Terms and Conditions
General Terms and Conditions of Delivery
1. Offers
Offers made by CALPAM (hereinafter referred to as Seller) are exclusively subject to confirmation. Agreements entered into or promises made orally or by telephone are valid only upon written confirmation by Seller. The general terms and conditions of buyer are inapplicable in as far as they contradict Seller’s terms and conditions.
2. Deliveries
Deliveries made in the context of the shipping business shall be effected in merchantable qualities, the specifications and classifications of which shall be exclusively deemed to be information as to their nature, not however warranted characteristics. Only the product description supplied by the manufacturer is agreed to reflect the nature of the goods. Public announcements, commendations or advertising by the manufacturer shall not be deemed to constitute any warranted characteristics of the goods. Deliveries shall be effected as quickly as local circumstances permit. Seller, at its sole discretion, is permitted to elect to carry out deliveries itself or to have them effected by an authorised company (supplying company). Neither seller nor supplying company are resonsible for costs incurred through demurrage or other losses, provided delays are not caused by gross negligence on the part of Seller or by lighters being prevented from carrying out their duties or by overcrowded conditions at the supplying facilities. Delivery is carried out in barrels or ex lighter/tanker truck, free on quay, alongside the vessel. Buyer is under all circumstances required to provide an accessible and secure loading site alongside the vessel’s loading facilities. Buyer shall provide a hose watch for delivery by flexible pipes. Buyer warrants that deliveries within the scope of the underlying agreement shall exclusively be used to meet the requirements of the vessel to be supplied. Possession and risk shall pass to buyer at the moment in time at which, in accordance with the terms and conditions of delivery of the supplying company, possession and risk would pass from that company to Seller, not later, however, than the point in time at which pumped delivery has reached the flange connecting Seller’s or supplying company’s delivery facility or, in the case of delivery by barrel, upon delivery being situated on the quay alongside the vessel. Buyer shall be obliged to ensure correct fit of the delivery facilities supplied by Seller or supplying company to the transfer facility of buyer by means of adaptors or reducing rings. Buyer shall indemnify Seller and supplying company against all claims and damages whether direct or indirect, which may result from faults in the transfer facility of the vessel to be supplied. For damages which are caused be faulty information regarding the transfer facility provided by buyer, buyer shall be liable to seller and supplying company.
In case of leakage or spillage of mineral oil products in the context of a delivery within the scope of this agreement, buyer is required to immediately carry out all necessary steps suited to limit or remove the consequences and to render all possible assistance and cooperation to Seller in this context. All cost and expenses arising out of the aforementioned shall be borne by buyer. Buyer shall also indemnify Seller and supplying company against all claims for damages or costs arising out of said oil accidents, unless said accidents are caused by gross negligence or intent on behalf of seller, supplying company or their agents. Buyer shall confirm receipt of the delivery to seller in writing by signed acknoledgement of receipt. The determination of the decisive delivery quantity shall be carried out by Seller or supplying company by means of suitable equipment. Buyer is entitled to check or have checked such determination. Should such check not be carried out, this shall be deemed to be buyer’s approval.
3. Notification
Buyer shall inform Seller of the vessel’s date of berthing as well as the required quantities and varities of product required for each port. Such notification is to be carried out at the earliest possible time, at least, however, ten working days prior to the date of berthing of the vessel, as specified in said notification. Buyer, through the master of the vessel to be supplied or an authorized representative in the port of delivery, shall inform Seller or the supplying company nominated by seller of the desired time and place of delivery at least two working days in advance. Such notification shall be deemed to be the order for carrying out the delivery within the scope of the agreement. Working days within the aforementioned meaning are working days at the place required to receive said notification.
4. Prices
Where the purchase price is to be paid in Euro, such price shall increase or decrease to the same extent as the exchange rate of the Euro fluctuates against the US Dollar by means of official devaluations or value increases between the time of execution of the agreement and the day of crediting the purchase price.
