TEDARİK ve TESLİM



General Terms & Conditions effective from 01 May 2017

Except as may otherwise be negotiated by the parties and agreed to in writing by way of Bunker Confirmation or any other documentation, the following terms of sale and supply shall constitute the General Terms and Conditions (“General Terms”) of Arkas Petrol Urunleri ve Ticaret Anonim Şirketi (¨Arkas Bunkering¨). The General Terms shall apply to all sales of marine bunker fuels and related products of whatever type or grade by Arkas Bunkering to any Buyer as defined below.  Each delivery shall constitute a separate contract.
 
1. The Parties, Definitions, Incorporation and Bunker Contract:
 
1.a. Parties and Definitions:

Bunker Confirmation means a confirmation in writing, by fax or by e-mail, from the Seller to the Buyer setting forth the particular terms of each sale of Bunker Fuel.

Bunker Contract means the Bunker Confirmation and the General Terms.

Bunker Tanker means bunker barge or tanker or tank truck supplying Bunkers to the Vessel.

Bunkers mean marine bunker fuel and related products of whatever type or grade delivered by the Seller, including –but not limited to - marine lubricants.

Buyer means the Buyer under each Bunker Contract, including the entity or entities named in the Bunker Confirmation, together with the Vessel, her master, owners, operators,managers, charterers, any party benefitting from consuming the Bunker Fuel, and any other party ordering the Bunker Fuel, all of whom shall be jointly and severally liable as Buyer under each Bunker Contract.

General Terms mean these terms and conditions in force as from 01 May 2017 and any subsequent amendments thereto.

Seller means Arkas Petrol Urunleri ve Ticaret Anonim Şirketi with its registered address at Arkas Building Liman Street No.38 Alsancak Izmir Turkey (in Turkish, Arkas Binası, Liman Caddesi No.38 Alsancak İzmir Türkiye)
 
Supplier means the party physically supplying the Bunker Fuel to the Vessel together with his servants, agents, successors, sub-contractors and assigns.

Vessel means the Vessel to which a delivery of Bunker Fuel is made and/or onboard which it is consumed, which shall include any on-shore tank, rig, or other unit or installation supplied by the Seller.
 
1.b. Incorporation of the General Terms:

1.b.(i) Each sale or supply of Bunkers shall be confirmed by a Bunker Confirmation. The Bunker Confirmation incorporates the General Terms by reference and the Bunker Confirmation and the General Terms together constitute the complete Bunker Contract. The Bunker Contract shall supersede any conflicting terms of other contracts which the Buyer may seek to enforce against the Seller. In particular, any terms not directly aimed at bunker sales transactions may not be enforced against the Seller to the effect they contravene the Bunker Contract. The Bunker Confirmation shall prevail the General Terms in case of any discrepancy in between these two documents.

1.b.(ii) The General Terms are also deemed to be incorporated in to the Bunker Delivery Notes and are deemed to be accepted by the Buyer, the Vessel, her master, owners, operators,managers charterers, any party benefiting from consuming the Bunker Fuel, and any other party ordering the Bunker Fuel.

1.c. Effect of the General Terms and Bunker Contract
 
1.c.(i)  The General Terms constitute an integral part of any offer and/or  contract made for Bunkers provided by Seller to Buyer, and prevail any terms and conditions incorporated or referred to by the Buyer whether in its order or elsewhere.
 
1.c.(ii)  The sale or supply by Seller of Bunkers and every quotation, order confirmation, pro-forma invoice, price list or other similar documents is made or issued only subject to the General Terms and no representation or warranty, collateral or otherwise shall bind Seller and as long as such representation, warranty or statement has not been made in writing and signed or confirmed by an authorized manager of Seller and shall be stated to be made specifically in pursuance of this clause 1.c.(ii), no statement made by any representative by or on behalf of Seller shall vary the General Terms.
 
1.c.(iii)  Any changes in the General Terms shall not prejudice or limit in any way the validity of the rest of the General Terms of any Bunker Contract between Seller and Buyer. Failure by either party at any time to enforce any of the General Terms shall not be considered as a waiver by such party of such provisions or in any way affect the validity of the General Terms. If any provision of the Bunker Contract is invalid, void, or unenforceable, it will not affect the validity, legality, or enforceability of any other provision of the Bunker Contract.
 
2. Prices:

The price to be paid for Bunkers in each contract shall be agreed between the Buyer and Seller in the Bunker Confirmation. Unless otherwise specified, the quoted price term shall be ex-pipe and shall represent only the purchase price of the Bunkers. If the price term is quoted as “delivered”, then in addition to the purchase price of the Bunkers, the price shall include only the cost of transportation. The Buyer shall pay any additional expenses or costs such as barging, demurrage, wharfage, mooring, port dues, duties, taxes, fees and any other costs including, without limitation, those imposed by governmental authorities.
 
