GENERAL TERMS AND CONDITIONS FOR THE SALE OF MARINE BUNKERS AND LUBRICANTS [Effective from January 2021]
These are the General standard Terms and Conditions according to which “BALUCO LTD” (hereinafter “BALUCO”) will sell marine bunkers and lubricants. These General Terms and Conditions apply to all offers, quotations, orders, agreements, services and all subsequent contracts of whatever nature and override any other terms and/or conditions presented or invoked by any other party whatsoever, including the Buyer (as hereinafter defined), unless otherwise specifically agreed in writing to the contrary.
1. Definitions
For the purposes of the present General Terms and Conditions:
1.1 “Seller” means BALUCO; any office, branch office, affiliate or associate of the BALUCO Group.
1.2 “Buyer” means, jointly and severally, in any event, the owners of the Vessel, the Vessel and (as the case may be) the managers of the Vessel, the operators, the disponent owners, the time charterers, the bareboat charterers, the demise charterers and any charterers in general, as well as any other party which has requested offers or quotations for or has ordered Bunkers, Lubricants and/or Services and/or has contracted with BALUCO for the particular supply of Products or is benefitted from such supply and/or is stated as a buyer in BALUCO’s “Confirmation of Supply”. The managers of a Vessel shall, unless otherwise advising BALUCO in writing before BALUCO dispatches its “Confirmation of Supply”, be deemed as acting both on their behalf as well as for the owners of the Vessel and any other party whatsoever connected with the Vessel.
1.3 “Products” means the fuel oil and/or marine gas oil and/or any other kind of marine fuel and/or marine lubricants which BALUCO may supply the Vessel, as well as all services connected thereto and all costs (transportation, agency etc.) and dues and taxes which may be related with such supply.
1.4 “Vessel” means the vessel, ship, barge or off-shore unit to which Products are supplied; either as end-user or as transfer unit to a third party.
1.5 “Supplier” means the Seller that supplies the products through a physical
supplier (ie BALUCO) and/or the manufacturer and/or the physical supplier of the products sold by the Seller to the Buyer and/or any other party with which BALUCO may co-operate in order to effect delivery of the products to the Buyer; “delivery” hereafter means delivery of the Products by either BALUCO or a Supplier.
2. Orders
2.1 An agreement shall only be binding on BALUCO upon dispatch of its relevant written “Confirmation of Supply”.
Agreements entered into by brokers or any other representative on behalf of BALUCO shall only bind BALUCO upon written confirmation from BALUCO.
BALUCO’s written “Confirmation of Supply” dispatched prior to delivery of the Products to the Vessel and not contested in writing by the Buyer before the said delivery, shall be conclusive evidence of the order for Products placed by the Buyer, the quantity, the quality, the specifications and type of the ordered Products, the identity of the Buyer and the price and other details of delivery thereof, and the Buyer shall be deemed to have fully accepted the order as placed in the Confirmation of Supply as well as BALUCO’s terms and conditions as being applicable in the sale concerned. The party(ies) stated in the relevant “Confirmation of Supply” of BALUCO as Buyer(s) shall be deemed to be the Buyer(s) of the respective Products on a joint and several basis and each one of the mentioned Buyers shall be individually and fully liable for payment of the amount(s) of the Invoice(s) issued upon such Confirmation of Supply.
2.2 All Products (bunkers/lubricants etc) supplies made under these BALUCO’s terms and conditions are made to the Registered Owner of the vessel, in addition to other parties listed as “Buyer” in the “Confirmation of Supply”. Any Products (bunkers/lubricants etc) ordered by an agent, management company, charterer (time or bareboat), broker or any other party, are ordered on behalf of the Registered Owner and the Registered Owner is fully liable for payment of the respective BALUCO’s invoice(s) amounts in addition to any accrued interest charges, legal fees and costs paid by BALUCO for the recovery of such outstanding Invoice(s) amount(s), jointly and severally.
