void or unenforceable, this will not affect the validity, legality or enforceability of any other provision of the contract.

17. Notice

Any communication (including without limitation invoices) by either party to the other shall, unless otherwise provided herein, be sufficiently made if sent by post (by airmail where airmail is possible), postage paid or by facsimile transmission to the address of the other party and shall, unless otherwise provided herein, be deemed to have been given on the day on which such communications ought to have been delivered in due course of postal, telex or facsimile communication.

18. Arrest of Vessel

The Bunker/Lubricant supplied to the Vessel is sold and delivered on the credit of the Vessel, as well as on the promise of the Buyer to pay therefore, and the Buyer agrees and warrants that the Seller shall have and may assert a maritime lien against the Vessel 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 the amount due for the Bunker Oil and the delivery theeof. 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 full benefit of local rules granting the Seller maritime lien in the Vessel and/or providing for the right to arrest the Vessel. Nothing in this contract shall be construed to limit the rights or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.

19. Arbitration and Governing Law

(a) The Agreement and all claims and disputes arising under or in connection with the Agreement shall be governed by English law. However, the choice of law is for the sole benefit of the Seller and the Seller may apply and benefit from any law granting a maritime lien and/or right to arrest the Vessel in any country as stipulated in Section 18. hereof

(b) Any dispute between the Seller and a Buyer arising out of or in connection with any Contract, including any disputes regarding the existence, validity or termination, shall be settled by arbitration arranged by English Arbitration in accordance with the rules of arbitration procedure adopted by Cyprus Arbitration and in force at the time when such proceedings are commenced.

(c) Section b above shall be for the sole benefit of the Seller and the Seller shall have the right to take any legal action before the courts in any country either to (a) pursue the merits of a claim against a Buyer before such courts or (b) as an interim measure of protection in order to securing payment of any amount due from the Buyer.

20. Validity

These terms and conditions shall be valid and binding for all offers, quotations, prices and deliveries made by the WORLDWIDE ENERGY SERVICES LTD., any associated company, representative or agent as of February 22, 2010, or at any later date. These terms and conditions are available at the website www.wwenergy.com on which site as well the Sellers may notify amendments, alterations, changes or verifications to same. Such amendments, alterations, changes or verifications are deemed to be a part of the entire terms once same have been advised on the website