PANOCO
KOREA CO., LTD.
TEL 82-2-756-6421 ~ 3 TLX : K27165 PNOKSEL FAX 82-2-756-6879
Homepage : http://www.panoco.co.kr E-MAIL : panoco1@panoco.co.kr
TERMS AND CONDITIONS (15TH
APR. 2014)
These terms and conditions are the general,
standard terms and conditions under which PANOCO KOREA CO., LTD. of
Each transactions specifically negotiated between Seller and Buyer shall be evidenced by Seller¡¯s ¡°Confirmation¡± facsimile message or E-mail system.
In the event of any conflict between these terms and conditions and the terms of the ¡°Confirmation¡±, the terms of latter shall prevail.
1. PRICE
The price of marine fuel delivered shall be as agreed in the Seller¡¯s ¡°Confirmation¡±.
Buyer shall pay for any and all applicable duties, taxes, fees, costs (including those imposed by government authorities), barging/jetty fees, delivery charges and such other costs and expenses arising from the delivery which shall be included in Seller¡¯s invoice to Buyer.
2. SELLER¡¯S ARRANGEMENTS
Seller shall be at liberty to make arrangements with other marine fuel companies to supply (the whole or any part of) the marine fuel which under this arrangement is to be sold and delivered at any particular port or upon terms and conditions similar to this agreements. In such event, Buyer agrees to be bound by physical supplier¡¯s standard terms and conditions in addition to the terms and conditions set forth hereunder.
3. NOMINATIONS
Buyer shall give Seller, unless otherwise requested by seller, at least five(5) days prior notice of deliveries required, specifying the name of the vessel, vessel¡¯s agent, approximate date of delivery, location and method of delivery and grade and quantity of marine fuel.
Buyer or vessel¡¯s local agents shall give to Seller or physical supplier at each port where deliveries are required at least forty-eight(48) hours advance notice, Sunday and Holiday excluded, of the exact quantity required and exact location and time at which delivery required.
Buyer agrees to reimburse Seller or physical supplier for overtime and/or other additional expenses incurred due to the failure of the Buyer, its servants or vessel¡¯s local agents to provide Seller or physical supplier with sufficient prior notice of amendments of delivery time, quantity changes.
4. CANCELLATION
In the event of the Buyer at any time canceling a request for marine fuel or the vessel failing to take delivery of port or all of the requested marine fuel, the Seller shall have the right to pursue a claim against the Buyer for all loss and damage thereby suffered including loss of profit.
5. CREDIT TERMS AND PAYMENT
Payment for the respective invoice is due within 30 days after actual delivery unless otherwise agreed by Seller¡¯s ¡°Confirmation¡±.
However, payment will be due immediately in case of bankruptcy, liquidation or suspension of payment or comparable situation of the Buyer, or arrest upon assets an/or claims of the Buyer, or in case of any other situation, which, in the sole discretion of the seller, adversely affects the financial position of the Buyer.
Payment must be made without any set-off or deduction or compensation, at the bank account, indicated by the Seller on the respective invoice.
In case of late or non-payment of any(part) amount due to the Seller, the buyer will be considered to be in default, without any notice being required. In such case the Seller has the right to cancel discount, if any. Interest ad 1.5% per month will be due over the overdue amount as of the date of default.
Payment made by the buyer shall, notwithstanding the description, be credited with costs, subsequently with interest, and thereafter with invoice in the order of their age, also if not yet mature.
All costs borne by the Seller in connection to the collection of overdue payments, whether made in or out of court and in general all costs in connection to any breach of this agreement by Buyer, shall be for Buyer¡¯s account.
6. LIEN
Sales of Marine Fuel are made on the credit of receiving vessels as well as on Buyer¡¯s promises to pay. Seller shall have and may assert a lien against such receiving vessels for the invoiced amount for the marine fuel delivered. Additionally, Seller shall have and may assert a lien for the said invoiced amount against such receiving vessels if the laws applicable at the place of delivery of marine fuel and/or at the place of seizure of such receiving vessels grant or recognize a lien for marine fuel delivered to a vessel.
