FOR THE SPOT SALES OF BUNKER FUEL
Effective as from May 2016
1.1 In these General Terms and Conditions, unless the context otherwise requires:
“Agreement” means the agreement between Buyer and Seller for the spot sale of Fuel contained in Part I and Part II;
“Ancillary means without limiting its generality, the provision of stores water, lubricating oil and such other services as may be
Services" provided by Seller to Buyer by agreement, other than services in connection with the sale, purchase and delivery of Fuel;
"Banking Day" means a day upon which Seller's nominated bank is generally open for business;
"Bunker Delivery means a bunker delivery receipt issued by the Seller pursuant to this Agreement;
"Bunker Tanker" means the bunker barge "Larcom" (or substitute) or tanker or tank truck supplying Fuel to the Vessel;
“Business Day” means a weekday other than a public holiday in Queensland, Australia;
"Buyer” means, subject to Article 2.5, the person or company described as such in Part 1 who shall be deemed in this Agreement to be entering into this Agreement not only on its own behalf but also jointly and severally on behalf of the Vessel’s owner, charterer(s) (demise or otherwise), manager and /or operator;
"Control" means "control" as defined in sections 25-29 of the PPSA;
"Debts" has the meaning given to it in Article 5.1(b);
“Fuel” means bunker fuel or marine fuel described and agreed to be sold under the Agreement;
“Incoterms” means the 2010 edition of international rules for the interpretation of trade terms prepared by the International Chamber of Commerce referred to in Part 1;
"International means International Bunker Supplies Pty Ltd (ACN 100 321 855)
Bunker Supplies or International Bunker Supplies Australia Pty Ltd (ACN 107 419 232)
(Group of as applicable in respect of the sale of the Fuel.
“Load Port” means the port, place or location described as such in Part 1 in or at which the Loading Berth or Berth is situated;
“Loading Berth means any berth, dock, anchorage, sea terminal, single point or other mooring facility, submarine loading line or other place
or Berths" including without limitation alongside barge, lighters or other vessels at which the Fuel may be loaded onto the Vessel;
“Part 1” any Confirmation Note issued from time to time by Seller and any one or more, letter, facsimile, or other telegraphic or electronic transmission from Seller to Buyer confirming the particular terms of the agreement between Buyer and Seller for the spot sale of the Fuel;
“Part II” or means these General Terms and Conditions;
"PMSI" means a "purchase money security interest" as defined in section 14 of the PPSA;
"Possession" means "possession" as defined in section 10 of the PPSA;
"PPSA" means the Personal Property Securities Act 2009 (Cth) (as amended);
"Proceeds" has the meaning given to it in Article 5.2(e);
Account" has the meaning given to it in Article 5.2(e);
"Quantity" means the quantity of Fuel specified in Part I;
"Security means "security agreement" as defined in the PPSA;
"Security Interest" means "security interest" as defined in section 12 of the PPSA;
“Seller” means International Bunker Supplies Pty Ltd (ACN 100 321 855) or International Bunker Supplies Australia Pty Ltd (ACN 107 419 232) described as such in Part 1 and/or in any Confirmation Note, its authorised successors and assigns or nominee;
“Terminal” means the barge, road vehicle, other storage facilities or equipment at the Load Port from which or through which the Fuel is loaded by Seller onto the Vessel for the purposes of the Agreement;
“Terminal means such conditions, directions, regulations or other form of guidelines, controlling or regulating or applicable to the
Conditions" anchorage, pilotage, navigation, berthing, mooring, bunkering, loading or other operations of the Vessel, the off take or other operations of storage and terminal facilities and equipment by Seller, or the provision of any goods and/or services at the Load Port or Berth;
“Vessel” means the vessel arranged by Buyer to accept delivery of the Fuel at the Load Port and shall where the context requires include its Owner, charterer(s) (demise or otherwise), manager and operators.
1.2 Unless the context otherwise requires words denoting the singular include the plural and vice-versa and words denoting one gender include the other gender. Any reference to "including" is without limitation as to its generality. Any reference to a person includes a company or other incorporated entity or firm or partnership.
1.3 Headings of Articles are for convenience only and shall not form part of the Agreement or affect the construction thereof.
1.4 Unless otherwise stated in the Agreement, all prices and sums of money referred to in the Agreement are payable in the currency of the United States of America.
2.1 Part I and Part II of the Agreement cover the entire agreement between the parties in respect of the subject matter hereof. The provisions of Part II shall be subordinate to the provisions of Part I to the extent of any inconsistency. The terms of a Confirmation Note will take precedence over any exchanges leading to the completion of that Confirmation Note.
2.2 No other statement or agreement, oral or written, shall form any part of this Agreement. Neither party shall claim any amendment, modification or release from any provision hereof unless such amendment, modification or discharge is confirmed in an exchange of facsimiles, electronic message or similar transmissions between the parties or there is an instrument in writing signed by the parties.
2.3 Buyer warrants that the Vessel is fit and ready in all respects to load the Fuel and that the Vessel is in possession of all certificates required to comply with Seller's requirements and the Terminal Conditions and that all technical aspects of the Vessel that may be relevant to the delivery of the Fuel by Seller to the Vessel have been disclosed in writing by Buyer to Seller.