Any Order, Confirmation and/or Product(s) (bunkers/lubricants etc) Delivery Note/Receipt signed by the Vessel’s Master (or by a vessel’s engineer or any other officer or representative of the Vessel) shall be deemed to fully incorporate BALUCO’s terms and conditions.
3. Quality
3.1 The Buyer shall be solely responsible to select and nominate the appropriate kind and grade of the Products to be delivered, which shall correspond to BALUCO’s written Confirmation of Supply. BALUCO has no liability whatsoever in case the Products ordered and supplied are for any reason whatsoever not suitable or fit for use in the Vessel. The Products are to be exclusively used for marine purposes.
3.2 The quality and quantity shall be as agreed between BALUCO and the Buyer and correspond to the BALUCO’s written Confirmation.
3.3 Where standard specifications are being given or referred to, tolerances of 5% in quality are to be accepted without compensation or other consequences whatsoever.
3.4 In case a particular grade is not available, BALUCO shall discharge its obligations by supplying another similar Product or one of another brand name, provided that such substitute Product is suitable for the known purposes of the Buyer.
3.5 In cases where the Buyer mixes the Products with other products existing in the tanks of the Vessel, no quality claims shall be made or allowed against BALUCO.
3.6 Any claims related to the quality of the Products must be made in writing and delivered to the Supplier latest within seven (7) calendar days from the date of the particular delivery (see also clause 6.2 herebelow). Thereafter any right of the Buyer and/or any other party to make such claim shall be deemed to have been waived and shall be inadmissible as groundless and in any event time-barred.
4. Quantity – Measurements
4.1 Where the determination of supplied quantity is made according to the delivering barge’s ullage report prior and after delivery, duly signed and stamped by both Buyer and Supplier or by officially calibrated barge’s flow meter readings, no subsequent quantity claim shall be valid.
4.2 Where the quantity is determined by Supplier otherwise than by gauge or meter or terminal or barge tank, such determination shall be conclusive and final and no claims shall be entertained, unless a specific complaint is made in writing to Supplier at the time of delivery.
4.3 The quantity of lubricants or bunkers shall be confirmed by the signing of the Delivery Receipt by an officer of the Vessel or a duly authorized representative of the Buyer.
4.4 In respect of the quantity agreed upon, BALUCO shall be at liberty to provide, and the Buyer shall accept a variation of 5% from the agreed quantity, with no other consequence than a similar variation to the corresponding invoice from the Seller.
4.5 In any event the Buyer is not allowed to mark the Delivery Receipt for bunkers or lubricants. The Buyer has the right to issue a Letter of Protest stating a complaint. A Letter of Protest in relation to quantity shall only be made in writing and delivered to Supplier immediately after the completion of the specific delivery.
5. Delivery
5.1 BALUCO’s obligation to deliver the Products through a physical supplier is subject to the availability of the Products at the delivery port.
5.2 BALUCO shall not be required to deliver a Product into any of the Vessel’s tanks or spaces which are not regularly used for the storage of such Product, and shall not be required to deliver any Product for the export of which Government permission is required and has not been obtained. Any export or other permission which may be required from time to time by any Government must be promptly and timely obtained by the Buyer.
5.3 Delivery shall be made in one or more consignments by such means and at such particular place of the port of delivery as BALUCO or the Supplier may deem appropriate in the circumstances.
5.4 In the event of delivery by barge, the Buyer shall at its own expense provide a clear and safe berth for the barge(s) alongside the Vessel’s receiving lines and shall provide the steam or other means required to effect such delivery.
The Buyer shall make connection between the pipelines or delivery hoses and Vessel’s intake lines, and shall render all other necessary assistance and provide sufficient tankage and equipment to receive promptly all deliveries. The Buyer is responsible for ensuring that a Product is received at a safe rate and pressure and that all equipment utilized therefore is in a safe and satisfactory condition.
Local further special requirements for receiving a Product must be followed strictly by the receiving Vessel, whether advised or not by BALUCO or BALUCO’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.
