Terms and conditions whereunder Vivo Energy (“VE”), agrees to sell and deliver Marine Fuels and Marine Lubricants.
Unless otherwise agreed in writing between VE and the Buyer, these terms and conditions, as amended from time to time, which supersede any earlier terms and conditions issued by VE, shall override any terms and conditions stipulated, incorporated or referred to by the Buyer whether in its order, stamping of documentation or elsewhere.
Unless the context otherwise demands:
"Bunkering Commitment" means the contract of sale on the terms hereof between the Buyer and the Seller for the delivery in question.
"Buyer" means the party requesting VE to sell and deliver to it or to any other party nominated by it, Marine Fuels and/or Marine Lubricants, together with the Vessel, her master, owners, operators, charterers and any party benefitting from consuming the bunkers, and any party ordering the bunkers, all of whom shall be jointly and severally liable.
“Commitment” means a Bunkering Commitment or any other commitment governed by these terms and conditions.
"Delivery Port" means the port or place at which Marine Fuels and/or Marine Lubricants are delivered under a Commitment,
i.e. port of the specified country.
"Equipment" means the Buyer’s equipment at the Delivery Port. "Marine Fuels" means any of marine fuel oil and gas oil.
"Marine Lubricants" means any of the products described in the VE Lubricants Price List.
"Pre-delivery Check List" means the check list prepared by VE (based on the the Ship Shore Safety Check List set out in the the International Safety Guide for Oil Tankers and Terminals published by ICS, OCIMF and IAPH from time to time) and signed by or on behalf of VE and the Buyer to confirm agreement on the conditions and procedures under which physical delivery of the Marine Fuels shall take place.
"Seller" or “VE” means the party selling and delivering Marine Fuels and Marine Lubricants to the Buyer from time to time, (being the subsidiary of Vivo Energy Investments BV which is supplying such products to the Buyer) and the Seller shall be deemed a person providing necessaries to a vessel on order of the owner or person authorized by the owner.
On completion of the delivery of Marine Fuels to a vessel under a Commitment, the Master of the vessel or the Buyer's accredited representative shall give the Seller a signed receipt in a form required by the Seller of which a copy shall be retained by the Master or such representative.
The Marine Fuels to be supplied hereunder shall conform to ISO 8217/2010 for the relevant grade or product being delivered unless otherwise agreed between Seller and Buyer. This section constitutes the whole of the Seller’s obligations with respect to the quality of the Marine Fuels to be supplied and (save to the extent that exclusion thereof is not permitted or is ineffective by operation of law) all statutory or other conditions and/or warranties, express or implied, with respect to the description or quality of the Marine Fuel or its fitness for any purpose are hereby excluded.
To the extent that Marine Fuel is sold or to be sold to the Buyer on a duty or tax exempt basis, Buyer shall comply with all local requirements and shall execute all such documents necessary to permit the sale on such basis, including any declarations on use of the Marine Fuel. To the extent that a claim is made by any authorities against the Seller on the basis that such Marine Fuel was liable for duty or taxes and such claim arose partly or wholly due to the action, omission or fault of the Buyer (including any use of Marine Fuel in domestic waters), then the Buyer shall indemnify Seller against any claims, losses, costs (including costs as between Attorney or Solicitor and Client), damages, liabilities, fines, penalties and expenses attributable to such action, omission or fault of the Buyer.
If the Commitment is made by an agent acting for or on behalf of the Buyer, whether such agency is disclosed or undisclosed, then such agent shall be liable (as well as the Buyer) not only as agent but also as principal for the performance of all the obligations of the Buyer.
This contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this contract shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.
The reference shall be to a sole arbitrator. If within 14 days of one party calling for arbitration the parties have not agreed a sole arbitrator, either party may apply in writing for the appointment of a sole arbitrator by the President of the LMAA. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement and the arbitrator's award shall not be subject to appeal.
Notwithstanding the above, the seller shall be entitled to assert a lien wherever it finds the Vessel, and the law of the United States of America shall apply to determine the existence of any maritime lien, regardless of the court in which proceedings are instituted.
These terms and conditions may not be amended or modified orally and no amendment or modification shall be effective unless it is in writing and signed by authorised representatives of each of VE and the Buyer. The Seller shall not be bound by any attempt by any person to restrict, limit or prohibit its lien or liens attaching to a vessel. “No-Lien” stamps or the use of any wording similar in nature and/or meaning on any document including but not limited to bunker delivery receipt(s) whether used by the Buyer or any third party shall be invalid and have no legal effect, and shall in no way prejudice any right of lien the Seller may have against the Buyer over the Marine Fuels and/or Marine Lubricants and/or Vessel.