2.4 The application of all or any of the provisions of the United Nations Convention on Contracts for International Sale of Goods (Vienna Convention) to this Agreement or incorporation of such provisions into this Agreement at any time is expressly excluded in all respects.
2.5 Where Fuel is ordered by an agent for Buyer, the agent as well as the principal, will be bound by, and liable for, all obligations as fully and completely as if the agent were itself the principal whether or not such agent purports to contract as agent only. Both the principal and the agent will be considered Buyer for the purposes of this Agreement.
2.6 Nothing in this Agreement will operate to negate the formation of a contract between the Seller and the Vessel’s owner including demise charterers (if any) whether arising pursuant to the terms of a Bunker Delivery Receipt or otherwise.
3.1 (a) The quality and quantity of the Fuel shall be determined at the Load Port by Seller in accordance with Seller's normal practice at the Load Port at the time of fuelling.
(b) If required by Buyer, quality and quantity will be verified by an independent expert inspector. The quality and quantity shall be duly noted on Seller’s Bunker Delivery Receipts, which shall be conclusive and binding on the parties, subject only to any dispute resolved pursuant to Article 3.5. If an independent expert inspector is required by Buyer, he shall be mutually approved by the parties but shall be appointed by Buyer and at Buyer’s own cost and expense and in all respects shall be acting as the agent of Buyer.
3.2 Unless otherwise specified in Part I, the Fuel sold hereunder shall be representative of the grade of bunker fuel generally made available by Seller at the time and place of delivery. Buyer shall have the sole responsibility for selecting the suitable grades of bunker fuel for use in the Vessel being supplied. BUYER HEREBY AGREES THAT TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, ALL REPRESENTATIONS OR WARRANTIES ON THE PART OF SELLER EXPRESS OR IMPLIED, WHETHER MADE BY VIRTUE OF THE OPERATION OF ANY STATUTE, REGULATION OR OTHERWISE, OF MERCHANTABILITY, FITNESS OR SUITABILITY OF THE FUEL FOR ANY PARTICULAR PURPOSE OR IN RELATION TO THE PROVISION OF ANCILLARY SERVICES ARE HEREBY EXPRESSLY EXCLUDED FROM THIS AGREEMENT. Despite anything else in this Agreement, if there is a condition implied by law that any Fuel or Ancillary Services supplied by Supplier will be of merchantable quality and that implied condition is not able to be excluded by contract then the liability of Supplier for breach of such implied condition is limited (to the extent permissible by law) to any one of the following (at Supplier's election):
(a) the replacement of the Fuel or Ancillary Services (as applicable) or the supply of equivalent Fuel or Ancillary Services (as applicable) at the Load Port; or
(b) a refund of the amount paid by Buyer for the Fuel or Ancillary Services (as applicable); or
(c) the payment of the cost of replacing the Fuel or Ancillary Services (as applicable) or of acquiring equivalent Fuel or Ancillary Services (as applicable) at the Load Port.
3.3 The Buyer or its representative shall be invited to witness the measurement, the inspection referred to in Article 3.1(a) and (b) sampling of the Fuel at the Load Port or Berth.
Seller shall take four representative samples at the Bunker Tanker sampler location of each grade of the Fuel delivered to the Vessel. Two sealed samples shall be handed to the Vessel’s representative and the other two sealed samples retained by Seller. The absence of Buyer or its representative will not prejudice the validity or authenticity of the samples so taken. Seller’s retained samples will be retained for twenty-eight (28) days after delivery. After twenty-eight (28) days, Seller may discard such samples, unless Buyer has made a claim under Article 3.5 within the said twenty-eight (28) days, in which case Seller’s samples shall be retained by Seller for analysis by an independent expert inspector in accordance with Article 3.4.
3.4 Any dispute as to the quality of the Fuels delivered, shall be determined finally and conclusively by analysis of Seller’s retained sample referred to in Article 3.3, by an independent expert inspector to be appointed jointly by Buyer and Seller. If they cannot agree to the appointment, then an independent expert inspector will be appointed by the Chairman for the time being of the Australian Institute of Petroleum. Costs of the analysis shall be to Buyer's account, unless upon analysis, Buyer's dispute as to the quality of the Fuel is established, in which event such costs are to be to Seller's account.
3.5 If the independent expert inspector appointed pursuant to Article 3.1(b) of this Part fails to verify the quality or quantity and/or a dispute arises in respect of quantity or quality, the party seeking redress shall notify the other party in writing of its claim as soon as possible. No dispute or claim can be made by Buyer with respect to quantity of Fuel where the actual quantity of Fuel delivered by Seller is within plus or minus five (5) percent of Buyer's ordered quantity and Buyer must pay for the actual delivered quantity. The right to claim under this Article 3.5 is conditional upon such notice being given together with substantiating documentation within twenty-eight (28) days of completion of loading of the Fuel onto the Vessel in accordance with Article 8. Failure by Buyer to make such a claim within the time prescribed herein shall be deemed a waiver by Buyer of such claim whereupon Buyer's rights of claim will be deemed to be forever waived and barred. The parties shall endeavour to resolve the dispute promptly and fairly, but which will otherwise be determined:
(a) as to quality, in accordance with Article 3.4; and
(b) as to quantity (subject to this Article 3.5), in accordance with Article 15.
