UNIMARINE GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
I. Perimeter of Application and Definitions
- These General Terms and Conditions of Sale and Delivery (“GTC”) shall apply to all sale and delivery contracts for Marine Bunker Fuel and/or Marine Lubricants (together, the “Products”) entered into with Unimarine Pte Ltd. Each sale and delivery shall constitute a separate Contract.
- Throughout these GTC, except where the context otherwise requires, the following definitions shall be applied:
- “Buyer” means the entity or person who contracted to purchase, take delivery and pay for the Products or services, together with the Vessel, her master, owners, operators, charterers, any party benefitting from consuming the Products, all of whom shall be jointly and severally liable as Buyer under each Contract.
- “Contract” means the sale and delivery contract entered into between Unimarine and the Buyer which consists of these GTC and the Order Confirmation that is issued by Unimarine for each supply of Products or other services.
- “Marine Bunker Fuel” and “Marine Lubricants” mean the products as stated in the Order Confirmation.
- “Unimarine” refers to Unimarine, its servants, agents, assigns, subcontractors, and any and all other persons acting under Unimarine’s instructions in fulfillment, compliance or observance of the Contract unless the context otherwise requires.
- “Vessel” means the vessel, ship or craft duly nominated to receive Products as specified in the Contract.
- In the event of any conflict between the terms and conditions in these GTC and the terms and conditions in the Order Confirmation, as between Unimarine and the Buyer the terms and conditions of the Order Confirmation shall prevail.
- Unimarine reserves the right to update these GTC from time to time in its sole discretion without prior notice. In the event that any changes are made, the revised GTC shall be notified to the Buyer by being made available on Unimarine’s website.
- The price of the Products as specified in the Contract is quoted exclusive of any applicable taxes, VAT or other duties, unless otherwise agreed.
- In addition to the price, the Buyer agrees to pay for any additional charges raised and/or incurred, including those in respect of local taxes, duties, port dues, mooring, packaging, freight, wharfage, barging, vehicles, wagons, cleaning up, hose rental, drum packaging, minimum delivery and/or overtime. Unimarine shall use its reasonable endeavours to notify the Buyer in advance and provide an estimate of such charges applicable to each Contract.
III. Cancellation or Changes
- In the event of cancellation, rescheduling, or any other special request in relation to a delivery, the Buyer shall be liable to pay the applicable charges, costs and expenses incurred.
- The Buyer shall be responsible for all consequences, costs and expenses, including but not limited to the Vessel’s demurrage costs, arising from any changes in the Vessel’s arrival or departure timing.
- The Buyer shall be responsible for any changes in the timing of the scheduled delivery of the Products to the Vessel which resulted from a decision, act or omission of the Buyer, the Vessel, the master, agents or representatives. Any costs and expenses incurred by Unimarine in this regard shall be borne by the Buyer and reimbursed in full to Unimarine.
- The Buyer shall have the sole responsibility for the nomination of the specifications and grades of Products fit for use by the Vessel. Any implied warranties, including the warranties of merchantability and fitness for a particular purpose that Unimarine may be deemed to have made, are expressly excluded and disclaimed.
- Delivery of the Products shall be made day and night, Sundays and holidays included, at the port or place of delivery, subject always to the custom of that port or place.
- The Buyer, or its agents at the port or place of delivery, shall give Unimarine or its representatives at the port or place of delivery, seventy-two (72) and forty-eight (48) hours approximate and twenty-four (24) hours definite notice of the Vessel’s arrival and the location and time at which deliveries are required.
- The Buyer shall be responsible for making all connections and disconnections between the delivery hose(s) and the Vessel’s manifold, ensuring that the hose(s) are properly connected to the Vessel’s manifold prior to the commencement of delivery, and providing all necessary equipment to promptly receive delivery of the Products.
