Version dated – September 2012

Terms and
Conditions of Sale –
Marine Fuels.
BP Marine. People with Energy.
1. Application (i) wharfage charges, barging charges including demurrage
or other similar charges,
These General Terms of Sale for Marine Fuels (“Terms of Sale”) (ii) mooring charges or port duties incurred by the Seller which
in conjunction with a Fuels Agreement shall collectively form the are for the Buyer’s account,
Contract and shall contain all agreements, arrangements and
(iii) any overtime charges incurred if delivery takes place outside
stipulations between the Buyer and Seller in respect of the supply
of regular working days and hours at the relevant port of delivery,
of Marine Fuels contemplated herein. The Contract can only be
if such delivery is permitted by port regulations,
amended or changed by written agreement of both Buyer and Seller,
and any attempt to do otherwise shall be considered null and void. (iv) duties, taxes, charges, freights or other costs in the country
In the event of any conflict between the documents comprising the where delivery takes place which the Seller incurs. Where the
Contract, the Fuels Agreement and any amendments to the Fuels Marine Fuels are supplied without payment by the Buyer of duties
Agreement shall be given priority over the Terms of Sale. The terms and taxes (which shall include, without limitation, customs duty,
and conditions of the Contract shall not be varied by the inclusion of a excise duty, VAT, GST or sales tax), the Buyer shall indemnify the
Buyer’s purchase order number in the Fuels Agreement or Confirmed Seller against any duties, taxes, charges, costs, liability, interest
Nomination, or by any terms and conditions that may be contained and penalties that may be incurred by the Seller, at any time, as a
in any purchase order or other document issued by the Buyer. result of the failure of the Buyer, or the vessel, to qualify for such
treatment, or the failure of the Buyer to provide any necessary
2. Definitions proof or other supporting documentation, within the requisite time
period specified by the applicable law, regulation or procedure.
“Affiliates” means any legal entity which controls, is controlled by, (c) If the Buyer or the vessel fails to take delivery within the
or is under common control with, another legal entity, and “control” Delivery Window, the Seller can choose to:
means legal or beneficial ownership of fifty percent (50%) or more (i) deliver to the Buyer on a date of the Seller’s choice at the price
of the shares in a legal entity entitled to appoint directors or the stated in the Fuels Agreement plus any additional costs incurred
possession, directly or indirectly, of the power to direct or cause by the Seller in delivering outside the Delivery Window, or
the direction of the management and policies of such entity.
(ii) accept a new Delivery Window as the basis of a new Contract
“BP Marine Spot Fuels Agreement” means an agreement for which a new price can be agreed upon with the Buyer, or
entered into between the Buyer and the Seller pursuant to which
the Buyer makes a single purchase of Marine Fuels from the Seller. (iii) terminate the Contract and the Buyer shall pay to the
Seller any costs resulting from the Buyer’s cancellation or
“BP Marine Term Fuels Agreement” means an agreement entered failure to take delivery, including without limitation, the lost fuel
into between the Buyer and the Seller pursuant to which the Buyer value and costs to return the Marine Fuels to storage including
purchases Marine Fuels from the Seller over a period of time. associated demurrage.
“Day” means a calendar day, unless stated otherwise.
“Confirmed Nomination” shall have the meaning defined 4. Grades and Quality
in Clause 5 below.
(a) The Marine Fuels supplied hereunder shall be the Seller’s
“Contract” means collectively a Fuels Agreement and the
commercial grades as determined in accordance with ISO 8217
Terms of Sale.
and set out in the Fuels Agreement. The Buyer shall be solely
“Delivery Window” means the date range designated in responsible for nominating to the Seller the grade of Marine Fuels
the BP Marine Spot Fuels Agreement or Confirmed Nomination for each delivery from the range of Marine Fuels supplied by the
(as applicable) which shall begin on the ETA and end on the ETD. Seller at the location in question. The quality of the Marine Fuels
The Delivery Window shall not exceed seven (7) days. shall be determined in accordance with Clause 8(a) below.
“ETA” means the estimated date of arrival of the Buyer’s vessel (b) THERE ARE NO CONDITIONS, GUARANTEES OR
requiring the delivery of Marine Fuels. WARRANTIES, EXPRESS OR IMPLIED, BY COMMON LAW,
“ETD” means the estimated date of departure of the Buyer’s STATUTE, OR OTHERWISE AS TO THE SATISFACTORY QUALITY,
vessel requiring the delivery of Marine Fuels. MERCHANTABILITY, FITNESS, DURABILITY OR SUITABILITY
OF THE MARINE FUEL FOR ANY PARTICULAR PURPOSE OR
“Fuels Agreement” means either a BP Marine Term Fuels
OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION
Agreement or a BP Marine Spot Fuels Agreement.
IN CLAUSE 4(a).