The parties shall continue to be bound by the Agreement and pending resolution of such dispute, payments shall be made based on the quantity and quality determined by Seller pursuant to Article 3.1(a).
Article 4. Price and Payment
4.1 Buyer must pay Seller for the quantity of the Fuel measured in accordance with Article 3.1 at the price set out in Part I. Buyer must pay Seller for the provision of any Ancillary Services at the price set out in Part I. Payments shall be made in accordance with this Article 4.
4.2 Notwithstanding confirmation of any sale by Seller, Seller is entitled to cancel any previously confirmed sale prior to delivery without any liability, or at its sole option, to negotiate with Buyer for an alternative price if:
(a) Buyer increases or decreases the quantity specified to Seller in Part I by more than ten percent (10%), or
(b) Buyer’s Vessel fails to take delivery within three (3) calendar days (inclusive) prior to or following the date of delivery or the first day of a delivery date range, specified in Part I; or
(c) the quality or specification of the Fuel specified in Part I is changed by Buyer.
4.3 Unless otherwise agreed in Part I, Buyer shall be responsible for any wharfage, dockage or quay charges, fees and costs in connection with lightering, barging and use of road vehicle, entrance or clearance fees, towing and tug charges, pilotage, mooring or unmooring charges, harbour dues, any applicable duties, taxes, assessments, port charges and any other charges applicable at the Load Port levied on or in respect of or by reference to the Vessel, Berth, Terminal or Fuel.
4.4 Buyer shall be liable for all taxes (including any applicable GST), excise, assessments, duties and other charges (other than taxes on profits) levied on the Fuel irrespective of whether Buyer has been notified of the same. Buyer shall be responsible for obtaining all necessary export permits or authorities in connection with the sale of the Fuel hereunder. All amounts stated in this Agreement are exclusive of all taxes (including any applicable GST), excise, assessments, duties and other charges levied on the Fuel unless otherwise indicated.
4.5 As an accommodation to Buyer, Seller may prepay any charge referred to in Articles 4.3 and 4.4 above, and include the same on its invoice to Buyer in respect of a delivery.
4.6 In respect of the collection of GST the following provisions will apply:
(a) if an amount in this Agreement is not stated as GST inclusive then:
(i) a recipient of a taxable supply under or in connection with this Agreement must pay to the supplier, in addition to the consideration for the taxable supply, an amount equal to any GST paid or payable by the supplier in respect of the taxable supply; and
(ii) the recipient must make that payment to the supplier as and when the consideration or part of it is provided, except that the recipient need not pay unless the recipient has received a tax invoice for that taxable supply.
(b) Where a supplier incurs a cost or expense for which it may be reimbursed by, indemnified against, claim against or set-off against another party under this Agreement, the amount to be paid or credited is the cost or expense (reduced by the input tax credit that the supplier is entitled to claim in respect of that cost or expense) plus the amount in respect of GST payable by the recipient under Article 4.6(a) where relevant.
(c) If, any time, an adjustment event arises in respect of any supply made by a party under this Agreement, a corresponding adjustment must be made between the parties in respect of any amount paid in respect of GST including any amount paid pursuant to Article 4.6(a). Payments to give effect to the adjustment must be made between the parties except that the recipient need not pay any amount unless the recipient has received a valid adjustment note in respect of that amount. Consistent with this requirement, the Supplier must issue a valid Adjustment Note in relation to the Adjustment Event.
(d) Words in this Article 4 have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth), unless the context makes it clear that a different meaning is intended.
4.7 As soon as practicable after delivery, Seller will provide Buyer or Buyer’s representative with a commercial invoice (which may be sent by facsimile or other electronic method). Payment of the invoiced amount shall be made by Buyer, free of exchange, in full and without deduction or offset by the due date for payment specified on the commercial invoice, by direct payment or by telegraphic transfer of immediately available United States dollars or such other currency as may be specified by Seller in Part I, to a bank account nominated by Seller and shall be deemed to be paid upon cleared funds being made available to Seller.
4.8 If the last day upon which payment is required hereunder is not a banking day, then payment shall be made on or before the nearest banking day to that date. If the preceding and succeeding banking days are equally near, payment shall be made on or before the preceding banking day.
4.9 Seller may at any time by written notice to Buyer require Buyer to establish letter(s) of credit at Buyer’s expense from an Australian bank acceptable to Seller (or from an international bank where otherwise agreed by Seller) or other forms of security or collateral with respect to any or all deliveries of the Fuel to Buyer and the performance by Buyer of its obligations under this Agreement (including but not limited to obligations of Buyer with respect to any other monies owed or otherwise due and payable by Buyer to Seller under this Agreement).