- The Buyer shall ensure that the Vessel is in possession of all certificates, permits and licenses required to comply with all relevant regulations pertaining to delivery of the Products at the port or place of delivery and that the master of the Vessel shall:
- advise Unimarine in writing, prior to delivery, of the maximum allowable pumping rate and pressure and agree on communication and emergency shut-down procedures;
- notify Unimarine in writing, prior to delivery, of any special conditions, difficulties, peculiarities, deficiencies or defects in respect of and particular to the Vessel which might adversely affect the delivery of the Products; and
- render all necessary assistance which may reasonably be required and provide a safe and practicable access to the Vessel, in compliance with all applicable laws and regulations so as to allow for smooth delivery of the Products, taking into consideration the mode of delivery requested.
- The Buyer shall be responsible for any and all demurrage, detention or additional expenses incurred by Unimarine if the Buyer or the Vessel fails to receive the Products at the time for delivery. In addition, if the Vessel fails to take delivery of the Products or any part thereof for whatever reason, the Buyer shall compensate Unimarine for any loss or damage which Unimarine may suffer as a result of such failure. The Buyer shall also bear the risk of the return transport, storage or selling of the Products, including but not limited to any loss of profit on any resale of the Products.
- In case of delay or failure to deliver the Products, Unimarine shall not be liable to the Buyer or any other entity for any claim, loss, demurrage or damage unless such delay or failure to deliver is caused by Unimarine’s negligence. Further, Unimarine shall not be liable to the Buyer for any claim, loss, demurrage or damage due to congestion of the terminal, shortage of fuel, weather conditions, prior commitments of the available barges, or any conditions beyond Unimarine’s control.
- Unimarine and the Buyer agree to use reasonable efforts to obtain the required certificates, permits and licenses for the delivery in a timely manner. Unimarine’s obligation to deliver the Products is conditional upon parties having obtained such certificates, permits and licences, and Unimarine shall not be required to deliver or arrange to deliver (and shall bear no liability hereunder for failure to deliver) Products where any required certificate, permit or licence has not been obtained.
VI. Quantity and Quality
- The physical supplier’s measurements taken on the physical supplier’s barges, tankers, trucks, pipes, pumps, tanks or shore tanks or by the physical supplier’s meters shall be conclusive evidence of the quantities delivered to the Buyer, and shall be included in the bunker delivery note or delivery receipt note which shall be signed by a representative of the Buyer. Absence of signature from the representative of the Buyer shall not render the measurements void. Measurements taken by any other means, including those taken on board the Vessel, shall not be binding on Unimarine and shall have no evidential value between Unimarine and the Buyer.
- Subject to the Buyer bearing all related costs and expenses, the Buyer shall have the right to call upon an independent surveyor to measure the quantities of Products delivered. Such independent surveyor shall be appointed by Unimarine, or jointly appointed by both Unimarine and the Buyer, and shall only take measurements as permitted at sub-clause (a) above to determine the quantities and issue a survey report. Both Unimarine’s and the Buyer’s representatives shall have the right to witness the measurement operations. The measurements taken by the independent surveyor shall be conclusive evidence of the quantities delivered to the Buyer, and shall be included in the bunker delivery note or delivery receipt note which shall be signed by a representative of the Buyer. Measurements taken by any other party other than the said independent surveyor, or taken by any other means, shall not be binding on Unimarine and shall have no evidential value between Unimarine and the Buyer.
- Unimarine or its representatives shall arrange for samples to be drawn at the time of delivery of the Products. Unless otherwise agreed between Unimarine and the Buyer prior to entering into the Contract, the samples shall be drawn from a point and in a manner chosen by Unimarine or its representatives in accordance with the customary sampling procedures at the port or place of delivery.
- Such sampling shall be performed in the presence of both Unimarine or its representatives and the Buyer or its representatives, but the absence of the Buyer or its representatives during all or any part of the sampling process shall not prejudice the validity of the samples.
- Upon completion of sampling, all samples drawn by Unimarine or its representatives are to be sealed, labelled and signed by both Unimarine or its representatives and the Buyer or its representatives. One sample shall be retained by the Buyer or its representatives, and the remaining samples shall be retained by Unimarine or its representatives.