5.5 In the case that the Buyer’s Vessel is not able to receive the delivery promptly, the Buyer shall pay reasonable demurrage claim to the barging/supplying facilities.
5.6 If the Buyer for whatever reason is unable to receive the full quantity ordered and rendered, BALUCO shall have the right to invoice the Buyer for the loss incurred by having to transport the Product back to the storage or by having to sell the Product in a degraded form at a lower price than that applicable to the grade originally nominated by the Buyer.
5.7 If delivery is required outside normal business hours or on local weekends, Saturday, Sunday or national Christian Holidays, the extra expenses incidental to such delivery shall be reimbursed by the Buyer as additional costs.
5.8 Delivery shall be deemed completed when the bunkers or lubricants have passed the flange connecting Supplier’s delivery facilities with the receiving facilities provided by the Buyer, at which point BALUCO’s responsibility shall cease and the Buyer shall assume all risks, including loss, damage, deterioration, depreciation, evaporation or shrinkage as to the Products delivered. However, the ownership of the Products shall remain with BALUCO and shall pass to the Buyer only after the selling price and all and any additional charges related to the sale and delivery which are due and payable by the Buyer shall have been fully paid – see sub-clause 9.8 below.
6. Sampling procedure – Quality claims
6.1 Representative official and binding samples of the bunkers supplied are only those taken at barge’s manifold during the delivery by sampling method. Three (3) such samples shall be taken and sealed/signed/stamped by Supplier’s/Buyer’s representatives and by an officer of the Vessel or a duly authorized representative of the Buyer; one to be kept by the Buyer, one for Marpol for fuel oil, and one by BALUCO.
6.2 No complaint as to quality of Products sold by BALUCO nor any claim in relation thereto shall be admissible unless notified to the Supplier in writing within ten (10) calendar days from the date of delivery, such notification to include (otherwise it will be invalid) the alleged deficiency and the description of any damage caused. Following the lapse of the said ten (10) days all quality claims relating to the particular delivery shall be deemed to have been waived, shall be inadmissible as groundless and in any event time-barred.
6.3 In case of a dispute as to quality the only conclusive evidence/proof shall be the result of the joint (between Supplier/BALUCO and Buyer) analysis of the representative official samples per clause 6.1 above, such analysis will take place at the port of supply at a mutually accepted first class laboratory.
7. Delay
7.1 The Buyer or its agent at the port of delivery shall give BALUCO written notices of the date and time of the forthcoming arrival of the Vessel (E.T.A.) and of the position where the Vessel shall anchor or berth at the port of delivery. These notices must be tendered at such prior times so as to allow BALUCO to properly arrange the supply; they must be tendered during working hours. Notices tendered after 18:00 hours shall be deemed tendered at 09:00 a.m. on the next working day. The time of delivery will only be binding upon BALUCO when all information necessary for BALUCO to comply with its obligations hereunder, have been properly delivered to the Seller in reasonable time before the delivery.
7.2 The Vessel in question shall be supplied as promptly as the circumstances permit. BALUCO shall not be liable for any delay which is caused by any reason whatsoever in relation to the supply and/or the Buyer, no matter whether such delay has been caused by fault or negligence on the side of BALUCO or of its personnel, representatives or (sub)contractors. Indicatively only, BALUCO shall not be liable for any delay caused by strike, lock out or other actions of its employees or those of the port, refinery, barge, etc., shortage of the Product, placement of the Vessel on a waiting list, non tendering or tendering of inaccurate/insufficient notices under clause 7.1 hereinabove, weather conditions, bureaucracy, formalities of any kind, etc BALUCO shall not be liable for any demurrage paid or incurred by the Buyer of for any loss, damage or delay of the Vessel of any nature whatsoever due to congestion at the loading terminal, prior commitments of available barges or tank trucks or any other reason.