“Government Official” means a government official or an
(c) The Buyer hereby warrants that it has not relied upon any
officer or employee of a government or any department, agency
representations made by or on behalf of the Seller but has relied
or instrumentality of any government including any public sector
exclusively on its own knowledge and judgement as to the fitness
company or an enterprise in which a government owns a majority or
for its purpose of the Marine Fuels nominated.
controlling interest or an officer or employee of a public international
organisation or any person acting in an official capacity for or on
behalf of any government or department, agency, or instrumentality 5. Nomination of Vessels
of such government or of any public international organisation or
Under a BP Marine Term Fuels Agreement, vessels requiring
any political party or official thereof, or any candidate for political
delivery of Marine Fuels shall be nominated in accordance with the
office or any other person, individual or entity at the suggestion,
following procedure:
request or direction or for the benefit of the aforementioned
persons or entities. No later than 7 days prior to the arrival of the vessel at the supply port,
the Buyer shall send the Seller a notice specifying the following: vessel
“Marine Fuels” means distillate marine fuels and residual
name and IMO number, supply port, ETA and ETD of the vessel at the
marine fuels.
supply port, the name and contact details of the vessel agents, the
“Party” means Buyer or Seller and “Parties” means Buyer and grade(s), quantities and method of delivery of Marine Fuels required.
Seller collectively. In such notice, the Buyer shall also advise the Seller of any special
conditions, difficulties, peculiarities, deficiencies or defects in respect
3. Price of, and particular to, the vessel which might adversely affect the
delivery of the Marine Fuels. Notwithstanding anything to the contrary
(a) The price of the Marine Fuels shall be in the amount expressed express or implied elsewhere in the Contract, the Seller shall have the
per unit and in the currency stated in the Fuels Agreement for right at the Seller’s sole discretion to decline the nomination of any
each grade of Marine Fuels delivered free on board or ex-wharf vessel notified by the Buyer. No vessel shall be deemed to have been
as applicable. The price shall be valid for the Delivery Window. nominated unless and until the Seller has confirmed the nomination by
(b) In addition to the price stated in the Fuels Agreement, the Buyer sending a notice in writing (a “Confirmed Nomination”) to the Buyer
shall pay any and all additional charges associated with the delivery, within 48 hours of Buyer’s notice. Upon the issue of Seller’s Confirmed
including but not limited to: Nomination the Buyer’s vessel shall be treated as if the nomination
had been specified in the BP Marine Term Fuels Agreement. connected to the vessel’s manifold prior to the commencement
Under a BP Marine Spot Fuels Agreement, the vessel name of delivery of Marine Fuels. If in the Seller’s opinion the vessel
and IMO number, supply port, ETA and ETD of the vessel at the cannot safely receive Marine Fuels, then the Seller has the option
supply port, the quantity, grade and maximum sulphur content, the to suspend the delivery until, in the Seller’s opinion, the vessel
method of delivery, as well as any special conditions, difficulties, can safely receive Marine Fuels and/or terminate the delivery
peculiarities, deficiencies or defects in respect of, and particular to, or the Contract.
the vessel which might adversely affect the delivery of the Marine (i) The vessel shall provide sufficient segregated tankage to receive
Fuels, shall be specified in the BP Marine Spot Fuels Agreement. the quantity of Marine Fuels stated in the BP Marine Spot Fuels
Prior to the issue of that Fuels Agreement the Buyer shall have Agreement or Confirmed Nomination (as applicable), plus 5 percent
provided the Seller with the name and contact details of the vessel or 5 Metric Tonnes, whichever is greater. The Buyer shall pay any
agent. The vessel nomination shall be deemed confirmed by the cost or expenses incurred by the Seller as a result of the Buyer
Seller issuing the BP Marine Spot Fuels Agreement. failing to take the specified quantity.
(j) The Seller shall not be responsible for on-board safety or
6. Delivery storage failures that may affect the delivery as requested and shall
have the right to recover from the Buyer any resulting cost incurred.
(a) The Marine Fuels shall be delivered to the vessel at the port or
In the event of delay in the use of delivery or barging facilities due
place stated in the BP Marine Spot Fuels Agreement or Confirmed
to the Buyer or to the vessel for any reason whatsoever, the Buyer
Nomination (as applicable) and such delivery shall be subject to the
shall reimburse the Seller for any expenses, including demurrage,
regulations of such port or place. The Seller shall not be liable for
incurred due to such delay. The Seller shall not be liable for delays
any inability to deliver on public/dock holidays.
due to congestion in ports, at terminal installations or bunkering pier
(b) The vessel’s ETA and ETD shall be as stated in the BP Marine or delays caused by prior commitments of bunker barges.
Spot Fuels Agreement or Confirmed Nomination (as applicable)
(k) The Seller reserves the right to have the delivery made by a
and this defines the Delivery Window. The Seller shall use its
third party supplier if for any reason delivery cannot be made from
reasonable efforts, but shall be under no obligation to make the
delivery if the Buyer or its agent requests the supply to be made its own supply, however, the Seller shall remain responsible for
outside the Delivery Window. the performance of the Contract.