- In the event of a dispute concerning the quality of the Products, the results of analysis of Unimarine’s or its representative’s drawn samples performed by an independent laboratory mutually appointed by Unimarine and the Buyer shall be conclusive to determine the quality of the Products supplied. The results of analysis of any other sample shall not be binding on Unimarine and shall have no evidential value between Unimarine and the Buyer.
- If Unimarine and the Buyer cannot agree on an independent laboratory to perform mutual analysis, or if the Buyer fails to reply to Unimarine’s notice hereof within seven (7) days from receipt of such notice, Unimarine can at its sole discretion decide which laboratory to perform the analysis, the results of which shall be final and binding for all parties involved.
- Once the delivery is completed and quantities measured, a bunker delivery note or delivery receipt note as the case may be shall be signed and stamped by the master of the Vessel or the master’s authorised representative, and returned to Unimarine or its representative, and a duplicate copy shall be retained by the master of the Vessel.
- In the event the master of the Vessel is not satisfied with the sampling, quantity or any other matter concerning the Products or their delivery, the master shall on completion of delivery issue a separate letter of protest detailing the complaints, receipt of which shall be acknowledged in writing by Unimarine or its representative. No comments are allowed on the bunker delivery note or delivery receipt note.
- No disclaimer notice or stamp of any type if applied by the Buyer or its representative to the bunker delivery note or delivery receipt note will change, affect or waive Unimarine’s rights against the Vessel or waive the Vessel’s ultimate responsibility for the debt incurred pursuant to the Contract.
- Any dispute as to the quantity delivered must be noted at the time of delivery verbally as well as in writing by the Buyer to Unimarine. In any event, if no such notification is made and/or no claim for such quantity dispute is presented in writing with full details and the relevant supporting documentation to Unimarine within fourteen (14) days from the date of delivery, any such claim shall be deemed to be waived and barred. Any separate letter of protest handed to the supplier at the time of delivery shall under no circumstances quality as valid notice under this section.
- Any claim as to the quality or specification of the Products must be notified in writing by the Buyer to Unimarine promptly after the circumstances giving rise to such claim have been discovered. In any event, if no such claim is presented in writing with full details and the relevant supporting documentation to Unimarine within thirty (30) days from the date of delivery, any such claim shall be deemed to be waived and barred.
- In the event of any claim presented to Unimarine under sub-clauses (a) or (b) above, the Buyer agrees to take all reasonable steps and actions to mitigate any damages, losses, costs and expenses related to any such claim. The Buyer shall fully cooperate with Unimarine and make all necessary arrangements for Unimarine or its representatives to ensure the existence of the necessary evidence and investigate such claim, including but not limited to the boarding and inspection of the Vessel, the interviewing of crew and the review and copy of the Vessel’s documents, failing which any such claim shall be deemed to be waived and barred.
- Subject to any other term of these GTC which provides for a different period, Unimarine shall be discharged from all liability whatsoever arising out of or in connection with the Products and/or this Contract, whether arising in contract, tort, under statute or otherwise and any claim against Unimarine shall be time barred unless the relevant court or arbitral proceedings have been commenced in accordance with the terms herein and served on the Seller within six (6) months of the date of delivery of the Products or on the date on which the Products should have been delivered.
X. Risk and Title
- Risk in the Products shall pass to the Buyer once the Products have passed Unimarine’s flange connected to the Vessel’s manifold or the receiving facilities provided by the Buyer, or in the case of Marine Lubricants in drums, pails or containers, when the Marine Lubricants are placed alongside the Vessel pursuant to and in accordance with FAS delivery terms under the ICC Rules for the Use of Domestic and International Trade Terms (Incoterms) published in 2010 by the International Chamber of Commerce, Paris, France, as updated or amended from time to time.
- Title to the Products shall pass to the Buyer upon full payment for the Products delivered pursuant to the Contract hereunder. Until such time as payment is made, on behalf of themselves and the Vessel, the Buyer agrees that it is in possession of the Products solely as bailee for Unimarine. If, prior to payment, Unimarine’s Products are commingled with other Products on board the Vessel, title to the Products shall remain with Unimarine corresponding to the quantity of Products delivered. The above is without prejudice to such other rights as Unimarine may have under the laws of the governing jurisdiction or the Vessel in the event of non-payment.
