1.1. “Buyer” means the party requesting the Seller either to sell and to deliver or to arrange delivery of Marine Fuels and/or Lubricants, including its servants, the Captain/Master of the Vessel or other Vessel representatives, agents, assigns, brokers, managers, representatives, subsidiaries, charterers or affiliates wherever applicable;
1.2. “Delivery” means each delivery of Marine Fuels, Fuels and/or Lubricants;
1.3. “Delivery Port” means the physical location at which the Marine Fuels and/or Lubricants are delivered;
1.4. “Prices” means those prices quoted by the Seller against the Buyer’s specified requirements;
1.5. “Lubricants” means engine lubricants, engine oils, hydraulic oils, greases, oil additives and other such oils of this nature;
1.6. “Marine Fuels” or “Fuels” means marine fuel oil, marine diesel oil, marine gas oil, automotive gas oil, petroleum and or gasoline;
1.7. “Parties” shall mean the Buyer and Seller;
1.8. “Seller” means Revolution Fuel (Marine) Limited; registered office: Silverstream House, 45 Fitzroy Street, London, W1T 6EB (company number 10142387);
1.9. “Supplier” means the party physically supplying the Marine Fuels or Lubricants to the Vessel, together with its servants, agents, successors, subcontractors and assigns;
1.10. “Supply” means the act of delivering Marine Fuels and/or Lubricants by the Seller /Supplier to the Buyer
1.11. “Vessel” means the vessel to which the Marine Fuels and/or Lubricants are to be delivered by the Seller to the Buyer;1.12. “Working Day” means a business day at the Delivery Port;
2.1. For each Delivery:
2.1.1. the Buyer shall give the Seller, unless otherwise agreed by the Seller, not less than 5 days written notice specifying the name of the Vessel, the Vessel’s agent, contact name and details, Delivery Port, the estimated arrival date and time of the Vessel and the required grades and quantities of Marine Fuels and/or Lubricants;
2.1.2. The Seller will contact the Buyer by telephone, e-mail or fax and provide details of the price (the “Offer”), availability and any other unique terms and conditions applicable. The Buyer must respond to confirm acceptance of the Offer by either telephone, e-mail or fax (the“Nomination”);
2.1.3. By making the Nomination the Buyer shall be deemed to have accepted and agreed to these Terms and Conditions;
2.1.4. If the Buyer gives a Nomination to the Seller which provides less than 5 days notice, the Seller will use reasonable endeavours, but will be under no duty, to fulfil the Buyer’s requirements;
2.1.5. The Seller will provide the Buyer with a Confirmation of Sale, confirming the Nomination for Marine Fuel and/or Lubricants that has been placed and stating the Price;
2.2. The Seller may decline a Nomination by giving written notice to the Buyer at any point prior to supply;
2.3. The Buyer shall give not less than 2 Working Days notice to the Seller and/or Supplier of the Vessel’s readiness to receive the Delivery and confirmation of arrival time and date or such earlier notice as may be required to make arrangements or secure any necessary permission from the local authorities to carry out the Delivery;
2.4. If the Vessel has not arrived at the Delivery Port within the determined time range, and no additional arrangements have been made between Buyer and Seller the Nomination shall be deemed to have been cancelled;
2.5. In the event of cancellation, or deemed cancellation pursuant to Clause 2.4 above, by the Buyer, the Buyer shall be liable to the Seller for all consequential loss, damage and expenses incurred by the Seller.
3.1. The Prices may be subject to change without notice up to and including the date of Delivery;
3.2. The Prices are quoted by the Seller to the Buyer, in the Confirmation of Sale or otherwise, on the condition that such Prices may be adjusted to reflect any increases imposed upon the Seller by the Supplier effective from the date such increases are made by the Supplier whether or not such increases are retrospective. The Purchaser accepts this situation when placing an order for Marine Fuels and/or Lubricants.
