BUNKER SUPPLY CONFIRMATION TERMS AND CONDITIONS
In accordance with the Bunker Supply Confirmation following terms and conditions shall apply:
“Bunkerist” means Bunkerist Trading and Brokering,
‘‘Broker’’ means Bunkerist Trading and Brokering unless Bunkerist Trading and Brokering is acting as the Seller,
‘‘Seller’’ means Bunkerist Trading and Brokering unless Bunkerist Trading and Brokering is acting as a broker, “Buyer” means any party asking offers or quotations for ordering bunkers and/or services and any party on whose behalf the said offers, quotations, orders and subsequent agreements or contracts have been made, for instance but not limited to: (jointly and severally) Master, Owners, Managers/Operators, Disponent Owners, Time Charterers, Bareboat Charterers and Charterers of the supplied vessel;
“Delivery Date” is the date on which the Marine Fuel is to be delivered to the vessel by Seller,
“Marine Fuel” means the type/s, quantity/ies and commercial grade/s of bunker fuel oil, Intermediate Fuel Oil ( IFO ), Marine Diesel Oil ( MDO ), Marine Gas Oil ( MGO ) Lubricants and/or any petroleum products and/or services specified which Seller has agreed to sell to Buyer,
‘‘Owner ’’ means the registered owner or bareboat charterer of the vessel;
“Vessel” is the marine vessel, ship, barge or off-shore unit to which Marine Fuel to be delivered; either as end-user or as transfer unit to a third party,
“Port” is the port at which Marine Fuel to be delivered to the Vessel,
“Supplier” is the party from whom Seller obtains Marine Fuel for resale to Buyer,
“Bunker Supply Confirmation” is the document stating nominated and agreed details.
‘‘BDR’’ Bunker Delivery Receipt
These conditions constitute an integral part of any offer and/or Contract made for Marine Fuel and/or services provided by Seller to Buyer. The supply by Seller of Marine Fuel and/or services as if indicative quotation, pro-forma invoice, price list or other similar documents is made or issued solely subject to these Conditions. No statements made outside the Contract, or in any brochures, catalogues or sales literature, as well as in any correspondence or orally during negotiations, are intended to have any contractual effect. Seller reserves the right to include, at its discretion, any additional or substitute terms and Conditions. Any additional or substitute terms shall be advised to Buyer prior to the time of concluding the Contract.
The knowledge, information, guidance and links contained on the website www.bunkerist.com is presented as a general assistance and a cooperative study not intended for any specific purpose. Linked information that has been obtained from third parties is believed to be accurate, but is subject to limited audit and validation procedures. Despite reasonable care has been taken to ensure that information is accurate at the time it is added, Bunkerist cannot accept liability for any losses or damages of whatsoever kind arising out of the use of this website, or any of the information contained within.
We do update the website on a regular basis, however, the datas may not be most current available due to the updating and collation procedures. As such, Bunkerist cannot accept liability for any inaccuracies or failure on the website.
Prices shall be deemed to be in US dollars unless/otherwise specified. Buyer shall pay any additional costs rather than ex-wharfe such as port fees, calling costs, barging, overtime, wharfage and other costs, including whatever imposed by the local authority, government. If the firm quotation is “Delivered”, the price includes transportation to Buyer’s Vessel but does not include demurrage or any other expenses or costs.
The Seller’s offer is based on the applicable taxes, duties, costs, charges and price level of components for Marine Fuel existing at the time of the conclusion of the agreement (Bunker Supply Confirmation). Any additional fee as if tax, assessment, duty, any increase of components for Marine Fuel or any additional costs borne by the Seller whatsoever caused by any change in the Seller’s contemplated source of supply or otherwise, coming into existence after the agreement has been concluded, shall be added to the agreed purchase price, provided that the Seller shall give the Buyer prior notice of this effect within a reasonable time after the Seller becoming aware of the relevant circumstances.
Unless a specific period range of bunkering dates and estimated time of arrival is officially agreed between buyers and sellers Seller shall have the right to amend its prices due to intolerable early/late arrival.