(c) The Buyer, or its agent at the port or place of delivery, shall give (l) If a spill occurs during supply, the Buyer shall promptly take all
the Seller, or its representatives at the port or place of delivery, a action reasonably necessary to remove the spillage and mitigate
minimum of forty-eight (48) hours (the running of which shall exclude its effect. If the Buyer fails to promptly take such action, the Seller
non-working days (i.e. Saturdays, Sundays and public/dock holidays)) may, at its option, take such measures it considers to be necessary
prior written notice before arrival, indicating the exact location at or desirable in connection with the removal of the spillage and
the port of delivery, the time within the Delivery Window that the the mitigation of its effects by employing its own resources or
delivery is required and confirmation of the receiving rates, grades contracting with others. Without prejudice to the first sentence
and quantities of Marine Fuels that are required and if the MARPOL of this Clause 6(l), the Seller shall indemnify the Buyer against all
sample is to be drawn in accordance with the MARPOL guidelines. liability, costs and expenses (including but not limited to those
This notice must be received by the Seller during its regular working incurred by the Buyer in accordance with this Clause 6(l)) arising
hours and business days. If the Buyer or its agent fails to do so, the from any spillage to the extent that such spillage has been caused
Seller shall not be liable for any resulting delay in delivery and the or contributed to by the negligence of the Seller or failure of or
Buyer shall reimburse any costs incurred by the Seller. defect in the Seller’s equipment. The Buyer shall indemnify the
Seller against all liability, costs and expenses (including but not
(d) On receipt of the notice referred to in Clause 6(c) the Seller shall
limited to those incurred by the Seller in accordance with the
provide the agent or the Buyer with an estimate of the date and
provisions of this Clause 6(l)) arising from any spillage except
time of the delivery.
to the extent that such spillage has been caused or contributed to
(e) The Marine Fuels shall be delivered by either ex-pipe, road tanker by the negligence of the Seller or failure of or defect in the Seller’s
or bunker barge (which shall include bunker vessels) in accordance equipment. The Buyer shall promptly provide the Seller with any
with the Fuels Agreement. requested documents and information regarding a spill including the
(f) The Seller shall have all permits required to comply with all vessel’s spill contingency plan or any other applicable programme
relevant regulations relating to delivery of Marine Fuels at the port for the prevention or mitigation of pollution as required by any
or place of delivery. applicable laws or regulations.
(g) The Buyer warrants that the vessel can safely receive Marine
Fuels and shall ensure that the vessel has all certificates required 7. Quantities
to comply with all relevant regulations relating to delivery of
the Marine Fuels at the port or place of delivery. The Buyer (or (a) The quantities of Marine Fuels ordered by the Buyer for delivery
its representative) shall, by completion of the Seller’s bunker shall be those quantities stated in the Fuels Agreement, subject
requisition form prior to delivery of the Marine Fuels: to confirmation of supply by the Seller. Any attempt to unilaterally
change or modify the quantity of Marine Fuels to be delivered under
(i) confirm the quantity and grade of Marine Fuels to be supplied the BP Marine Spot Fuels Agreement or Confirmed Nomination
and, if more than one grade of fuel is to be supplied, the order in
(as applicable) by a representative of the vessel prior to or during
which the grades are to be supplied
delivery shall be prohibited.
(ii) inform the maximum allowable pumping rate and pressure
(b) The quantity of Marine Fuel delivered shall be the quantity
that the vessel requires and agree on communication and
specified in the BP Marine Spot Fuels Agreement or in the
emergency shut-down procedures;
Confirmed Nomination (as applicable) with a tolerance at Seller’s
(iii) advise the Seller of any special conditions, difficulties, option of +/- 5 Metric Tonnes if the quantity specified is less than
peculiarities, deficiencies or defects in respect of, and particular 100 MT, +/- 5 % of the quantity specified if in the range 100 to 700
to, the vessel and which might adversely affect the delivery of Metric Tonnes and +/- 35 Metric Tonnes if the quantity specified
the Marine Fuels; and is in excess of 700 Metric Tonnes.
(iv) provide either, a free side of the vessel for barge deliveries (c) The Seller shall measure the quantity of the Marine Fuels
or a prompt and safe passage between public roadway and the delivered and the Buyer (or its representative) at its own expense
actual place of delivery for road vehicles. may witness such measurement. The Buyer will be charged for
(h) The Buyer shall render all necessary assistance which may Marine Fuels on the basis of these measurements and determination
reasonably be required to moor or unmoor the delivery vessel. of quantity shall be made solely by the Seller. All such measurements
The Buyer and vessel shall be responsible for all connections and made by the Seller shall be final and binding save for manifest error
disconnections between the delivery hose(s) and the vessel’s or fraud. The Seller shall record the quantity of fuel delivered on the
manifold and shall require the hose(s) to be properly secured and Bunker Delivery Note.