- Payment for the Products shall be made by the Buyer within thirty (30) days after the completion of delivery or, if otherwise agreed, within the timeframe stated in the Order Confirmation or relevant invoice. Payment shall be made in full, without set-off, counterclaim, deduction and/or discount, free of bank charges. Payment shall be deemed to have been made on the date the payment is credited to the bank account designated by Unimarine.
- Payment shall be made to Unimarine by bank transfer, according to the payment instructions contained in the relevant invoice or any copy hereof forwarded by fax, e-mail or by other means.
- Unimarine is entitled to, at its sole discretion, specify any particular invoice, charges or part thereof to which any payment(s) shall be applied, including but not limited to interest charges and legal fees.
- Any delay in payment by the Buyer shall entitle Unimarine to interest at the rate of two (2) percent per month or any part thereof or as otherwise stated in the Order Confirmation or relevant invoice. In case the agreed purchase price including any additional costs or accrued interest is not paid when due, any fees, costs and expenses incurred in debt collection or legal action for recovery shall be paid for in full by the Buyer.
- In the event of any delay or failure in payment, Unimarine reserves the right to pursue such legal remedies as may be available to recover the amount owed. The Products supplied to the Vessel are sold and delivered on the credit of the Vessel, as well as on the promise of the Buyer to pay therefore, and the Buyer agrees and warrants that Unimarine shall have and may assert a maritime lien against the Vessel and may take such other action or procedure against the Vessel and any other vessel or asset beneficially owned or controlled by the Buyer, for the amount due for the Products and under the Contract. Unimarine shall be entitled to rely on any provisions of law of the flag state of the Vessel, the place of delivery or where the Vessel is found and shall, among other things, enjoy the full benefit of local legislation granting Unimarine a maritime lien on the Vessel and/or providing for the right to arrest the Vessel. Nothing in this Contract shall be construed to limit the rights and/or legal remedies that Unimarine may enjoy against the Vessel or the Buyer in any jurisdiction.
- Notwithstanding any agreement to the contrary, payment will be due immediately and Unimarine shall be entitled to cancel or withhold all outstanding or future deliveries in the case of:
- winding up, dissolution, liquidation or bankruptcy of the Buyer or if a receiver or administrator is appointed, or if the Buyer suspends payment, ceases to carry on business or makes any special arrangement or composition with its creditors;
- arrest of assets of the Buyer;
- arrest of the Vessel;
- if the Buyer fails to pay any invoice due to Unimarine within the specified timeframe;
- if the Buyer fails to comply with any other obligation pursuant to the Contract, including but not limited to the Buyer’s failure to take delivery of the Products in full or in part; and
- any situation, which in Unimarine’s sole discretion is deemed to adversely affect the financial position of the Buyer.
In any of the foregoing situations, Unimarine shall have the option to cancel the Contract; to store the Products in full or in party for the Buyer’s account and risk; to demand that the Buyer complies with its obligations under the Contract; and/or to make use of any other remedy available under law.
- Neither Unimarine nor its supplier shall have any liability to the Buyer, whether in contract, tort, under statute or otherwise, under or in connection with this Contract for:
- any loss of hire and/or loss of freight;
- any act or omission of Unimarine and/or its supplier and/or their agents and/or subcontractors, including but not limited to those transporting the Products;
- any loss of actual or anticipated profit or loss of production;
- losses caused by business interruption;
- loss of goodwill and/or reputation; and/or
- any indirect, punitive, speculative, special or consequential costs, expenses, losses or damages, even if such costs, expenses, losses or damages were reasonably foreseeable or might reasonably have been contemplated by Unimarine or its supplier.