7.3 In any event BALUCO shall under no circumstances be liable for any loss of profit or other consequential damages of the Buyer. In any event and notwithstanding anything to the contrary herein, the total liability of BALUCO shall under no circumstances exceed the invoice value of the Product(s) supplied under the relevant agreement to the relevant Vessel. Price
The prices quoted for any delivery of Products, unless otherwise stated in any written quotation or confirmation of BALUCO, are:
(a) valid only for the date(s) of the expected delivery of the Product as same appear(s) in the relevant quotation or confirmation or – in the lack thereof – as provided by the Buyer and agreed by BALUCO. Outside such date(s), BALUCO shall notify in writing the Buyer of the availability or not of the Product and the new price thereof.
(b) wharfage, barging and/or pipeline dues (as may be applicable at the place of delivery), overtime, any environmental surcharges, as well as any and all taxes or other charges imposed on any Product shall be paid extra by the Buyer together with the price of the Product.
(c) Any increase in the prices of the Products following agreement on the price of a Product and before delivery, due to the change of the legislation or of the refinery prices or of the market conditions shall be added to the price and paid by the Buyer to BALUCO together with the original price.
9. Payment – Retention of Ownership
9.1 Unless otherwise expressly agreed, payment of BALUCO’s Invoice(s) shall be made by the Buyer(s) who are specifically mentioned in the respective BALUCO’s Invoice(s), within 30 running days from delivery, to the bank account indicated by BALUCO on the respective invoice(s) and in the currency stipulated by BALUCO at the time of confirmation by BALUCO of the Product(s) supplied. Each one of the Buyers mentioned in BALUCO’s Invoice(s) are jointly and severally liable for payment of the respective Invoice(s).
9.2 Payment shall be made in full, without set-off, counterclaim, deduction and/or discount, free of bank charges.
9.3 Payment shall be deemed to have been made on the date of which BALUCO has received the full payment and such is available to BALUCO. If payment falls due on a non-business day, the payment shall be made on or before the business day nearest to the due date. If the preceding and the succeeding business days are equally near to the due date, then payment shall be made on or before the preceding business day.
9.4 In the event of the Buyer not making payment in full by the due date, the Buyer shall be charged default interest at the rate of 2% per month on the principal amount due from the due date of payment to the date of actual full payment of the invoice, without prejudice to BALUCO’s right to claim full payment forthwith.
9.5 Payments made by the Buyer shall at all times be credited in the following order: (1) costs, (2) interest and administrational fee, and (3) invoices in their order of age, also if not yet due.
9.6 If at any time after delivery but before the due date the financial standing of the Buyer appears to BALUCO to have become impaired or unsatisfactory, BALUCO may require immediate full payment of all invoices due and/or not yet due.
9.7 In the event that the Buyer shall default in making any payment due, BALUCO may suspend deliveries until such payment has been made, or BALUCO may, in its discretion, elect to treat such default as a serious breach of the contract and thereupon terminate the contract in whole or in part without prejudice to any claim against the Buyer for damages and/or direct or indirect losses of any kind. Such suspension or termination shall not relieve the Buyer of any obligation undertaken by virtue of a contract so terminated.
9.8 BALUCO shall at all times be entitled to require the Buyer to grant BALUCO what BALUCO deems to be proper security for the performance of all its obligations under the agreement. Failing immediate to provide such security upon request, BALUCO 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.
9.9 Where BALUCO has extended any kind of credit to a group of companies, default by any one relevant Buyer in respect to any one invoice of BALUCO shall give the right to BALUCO to cancel all credit arrangements of the entire group, whereupon sub-clauses 9.6 and 9.7 shall apply.
9.10 Where the Buyer fails to pay timely, BALUCO has the right (without prejudice to its right to receive default interest) to take all appropriate steps to secure and enforce its claim; BALUCO may also unilaterally cancel any credit arrangements agreed with/extended to the Buyer.
9.11 All judicial and extrajudicial costs and expenses, including the extrajudicial costs, expenses and disbursements of BALUCO’s lawyers, incurred in connection with non payment or delayed payment or by any other breach by the Buyer of these conditions shall be for the Buyer’s account, immediately payable by the latter to BALUCO. In case of litigation, the Buyers shall also pay all the relevant expenses of BALUCO, including but without limitation all his legal/lawyers’ costs and direct or indirect losses of any kind.