4.10 Buyer must ensure that the form of the letter of credit established under Article 4.9:
(a) is issued in favour of Seller (or Seller's nominee as notified by Seller to Buyer);
(b) is issued in conformity with the Uniform Customs and Practice for Documentary Credits (ICC Publication No. 600) ("UCP 600");
(c) states that it is to provide for payment in respect of the Fuel "ten (10) per cent more or less" the Quantity multiplied by the price specified in Part I;
(d) is for about (within the meaning of UCP 600) an amount in United States dollars equal to the Quantity multiplied by the price specified in Part I;
(e) is valid for a period of at least sixty (60) days from the date of establishment;
(f) provides for reimbursement by telegraphic transfer;
(g) provides for confirmation of the letter of credit at Buyer's expense;
(h) is available for negotiation without restriction at Seller's bank;
(i) provides for Seller to obtain payment for the Fuel under the letter of credit upon presentation at the issuing bank (approved by Seller in accordance with Article 4.9) of:
(i) Seller's commercial invoice; and
(ii) Seller's Bunker Delivery Receipt;
(j) provides that third party documents (issued by a party other than Seller) are acceptable;
(k) provides that any or all of the documents to be presented against the letter of credit may be dated prior to the date of opening and/or confirmation of the letter of credit; and
4.11 Buyer must ensure the letter of credit is properly delivered to Seller in order that Seller has Control and/or Possession of the letter of credit prior to delivery of the Fuel by Seller in accordance with Article 7.
4.12 Notwithstanding anything to the contrary, Seller shall not be obliged to commence or complete the loading of the Fuel until any letter(s) of credit or other security required pursuant to this Agreement has been provided by Buyer and accepted by Seller. If Buyer does not provide such letter(s) of credit in accordance with this Agreement on time and in the proper form or if Buyer does not provide other security in accordance with this Agreement, then Seller may terminate the Agreement immediately at its option by notice in writing to Buyer without prejudice to any or all of Seller's other rights and remedies.
4.13 If Buyer fails to make payment of any amount when due, Buyer shall be liable for interest on the amount outstanding until payment. This liability is in addition to any other right and remedy available to Seller hereunder or by law. The interest payable shall be at the Reserve Bank of Australia rate ruling on the last day upon which payment is required, plus two percent (2%) or the maximum rate allowed by applicable law, whichever is less.
4.14 In determining price, fractions of a cent less than 0.5 shall be rounded down to the nearest whole cent, and fractions of 0.5 or more shall be rounded up to the nearest whole cent.
Article 5. Title and Risk
5.1 Fuel shall be delivered by Seller and accepted by Buyer on the delivery terms specified in Part I at the Load Port.
(a) Risk in the Fuel or any part of it shall pass from Seller to Buyer at the permanent intake connection between Seller’s loading hose and the Vessel. If delivery is made to barge, truck (or other vehicle) or coastal tanker nominated by Buyer, delivery shall be deemed completed and risk of loss of the Fuel shall pass to Buyer at the last flange of Seller's or Seller's supplier's loading hose at the loading terminal.
(b) Notwithstanding any other term or condition in this Agreement, all property, title and interest in the Fuel is retained by Seller until Buyer has (i) made payment in full to Seller of the value of the Fuel delivered, pursuant to Article 4 and (ii) the Buyer has paid in full all other monies that may be owing to Seller (items (i) and (ii) collectively constitute "Debts"). Until such time as all payments have been made, on behalf of itself and the Vessel (its Owners, charterer(s) (demise or otherwise), managers and operators), Buyer agrees and acknowledges that it is in possession of the Fuel solely as bailee for Seller and that Seller has a PMSI in the Fuel. If, prior to payment, Seller's Fuel is commingled with other fuels on board the Vessel, nevertheless title to the Fuel shall remain with Seller in corresponding proportion to the quantity of the Fuel delivered pursuant to this Agreement.
(c) In addition to Seller's rights in (b), Seller shall have a right of lien over the Fuel delivered until payment for the Fuel is made in full to Seller. In the event that Seller's Fuel has been commingled with other fuels on board the Vessel supplied, Seller shall have a right of lien to such part of the commingled fuels as corresponds to the quantity delivered to the Vessel. Deliveries of Fuel, if sold on a credit basis, are delivered not only on the credit of Buyer, but also on credit of the Vessel receiving delivery of the Fuel and it is agreed and Buyer warrants that Seller will have and may assert a lien against the receiving Vessel for the amount of the purchase of Fuel.
(d) Buyer shall have the right to resell the Fuel but only as fiduciary agent and trustee for Seller by way of bona fide sale at full market value and in the ordinary course of its business.
(e) Until all the Debts have been paid in full:
(i) Buyer shall take custody of the Fuel as trustee, fiduciary agent and bailee for Seller;
(ii) Buyer must hold all of the money it receives from any sale of the Fuel ("Proceeds") as bailee, fiduciary agent and trustee for Seller, but Buyer need not hold on trust any money exceeding the amount of the Debts at the time the money is received.