- Notwithstanding any of the provisions in these GTC, Unimarine’s liability for any losses or damages that may be suffered by the Buyer or the Vessel or any third party whatsoever under all circumstances, whether based in tort or contract, shall be limited to the price of the Products contracted to be delivered as confirmed in Unimarine’s Order Confirmation.
- Any liability for damages to the Vessel shall in any event be reduced by twenty (20) percent of the invoice value of spare parts for each year or fraction thereof in which the relevant part has been in use.
- The Buyer agrees to indemnify Unimarine against all damages and liabilities arising from any acts or omissions of the Buyer or its agents and servants or the Vessel’s officers or crew in connection with the sale and supply of the Products.
XIII. Force Majeure
- Neither Party shall be liable for any loss, damage or delay to any of the following force majeure events and/or conditions at the port of delivery to the extent the Party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Contract, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:
- acts of God;
- any Government requisition, control, intervention, requirement or interference;
- any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;
- riots, civil commotion, blockades or embargoes;
- earthquakes, landslides, floods or other extraordinary weather conditions;
- strikes, lockouts or other industrial action, unless limited to the employees of the Party seeking to invoke force majeure;
- fire, accident, explosion except where caused by negligence of the Party seeking to invoke force majeure;
- any other similar cause beyond the reasonable control of either Party.
The party seeking to invoke force majeure shall notify the other Party in writing within two (2) days of the occurrence of any such event/condition.
XIV. Sanctions Compliance
- Without prejudice to any other remedies and rights, Unimarine shall have the option immediately to terminate the Contract in full or in part, for the account and risk of the Buyer and to charge the Buyer the loss, damages and expenses thereby incurred, or take any other measures which Unimarine deems appropriate, without any liability on Unimarine, if at any time during the performance of this Contract Unimarine in its sole discretion has reasonable grounds to believe that the Buyer, the Vessel, the charterer of the Vessel, the full or part owner(s) of the Vessel, any officers of the Vessel, the operator and/or manager of the Vessel or if any other person or entity in any way related to the Contract is subject to any sanction, prohibition, restriction or designation under United Nations Resolutions or trade or economic sanctions, laws or regulations of the European Union or the United States of America.
XV. Safety and Environmental Protection
- It shall be the sole responsibility of the Buyer to ensure that the Vessel, its crew and those responsible for its operation and management, observe and comply with all health, safety and environmental laws and regulations with regard to the receipt, handling and use of the Products. The Buyer warrants that the Vessel is in compliance with all national and international trading and pollution regulations.
- In the event of a spill or discharge occurring before, during or after the delivery of the Products, the Buyer shall, in addition to any other obligations imposed by law, immediately notify the appropriate governmental authorities and take or arrange whatever action is necessary to respond and clean up such spill or discharge, and pay all costs and expenses in connection therewith. If the Buyer fails to take such prompt action, Unimarine or its representatives shall be authorised to take such action on behalf of the Buyer at the Buyer’s risk and expense. The Buyer shall indemnify and hold Unimarine and its representatives harmless against any damages, expenses, claims or liabilities of whatever nature, unless such spill or discharge is proven to be caused solely by Unimarine’s negligence.
XVI. Law and Jurisdiction
- This Contract shall be governed by the laws of the United States of America (“U.S. law”). U.S. law shall apply with respect to the existence of a maritime lien, regardless of the country in which Unimarine takes legal action. Both Unimarine and the Buyer shall submit to the non-exclusive jurisdiction of the Courts of the Republic of Singapore.
- Clause XVI herein is for the sole benefit of Unimarine, and Unimarine may apply and benefit from any law granting a maritime lien and/or right to arrest the Vessel in any country as provided for herein. Nothing herein shall affect or prejudice the right of Unimarine to take any legal action before the courts in any country to pursue the merits of a claim against the Buyer before such courts or to seek an interim measure of protection in order to secure payment of any amount due from the Buyer.
- Should any provision hereof be finally determined to be inconsistent with or contrary to applicable laws, such provisions shall be deemed amended or omitted, but only to the extent necessary to conform with such application laws and this shall not affect any other provision hereof or the validity of the Contract.