4.1. In addition to the Prices payable for Marine Fuels and/or Lubricants the Buyer shall pay the following charges:-
4.1.1. All charges for any delivery by barge/lighter including any barging or lighterage charges or charges incurred for bulk truck, metered truck, rail tank wagon, drum or pipeline delivery;
4.1.2. Any mooring or unmooring charges or port dues which may be incurred by the Seller and/or Supplier in connection with the Delivery of Marine Fuels and/or Lubricants here under;
4.1.3. Any expenses incurred as a result of the Buyer rejecting, without valid reason and supporting evidence, the whole or any part of the Delivery including, but without limitation, any losses incurred by the Seller and/or Supplier in returning and/or downgrading the Marine Fuels or Lubricants;
4.1.4. Any duties, taxes, impositions, charges, freights, premiums or other costs incurred by the Seller and/or Supplier in respect of the Delivery hereunder, together with any duties or taxes payable by the Seller and/or Supplier as a result of the Seller and/or Supplier not having bondedMarine Fuel and/or Lubricant stocks available (and having first advised the Buyer that this is the case) which may be assessed or subsequently assessed;
4.1.5. Any other charges incurred by the Seller and/or Supplier in respect of the Delivery made here under including but not limited to any payments in respect of overtime.
5.1. The Seller shall invoice the Buyer in EURO, US Dollars or Pounds Sterling or in any such other currency as may have been agreed between the Seller and the Buyer before Delivery;
5.2. At the sole discretion of the Seller, invoices may be submitted to the Buyer by any form of telegraphic communication, including, but not limited email, facsimile and telex;
5.3. The Seller shall submit paper copies of invoices by standard post to the Buyer’s registered billing address only where the Buyer has expressly requested. The Seller accepts no responsibility for loss of invoices placed in the postal system;
5.4. The Buyer shall pay the total of the invoice in full without any deductions or set off/offset and such payment shall be made by the invoice due date. All bank charges in respect of the payment shall be for the Buyer’s account;
5.5. Payments are to be made in the currency of the invoice, by telegraphic transfer, chaps payment or another means of electronic interbank transfer to the bank account details set out on the invoice;
5.6. With prior agreement between the Seller and Buyer payments can be made by Visa or MasterCard credit or debit cards. In this case, the full outstanding invoice total will be converted to pounds sterling at the purchase rate of that day at the bank of the Seller and an administration fee of 2.5% of the total invoice will be charged;
5.7. Notwithstanding the above, the Seller may agree in writing with the Buyer a period of credit for the Buyer to effect payment;
5.8. If payment is not received in full in advance of Delivery or, where credit terms have been agreed, at the expiry of the invoice due date, any amounts outstanding shall bear interest at the rate of 2.8% per 30-day period. All amounts outstanding for more than 30 days past the invoice due date shall incur a 5% administration fee in addition to interest charges as outlined within this clause.
5.9. Any amount due on Delivery whether or not credit facilities have been granted shall become a maritime lien against the vessel immediately upon such Delivery;
5.10. Notwithstanding that the Seller may have agreed a period of credit with the Buyer, the Seller hereby reserves the right that if Marine Fuels and/or Lubricants are supplied or to be supplied on credit, and, in the Seller’s opinion, the financial conditions of the Buyer becomes impaired or unsatisfactory, the Seller may demand that payment be made before the due date for payment whether before or after Delivery of the Marine Fuels and/or Lubricants, or may demand the giving of such security as the Seller, in its sole discretion, may specify;
5.11. If at any time the Buyer fails to make any payment or give such security that may be required by the Seller pursuant to Clause 5.10, the Seller shall, in addition to any other remedy, be entitled to suspend or terminate Delivery (insofar as it has not already taken place) and to assert all rights against the Vessel and procure that any other deliveries may be suspended or terminated and in any such event the suspension or termination shall not allow the Buyer any recourse against the Seller;
5.12. The Buyer agrees to pay, in addition to other charges contained herein, the Seller’s internal and external legal fees on a full indemnity basis for the collection of any non-payment or underpayment, as well as any other charges incurred by the Seller in such collection including, but not limited to, the cost of bonds, internal and external legal fees associated with enforcing a maritime lien, attachment or other available right, whether in law, equity or otherwise;
5.13. Marine Fuels and/or Lubricants are supplied under a bunkering commitment on the faith and credit of the Vessel to which they are supplied as well as on the faith and credit of the Buyer.