(iii) Buyer expressly acknowledges that it is bound by the fiduciary obligation created in the preceding paragraph and acknowledges that:
A. it must hold the Proceeds on trust for Seller;
B. it must place the whole of the Proceeds in an account separate from its own moneys (the "Proceeds Account");
C. it must maintain the Proceeds Account separate from its own moneys at all times.
D. it must maintain proper records for the Proceeds Account.
E. it must not assign or encumber any book debts arising from sales made in circumstances set out in Article 5.1(e)(ii) or do any other act in derogation of Seller's legal or beneficial interests; and
F. it must account to Seller on demand for all moneys standing to the credit of such account.
(iv) Seller may trace the Proceeds in equity.
(f) Seller may at any time, without notice to Buyer and without prejudice to any other rights which it may have against Buyer, terminate any contract connected with the Fuel and the bailment referred to in this Article and enter upon the receiving Vessel, and repossess the Fuel without liability for any damages caused, and subsequently dispose of the Fuel at Seller's discretion if:
(i) the Debts are not paid in accordance with these General Terms and Conditions; or
(ii) Seller receives notice of or reasonably believes that:
A. a third person may attempt to levy execution against the Fuel; or
B. Buyer is insolvent (within the meaning of the Corporations Act 2001) or bankrupt; or
C. Buyer has entered into any arrangement or composition with its creditors, gone into liquidation, or has appointed a receiver, a receiver and manager or administrator.
(G) If after repossession under the preceding paragraph Seller sells the Fuel, Seller shall account to Buyer for any proceeds of sale (less expenses of repossession and sale) that exceeds the amount of the outstanding Debts.
5.2 Seller warrants that it is able to pass good title to the Fuel and that subject to Article 5.1(b), title will pass to Buyer free from any security interests, royalties, liens and encumbrances whatsoever.
Article 6. Order
6.1 Buyer must reconfirm the delivery date, the estimated time of arrival, the grade and quantity of the Fuel, the Vessel nominated, delivery location and delivery terms specified in Part I to the Seller at least two (2) Business Days prior to the delivery date.
6.2 Without affecting Seller’s rights under Article 4.2, if Buyer decreases the quantity specified in Part I or rejects or fails to take delivery of any part of the said quantity, Buyer shall be liable for and shall indemnify Seller against any and all losses, costs and expenses reasonably incurred by Seller as the result of Buyer decreasing or rejecting or failing to take delivery of any part of the said quantity.
6.3 Buyer warrants that it has the actual authority to order the Fuel for the Vessel and to enter into this Agreement not only on its own behalf but also on behalf of the Vessel’s owner, charterer(s) (demise or otherwise), manager and operator, and shall be deemed to have entered into this Agreement in such capacities. Buyer agrees to indemnify Seller against all or any liabilities, obligations, losses, damages, costs or expenses suffered, sustained or incurred directly or indirectly as a consequence of any breach by Buyer of Buyer’s warranty of authority herein. All sales are on the credit of the Vessel as well as on the Buyer’s promise to pay. The Seller shall have a maritime lien on the Vessel for all amounts including interest and costs which may be due.
6.4 The Seller shall be entitled to assert its maritime lien or attachment in any country where it finds the Vessel. The laws of the United States and the State of Florida shall be the law governing the existence and enforcement of a maritime lien, regardless of the courts in which the Seller institutes legal proceedings. This choice of law clause is a condition of this Part and the Agreement which is enforceable and is to be given effect to under any law and court jurisdiction where the Seller may invoke it.
6.5 Buyer undertakes that it will not permit any disclaimer of any type or form to be inserted on the Bunker Delivery Receipt. Any words of disclaimer (including "No Liens" stamps), if inserted will not be binding on Seller and will be null and void and of no effect and will not alter, impair, waive or prejudice Seller’s maritime lien over the vessel, or the Seller's lien under Article 5(1)(c) herein.
Article 7. Delivery
7.1 Buyer shall be responsible for providing and enabling clear and safe reception for the full quantity of the Fuel ordered and confirmed in Part I, without risk to Seller or Seller’s supplier, servants or agents, or their property. Buyer shall make, or with Seller’s consent Seller may make, all connections and disconnections between the delivery hose and the Vessel's intake pipe. Pumping shall be performed under the direction of Buyer's representative and Buyer shall render all necessary assistance and provide sufficient tankage and equipment at its expense, to receive promptly all deliveries hereunder. Any provision of services in connection with the reception of the Fuel by Seller’s supplier, servants, or agents is on the basis that in so providing or performing each is a servant of Buyer in every respect and not the servant or contractor of Seller. The provision of such services by Seller shall in no way relieve Buyer from an obligation or liability in this Article or pursuant to this Agreement.
7.2 Where a time of delivery is indicated, the obligation of Seller shall be to use reasonable efforts to deliver as soon thereafter as is practicable having regard to availability at and any congestion affecting the Terminal or Loading Berth. Seller shall not be liable for any loss, damage, delay or demurrage whatsoever which may be suffered by Buyer as the result of any delay in the delivery of all or part of the Fuel or delays in furnishing berth of the Vessel, howsoever arising.
7.3 Delivery by barge will only be effected within normal harbour limits, and in conditions considered suitable by Seller. The Vessel shall provide a free side, if required, to the Bunker Tanker to effect such delivery and Buyer shall pay Seller all additional costs incurred in connection with such barging, including any demurrage incurred as the result of an event of Force Majeure affecting either party and will render all necessary assistance which may reasonably be required to moor or unmoor the Bunker Tanker, as applicable.