Seller is also entitled to raise prices agreed to outside the price lists.
a) in accordance with the rise of the price level on the local market, if the vessel arrives at the place of delivery more than three calendar days after the delivery date fixed in accordance with clause 3, hereof, if such delay is due to circumstances beyond Seller’s control.
b) in as far as Seller’s prime or procurement cost rise due to circumstances as described in clause 9 or due to fluctuations of world market prices.
In case of clause b) buyer is entitled to reject such price increase. Should buyer do so or should buyer not comment on the price increase immediately, Seller shall be entitled to rescind the agreement affected by the price increase, without such action giving rise to any claims of buyer against Seller.
5. Terms and Conditions of Payment
Buyer is not entitled to a right of retention regarding Seller’s claim to the purchase price. Setting off against any claim for payments due to Seller is excluded, unless the opposing claim to be set off has been expressly recognized or adjudicated upon in a legally binding fashion. In case of default in payment by buyer or a substantial deterioration of buyer’s financial situation, Seller shall be entitled to require additional securities or payment in advance. Should such requirement not be met, Seller may, at its discretion, either terminate the agreement or temporarily cease delivery of goods. Any existing liability of the vessel to be supplied or its owners are not affected by the obligations of buyer arising out of this agreement. In case of default of payment, buyer shall be obliged to pay default interest 8 % above basic rate of interest charged by the European Central Bank. Claims for further damages resulting from such default are not affected hereby.
6. Expenses, Taxes and Customs duties
Additionally to the agreed prices, buyer shall bear all costs for berthing, casting off and port fees, which arise to Seller or supplying company during supply of a vessel within the scope of this agreement, all arising customs duties and taxes levied on the delivery (taxes also in cases in which seller carries out delivery from taxed stocks because stocks not subject to taxes are not available at the place of delivery), all additional cost which arise out of delivery outside regular local business hours, all cost which arise out of the rejection of a delivery notified within the meaning of clause 3, by buyer, buyer’s authorized representative or the master of the vessel, all lighter costs and lighter fees - including demurrage charges and the like, provided they were not caused by gross negligence of the Seller or the supplying company, as well as – in case of delivery of marine lubricants – all delivery back-up costs such as additional fees for small quantities and small packing drums, costs with regard to overlenghted of hoses, the taking back of empty barrels, costs arising in connection with environmental protection measures, difficult delivery etc.
7. Requirements for Notification
All notifications required within the context of this agreement are to be issued in writing, by telex, telefax, telegraph or radio to the addresses specified at the top of the agreement. Notification of a representative authorized by buyer shall be deemed to be notification of buyer.
8. Notification of Faults, Warranties
Buyer shall notify Seller of faults in writing immediately, at the latest, however, within 7 days of the date of delivery. For the rest, the provisions of section 377, 378 German Commercial Code (HGB) shall apply with the proviso that Buyer itself is responsible to submit full evidence of the fault, the point in time at which such faults were noted and that the notification of fault was given within the prescribed period of time. In case of faulty delivery, buyer can require substitute delivery or re-delivery of the short-delivered quantity. Seller is entitled to refuse these. Should seller refuse such substitute or re-delivery or should such subitute delivery or re-delivery fail, buyer shall be entitled, at its discretion, to a decrease of the purchase price or rescission of the agreement. The latter cannot be claimed, however, if the default is only of minor nature, in particular, if the fault is minor or the short-delivered quantities small. Should buyer decide to rescind the agreement, buyer shall not, in addition, be entitled to claims for demurrage in relation to the fault. Should buyer decide to claim damages, the goods shall remain with buyer. Notwithstanding the claims for compensation of expenses, pursuant to section 284 of the HGB the claims for damages shall be limited to the difference between the purchase price and the value of the faulty goods, unless seller shall have caused the fault by malicious intent or at least by gross negligence. In case of deliveries of fuel, seller or supplying company shall draw three samples from each delivery, made within the scope of the existing agreement. One sealed sample shall be supplied to the master of the supplied vessel. The remaining two sealed samples shall remain at the place of delivery for three months from the date of delivery. In case of a notification of fault, one sample shall be checked by an independent surveyor appointed by Seller. The third sample shall remain at the shall remain at the place of delivery. The warranty period shall be one year from date of delivery of the goods unless the assertion of a warranty claim is excluded pursuant to sentence 1 of this clause.