6.1. The Delivery of Marine Fuels and/or Lubricants hereunder shall be made ex-pipeline, lighter, road tank wagon, barge or by another means as agreed between the Seller and/or Supplier and the Buyer prior to Delivery;
6.2. The Buyer is responsible for checking that the grades of Marine Fuels and/or Lubricants ordered are correct before accepting Delivery. Thereafter, all responsibility for the use of these products lies with the Buyer;
6.3. Delivery shall be made during the normal working hours of the Delivery Port in question, unless required at other times and permitted by port regulations, in which event the Buyer shall pay all overtime and extra expenses incurred;
6.4. The Vessel will be bunkered as promptly as circumstances permit but neither the Seller nor the Supplier shall be liable for any loss, damage, delay or demurrage whatsoever which may be suffered by the Buyer as a result of any delay or congestion affecting the Seller’s and/or Supplier’s facilities however caused;
6.5. Delivery is at all times conditional on the availability of the grade of Marine Fuels and/or Lubricants requested by the Buyer to the Seller/Supplier at the Delivery Port;
6.6. Where Delivery is made by road tank wagon, barge or by any other means as agreed between Seller and Buyer, such Delivery shall always be within harbour limits as established by the Seller. Current barge and/or transportation rates and other taxes/charges applicable on each Delivery will be charged to the Buyer and the amount in each case will be calculated on the basis of not less than the quantity ordered by the Buyer always applicable to any minimum Delivery provisions;
6.7. Barges/lighters making Delivery shall be immediately given a clear and safe berth free of costs alongside the Vessel’s receiving lines and the Buyer shall furnish or pay for all necessary steam and all wharfage or similar charges incurred provided always that terminal or barge Delivery need not be made where in the Seller’s and/or Supplier’s sole opinion a clear and safe berth is not available;
6.8. The Buyer shall make all connections and disconnections of delivery hose to the Vessel and shall give all necessary assistance including provision of sufficient tankage and equipment to receive prompt delivery of Marine Fuels and/or Lubricants hereunder;
6.9. The Buyer shall promptly receive each Delivery and promptly withdraw the Vessel from the terminal and any delay by the Buyer in the use of Delivery or barging facilities or in vacating the berth will result in the Buyer being immediately responsible to pay demurrage at the Seller’s current rate;
6.10. Where necessary, the Buyer shall be responsible for obtaining a government permit or license for the export of Marine Fuel and/or Lubricants and shall provide evidence of the same to the Supplier if requested. If such license or permit is not obtained then the Seller and/or Supplier shall be under no obligation to deliver the Marine Fuels and/or Lubricants and shall not be responsible for any loss or damage resulting from such non-delivery, or for any retrospective taxes, duties or fines;
6.11. On completion of the Delivery of Marine Fuels and/or Lubricants to the Vessel, the Buyer shall sign the receipt form to acknowledge receipt;
6.12. The Buyer is responsible for checking that the grades of Marine Fuels and/or Lubricants together with all other details of the Delivery on the receipt form are correct and noting any protest on the receipt form, evidencing any discrepancies, prior to the Marine Fuels and/or Lubricant passing the Vessel’s manifold and Delivery on board.
6.13. Where available, Revolution Fuel will seek physical suppliers who perform in accordance with Marpol ANNEX VI regulations.
7. Risks and the title of marine fuel
7.1. Delivery of Marine Fuel and/or Lubricants shall be deemed to be complete and title and risk shall pass from the Seller and/or Supplier to the Buyer as the Marine Fuels and/or Lubricants pass the flange connecting the facilities provided by the Seller and/or Supplier to the receiving facilities provided by the Buyer.
8.1. The Marine Fuels and/or Lubricants supplied hereunder shall be the Supplier’s commercial grade of Marine Fuels and/or Lubricants offered generally to the Supplier’s customers for similar use at the Delivery Port provided always that the Seller may from time to time without notice to the Buyer, change the grades of Marine Fuel and/or Lubricants and maximum quantities thereof which will be made available;
8.2. Any claim as to the quality of the Marine Fuels delivered must be submitted by the Buyer to the Seller in writing within seven (7) days of the date of delivery, failing which, such claim shall be deemed waived and forever barred;
8.3. In the event of a claim being made by the Buyer pursuant to Clause 8.2, it will be the Supplier’s official sample(s) from that Delivery which will be used to determine the claim.
9. Quantity and measurement
9.1. Unless agreed otherwise between Buyer and Seller, the ‘Measurement Unit’ used by the Seller for the sale of Marine Fuels and/or Lubricants shall be the same as those confirmed at the time of the Confirmation of Sale;
9.2. The quantity of Marine Fuels and/or Lubricant delivered shall, at the election of the Seller and/or Supplier, be determined from the gauge or meter of the shore tank, barge or road tank wagon effecting Delivery. Where pre-measured quantities are delivered, the Buyer is responsible for checking the containers and/or compartments of the Delivery vehicle prior and post Delivery for verification of quantity.