9.12 All Products shall remain BALUCO’s property until the Buyer has fully made all the payments for them to BALUCO. Until such time the Buyer shall hold the products as bailee, store them in such a way so that they can be identified as BALUCO’s property; they shall however remain on the Vessel at Buyer’s sole risk and expense until such full payment and the Buyer shall insure them against all risks, BALUCO having also the right to receive the relevant insurance proceeds directly from the insurers. The Buyer’s right to possess the Products during such period shall cease if
(a) the Buyer has not paid for the Products in full by the expiry of any credit period agreed; or
(b) the Buyer is declared bankrupt or makes any proposal to its creditors for reorganization or other voluntary arrangement or seeks such protection from any Court; or
(c) a receiver, administrator or liquidator is appointed in relation to the Buyer.
Upon the cessation of the right to possess the Products the Buyer shall at its own time and expense make the Products available to BALUCO allowing it to repossess same and remove them from the Vessel at a suitable place.
The Buyer hereby grants to BALUCO and its agents an irrevocable authority to board the Vessel or enter any other premises where the Products are stored for the purpose of repossessing same.
9.13 Until full payment of any amount due to BALUCO has been made, the Buyer shall not be entitled to use the Product(s) supplied by BALUCO, other than for the propulsion of the Vessel, nor mix, blend, sell, encumber, pledge, alienate, or surrender the Product(s) to any third party or other Vessel.
9.14 In case of breach hereof by the Buyer, BALUCO is entitled to take back the supplied Product(s) without prior juridical intervention, without prejudice to all other rights or remedies available to BALUCO.
9.15 In the event that the Product(s) have been mixed with other product(s) on board the Vessel, BALUCO shall have the right of lien to such part of the mixed Products as corresponds to the quantity or net value of Products BALUCO delivered.
9.16 In case the supplied by BALUCO Product(s), in part or full, are no longer present or can no longer be identified or distinct from other Products, BALUCO has the right to attach the Vessel and/or sister ship and/or any other assets of the Buyer (or the Owner of the Vessel), wherever situated in the world without prior notice.
9.17 Where title in and to the Product(s) delivered has passed to the Buyer and/or any third party before full payment has been made to BALUCO, the Buyer shall grant a pledge in such Products to BALUCO. The Buyer shall furthermore grant a pledge in any other Products present in the respective Vessel, including any mixtures of the delivered Product(s) and other products. Such pledge will be deemed to have been given for any and all claims, of whatever origin and of whatever nature, that BALUCO may have against the Buyer.
9.18 The Buyer or any other party is not entitled to place any remarks or notes on the Delivery Receipts as to non-liability on its part to pay for the Products, unless such remark or note has been agreed in writing between BALUCO and the Buyer in advance of the delivery. Any such marking placed without agreement shall have no validity or effect whatsoever; where such marking is placed before the completion of the delivery of the Product(s) BALUCO has the right to withhold or interrupt the supply, with all relevant delay losses and expenses being for the account of the Buyer.
10. Taxes and other charges
Should any kind of tax, due, stamp duty, surcharge, freight, insurance premium, pilotage, port dues or other kind of additional expense be incurred by BALUCO/Supplier at any time in relation to the Products or their delivery, same shall be borne by the Buyer who shall be obliged to pay same directly or to reimburse BALUCO, as the case may be.
11. BALUCO’s Liability
Without prejudice to any other provision in these terms and conditions
11.1 BALUCO shall not be liable for damages of whatever nature, including physical injury or damage occurring from Products supplied, nor for delay of delivery of Products or services, no matter whether such damages or delay has been caused by fault or negligence on the side of BALUCO. BALUCO shall furthermore not be liable for damages or delay as described above when such damages or delay has been caused by the fault or negligence of its personnel, representatives or (sub)contractors.