8. Sampling (i) the removal at a reasonable location to be agreed between
the Seller and Buyer of any Marine Fuel delivered which is not in
(a) Sampling by the Seller shall be accomplished throughout the accordance with the Contract and is unsuitable for use onboard
Marine Fuels delivery process. The Seller shall take a minimum the vessel, and either (aa) the replacement by the Seller of
of four (4) representative samples of each grade of Marine Fuels such Marine Fuel, or (bb) reimbursement of the cost of such
delivered. The Buyer shall have the right (and is encouraged) Marine Fuel; and
to have its representative witness the drawing of the samples. (ii) the reasonable repair costs of any components that are
The aforementioned samples shall be securely sealed and labelled physically damaged as a direct result of using any Marine
by the Seller and at least two (2) of these representative samples Fuel supplied by the Seller which is not in accordance with
shall be given to the Buyer, one (1) of which is for MARPOL the Contract; and
compliance purposes. Two (2) samples shall be retained by the
(iii) those losses, damages, claims or expenses arising from
Seller for at least twenty-one (21) days following the date of delivery
the death or personal injury to any person caused by the
in a safe place for subsequent verification of the quality thereof,
Seller’s negligence.
if required. If the Buyer issues a claim regarding the quality of the
Marine Fuels in accordance with Clause 9(c) below, and provided The Seller shall have no obligation to make any payment to the Buyer
the claim is legitimate in accordance with ISO 8217, one (1) of the under Clause 9(e) (i) and (ii) unless and until the Seller has received full
two (2) Seller’s retained samples shall be submitted by the Seller for payment from the Buyer of all sums due in accordance with Clause 13.
relevant analysis to a mutually agreed local independent laboratory. (f) The Seller shall not be liable for any of the following:
The independent laboratory’s analysis shall, absent manifest error (i) INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL
or fraud, be conclusive and final and binding on both Buyer and OR CONSEQUENTIAL LOSSES, DAMAGES OR EXPENSES, OR
Seller as to the quality of the Marine Fuels delivered. The analysis (ii) LOSS OF ACTUAL, PROJECTED AND/OR PROSPECTIVE
shall be established by tests in accordance with ISO 8217 and/or PROFITS, ANTICIPATED COST SAVINGS, CONTRACTS OR
any other tests agreed to between the Buyer and the Seller in writing. FINANCIAL OR ECONOMIC LOSS, OR (iii) ANY DEMURRAGE
Any cost associated with the Buyer appointing a representative to OR DEVIATION COSTS.
witness the sample seal-breaking and/or analysis at the independent (g) The Seller shall not be responsible for any claim arising from
laboratory shall be the sole responsibility of the Buyer. commingling of Marine Fuels delivered by the Seller with other
(b) When the Buyer (or its representative) or the Master of the fuel aboard the vessel.
vessel requests that sampling is carried out in accordance with (h) If the Buyer removes Marine Fuels without the consent of the
the MARPOL guidelines and the Seller confirms it is safe to do so, Seller, all removal and related costs shall be for the Buyer’s account.
the Seller reserves the right to appoint an independent surveyor to Nothing in the Contract shall in any way limit the Buyer’s obligations
take such sample. The costs incurred by the Seller for this service to mitigate any of its losses in accordance with Clause 9(d).
and any consequential costs will be charged to the Buyer. In making
such arrangements, no liability for delaying the vessel will be (i) The Buyer shall indemnify and hold the Seller, Seller’s Affiliates
accepted by the Seller. and the directors, employees and agents of the Seller and Seller’s
Affiliates harmless against all claims, liabilities, loss, damage, costs,
(c) Samples other than those drawn by the Seller shall not be fines, penalties and expenses whatsoever and by whomsoever
admissible for the purposes of determining quality, notwithstanding brought arising in connection with any delivery of Marine Fuels
that these samples may have been signed by an agent or except to the extent that such claims, liabilities, loss, damage, costs,
representative of the Seller, unless this has been expressly fines, penalties and expenses are caused by the negligence of the
agreed in the Fuels Agreement. Seller or Seller’s Affiliates, or breach by the Seller of its obligations
under the Contract.
9. Claims and Liability (j) The provisions of this Clause 9 shall continue to apply
(a) Any dispute as to the quantity of the Marine Fuels based on notwithstanding the termination or expiry of the Contract
the density of the Marine Fuels delivered shall be submitted by the for any reason whatsoever.
Buyer to the Seller in writing within twenty one (21) days of the date
of delivery, failing which, such claim shall be deemed waived and 10. Title, Risk of Loss and Property
forever barred.
(a) Subject to Clause 10(b), title, risk of loss and property in the
(b) Any dispute as to short delivery which does not fall under Marine Fuels delivered shall pass to the Buyer as the Marine Fuels
Clause 9(a) above shall be presented by the Buyer to the Seller pass through the flange of the vessel’s manifold.
at the time of delivery and the Buyer’s representative shall have
witnessed such measurement in accordance with Clause 7(c) (b) If the Seller agrees to deliver Marine Fuels to the Buyer’s
above, failing which any such claim shall be deemed to be waived nominated barge, storage tank or coastal lighter, title, risk of
and forever barred. Any dispute as to the quantity of the Marine loss and property shall pass to the Buyer as the Marine Fuels
Fuels delivered under this Clause 9(b) shall be recorded at the pass through the flange of the permanent hose connection
time of delivery in a Note of Protest. of the Seller’s delivery facility.