7.4 Where the Fuel is to be delivered by road vehicle Seller shall not be obliged to deliver over roadways which in the opinion of Seller are unsafe for its vehicles. Buyer shall provide safe and prompt passage for such vehicles between the public roadway and actual point of delivery of the Fuel and shall take prompt delivery of the Fuel. The costs associated with delivery and/or any failure to deliver or any delay to Seller’s vehicles that is not caused by Seller shall be for the account of Buyer. In the case of bulk deliveries by road vehicles additional charges incurred for the necessary provision of additional hose in excess of that normally carried by the road vehicles shall be borne by Buyer.
7.5 (a) Before commencement of delivery, Seller shall present to the Master (or Buyer's authorized representative) Seller's Bunker Delivery Receipt, containing particulars of the quantity and quality of the Fuel to be delivered;
(b) Upon completion of delivery of the Fuel, the Master (or Buyer's authorized representative) shall sign the Bunker Delivery Receipt details of which include the quantity and quality of the Fuel received ,and shall return the Bunker Delivery Receipt to Seller, a copy to be retained by the Vessel;
(c) If any dispute arises as to the quantity or quality of the Fuel received, the Master (or Buyer's authorized representative) shall be entitled to endorse details of such dispute on the Bunker Delivery Receipt, without prejudice to the parties' respective rights under this Agreement.
7.6 Where delivery is required outside normal working hours (and is permitted by applicable regulations) at the Load Port (normal working hours being 7.30 am to 4.00 pm Mondays to Fridays inclusive) including public, customary or dock holidays, or on Saturdays or Sundays, or outside normal harbour limits shall be paid for by Buyer as an extra cost at the rates then applicable for such work. Seller shall not be liable to Buyer for its inability to deliver the Fuel, notwithstanding confirmation of delivery dates, if such inability is the consequence of agreement with employees’ organisations which prevent Seller from delivering the Fuel on public, customary or dock holidays or otherwise.
Article 8. Loading
8.1 Seller does not warrant the safety of any Berth and Seller shall be under no liability in respect thereof, except to the extent such loss or damage is caused by Seller's failure to exercise reasonable care, but only to the extent that such loss or damage could not have been avoided by the exercise of due care or seamanship on the part of the Master or other servant of the Vessel or its owner.
8.2 Buyer must ensure that the Vessel accepts and loads the Fuel at the maximum rate consistent with safe practices and vessel design.
8.3 Buyer must accept, observe, perform and comply with the Terminal Conditions. Further, Buyer must cause the Vessel's owner, charterer(s) (demise or otherwise), manager and operators, and agents, employees (including the Master and crew) and contractors of the Vessel to accept, observe, perform and comply with the Terminal Conditions.
8.4 Buyer warrants its authority, and further that it has the actual authority of the persons referred to in Article 8.3, to accept, observe, perform and comply with the Terminal Conditions.
8.5 Buyer must indemnify and at all times keep fully and effectually indemnified Seller against all or any obligations, liabilities, losses, damages, costs or expenses suffered of any nature whatsoever, sustained or incurred directly or indirectly as a consequence of any suspension of loading operations by Seller, non-compliance with the Terminal Conditions, any failure by Buyer to comply with Article 8.3, or any breach of the warranty contained in Article 8.4.
Article 9. Health, Safety and the Environment
9.1 Buyer shall be responsible for ensuring that its employees, users and customers comply with all obligations, requirements or recommendations in respect of occupational health and safety and the environment relating to the Fuel sold hereunder are complied with, whether applicable to the Terminal or to the Vessel.
9.2 Should any event cause or be likely to cause any pollution at the Terminal, Buyer and Seller shall jointly, and without prejudice to liability, immediately take such actions as are reasonably necessary to effect the cleaning-up of such pollution or minimizing the effect of such pollution, which shall always be conducted in accordance with all applicable laws and regulations. Buyer warrants that the Vessel has implemented an oil spill contingency plan and that the Vessel is fully insured against any and all oil spill liabilities, in accordance with applicable laws and regulations, but in any event on terms no less extensive than those generally offered by the member Associations of the International Group of P&I Associations.
9.3 Buyer warrants that the Vessel has in place and will enforce on board the Vessel an anti-drug and anti-alcohol policy consistent with minimum IMO occupational health and safety standards.
Article 10. Force Majeure
10.1 If either party is rendered unable wholly or in part by Force Majeure to observe or perform any of its obligations under the Agreement (other than any obligation to pay money), upon such party giving written notice containing reasonably full particulars of the Force Majeure to the other party within a reasonable time after the occurrence of the Force Majeure, the obligations of the party giving such notice, so far as they are affected by the Force Majeure, shall be suspended, and any time limits or requirements imposed on that party, so far as they are affected by the Force Majeure, shall be extended, but for no longer than the continuance of the Force Majeure and such further period thereafter as shall be reasonable in the circumstances, provided always that the cause of the Force Majeure as far as possible shall be remedied with all reasonable dispatch by the party whose performance hereunder is adversely affected.