11.2 the Buyer shall be solely liable for making the hose connections on board the Vessel and generally to accept the Products on board; therefore the liability for any loss or spillage of Products overboard the Vessel shall be solely with the Buyer, BALUCO not having any liability whatsoever,
11.3 BALUCO shall not be liable for loss of profit or any consequential damages of the Buyer. In any event and notwithstanding anything to the contrary herein, liability of BALUCO shall under no circumstances exceed the invoice value of the Products supplied under the relevant agreement to the relevant Vessel. Where a Product is proven to be off-specifications to the extend of not being able to be used in the Vessel and BALUCO is liable, the liability of BALUCO in respect of the value of the replacement product cannot exceed the price of the Product replaced as invoiced by BALUCO.
11.4 No servant or agent of BALUCO (including independent (sub)contractors from time to time employed by BALUCO) shall be liable to the Buyer for loss, damage or delay, while acting in the course of or in connection with its employment and/or agency for BALUCO. Without prejudice to the above every exemption, limitation, condition and liberty herein contained, and every right, exemption from liability, defense or immunity of whatever nature applicable to BALUCO or to which it is entitled hereunder shall also be available and shall extend to protect every such servant, representative or agent of the Seller acting as aforesaid.
12. Buyer’s Liability
In addition to Buyer’s obligations to pay for the Products as provided in clause 9 hereof, and without prejudice to any other provisions in these terms and conditions (including but not limited to Clause 11.2 hereinabove), the Buyer shall be liable towards BALUCO and shall keep it fully indemnified in respect of all damages and/or losses and/or expenses incurred by BALUCO as a result of any breach of contract, fault or neglect of the Buyer or its employees, officers, servants and/or agents; such liability/indemnity shall include –but without limitation– any claims by third parties which may be brought against BALUCO in respect thereof.
13. Force Majeure
Neither BALUCO nor the Supplier shall be held responsible for any losses, resulting if the fulfillment of any terms or provisions hereof shall be delayed or prevented by compliance with any regulation or other government restriction or by compliance with any order or request of any government or other competent authority or party acting for such authority, or by any disorders, wars, acts of enemies, strikes, lockouts, fires, floods, acts of God, restraint of princes, perils of the sea, accidents of navigation, failure of or interference with supply from BALUCO’s sources of supply, breakdown or injury to, or expropriation, confiscation, injury or breakdown of the facilities used for the production, transportation, handling or delivery of the Products.
If BALUCO or Supplier suffers any direct or indirect loss of tanker or barge tonnage, or if compliance with an order or request of any governmental or other competent authority shall reduce the tanker of barge tonnage available for the normal movement of the Products, the obligation to make deliveries hereunder may be reduced at BALUCO’s or Supplier’s option approximately in proportion to such loss or reduction. BALUCO or Supplier shall not be required to make any deliveries omitted in accordance with this clause.
BALUCO or Supplier shall generally not be liable for any total or partial inability to supply any Product and/or for any delay, by reason of any cause which is not within the immediate control of BALUCO or Supplier.
14. BREACH/CANCELLATION
14.1 BALUCO shall have the option to immediately cancel the agreement in full or in part, or to store or produce the storage of the Products in whole or in part for the account and risk of the Buyer and to charge the Buyer the expenses thereby incurred, or to hold the Buyer fully to the agreement, or take any other measures which BALUCO deems appropriate, without prejudice to its rights of indemnification, without any liability on the side of BALUCO, in any (but not limited to) one of the following cases:
a) when the Buyer, for whatever reason, fails to accept the Product(s) in part or in full at the place and time designated for delivery;
b) when the Buyer fails in part or in full to comply with its obligations to pay any amount due to BALUCO and/or provide security as set out herein;
c) when, before the date of delivery, it is appearant in the opinion of BALUCO that the financial position of the Buyer entails a risk for BALUCO;
d) when, in case of force majeure, BALUCO is of the opinion that the execution of the agreement shall be cancelled.
14.2 BALUCO may terminate any agreement with the Buyer in whole or in part, in its full discretion, upon the breach of any provisions hereof by the Buyer.