Seller is entitled to recover from Buyer all direct and indirect losses, costs and expenses incurred as a consequence of cancellation of the Bunker Supply Confirmation by Buyer, for whatever reason.
It is understood when deals are finalised with Bunkerist acting as the Broker that a fixed commission will be paid by the Seller on every unit to the Broker as per the nomination sent at the conclusion of the deal.
6. Quantity / Quality
Quantity of Marine Fuel Delivered shall be measured by the Seller or its Supplier and these measurements will be final and binding.However, the Buyer has the sole responsibility for the nomination of the correct quality and the quantity of the Marine Fuels. Buyer, having greater knowledge than Seller of his own requirements, shall have the sole responsibility for the prior selection of the particular grade(s) and acceptance thereof.
Except where government regulations or local authorities determine otherwise, the quantity of Product shall be determined from the official gauge/sounding of the delivering barge, road wagon, or rail tank car, delivery note for drum deliveries, or by gauging in Supplier’s shore tank or by Supplier’s flow meter, at Seller’s election. Adjustment in volume owing to difference in temperature shall be made in accordance with API/ASTM+IP petroleum measurement standards for generalized Marine Fuel (table 6B, 24B, or 54B depending on port location). In the measurement of marine fuel, Seller shall make allowances for all water and non-petroleum sediment in excess of one percent (1%), or any other percentage mutually agreed to between Buyer and Seller. The Chief Engineer or an appropriately accredited representative of the Buyer shall together with the Seller’s representative measure and verify the quantities of Marine Fuels delivered from the tank(s) from which the delivery is made. Supplier’s tank figures, as ascertained jointly by Vessel’s chief engineer and barge staff before and after supply, to be conclusive evidence of quantities supplied (not ship figures). Should the Chief Engineer or the Buyer’s representative fail or decline to verify the quantities, the measurements of quantities made by the Seller shall be final, conclusive and binding.
Delivered Marine Fuel under the Contract shall be segregated from Marine Fuel(s) already on board the receiving Vessel. Any inconvenience arising from Marine Fuels on board of the Vessel shall remain the joint and several responsibility of the receiving Vessel and the Buyer. In any event, the Seller shall not be responsible for any on-board safety, storage, failure, mixing, incompatibility that may affect the delivery as requested and shall have the right to recover from Buyer any loss, damage or expenses incurred as a result of such failures.
It is the Master/Chief Engineer’s responsibility to ensure that all samples have been drawn as per International Bunkering Practice, that is the continuous drip method at the point of supply. Vessel receives a minimum of one bottle, however, at least three (3) identical representative samples of each grade of Marine Fuel recommended to be drawn throughout the entire bunkering operation. Samples should be drawn from one single sampling point between barge / terminal manifold and ship manifold and if possible in the presence of representatives of both the Sellers and the Buyers. Supplier’s barge tank figures, as ascertained jointly by vessel’s chief engineer and barge staff before and after supply, to be conclusive evidence of quantities supplied (not ship figures). All samples are sealed/countersigned in the presence of representatives of both Vessel and Supplier. Sample detained by the Supplier have to be final and binding. Delivery receipts are signed and stamped by a representative of Vessel.
In case that drip-sampling is not available onboard barge, tank-truck or shore tank, samples should be taken as a composite of each tank divided with 1/3 from each the top/mid/bottom of the tanks. Where reasonably practical, the samples shall be taken in accordance with ISO-8217, but shall otherwise be taken from a point and in a manner chosen by Seller or its representative.
In the event of a quality complaint, Seller shall seek to agree with Buyer upon the appointment of an independent inspector to undertake an analysis of one of the retained samples. Method ISO-4259, which covers the use of precision data in the interpretation of test results, shall be used in all cases of dispute. In instances where MARPOL Annex VI applies to the supply effected, the sample accompanying the Bunker Delivery Note pursuant to Regulation 18(6) of MARPOL Annex VI should, where reasonably practical, be drawn in accordance with Resolution MEPC.96(47).
The samples must 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 Seller’s representative and the Master of the Vessel or his representative. The seal numbers must be inserted into the BDR/Bunker Delivery Receipts, andby signing the BDR both parties agrees to the fact that the samples referred to therein are deemed valid and representative of the delivery.