10.2 In this Agreement the term “Force Majeure” shall mean act of God, or the port of delivery being affected by war, civil commotion, riot, quarantine, strike, stoppage, lock-out, arrest, restraint of princes, rulers of people, or any other event whatsoever which cannot be avoided or guarded against by the exercise of due diligence by the party affected thereby and claiming suspension of its obligations under this Agreement.
10.3 The requirement that any Force Majeure shall be remedied with all reasonable dispatch does not require settlement of a strike, lock-out, ban and limitation of work or other industrial disturbance by either party involved therein on terms not reasonably acceptable to it.
10.4 If by reason of Force Majeure, Seller’s availability of the Fuel is insufficient to supply Buyer with the full quantity of the Fuel set out in Part I of the Agreement, Seller may at its sole discretion withhold, reduce or suspend the supply of the Fuel to such an extent and on such a basis as Seller reasonably, thinks fit in the circumstances, even if Seller maintains a supply of the Fuel in order to fulfil to some of its other customers, whether for delivery at the Load Port or otherwise and Seller shall not be liable to Buyer in any way as a result of the shortage, other than to reimburse Buyer any amount paid in advance for any quantity of the Fuel not supplied.
10.5 Notwithstanding the provisions of this Article Buyer shall not be relieved of its obligations under the Agreement due to failure by any person to discharge contractual or other obligations in favour of Buyer with respect to the Fuel.
Article 11. Default
11.1 If Buyer at any time:
(a) fails to perform or observe any of the obligations or conditions on its part to be performed and observed under this Agreement (other than a default set out in paragraph (b) hereof) and in the case of a breach capable of being remedied without Seller incurring any or further loss, damage, obligation or liability, fail to remedy such breach within such time as Seller may permit by written notice from Seller.
(b) fails to make any required payments in accordance with Article 4; or
(c) ceases or threatens to cease carrying on its business or becomes insolvent or compounds with its creditors or if an order is made, resolution passed or other action taken for the winding up or protection from creditors or Buyer (voluntarily or otherwise), or if Buyer has a receiver appointed for the whole or any part of its assets,
Seller shall be entitled in its absolute discretion and in addition to and without prejudice to its right to claim damages and to any other remedies available to Seller forthwith to demand and promptly be paid all sums then owing to Seller by Buyer under the Agreement all of which sums shall become forthwith due and payable and further Seller may by written notice to Buyer treat all further obligations, duties and responsibilities of Seller as terminated.
Article 12. Liability and Indemnity
12.1 Buyer shall be liable for all loss and damage of whatsoever nature caused by Buyer, the Vessel, its owner, charterer(s) (demise or otherwise), managers or operators (and their employees, agents, contractors and borrowed servants) whilst the Vessel is at or around the Load Port including:
(a) loss, escape, contamination or degradation of the Fuel;
(b) loss or damage to any property of any nature of Seller (including any Bunker Tanker), or any person having an interest in the Terminal or Fuel;
(c) death, injury or illness to any person;
(d) contamination, degradation or pollution of the environment; or
(e) delay in loading the Fuel onto the Vessel.
12.2 Buyer shall indemnify and forever keep indemnified, defend and hold harmless Seller from all actions, proceedings, suits, claims, demands, damages, losses, costs, charges, expenses and demurrage whatsoever and howsoever arising from:
(a) Buyer’s failure to observe or perform any of its obligations under the Agreement; or
(b) the liability accepted by Buyer under Article 12.1,
even if caused in whole or in part by the negligence of Seller or its servants or agents.
12.3 Notwithstanding Article 12.1, unless otherwise provided in the Agreement, no claim in respect of the supply of the Fuel under the Agreement shall be made in contract or tort by either party for any indirect or consequential or economic loss or damage, including but not limited to loss of income or loss of profits, loss of contract, loss of opportunity, loss of goodwill, loss of business reputation, loss of use of property or loss of production whether or not such losses are foreseeable at the date of this Agreement.
12.4 The provision of any Ancillary Services by Seller shall be carried out at Buyer’s sole cost and risk. Seller shall not be responsible for or liable to (whether in contract or tort or otherwise) Buyer or any other person in respect of any loss or damage whatsoever to any property of any person, or in respect of any personal injury, illness or death of any person, or loss or damage to any property or delay of any description, arising directly or indirectly in relation to the provision or performance of (or failure to provide or perform) any Ancillary Services even if caused in whole or in part by the negligence of Seller (or its servants or agents), and Buyer shall defend, indemnify and forever keep indemnified Seller from the same.
Article 13. PPSA provisions
13.1 The parties agree that for the purposes of the PPSA, this Agreement constitutes a Security Agreement to secure payment of all Debts and that a security interest exists in the Fuel (and any associated Proceeds).