15. Maritime Lien
The sale of Products to the Buyer and/or their acceptance on the Vessel affords to BALUCO a maritime lien on the Vessel. In any event the law governing these provisions and/or any other applicable law shall not prejudice the right of the maritime lien of BALUCO afforded either hereunder or by any other applicable law, be it of the place of delivery, of the flag of the Vessel, of the place of jurisdiction, and/or of an arrest of the Vessel, or otherwise howsoever.
BALUCO shall have a maritime lien on the Vessel by her IMO number for products (bunkers/lubricants etc) Invoice(s) amount(s) and 2% monthly interest charges as well as for legal and arbitration fees, costs and expenses.
In addition to any other security the Seller may have and that the products (bunkers/lubricants etc) supplied are as for credit of the Vessel, it is hereby agreed and acknowledged that a lien over the Vessel is created for the price of the Products (bunkers/lubricants etc) supplied together with any interest accrued, legal and arbitration fees, costs and expenses. The Buyer, if not the Owner of the Vessel, hereby expressly accepts and declares that they have full authority of the Agents/Traders/Owners/Managers/Operators/Charterers (time or bareboat) to pledge the Vessel in favor of the Seller and that they have given notice of the provisions of this Contract to them. The Seller shall not be bound by any person to restrict, limit or prohibit its lien(s) attaching to a Vessel. The laws of the United States, the Commercial Instruments and Maritime Lien Act, [46 U.S. Code § (§§ 31341 – 31343)] shall always apply with respect to the existence of a maritime lien.
The Buyer or the Vessel or her Owners must notify the Seller of its intention to exclude the liability of the Vessel at least 12 hours in advance of the supply of the Products (bunkers/lubricants etc) by sending a written notice to legal@baluco.com, failing which any notice or any stamp in the Products (bunkers/lubricants etc) Delivery Note seeking to vitiate the Seller’s maritime lien on the Vessel shall be of no effect.
16. Spillage – Environmental Protection
Buyer is solely responsible for the safe handling of the Products. Always without prejudice to Clause 11.2 hereinabove, if a spill occurs while a Product is delivered, the Buyer shall promptly take such action as is necessary to collect the spilled Product and prevent, extinguish and/or mitigate (as the best possible case may be under the prevailing circumstances) the effects of such spill. Without prejudice to the generality of the foregoing, the Physical Supplier is hereby authorized, at its option and at the expense of the Buyer, to take any such measures and incur any such expenses (whether by employing its own resources or by contracting with others) which are necessary in the judgment of the Physical Supplier to collect the spilled Product and prevent, extinguish or mitigate the effects of such spill. The Buyer shall cooperate and render such assistance as is required by the Physical Supplier in the course of such actions. All relevant expenses, claims, losses, damages, liability and penalties arising in relation to spills shall be borne by the Buyer. The burden of proof to show any liability of the Physical Supplier shall be on the Buyer. The Buyer shall have available and give the Physical Supplier all documents and other information concerning any spill or any program for the prevention thereof, as required by the Physical Supplier, or by law or by any regulation applicable at the time and place of delivery.
17. ARREST OF THE VESSEL
Notwithstanding anything to the contrary herein and without prejudice to any rights or remedies otherwise available to BALUCO, the Buyer, by its acceptance of these conditions, expressly authorizes BALUCO to arrest the Vessel in question, or any other Vessel owned or operated by the Buyer, under any applicable jurisdiction as security for the obligations of the Buyer. Should the Buyer fail to make any payment to BALUCO immediately when due, BALUCO may dispose of such arrested Vessel whether by sale or otherwise as applicable under the relevant jurisdiction. Any costs or expenses of whatever kind incurred by BALUCO in respect of such arrest shall be for the sole account of the Buyer and shall be added to the claim for which arrest is made.