9.3. The Buyer shall be entitled to be present when such measurements are taken but if the Buyer is not present then the determination of the volume and quantity made by the Seller and/or Supplier shall be conclusive.
9.4. The Buyer shall be deemed to have waived all claims relating to volume and quantity of any Marine Fuel and/or Lubricants delivered hereunder unless a complaint is made by the Buyer to the Seller and/or Supplier at the time of Delivery and noted on the receipt form pursuant to Clause 6.12 and the complaint confirmed in writing to the Seller within 7 days from the date of Delivery, with the full details of the claim together with supporting evidence being received by the Seller within 21 days of Delivery.
9.5. The Buyer is obliged to receive the exact quantity of Marine Fuels and/or Lubricants or a quantity within a pre-agreed range, as specified on the Nomination and Confirmation of Sale. Any costs incurred in the event of the Buyer’s failure to abide by this clause will be for the Buyer’s own account.
10. Environmental protection and health and safety
10.1. If an escape, spillage or discharge of oil (“Spill”) occurs during Delivery of Marine Fuels and/or Lubricants, the Buyer shall promptly take such action as is reasonably necessary to remove the Spill and mitigate its effects;
10.2. Notwithstanding the cause of the Spill, the Seller and/or Supplier is hereby authorised at its sole discretion, upon giving oral or written notice to the Buyer, to take measures either in co-operation with the Buyer or without and to incur such expenses, whether by employing its own resources or by contracting with third parties (as reasonably necessary in the sole judgement of the Seller and/or Supplier) to remove and mitigate the effect of the Spill. If theSeller and/or Supplier has exercised its option to mitigate the effects of the Spill, the Buyer agrees to co-operate and render such assistance as is required by the Seller and/or Supplier in the course of such action. Any expenses, damages, costs, fines and/or penalties arising from the Spill shall be paid for by the party that causes the Spill by its negligent act or omission provided always that if the Seller and/or the Supplier together with the Buyer acted negligently, any such expenses, damages, costs, fines and/or penalties shall be divided equally between them
10.3. In the event of a Spill, the Buyer will have a responsibility to collect evidence at the scene to support any denial of liability by the Buyer. In the event that the Buyer does not collect any such evidence, it agrees to indemnify the Seller and/or Supplier from liability.
10.4. The Buyer shall give or cause to be given to the Seller and/or Supplier all such documentation or other information concerning a Spill or any program for the prevention or remedy thereof, which may be requested by the Seller and/or Supplier or required by law and regulations applicable at the time and place where the Seller and/or Supplier makes theDelivery of the Marine Fuels or Lubricants to the Buyer.
10.5. The Seller and/or Supplier shall not be responsible in any respect whatsoever for any loss, damage or injury resulting from any hazards inherent in the nature of Marine Fuels and/or Lubricants.
10.6. 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 which Marine Fuels and/or Lubricants may be delivered, sold or used and all Government, state or local regulations at the Delivery Port such as, but not limited to, those related to fire, or spillage or loss of Marine Fuels and/or Lubricants.
11.1. The Buyer shall indemnify the Seller and/or Supplier against all claims, losses, costs(whether legal or otherwise), damages, liabilities, fines, penalties and expenses whatsoever incurred or sustained, that arise in whole or in part out of or in connection with the Delivery of Marine Fuels and/or Lubricants pursuant to a Nomination or the provision of advice arising out of or in connection with a Nomination or a potential Nomination except for any such claims, losses, costs, damages, liabilities, fines, penalties and expenses which arise solely through the failure of the Seller and/ or Supplier to perform its obligations under the Agreement, whether as a result of breach of this Agreement, negligence, recklessness or wilful default.
12. Liabilities and consequential loss
12.1. Subject to Clause 12.3, 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 the Agreement, whether as a result of breach of this Agreement, negligence, recklessness or wilful default, shall not be greater than and shall be limited to:
12.1.1. the removal of and replacement or reimbursement by the Seller, at a reasonable location to be agreed between the Parties, of any Marine Fuels and/or Lubricants supplied which are not in accordance with this Agreement. The replacement or reimbursement is at theSeller’s election; and
12.1.2. the reasonable repair costs of any components that are physically damaged as a direct result of using any of the Marine Fuels and/or Lubricants that is supplied by the Seller and is not in accordance with this Agreement; and
12.1.3. those losses, damages, claims or expenses arising from the death or personal injuries to any person caused by the Seller’s negligence.