(c) Any claim as to the quality of the Marine Fuels delivered must
be submitted by the Buyer to the Seller in writing within twenty
11. Health, Safety and the Environment
one (21) days of the date of delivery, failing which, such claim shall (a) The Seller shall provide the receiving vessel with Material
be deemed waived and forever barred. The Buyer shall promptly Safety Data Sheets (“MSDS”) appropriate to the grade of Marine
furnish the Seller with the results of testing of the retained sample Fuels delivered. The Buyer shall provide its employees, users
provided to the vessel by the Seller together with full supporting and customers with health, safety and environmental information,
evidence of its claim within ninety (90) days of delivery to enable such information together with the MSDS shall hereinafter be
the Seller to properly evaluate the claim failing which the Seller referred to as the (“HSE Data”). The Buyer shall ensure that
shall have the right to treat the claim as waived and forever barred. its employees comply fully with all requirements, obligations
(d) Despite the provisions of Clause 4, the Buyer shall take all and recommendations relating to the handling and use of the
reasonable measures, including retention and/or burning of Marine Marine Fuels delivered hereunder and shall impose upon all
Fuels in accordance with the Seller’s instructions, to eliminate or of its customers to whom the Marine Fuels are to be supplied
minimize any costs associated with an off-specification or suspected the same obligation to comply fully with the requirements,
off-specification supply. obligations and recommendations of HSE Data.
(e) The liability of the Seller for any loss, damage, claim or other (b) Except for death or personal injury caused by the Seller’s
expenditure arising out of or in connection with the failure by the negligence, the Seller shall not be responsible in any respect
Seller to perform its obligations under this Contract shall not exceed whatsoever for any loss, damage or injury resulting from any
and shall be limited to: hazards inherent in the nature of any Marine Fuels.
(c) The Buyer and the Seller shall each, at all times, comply with
any obligations, requirements or recommendations contained in
13. Payment
any applicable law, statute, directive or regulation of any territory, (a) Payment for the delivery and all other charges shall be made
state or jurisdiction in or through which the Marine Fuels may be in full (without any abatement, deduction, set-off or counter claim
delivered, sold, transported or used and all Government, state or whatsoever) in cleared funds in US dollars (or such other currency
local regulations at the port such as, but not limited to, those related as may be stated in the Fuels Agreement). Unless otherwise
to fire, transportation, handling and storage or spillage or loss of established in the Fuels Agreement, payment shall be due with effect
Marine Fuels. Compliance by the Buyer with the recommendations from the date of delivery and shall be made by means of telegraphic
in HSE Data shall not excuse the Buyer from its obligations under transfer, automated credit transfer or electronic transfer of same day
this Clause 11(c). funds quoting the Seller’s invoice number and the Buyer’s name to
(d) The Buyer shall indemnify and keep indemnified the Seller the account specified by the Seller in its invoice to the Buyer, value
against any liability, claim or proceedings whatsoever arising out dated no later than thirty (30) calendar days (or such other period as
of or in connection with any failure by the Buyer to comply with is agreed by the Buyer and Seller) from completion of delivery of the
its obligations under this Clause 11. Marine Fuels in question. If, however, the Seller’s bank is closed for
business on the last day of the applicable credit period, the Buyer
shall make its payment by the last day within such credit period when
12. Force Majeure the Seller’s bank is open for business. All bank charges in respect of
(a) In addition to any other relief provided by law, no failure or such payments shall be for the remitter’s account. Should any claim
omission by either Party to comply with any of its obligations under or dispute arise between the Buyer and Seller in relation to any item
the Contract (save for any obligation to make payment) shall give on an invoice under this Contract, the Buyer shall make payment in
rise to any claim against that Party, or be deemed to be a breach full as set out above. The claim or dispute will be resolved separately
of contract, insofar as the failure or omission is caused by force and if appropriate, the Seller will issue a debit or credit note to the
majeure, which is defined as any cause not reasonably within the Buyer when the dispute is resolved.
control of that Party, whether or not foreseen, including (without (b) The Buyer shall notify (or shall instruct its bank to notify)
limitation and to the extent that they are not reasonably within the the Seller as soon as payment has been made, quoting the date
control of the relying Party) such causes as labour disputes, strikes, on which payment was made, the amount, the name of the bank
governmental intervention, compliance with any law, regulation or effecting payment and details of each invoice to which the payment
ordinance or with any order, demand or request of an international, relates. Such notification shall be sent to the Seller’s contact
national, port, transportation, local or other authority or agency or as stated in the Fuels Agreement.
of any body or person purporting to be or to act for such authority (c) If the Buyer has not by the expiration of the applicable credit
or agency or any other corporation directly or indirectly controlled period, or any credit period in any other contract between the Seller
by any of them, acts of administrative authorities, decisions of and the Buyer, paid any amount due to the Seller in respect of any
the courts, riot, wars, military operations, terrorism actions, civil delivery of Marine Fuels by the Seller to the Buyer, the Seller, in
commotion, hijacking, fire, explosion, flood, storm, natural disasters addition to and without prejudice to any other rights it may have,
or any act of God. Any curtailment, failure or cessation of supplies shall have the right:
of Marine Fuels from any of the Seller’s sources of supply (whether (i) if delivery hereunder has been made, notwithstanding
in fact sources of supply for the purpose of any Contract or not), the credit period referred to above, to notify the Buyer that the
provided that such curtailment, failure or cessation is related amount due in respect of the delivery hereunder is immediately
to a circumstance which is outside the control of the Seller, due and payable whereupon it shall so be paid;
shall be considered as an event of force majeure for the purpose
(ii) to receive as a set-off, any amounts the Buyer may be
of the Contract.