One sample should be retained by the Seller for ninety (90) days after delivery of the Bunkers, or if requested by the Buyer in writing, for as long as the Buyer reasonably requires. One sample should be retained by the receiving Vessel and the remaining sample sent to a laboratory for testing. In the event of a dispute with regards to the quality of the Bunkers delivered, the samples drawn shall be deemed to be evidence for the quality of the product delivered. In case of disputes one of the samples retained by Sellers shall be forwarded to a mutually agreed independent laboratory for final and binding analysis. The seal must be broken 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.
8. Physical Delivery
Vessels shall be supplied as promptly as circumstances permit. Deliveries of Marine Fuel shall be made during local, normal working hours on normal working days at Port. The time of delivery, as given by the Seller, has been given as an approximate time, unless it has been otherwise specifically agreed in writing between the parties. If Buyer requires delivery or causes delivery to be made at anytime/where else, then Buyer shall pay to Seller any additional expenses or cost incurred by Seller or Supplier as result of such delivery. The time of delivery will only be binding upon the Seller when all information necessary for the Seller to comply with its obligations hereunder, have been properly delivered to the Seller in reasonable time before the delivery. In any case the Buyer, unless otherwise agreed in writing, must give written notice not less than 72 (seventy two) hours, which is to be followed by 48 (fourty eight) hours and 24 (twenty four) hours notice prior to the delivery date of the estimated time/s on such date Vessel will be ready to receive Marine Fuel. In such notice, any extraordinary delivery condition requested by Vessel have to be confirmed by Supplier in writing. Additional/extra costs to be covered by Buyer, if any. The notices of delivery must be given to Seller and/or the Seller’s representatives/ agents.
If Buyer requires delivery or causes delivery to be made at any time/where else, then Buyer shall pay to Seller any additional expenses or cost incurred by Seller or Supplier as result of such delivery. If a delivery permit is required from any local authority, for any delivery of Marine Fuel hereunder, then Buyer shall be responsible for obtaining same. No deliveries shall be made until such time as Buyer has obtained all required delivery permits.
Seller shall not be liable for demurrage or for any losses due to congestion at Supplier’s storage or delivery facilities or due to any priorcommitment of available transportation.
The Buyer shall ensure that the Vessel provides a free, safe and always afloat and accessible side for the delivery of Marine Fuel and that all necessary assistance as required by the Seller or the Seller’s representative is rendered in connection with the delivery. Seller shall be under no obligation to deliver when the former is not available. The receiving Vessel shall moor, unmoor, hoist bunkering hose(s) from the barge(s) respectively lower hose(s) whenever required by the Seller or the Seller’s representative, free of expenses, and in any way requested to assist barge equipment to a smooth supply. The Buyer shall make and be responsible for all connections and disconnections between the delivery hose(s) and the Vessel’s bunker intake manifold/pipe and ensure that the hose(s) are properly secured to the Vessel’s manifold prior to commencement of delivery.
During bunkering the Vessel’s scrubbers must be safely blocked, which blocking must be made by the Vessel’s own crew. Furthermore the Vessel must ensure that all pipes and manifolds and receiving tanks are completely checked and being ready to receive the bunkers,including but not limited to ensuring proper opening/closing of relevant valves, without any risk for spillages, etc, during the bunkering.
Local further special requirements for receiving Marine Fuel must be followed strictly by the receiving Vessel, whether advised or not by the Seller or the Seller’s representative, as it is always the Vessel and the Buyer who remains solely responsible for the awareness of such eventual additional requirements for safety reasons.