12.2. Nothing in this Agreement shall in any way limit the Buyer’s obligation to mitigate any of its losses;
12.3. The Seller shall not be responsible for any consequential, indirect, punitive, incidental or special losses or special damages whatsoever, arising out of or connected with its performance, or failure to perform the Agreement, whether as a result of breach of this Agreement, negligence, recklessness or wilful default. This includes, without limitation, loss of profit or anticipated profit, loss of time or hire, loss of use of the Vessel, loss of contract(s) or losses associated with business interruption;
12.4. Nothing in this Agreement shall limit the Seller’s liability for death or personal injury.
12.5. Exceptions to Liability:
12.5.1. Neither the Seller nor the Supplier shall be responsible for any loss, damage, expenses whatsoever or any failure to fulfil their obligations hereunder if such losses, damage, expenses or failure result in whole or in part from:
184.108.40.206. any circumstances whatsoever, whether foreseeable or unforeseeable, which are not within the immediate control of the Seller and/or Supplier;
220.127.116.11. any curtailment, failure or cessation of supplies in Marine Fuels and/or Lubricants or any of the Seller’s and/or Supplier’s sources of supply (whether in fact such sources of supply are for the Marine Fuels or Lubricants to be delivered against a Nomination or not);
18.104.22.168. compliance with any Court order, demand or request of any international or national port, transportation, governmental, local or other authority or agency of any body or person purporting to represent such authority or agency;
22.214.171.124. any breakdown of, or accident to plant or facilities;
126.96.36.199. any reason beyond its/their control including, but not limited to, an Act of God, legislation, war, fire, drought, adverse weather conditions, failure of power supply, lockout, strike or other action taken by employees in contemplation of a trade dispute of furtherance of a trade dispute whether or not the Seller and/or Supplier is a party thereto or would be able to influence or procure settlement thereof.
12.6. All express or implied warranties, conditions, undertakings or representations, imposed by statute or otherwise are hereby expressly excluded unless specifically set out in these Terms and Conditions. In the event the Buyer is a Consumer, all express or implied warranties, conditions, undertakings or representations imposed by statute or otherwise, shall be excluded to the fullest extent permitted by law.
13.1. Any forbearance or indulgence by the Seller in enforcing any term or condition of this Agreement shall not prejudice or restrict its rights or powers under this Agreement and no waiver of any breach shall operate as a waiver of any subsequent or continuing breach.
14.1. 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 Agreement and for the due and proper performance of the Agreement.
15.1. The Seller may assign all or any of its rights and obligations hereunder by giving written notice to the Buyer.
15.2. The Buyer may assign all or any of its rights and obligations hereunder if the Seller provides authority in writing, such authority not to be unreasonably withheld.
16.1. All communications (including without limitation invoices) by either Party to the other shall, unless otherwise provided herein, be sufficiently given if in writing and delivered by personal service, or sent by registered or ordinary post or by wireless, cable, facsimile, e-mail or other telegraphic means. The communications shall be deemed to be given on the day on which such communications ought to have been delivered in due course of postal, email or other communication.
17. Entire agreement
17.1. This Agreement, together with the Nomination, Confirmation of Sale and associated Delivery documents and any other agreement in writing, constitutes the entire and complete contract between the Parties with regard to subject matter and supersedes all prior communications and/or representations between the Parties of this nature.
18.1. In the event of a dispute, the full amount of the invoice must be paid by the due date and pursuant to any agreed credit terms;
18.2. Disputes regarding quality or quantity/volume of Marine Fuels or Lubricants must be reported to the Seller in accordance with clauses 8.2 and 9.4 respectively.
19. Governing law and arbitration
19.1. The Parties hereby agree that this Agreement shall be construed in accordance with the laws of England and Wales;
19.2. The Parties shall use best endeavours to resolve disputes amicably by mutual conference;
19.3. Any controversies or claims arising out of or in connection with this Agreement or the breach thereof which cannot be satisfactorily settled by mutual conference shall be settled by arbitration in England and an expert appointed by the President for the time being of the EnergyInstitute shall be nominated as arbitrator in the event that the parties are unable to agree an arbitrator. The award rendered shall be conclusive on the Parties.
20.1. If any provision of this Agreement is held to be invalid, void or unenforceable, this will not affect the validity, legality or enforceability of any other provision.
20.2. This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party whether for the purpose of the Contracts (Rights of Third Parties) Act 1999 or otherwise. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.