owed by an Affiliate of the Seller up to the amount the Buyer
(b) If by reason of any event of force majeure, either the availability owes the Seller;
from any of the Seller’s sources of supply of Marine Fuels or
(iii) if delivery hereunder has not been made, to notify the Buyer
the normal means of transport of such Marine Fuels is delayed,
of the termination with immediate effect of the Contract for such
hindered, interfered with, curtailed or prevented, then the Seller
delivery whereupon it shall so terminate.
shall be at liberty to withhold, reduce or suspend deliveries under
any contract to such extent as the Seller may in its absolute In each case, the Seller shall have the right to set off any amounts
discretion think fit and the Seller shall not be bound to acquire by that it owes the Buyer, whether under this Contract or otherwise,
purchase or otherwise additional quantities from other suppliers. against the amount that the Buyer owes the Seller and to require
Any additional quantities which the Seller does acquire from other the Buyer to pay in advance or provide some other security for any
suppliers or from alternative sources may be used by the Seller future deliveries.
at its complete discretion and need not to be taken into account (d) The Seller’s invoice(s) (which may be sent by facsimile
by the Seller for the purpose of determining the extent to which transmission, e-mail, mail or courier) shall be based on the quantity
it is to withhold, reduce or suspend deliveries under any contract. delivered as determined in accordance with Clause 7(c) and shall
The Buyer shall be free to purchase from other suppliers any contain other applicable charges associated with the delivery.
deficiencies of deliveries of Marine Fuels caused by the operation Charges to be paid by the Buyer which have been incurred other
of this Clause 12 but the Seller shall not be responsible for any than in US dollars shall be converted using a reasonable rate based
additional cost thereby incurred by the Buyer. on the date of delivery. If no rate is available on the date of delivery
(c) The Seller reserves the right to increase the price charged for the last available rate will be used.
any Marine Fuels if there is any increase in the costs incurred or Delivery documents may be provided to the Buyer if requested
to be incurred by the Seller in making the relevant supply due to but payment shall not be conditional upon the Buyer’s receipt
factors which constitute a force majeure event pursuant to Clause of such documents.
12(a) above. (e) If, in the sole opinion of the Seller,
(d) Where the event of force majeure continues for a continuous (i) the Buyer’s credit is deemed to be impaired or unsatisfactory,
period of more than one (1) month, and unless agreed otherwise and/or
between the Buyer and the Seller, each of them may then terminate (ii) the Seller’s credit risk towards the Buyer will exceed the
the Contract, by written notice to the other. Such termination shall Seller’s internal credit limit (which can be amended by the Seller
not give rise to any liability, compensation or indemnity of any kind. at any time),
In the case of a BP Marine Term Fuels Agreement, such termination
the Seller may (without prejudice to its other rights) require the
shall apply only in respect of deliveries at ports affected by the force
Buyer at the Seller’s option to pay cash before delivery for any
majeure event.
future deliveries and/or to provide security satisfactory to the Seller
(which can cover both future deliveries and deliveries made but not
yet paid for) and/or to effect immediate payment of any outstanding
amount due to the Seller in respect of any other delivery of Marine (b) Neither Party shall be obliged to perform any obligation
Fuels by the Seller to the Buyer. In the event of failure by the otherwise required by the Contract if this would be in violation of,
Buyer to comply with the Seller’s requirement the Seller shall inconsistent with, or expose such Party to punitive measures under,
have no obligation to make any future delivery and may terminate any laws, regulations, decrees, ordinances, orders, demands,
the Contract on giving notice to that effect to the Buyer. requests, rules or requirements of the European Union, any EU
(f) Without limitation to the foregoing or to the Seller’s other rights member state, the United Nations, the United States of America
under the Contract or otherwise the Seller shall have the right to or any other jurisdiction applicable to the Parties relating to trade
require, in respect of any payment not made by the due date, the sanctions, foreign trade controls, export controls, non-proliferation,
payment by the Buyer to the Seller of interest thereon at two (2) anti-terrorism and similar laws (the “Trade Restrictions”). Where
percentage points above the Average London Interbank Offered any performance by a Party would be in violation of, inconsistent
Rate for one month Eurodollars as published on bbalibor (or any with, or expose such Party to punitive measures under, the Trade
successor thereto), and pro rata for part thereof, such interest to Restrictions, such Party (the “Affected Party”) shall, as soon
run from the due date until the date payment is received in cleared as reasonably practicable give written notice to the other Party
funds by the Seller’s bank. of its inability to perform. Once such notice has been given the
Affected Party shall be entitled to be released from the affected
(g) Deliveries of Marine Fuel under the Contract are made not only
obligation provided that where the relevant obligation relates to
to the credit of the Buyer but also on the faith and credit of the vessel
the remittance or receipt of payment in connection with Marine
which uses the Marine Fuel and it is agreed that the Seller will have
Fuels which have already been delivered, the affected payment
and may assert a lien for the price of the Marine Fuel delivered.