Buyer shall assume all risks including loss, damage, deterioration, depreciation, evaporate on, shrinkage as to the Marine Fuel so delivered. 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 Marine Fuel back to the storage or by having to sell the Marine Fuel 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. Likewise if the Seller without prior notification is unable to deliver the full quantity ordered, the Buyer shall have the right to invoice the Seller for the additional differential in costs incurred in the procurement of the remaining fuel. The Buyer may use this right without prejudice to the Seller’s other rights for damages or otherwise pursuant to these terms. Neither Seller nor Supplier shall be liable for any demurrage or loss incurred by Buyer or Vessel caused directly or indirectly by delays due to or resulting from weather, local congestion at Port affecting Seller’s delivery facilities, the prior commitment, nonavailability and/or malfunction of delivery barges, or any event of Force Majeure. Buyer shall be liable for demurrage at rates established by Seller and for losses incurred by Seller as a result of any delay caused directly or indirectly by Buyer or Vessel in the use of delivery or barging facilities or in vacating a berth.
Seller and Supplier shall not be liable for special, indirect, punitive or exemplary damages of any kind arising out of or in connection with the performance or non-performance of this agreement.
Title to the product/s supplied pursuant to this contract shall remain with Seller until Seller has been paid in full. Buyer shall hold them, store them, insure them against loss or damage in such a way that they can be identified as Seller’s property, and keep them separate from Buyer’s own property, and the property of any other person. Marine Fuel and Services delivered under a Contract shall be made not only on the account of Buyer but also on the account of the receiving Vessel. The Buyer warrants that the Vessel’s owner has given the Buyer express authority to purchase the Marine Fuel. Therefore the Vessel is ultimately responsible for the debt incurred through the Bunker Supply Confirmation and Seller shall have a lien on Vessel and any bunkers on board her in respect of its claim for paymentfor the product/s which are the subject hereof, which claim shall include interest, legal costs and any other ancillary costs attendant upon enforcement of this contract and/or Seller’s lien.
Delivery shall be completed and title to, risk of loss and liability of all Marine Fuel supplied hereunder shall pass from Seller to Buyer as Marine Fuel passes the permanent hose connection on Vessel or, in the case of delivery by drum, as Marine Fuel passes Vessel’s rail.
Buyer’s rights to possession of the Marine Fuel shall cease if Buyer has not paid for the Marine Fuel in full by the expiry of any credit period allowed by the Contract or Buyer is declared bankrupt or makes any proposal to his creditors for a reorganization or other voluntary arrangement or a receiver, liquidator or administrator is appointed in respect of Buyer’s business. Until full payment of any amount due to the Seller has been made, the Buyer shall not be entitled to use the Bunkers other than for the propulsion of the Vessel, nor mix, blend, sell, encumber, pledge, alienate, or surrender the Bunkers to any third party or other Vessel.
Buyer is warranting that he has the authority to bind Vessel to a maritime lien. It is Buyer’s responsibility to obtain the authority and to advise any other interested party of this information. A disclaimer note placed by a Vessel’s representative on the delivery receipt does not in any way waive Seller’s lien on Vessel and bunkers aboard.
Payment shall be made in U.S. dollars in full by means of irrivocable electronic transfer to the bank identified in Seller’s invoice unless otherwise agreed, as directed by Seller, within the time specified in the Contract. Seller shall be absolutely entitled to the payment in full without discount, reduction, counterclaim or set off (whether legal or equitable) and free of bank charges, which shall be made to Seller’s bank account. Such transfer shall quote Seller’s invoice or order number, Buyer’s name, Vessel supplied. Delivery documents shall be provided to Buyer, wherever possible, however payment shall not be conditional upon receipt the original of such documents, unless specifically agreed at the time of concluding the Contract. Payment shall be considered past due if not received by Seller within the period, confirmed on the Bunker Supply Confirmation of Bunkerist, from date delivery commences.
Overdue payments shall be subject, at Seller’s sole discretion, to a service charge at the rate of 2% per thirty day period or themaximum rate under applicable law, whichever is less. If at any time Seller considers Buyer’s financial condition inadequate to meet Buyer’s obligation hereunder, cash payment in advance or security acceptable to Seller may be required before delivery and Seller may declare any amount then outstanding from Buyer to be immediately due and payable. 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.
If Seller has extended credit to buyer, and if the applicable period expires on a Saturday, Sunday or any other day when Seller’s bank is closed for business, then Buyer shall arrange for the payment in question to be made within such shorter period as willenable the payment to have been made by the last day within the applicable credit period when Seller’s bank was open for business.