9. Limitation of Liability
Providing no provisions to the contrary are contained in the preceding clause 8, all contractual or statutory claims for damages of any kind from negligent violation of obligations are limited to the foreseeable direct average damage typical of this agreement. This also applies in case of minor violations of the existing obligations by our legal representatives or agents. Liability is excluded, however, in all cases of light negligence of non-essential obligations under the agreement. The above limitations of liability shall not apply to buyer`s claims under product liability. Furthermore, the limitations of liability shall not apply to all cases of bodily injury or health damage attributable to us, or to loss of life by buyer.
10. Obstructions of Delivery
Providing no provisions to the contrary are contained in these General Terms and Conditions of Delivery, obstructions to performance and acceptance caused by natural disaster, war, civil war, strike, lock out, official decree, lacking supplies of raw materials or any other acts of God shall release Seller as well as supplying company and buyer from the performance of their contractual duties under this agreement for the duration of the incident. The party to the agreement prevented from fulfilling its duties is required to notify the other party to the agreement immediately of such incident and of the reasons preventing it from fulfilling itss contractual duties. Additionally, such party shall do everything within its power to remove the obstruction to performance or acceptance as soon as possible. Should the quantities available to Seller or supplying company at the place of delivery be insufficient for the supply of all customers due to lacking delivery to Seller or supplying company, these shall be entitled to carry out equal rationing in regard to all their delivery obligations and shall be released from the further duty of delivery, as shall the seller be reased from the further duty of acceptance.
11. Retention of Title
All deliveries made by seller and supplying company shall remain the exclusive property of the delivering company concerned until such time as the purchase priced owed by buyer has been paid in full. Buyer shall be prohibited from pledging or assigning as security deliveries made subject to retention of title. In case of buyer’s breach of contract, in particular in case of default of payment, Seller and/or supplying company shall be entitled to retake possession of the delivered goods. Buyer shall be required to surrender such goods. Repossession of the delivered goods shall not constitute a rescission of the agreement by Seller, unless Seller expressly declares such rescission in writing. Should the delivered goods be mixed or compounded with other goods, buyer shall, already at this point in time, assign its ownership or co-ownership in the mixed goods or compounds to Seller. Buyer is required to store the goods for Seller with the due care of a prudent businessman. In case of pledging or other interference by third parties, buyer shall be required to notify seller immediately in writing in order to enable Seller to file an action in opposition to execution of a judgement. To the extent that the third party is unable to reimburse Seller’s or supplying company’s court and legal fees arising out of an action in opposition to execution of a judgement, buyer shall be liable for the costs incurred.
12. Governing Law and Jurisdiction
All agreements subject to these general terms and conditions shall be governed exclusively by the laws of the Federal Republic of Germany under the exclusion of the convention for the International Sale of Goods. The courts of Hamburg shall have exclusive jurisdiction over all disputes arising out of this agreement with respect to both parties. Seller is, however, entitled to file suit before any other court – including foreign courts – vested, or which shall be vested, with jurisdiction.
13. Final Terms and Conditions
In case of a total or partial sale of buyer’s business operations, seller may convey this agreement to the purchaser, who shall then assume buyer’s rights and obligations under the agreement. The conveyance shall become valid upon notification of the purchaser. Rights and claims of buyer against Seller may only be assigned to third parties upon prior written approval by Seller. No side agreements have been entered into. Amendments and additions are required to be in writing in order to become legally valid.
Should one or more terms of the agreement and these General Terms and Conditions be invalid, this shall not affect the validity of the remaining terms. The parties to the agreement shall replace the invalid term by a legally valid term which most closely approximates the commercial intention of the invalid term.
January 2003