obligation shall remain suspended (without prejudice to the accrual
of any interest on an outstanding payment amount) until such time
14. Arbitration and Governing Law as the Affected Party may lawfully resume payment. Nothing in this
Clause 15(b) shall be taken to limit or prevent the operation, where
(a) The Contract shall be governed by and construed in accordance
available, of the English Common Law doctrine of frustration.
with English law. The United Nations Convention on Contracts for
the International Sale of Goods of Vienna, 11th April 1980 shall not Without prejudice to the generality of the foregoing, the Seller reserves
apply to the Contract. the right at all times whether prior to or after confirmation of nomination
of a vessel to decline to supply Marine Fuels to such vessel if the Seller
(b)
reasonably considers that such supply could cause the Seller to be in
(i) Any dispute arising out of or in connection with this Contract, violation of, or exposed to punitive measures under any Trade Restrictions.
which cannot be resolved between the Parties, shall be referred
to arbitration in London in accordance with the Arbitration Act
1996 or any statutory modification or re-enactment thereof save
16. Anti-Corruption
to the extent necessary to give effect to the provisions of this (a) Each Party warrants and undertakes to the other that in
Clause. The arbitration shall be conducted in accordance with the connection with the sale and purchase of Marine Fuels under
London Maritime Arbitrators Association (LMAA) Terms current this Contract they will each respectively comply with all applicable
at the time when the arbitration proceedings are commenced laws, regulations, rules, decrees and/or official government orders
and the proceedings shall take place in English. and requirements of the United Kingdom, the United States of
(ii) The reference shall be to three (3) arbitrators. A Party wishing America or any other relevant jurisdiction relating to anti-bribery
to refer a dispute to arbitration shall appoint its arbitrator and or anti‑money laundering.
send notice of such appointment in writing to the other Party (b) Each Party represents, warrants and undertakes to the other that
requiring the other Party to appoint its own arbitrator within they shall not, directly or indirectly pay, offer, give or promise to pay
fourteen (14) calendar days of that notice and stating that it will or authorise the payment of, any monies or other things of value to:
appoint its arbitrator as sole arbitrator unless the other Party (i) a Government Official; (ii) any director, officer, employee, or agent/
appoints its own arbitrator and gives notice that it has done so representative of an actual or prospective counterparty, supplier or
within the fourteen (14) days specified. If the other Party does customer of the Buyer or Seller; or (iii) any other person, individual or
not appoint its own arbitrator and give notice that it has done so entity at the suggestion, request or direction or for the benefit of any
within the fourteen (14) days specified, the Party referring the of the above-described persons and entities, or engage in other acts
dispute to arbitration may, without the requirement of any further or transactions, in each case if this is in violation of or inconsistent
prior notice to the other Party, appoint its arbitrator as sole with the anti-bribery or anti‑money laundering legislation of any
arbitrator and shall advise the other Party accordingly. The award government, including without limitation, the U.S. Foreign Corrupt
of a sole arbitrator shall be binding upon both Parties as if he has Practices Act, the UK Bribery Act 2010, Anti-terrorism, Crime and
been appointed by agreement. Security Act 2001, the Money Laundering Regulation 1993 and the
(iii) Nothing herein shall prevent the Parties agreeing in writing to vary Proceeds of Crime Act 2002 and the applicable country legislation
these provisions to provide for the appointment of a sole arbitrator. implementing the OECD Convention on Combating Bribery of
(iv) In cases where neither the claim nor any counterclaim exceeds Foreign Public Officials in International Business Transactions.
the sum of US $100,000 the arbitration shall be conducted in (c) Each Party may terminate the Contract forthwith upon written
accordance with the LMAA Small Claims Procedure current notice to the other Party at any time, if in its reasonable judgment
at the time when the arbitration proceedings are commenced. the other Party is in breach of any of the representations, warranties
(v) All arbitration awards shall be final and binding on the Parties. or undertakings in Clauses 16(a) or (b) above.
By agreeing to arbitration under the LMAA Terms, the Parties
undertake to carry out any award immediately and without delay; 17. Termination or Suspension
and the Parties also waive irrevocably their right to any form of
appeal, review or recourse to any state court or other judicial
in the event of Liquidation, etc.
authority, insofar as such waiver may be validly made. (a) Notwithstanding anything to the contrary express or implied
herein, the Seller (without prejudice to its other rights) may at its sole
15. Sanctions and Boycotts discretion either terminate the Contract immediately or immediately
suspend delivery under the Contract until further notice, on notifying
Notwithstanding anything to the contrary elsewhere in the Contract: the Buyer either orally (confirming such notification in writing) or by
(a) Nothing in the Contract is intended, nor should it be interpreted notice in writing, if a liquidator, administrator, trustee in bankruptcy,
or construed, to induce or require either Party to act in any manner receiver, receiver or manager or equivalent officer is appointed in
(including failing to take any actions in connection with a transaction) respect of the assets and/or undertaking of the Buyer, or the Buyer
which is inconsistent with, penalised or prohibited under any enters into an arrangement or composition with its creditors,
laws, regulations, decrees, ordinance, order, demand, request, or any similar appointment, arrangement or composition is made
rules or requirements of the United States of America applicable under any applicable law, or if the Seller has a reason to anticipate
to such Party which relate to international boycotts of any type. any such appointment, arrangement or composition.