3. Nomination and Notices:

3.a.  A vessel shall be nominated by the Buyer at least five working days before the Estimated Time of Arrival (ETA). In this nomination the Buyer shall also specify
              -the delivery port,
              -ETA/ETD and
              -grades and quantities of Bunkers requested.
If such nomination is accepted and confirmed in writing by the Seller, then the ETA proposed by Buyer or otherwise agreed between Buyer and Seller shall become the Accepted Delivery Date.
If the vessel does not arrive at the nominated delivery port and present itself for the delivery within 3 days after the Accepted Delivery Date, then the Seller shall have a right to cancel any nomination without liability on the part of Seller and without prejudice to any rights Seller may have against Buyer. If ETA is given with a time period or approximately but not for an exact date (such as 18-20 May 2016), the Seller then has the ultimate right to consider the first date of such time period/approximate day (such as 18 May 2016 if ETA is given 18-20 May 2016)   ETA of the vessel, shall be taken into account for ETA calculation.

3.b.  At the nominated delivery port, at least a forty-eight (48) hours' advance notice (Saturdays, Sundays and local holidays are excluded) and twenty-four (24) hours final notice (Saturdays, Sundays and local holidays are excluded) shall be given of each delivery by the Buyer or the Vessel's local agent to the Seller's local representative, confirming Bunker quality and quantity and other delivery details.  Any information and/or confirmation given by the Vessel’s agent to the Seller or to the Seller’s local representative shall be considered as if such information and/or confirmation is given by the Buyer. Notwithstanding anything to the contrary stated herein, the Buyer unconditionally acknowledges that the Seller shall have no responsibility or liability whatsoever due to any information and/or confirmation is given by the Vessel’s agent.
 
3.c.  If the delivery is required during out of regular business hours, Buyer shall be fully responsible for and pay all overtime and extra expenses incurred, if any.

3.d.  All delivery charges, including overtime and relevant charges, shall be for the account of Buyer, if the delivery is made by barge, truck or coastal tanker (hereinafter collectively "Seller's vessel"), For delays caused by Buyer in the use of Seller's vessel, Buyer is responsible for all demurrage and detention charges and costs and shall pay any demurrage or detention charges at such rate as may be invoiced by Seller.

3.e.  Before commencement of delivery, the Seller shall be notified by the Buyer in writing of the maximum allowable pumping rate and pressure and Buyer and Seller shall agree on communication and emergency shutdown procedures.

3.f.  It is the duty of the Buyer to notify Seller, in writing, before commencement of delivery, of any special conditions, difficulties, deficiencies or defects in respect of or particular to the Vessel which might adversely affect the delivery.

3.g.  The Vessel shall provide for a free and safe berth alongside to receive the Bunkers if the delivery is made by the Seller’s/Supplier's vessel, and the Vessel shall render all necessary assistance which may reasonably be required to safely moor and unmoor the Seller’s/Supplier's delivery vessel or to connect or disconnect the delivery hose(s).

3.h.  If the Buyer fails to take the delivery, in whole or in part, of the quantities nominated, Buyer shall be responsible for any costs resulting from such failure, including any and all costs and expenses whatsoever incurred by Seller. The Seller, then shall have a right, at Buyer's risk and expense, either to transport the Bunkers back to the storage or to sell in a downgraded form at a market price without prejudice to Sellers under this Contract for damages.
In this case and separately from the forgoing, the Seller shall be entitled to claim an additional penalty fee of 10 percent of the purchase price stated in Bunker Confirmation.
 
3.i.  Vessels shall be supplied as promptly as circumstances permit. Any supply date within the Contract cannot be guaranteed, and time shall not be of the essence in respect thereof. Seller shall not be liable for demurrage or for any direct/indirect losses due to congestion at Supplier's storage or delivery facilities or due to any prior commitment of available transportation  or any other reason which causes delay for supply except gross negligence or willful misconduct of the Seller. The Seller's obligation to make any delivery hereunder is subject to the availability to the Seller at the port at which delivery is requested of the particular grade of Bunkers requested by the Buyer.

3.j.  All notices between the Seller and the Buyer shall be in writing or by e-mail unless otherwise stated herein.
 