The taking of any additional security measures by Seller shall not operate as a waiver of this provision.
Disclaimer stamps of any type or form on delivery documents, should any stamp be applied, shall be void and without any effect and meaning if it attempts to alter, change, or waive Seller¡¯s lien against the vessel or waives the vessel¡¯s ultimate responsibility and liability and for debt incurred from the delivery of marine fuel.
7. ATTORNEY FEES AND COLLECTION COSTS
If this agreement is placed in the hands of an attorney for collection or if Seller exercises any of its remedies on default, Buyer agrees to pay all reasonable costs and expenses which may be incurred by Seller with respect to collection or such default, including (without limitation) all costs and expenses of investigating the same and the circumstances and events surrounding or relating thereto, fees charged by and expenses of professional consultants and advisors, including attorneys, paralegals and accountants, costs of searching records, attorney¡¯s opinions and all other reasonable expenses incurred by Seller that are necessary at any time in Seller¡¯s opinion for the protection of its interest and the enforcement of its rights hereunder. Attorney¡¯s fees shall include costs and expenses of legal advise with respect to collection or the event of default and rights and remedies of Seller, negotiations with Buyer and any other parties of interest, attorney¡¯s fee and expenses with respect to any action which seller may commence or in which it might appear for the purposes of entering judgment on such default, executing on or for Buyer¡¯s performance of this agreement, and including all attorney¡¯s fees and expenses in any appeal from any action or any other proceeding. Buyer also agrees to pay any attorney¡¯s fees incurred by Seller in connection with any bankruptcy or similar proceedings wherein Buyer is the ¡°debtor¡±
8. ENVIRONMENTAL PROTECTION
Without prejudice to the paragraph herein relating to title and risk of loss, Seller may at any time without notice take any steps which it considers necessary to protect the environment from damage arising from spillage or transport of the marine fuel. Any action so taken shall be on behalf of and at the expense of the Buyer.
Seller or the physical supplier is hereby authorized to take such measures and incur such expenses (whether by employing its own resources or by contracting with others) as are reasonably necessary to remove the oil and mitigate the effects of such spill. Notwithstanding the cause of such spill, Buyer shall fully reimburse Seller for all expenses incurred for oil removal, mitigation and clean-up.
Seller agrees to assign any rights Seller may have against the negligent party causing the spill for costs of oil removal, mitigation and clean-up, provided that the Buyer has prior thereto fully reimbursed Seller therefor.
9. RISK AND TITLE
Delivery is deemed complete and risk shall pass to Buyer as the marine fuel passes the vessel¡¯s permanent hose connection. Notwithstanding the passing of risk to Buyer, title to the marine fuel shall remain with Seller and pass only upon full payment to Seller for the delivery. Prior to the passing of title, Buyer is deemed bailee for Seller of the marine fuel delivered by Seller.
If the marine fuel delivered is commingled with other marine fuel or products, Buyer hereby assigns and transfers to Seller such quantity of the admixture as would satisfy all outstanding debt owed to Seller in respect of the marine fuel delivered. In the event payment is not made by Buyer in the manner provided hereunder, Seller shall have the right to regain possession of marine fuel delivered without obligation to give further notice. All costs and expenses incurred shall be borne by Buyer and shall be aggregated with and form part of the outstanding debt owed to Seller.
10. QUANTITY
All measurement of quantities actually purchased shall be based upon barge gauges in case of barge deliveries or truck rack gauges in case of tank truck deliveries. In case of delivery where Seller is not the physical supplier, the quantity of product delivered hereunder shall be conclusively determined at the physical supplier¡¯s option by any recognized method of measurement as designated by physical supplier.