(b) In the case of multiple deliveries under the Contract,
notwithstanding anything else to the contrary express or implied
19. Additional Provisions
elsewhere herein, (but always without prejudice to Seller’s other (a) If any provision of the Contract is declared illegal, invalid or
rights at law and under the Contract including, without limitation, otherwise unenforceable by a court of competent jurisdiction the
Seller’s rights under clauses 13(c), (e), (f) and (g) above) the Seller remainder of such provision and the Contract shall remain in effect
may at its sole discretion either terminate the Contract immediately to the fullest extent permitted at law.
or immediately suspend delivery under the Contract until further (b) A waiver by either Party of any right or remedy or of any
notice, on notifying the Buyer either orally (confirming such breach of the Contract shall be effective only if given in writing
notification in writing) or by notice in writing, if the Buyer fails and shall in no way preclude or restrict the further exercise of
to make any payment due to the Seller under the Contract that or any other right or remedy, nor constitute a waiver of any
in full and punctually by the due date. subsequent breach.
(c) Assignment of any right or delegation of any obligation
18. Notices hereunder by the Buyer without the Seller’s prior written consent
(a) Any notice or other communication (including, without limitation, shall be void. The Seller may assign any of its rights or, delegate or
invoices) by either Party to the other shall, unless otherwise sub-contract any of its obligations hereunder to others, including
provided in the Contract, be sufficiently made if sent by post any Affiliate of the Seller, however, the Seller shall remain
(by airmail where airmail is possible), postage paid, by facsimile responsible for the performance of the Contract.
transmission or by courier to the address of the other Party. (d) The Contract contains the entire Agreement of the Parties
(b) Any notice or communication given in accordance with Clause and supersedes all prior Agreements whether oral or written with
18(a) shall, unless otherwise provided herein, be deemed to have respect to the delivery of Marine Fuels under this Contract and
been given on the day on which such communications ought to there are no other promises, representations or warranties affecting
have been delivered in due course of postal communication and in it. This Contract shall not be modified or amended in any way unless
the case of communication by facsimile transmission or by courier mutually agreed between the Buyer and Seller and evidenced in
on the day of transmission or delivery. Any notice delivered after writing. Each Party warrants that it has not entered into the
16:00 hours on any business day in the place of delivery shall Contract in reliance on any representation, whether oral or in writing,
be deemed to be given on the next business day. which is not set out in the Contract.
(c) Notices, invoices and other communications issued under (e) If any order shall be placed by an agent for a principal as the Buyer
Clauses 5, 6, 13(b), 13(c)(i) and 13(d) of these Terms of Sale and hereunder, then such agent shall be liable not only as agent but
other operational communications may be sent by email by the also for the performance of all obligations of the principal hereunder.
relevant Party to the relevant operational and commercial contacts (f) Where sales are concluded through a broker or an agent,
of the other Party. The Fuels Agreement may be sent by email commissions may be paid by the Seller to such broker or agent.
by the Seller to the relevant commercial contact of the Buyer. Any brokers’ commission payable by the Seller shall only be
(d) Unless otherwise specified by not less than fifteen (15) days’ paid after confirmation of receipt in full of all outstanding invoice
notice in writing by the Seller to the Buyer, the address of the amounts without set-off into the Seller’s instructed bank under
Seller to which communications shall be sent by post or courier is Clause 13(a) above.
BP Oil International Limited (BP Marine), Building D, Chertsey Road, (g) Except for the provisions of Clause 9(i) of these Terms of Sale
Sunbury on Thames, Middlesex, TW16 7LN, England and the which may be enforced by the Seller, Seller’s Affiliates and assignees
email address is [email protected]. of Seller or Seller’s Affiliates and the directors, employees and agents
(e) Any notice of any claim by the Buyer under Clause 9 of these of the Seller, Seller’s Affiliates and assignees of Seller or Seller’s
Terms of Sale, any notice of arbitration by Buyer under Clause 14 Affiliates, the Parties do not intend any term of the Contract to be
and any notice of termination of the Contract by the Buyer, shall not enforceable under the Contracts (Rights of Third Parties) Act 1999
be effective unless sent by post or courier or email to the address by any person (a “third party”) who is not a Party to the Contract.
of the Seller specified in Clause 18(d) provided that in the case of The Parties may rescind or vary the Contract, in whole or in part,
notice sent by email only, such notice shall not be deemed effective without the consent of any third party including, without limitation,
unless and until such time as the Seller acknowledges receipt. those listed above.