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.
Broker’s commission shall be paid by the Seller within 7 days of the payment being received by the Seller in full.
Should Products and/or Services be ordered from Bunkerist as a Seller through a third party broker or agent then such broker or agent as well as Buyer shall be bound to and be liable for all obligations as fully and as completely as if it were itself a Buyer whether such principal be disclosed or undisclosed and whether or not such broker or agent purports to contract as brokers or agents only, but in all such cases the said broker or agent shall not have any rights against Seller.
Any claims as to shortage in quantity delivered must be notified by the Buyer or the Master of the Vessel to the Seller or its representative immediately after completion of delivery in the form of a statement of a letter of protest and copy this to Bunkerist to assist with a resolution. If the Buyer fails to present such immediate notice of protest to the Seller such rights to claim shall be deemed by the Seller to have been waived.
Claims concerning the defects in quality of the bunkers delivered should be submitted to the Seller in writing within 15 (fifteen) days after the delivery in question, otherwise all such claims shall be deemed to have been waived and time-barred in their entirety. The Buyer’s submission of any claim hereunder does not relieve it of the responsibility to make payment in full for the Products supplied by the Seller. This provision shall survive a termination of the Contract.
12. Liability and consequential damages
Any claims, notices, or information written on the delivery receipt or written in form of a memo or letter of protest from Buyer’s Vessel or crew at time of the delivery will not constitute notification of a claim by Buyer, nor will any signatures by Seller’s or Supplier’s delivery crew on any such documents constitute an acceptance or acknowledgment of Buyer’s claim. All claims by Buyer are subject to following, Seller and Supplier shall not be liable for special, indirect, punitive or exemplary damages of any kind arising out of or in connection with the performance or non-performance of this agreement.
The Seller shall only be liable for damages in case of wilful misconduct or gross negligence in the side of the Seller itself.
The Buyer shall be liable towards the Seller and herewith undertakes to indemnify the Seller for any and all damages and/or costs (to be) suffered and/or (to be) made by the Seller due to a breach of contract and/or fault or neglect of the Buyer, its agents, servants, employees and the officers, crews and/or other people whether not on board of the respective Vessel(s). The Buyer furthermore undertakes to hold the Seller harmless in case a third party institutes a claim against the Seller in connection with an agreement under the terms of these conditions. Third party shall mean any other (legal) person than the Buyer.
13. Off Specification Marine Fuel
It is Buyer’s responsibility to take all essential actions to be confirmed by Seller in writing to eliminate or minimize any costs associated with an off specification Marine Fuel supply. To this end Vessel and Buyer shall co-operate with Seller for the most reasonable solution agreed. In any event Seller’s obligation hereunder shall not exceed direct expenses incurred for removal and replacement of Marine Fuel. And shall not include any consequential or indirect damages, including without limitations any damage to machinery, time loss claims, loss of profit and loss of contract. If Marine Fuel is removed without Seller’s approval than all such costs shall be for Buyer’s account.
14. Force Majeur
Neither Buyer nor Seller nor Supplier shall be responsible for damages caused by delays, failure to perform in whole or in part any obligation hereunder (other than the payment of money), or noncompliance with any of the terms hereof when such delay, failure or noncompliance is due to or result from causes beyond the reasonable control of the affected party including, without limitation, acts of God, fires, floods, perils of sea, war (declared or un-declared), embargos, accidents, strikes, labour disputes, failure or shortage of vessel or barge service normally available to Seller or Supplier to, breakdown of or damage to, or shortage in facilities used for production, refining or transportation of Marine Fuel, acts in compliance with requests of any governmental authority or person purporting to act thereof, or any other similar causes. Notwithstanding the provision of its Article, Buyer shall not be relieved of any obligation to make payments for all sums due hereunder.
If the Buyer exercises reasonable diligence, the Buyer shall not be liable for failure to receive any particular delivery if prevented therefrom by force majeur.