The chief engineer shall witness and confirm the opening and closing of Seller¡¯s barges/tanker¡¯s tanks failing which, Seller reserves all right to refuse to bunker Buyer¡¯s vessel. In such an event, all costs resulting from delay in supplying the bunker shall be borne by the Buyer.
11. QUALITY
The marine fuel to be sold shall be the commercial grade offered generally by Seller at the time and place of delivery. Buyer has the sole responsibility for the selection, acceptance and use of marine fuel including determination of compatibility with marine fuel already onboard the vessel.
Seller shall not be liable to deliver marine fuel with any characteristic or specification that is not expressly agreed to and described in the ¡°Confirmation¡±
Except as provided above, Seller makes no guarantees or warranties, express or implied, of merchantability, fitness or suitability of marine fuel for any particular purpose or otherwise.
12. INDEMNIFY AND LIABILITY
Buyer shall indemnify and hold harmless Seller or its supplier from any and all claims, costs, damages and liabilities, fines, penalties including injury, loss, damage caused to persons or property arising out of or in connection with any breach of the contract of sale, or from any act, omission, negligence or misconduct by Buyer.
Notwithstanding anything contained herein, Seller shall not be liable to Buyer for consequential special or economic loss or damage including loss of profit or business due to delay or by reason of shutdown, non availability of supply of marine fuel, non-operation or the like.
Any loss of or damage to marine fuel or to property of Seller or its supplier or any other party caused by Buyer¡¯s designated vessel shall as between parties hereto, be borne by Buyer and Buyer shall to such extent indemnify seller or its supplier for the same.
13. WAIVER
The failure by any party to this agreement to enforce any right against any other party shall not be considered as a waiver of that right or in any way affect the validity of this agreement. In particular, the granting by Seller of any additional time to make payment or the waiving or reducing of any financial or other charge shall not prevent the Seller at any time thereafter from relying upon its strict contractual rights.
14. CLAIMS
Any claim for shortage in the quantity of Marine Fuel delivered shall
only be valid if notice is made to Seller by Buyer and noted on the Note of
Protest at the time of delivery and Seller receives written notification of
claim within fourteen (14) days from the date of delivery.
Any complaints of defect in quality must be notified to Seller in
writing within thirty (30) days of delivery and must be supported by proper
evidence failing which such claim is time-barred. If the claim of defect in quality is
duly notified to Seller, Seller shall send a representative sample within
Seller's custody to an independent and internationally recognized laboratory of
Buyer's own choice to test the specification of the Marine Fuel. The result of such testing shall be
conclusive and binding on Seller and Buyer. The costs of testing the representative
sample shall be on the losing party's account. Any sample taken in a manner outside the
control of Seller shall not be recognized as representative of Marine Fuel
delivered. The submission of any
claim to Seller shall not release Buyer of responsibility to make full payment
of the invoiced amount as required in Clause 5 above and no right of offset or
counterclaim is allowed to Buyer.
15. FORCE MAJEURE
Neither party shall be liable for damages or any failure to fulfill any terms or condition of this agreement (except the obligation to pay for product and charges hereunder) if fulfillment has been delayed, hindered or prevented by any circumstances which are not within the immediate control of the Seller or the physical supplier, including but without limiting the generality of the foregoing, acts of God, strikes, differences with workmen, lockouts, fires, floods, acts or compliance with requests or orders of any governmental authority, war conditions, accidents, delays in transaction, contemplated sources of supply of product or means of supply, or other causes reasonably beyond the control of the party in default. It is understood and agreed that the settlement of strikes or differences with workmen shall be entirely within the discretion of the party having the difficulty.
16. APPLICABLE LAW
Unless otherwise in writing agreed to the parties, the construction, validity and performance of the terms and conditions governing the delivery of marine fuel shall be governed by the laws of Korea in the Korean court, provided that Seller may select, at its sole and absolute discretion, another forum with competent jurisdiction, in which case, the law of that forum shall govern.