13.2 Buyer acknowledges and agrees that:
(a) Seller has a first ranking PMSI Security Interest in the Fuel under Article 5.1(b) supplied by Seller and this Security Interest extends to any Proceeds (including any Proceeds Account) and will not be extinguished notwithstanding that the Fuel is commingled or processed and Buyer must not jeopardise such ranking (whether by act or omission);
(b) Buyer must indemnify Seller and on demand reimburse Seller for all costs and expenses incurred by Seller in respect of perfecting or registering its Security Interest under the PPSA and must co-operate with Seller to the extent necessary to enable Seller to complete and maintain any registration;
(c) the Fuel to be supplied under this Agreement is not intended, and must not be used for personal or household use;
(d) Buyer must give 10 business days prior written notice of any proposed change in Buyer's name or other identifying characteristics and details; and
(e) the rights the Seller may have under PPSA are supplementary and in addition to those set out in this Agreement and do not derogate from the rights and remedies of Seller under this Agreement or under any other statute or under general law.
13.3 Buyer agrees (other than as provided in this Agreement):
(a) not to sell, lease, mortgage, deal with, dispose of or create or attempt to create any other Security Interest in or affecting the Fuel;
(b) that is has not granted any other person a Security Interest in respect of the Fuel;
unless and until the Debts have been satisfied.
13.4 Buyer agrees to waive its rights to:
(a) receive a notice from Seller under section 121(4); 123(2), 129(1)(a), 130, 134(1) and 135 of the PPSA;
(b) have the Fuel dealt with in accordance with section 125 of the PPSA following seizure;
(c) complain of, or seek redress for, any damage, cost or inconvenience caused by Seller in taking apparent possession of the Fuel under section 126 of the PPSA;
(d) object to any proposal by Seller to purchase the Fuel under section 129(2)(b) of the PPSA;
(e) receive a statement of account under section 132(3)(d) or 132(4) of the PPSA;
(f) request a statement of account under section 132(4) of the PPSA;
(g) redeem the Fuel under section 142 of PPSA;
(h) reinstate this Agreement under section 143 of PPSA; and
(i) receive a verification statement or notice from Seller under section 157(3)(b) of the PPSA.
Article 14. Insurance
Buyer warrants that it maintains a comprehensive public liability policy with a limit of liability of not less than $20 million per claim. It is a condition of supply that the Buyer must, on request, produce evidence to the reasonable satisfaction of Seller that it maintains insurance in accordance with this Article.
Article 15. General Provisions
No waiver of any breach of the Agreement or of the terms hereof shall be effective unless such waiver is in writing and signed or otherwise accepted unconditionally by the party against whom such waiver is claimed. No waiver of any breach of the Agreement shall be deemed to be a waiver of any other or subsequent breach.
If any clause or subclause of this Agreement (including any part of any clause or subclause) is found to be unenforceable, void or voidable for any reason, then the parties agree that the clause, subclause or part shall be severed from the Agreement and that the remainder of the Agreement shall continue in full force and effect to the maximum extent possible.
(a) Subject to articles 6.4 and 6.5 which are conditions of this Part and the Agreement, the Agreement shall be governed by and construed in accordance with the laws applying in the State of Queensland, Australia and the parties hereto submit to the non-exclusive jurisdiction of and agree to be bound by decisions of the Courts of the said State sitting at Brisbane and any Courts competent to hear appeals therefrom.
(b) The laws of the United States and the State of Florida shall be the law governing the existence and enforcement of a maritime lien in Articles 6.4 and 6.5, regardless of the country in which the Seller takes legal action.
(c) The Seller shall be entitled to assert the rights of a maritime lien or attachment of other rights, whether in law, in equity or otherwise, in any country where it finds the Vessel.
Seller may assign all or any of its rights and obligations or nominate its nominee without notice to Buyer. Buyer consents, irrespective of notice, to be bound to the assignee or nominee. Delivery of the Fuels by the assignee or nominee of Seller shall constitute its consent to be bound to Buyer under the terms set out herein. Any assignment by Buyer without Seller’s written consent shall be void.
All notices required or permitted to be given under this Agreement shall, except where otherwise expressly provided, be in writing and be sent by prepaid post, cable, facsimile or other electronic or telegraphic transmission to the recipient's usual place of business. Any notice so given shall be deemed to have been received on the day on which in the normal course it would have been delivered. Either party may by notice to the other party advise it of its preferred address for the service of notices.
To the extent permitted by law, the Buyer must hold and keep confidential any and all matters in connection with and relating to this Agreement and must not disclose such information to any third party (including information in connection with any request under section 275(1) of the PPSA).
Article 16 – Arbitration
16.1 Should any dispute arise between the parties as to the quantity of the Fuel delivered to Buyer and the same not be determined in accordance with Article 3.5, such dispute will be conclusively determined by private and confidential arbitration, to be held before a sole arbitrator in accordance with the arbitration laws applying in the State of Queensland, such arbitration to be commenced by written notice of dispute to be served on the other party. If the parties do not agree as to the sole arbitrator within seven days of the notice of dispute, the sole arbitrator will be appointed by the Chairman for the time being of the Australian Institute of Petroleum.
16.2 Notwithstanding Article 15.3 of this Agreement, the parties may agree to refer any other dispute arising between them to private and confidential arbitration to be determined in accordance with the arbitration laws applying in the State of Queensland.