Buyer shall indemnify and hold Seller and Supplier harmless from and against any and all claims, demands, suits or liabilityfor damage to property or for injury or death of any person, or for noncompliance with any requirement of any
government arising out of or in any way connected with the fault of Buyer or its agents or servants or other third parties in receiving, using,storing, or transporting Marine Fuel delivered.
16. Environmental Protection
Buyer represents and warrants that,
It and Vessel’s crew are familiar with the health effects related to Marine Fuel supplied hereunder and with appropriate safety and health procedures for handling and for the use of such Marine Fuel. Buyer and Vessel’s crew shall adhere to such safety and health procedures while using or handling Seller’s Marine Fuel. Buyer shall also facilitate the dissemination of such health safetyinformation to all employees, users, and other potentially exposed to Marine Fuel sold hereunder. Buyer shall be responsible for compliance by its employees, agents, and other of such health and safety information to all employees, users, and others potentially exposed to the Marine Fuel sold hereunder. Buyer shall be responsible for compliance by its employees, agents, and other users with all health and safety requirements or recommendations related to Marine Fuel supplied hereunder and shall exert its best efforts to insure that any of its employees or agents, users, and other potentially exposed persons avoid frequent or prolonged contact with or exposure to Marine Fuel both during and subsequent to delivery. Sells and/or Supplier accept no responsibility for any consequences arising from failure by Buyer, its employees or agents, any users, or any other party to comply with such health and safety requirements or recommendations arising from such contact or exposure.
Vessel is properly equipped, maintained and operated so as to avoid the escape, spillage or discharge of oil at the time of all deliveries of Marine Fuel hereunder. If a spill does occur while Marine Fuel is being delivered by Seller or Supplier to Buyer and Vessel, then Buyer shall promptly take such action as is reasonably necessary to remove the oil and mitigate the effects of such spill. However, notwithstanding the cause of such spill, Seller and/or Supplier is hereby authorized, at its/their option, to take such measures and incur such expenses (whether by employing its own resources or by contracting with others) as are reasonably necessary to remove the oil and mitigate the effects of such spill. In the event Seller and/or Supplier has exercised its/their option to remove the oil and mitigate the effect of such spill, Buyer agrees to cooperate and render such assistance as is reasonably required by Seller and/or Supplier. All expenses, damages, costs, fines and penalties arising from a spill or any pollution caused thereby shall by paid by the party that caused such spill by a negligent act or omission. If both parties have acted negligently, all such expenses, damages, costs, fines and penalties shall be divided between the parties in accordance with their respective degree of negligence. Buyer shall furnish to Seller and/or Supplier photocopies of all documents and any other information concerning any spill, or ant program for the prevention thereof, that is reasonably required by Seller and / or Supplier, or required by any regulation application at Port on Delivery Date.
Marine Fuel purchased hereunder is for the operation of the nominated Vessel only.
17. Assigning Rights
Buyer may not assign any of its rights or obligations under the agreement without the Seller’s Prior written consent. Seller may, however, assign any of its rights and obligations hereunder without the Buyer’s prior consent.
18. Breach of contract
Seller may terminate the Contract in whole or in part, at its own discretion upon the breach of any provision hereof by Buyer. Seller reserves the right to recover from Buyer all damages and costs (including but not limited to loss of profit) resulting from any breach of the Contract.
19. Arrest of the Vessel
The Seller shall have the right to obtain a payment guarantee from the Owner as set forth in section 10. If such a guarantee has been given by the Owner and the Owner has not paid the outstanding amount to the Seller within 5 (five) business days after proper written notice has been received, the Seller has the right to cash the evidence and arrest the Vessel or any other Vessel owned or operated by the Owner.
This Agreement shall be governed by and construed in accordance with the laws of the United States of America. Buyer and Seller hereby agree to the jurisdiction of the United States District Courts.
Please send your confirmation by return in writing for our records. It is the responsibility of Buyer and/or Buyer’s representative/intermediary to inform vessel’s owner of the contract and Bunker Supply Confirmation Terms and Conditions that apply to the sale from Seller. If we are not informed immediately, in writing, of owner’s rejection, Bunkerist will consider the owner to be aware of and in acceptance of our Bunker Supply Confirmation Terms and Conditions.