18. BALUCO shall have the right to obtain a payment guarantee from the Owner, when the party requesting Products is not the Owner of the Vessel. If such guarantee has been given by the Owner and the Owner has not paid the outstanding amount to BALUCO within 5 (five) business days after proper written notice has been received, BALUCO has the right to arrest the Vessel or any other Vessel owned or operated by the Owner. The Seller shall further have the right to dispose of such Vessel as set forth in Clause 17.1 above.
19. Brokers and Agents
Any party involved that is declaring in writing to BALUCO through the dispatch of its “Confirmation of Supply”, that it is acting as a broker or agent for another party, such party shall be deemed to be a Buyer as well.
20. Assignment
The Buyer does not have the right to, at any time whatsoever, assign any of its rights and/or obligations hereunder or in relation to any delivery of Products, or to substitute the Vessel by another one. BALUCO has the right to do so provided that the assignee shall be a professional and known supplier of the particular Product(s).
21. Miscellaneous
21.1 Any breach on the part of the Buyer shall give the right to BALUCO (at its
absolute sole discretion) to cancel the relevant contract for supply, without prejudice to all its other rights against the Buyer.
21.2 Failure by BALUCO to exercise or enforce any rights shall not be construed as a waiver of such rights or in any way affect the validity of the contract.
21.3 The headings herein are only indicative and do not limit the interpretation of these terms and conditions.
22. Law and Jurisdiction
22.1 BALUCO has the option and right to commence arbitration that Any dispute, or collection of outstanding Products (bunkers/lubricants etc) Invoice(s) or obtaining maritime lien or breach, or existence, construction, performance, scope, or arbitrability,validity arising out of or in connection with this Contract, or its subject matter or formation (including non-contractual disputes or claims) thereof, shall be finally settled by arbitration in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced. This Contract shall be governed by and construed in accordance with English Law and Arbitration Act 1996 for this arbitration proceeding.
The laws of the United States, the Commercial Instruments and Maritime Lien Act, shall always be applied with respect to the existence of BALUCO’s maritime lien by the Tribunal during arbitration proceedings.
The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
Any dispute relevant to or in relation hereto shall be referred to the jurisdiction of the competent department of the Courts of Piraeus, Greece. However, nothing in the clause shall preclude or prevent BALUCO in the event of a breach of this Agreement by the Buyer from taking any such actions for the purpose of securing and/or enforcing its rights hereunder, before any other Court or Tribunal of any other country or state, including (but without limitation) to enforce its maritime lien.
22.2 The Buyer(s) accepts BALUCO’s general terms and conditions and also law
and jurisdiction clause of GTC on behalf of theirself and the registered owner.The Buyer warrants that They have authority to procure necessaries for the vessel and the management of the vessel at the port of supply under §31341 of US the Commercial Instruments and Maritime Lien Act
The Buyer(s) hereby expressly and irrevocably waives any and all rights to demand counter-security/security for cost from the Seller in response to any claim, counterclaim or otherwise, in any court or arbitration proceeding.
23. Buyers hereby declare that they waive from any and all rights to request from BALUCO/Supplier any kind of remuneration which may arise from BALUCO’s/Supplier’s actions against Buyers or their assets etc. in order to secure their interests.
24. Applicable standards of ISO 9001:2008
Products supplied by BALUCO are fully within international ISO bunker and lubricant specifications. Seller has been in conformity to ISO 9001:2008 which specifies requirements for a quality management system in order to demonstrate the Seller’s ability and responsibility to consistently provide products that meet customer and applicable statutory and regulatory requirements and also aims to enhance customer satisfaction through the effective application of the above system, including processes for continual improvement of the above system and the assurance of conformity to customer and applicable statutory and regulatory requirements.
25. These terms and conditions shall be valid and binding for all offers, quotations, prices and deliveries made by BALUCO, any associated company, representative or agent as of January 2021, or at any later date.
These terms and conditions are available at the website of BALUCO, on which site as well BALUCO may notify amendments, alterations, changes or verifications to same. Such amendments, alterations, changes or verifications are deemed to be a part of the entire terms once same have been advised on the website.