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 (MAR. 2000)
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
Complaints concerning quantity shall have to be
submitted to the seller immediately upon completion of delivery, failing which
the rights to complain or to claim compensation of whatever nature will be
waived for all times.
Complaints concerning quality shall have to submitted to
the seller in writing within 14 days after delivery, failing which the rights
to complain or claim compensation of whatever nature will be waived for all
times.
The buyer shall be obliged to make payment in full and
fulfill all other obligations in accordance with the terms hereof, whether or
not he has any complaints.
In any case, claims will be time barred unless legal
proceedings will have been instituted before the competent Court within 12
months after the date of delivery or the date that delivery should have been
made.
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.