4. Risk and Title:

4.a. Risk in the Bunkers, including loss, damage, deterioration, evaporation, or any other condition or incidents related thereto shall pass to the Buyer as the Bunkers pass the fixed bunker connections on the delivering vessel. The Buyer further warrants that representatives from the Vessel shall be responsible for ensuring that the Bunkers are received in a safe way.

4.b. Title to the Bunkers shall pass to the Buyers upon payment for the value of the Bunkers delivered. Until such time as payment is made, on behalf of itself and the Vessel, the Buyer agrees that they are in possession of the Bunkers solely as Bailee for the Seller. If, prior to payment, the Seller’s Bunkers are commingled with other bunkers on board the Vessel, title to the Bunkers shall remain with the Seller corresponding to the quantity of the Bunkers delivered. The above is without prejudice to such other rights as the Seller may have under the laws of the governing jurisdiction against the Buyer or the Vessel in the event of non-payment.
 
5. Payment:

5.a.  Payment shall be made by the Buyer as instructed by the Seller within the period agreed in the Bunker Confirmation (and accordingly in the Seller invoice).
 
5.b.  The Buyer shall make the Payment in full, without set-off, counter claim , deduction and/or discount free of bank charges to the bank account shown by the Seller on the respective invoice(s).
 
5.c.  If the Buyer would undergo bankruptcy, liquidation or suspension of payment, arrest of the assets and/or the vessel, or a similar condition, notwithstanding any agreement to the contrary, all and any amounts owed to the Seller by the Buyer shall be immediately be due without prior notice.
 
5.d.  No payment shall be deemed to have been made up and until the date of which the Seller has received the full payment and it is available to the Seller. If payment falls due on a non-business day, the payment shall be made on the next business day.
 
5.e.  In case of any delay the Seller shall be entitled to an interest at the rate of 2 (two) per cent per month.
5.f.  Buyer's payments shall at all times be credited in the following order: (1) costs, (2) interest, and (3) invoices in their order of age, also if not yet due.
 
5.g.  The Buyer shall be responsible for all costs and expenses whatsoever , including –but not limited to attorneys’ fees-, borne by the Seller in connection with the collection of overdue payments, whether made in or out of court.
 
5.h..  The Buyer is under the obligation to provide a proper security which the Seller should find acceptable, in order to secure the performance of the Buyer's duties imposed on him by the Bunker Contract. Failing to grant such a security, the Seller shall have a right to halt the execution of any and all kind of transactions commenced with the Buyer without prejudicing the rights and claim s of the Seller until such time as the Buyer has provided the required security.
 
5.i.  Deliveries of Bunkers made herein, if sold on a credit basis, are delivered not only on the credit of Buyer, but also on credit of the Vessel and Buyer warrants that Seller will have and may assert a lien against the Vessel for the outstanding amount which shall include due interest, legal fees and all other expenses whatsoever specified in these General Terms.
 
5.j. Should the Bunkers be purchased by a manager, broker or agent then such manager, trader,broker or agent as well as the Buyer shall be bound by and liable for all obligations as fully and completely as if they were themselves the Buyer whether such principal be disclosed or undisclosed and whether or not such manager, trader, broker or agent purports to contract as manager, broker or agent only. Furthermore, delivery shall always take place for the account of the registered owners and for the account of the current charterers all of whom shall be jointly and severally liable for the payment of the delivery as Buyers. The Buyer warrants that it is authorized as agent to order the Bunkers for delivery to the Vessel, and that the Seller has a lien on the Vessel for its claim.
 
5.k. Unless a longer or shorter period is set out in the Bunker Confirmation, payment is to be received by Seller within a period of 30 days from the date of delivery.

5.l. Unless a lower or high interest is set out in the Bunker Confirmation, any delay in payment of the full sum shall entitle Seller to interest at the rate of 2 percent per month compounded. In addition to interest, Seller is entitled to charge a delayed payment administration fee of USD 1.50 per metric ton supplied with a minimum administration fee of USD 500 for each delivery made.
 
6. Quality

6.a. The Bunkers to be sold/supplied by the Seller shall comply with the ISO 8217 standards unless it is agreed otherwise.
 
6.b.Where standard specifications are being given or referred to, tolerances of 5% in quality are to be accepted without compensation or other consequences whatsoever. Any implied conditions and warranties, including the warranties of merchantability and fitness for a particular purpose, are expressly excluded and disclaimed. Buyer, having greater knowledge than Seller of his own requirements, shall have the sole responsibility for the prior selection of the particular grade(s) and acceptance thereof.
 
6.c. Bunkers delivered under the Contract shall be segregated from bunkers already on board the receiving Vessel. Any consequences arising from commingling Bunkers aboard the Vessel shall remain the joint and several responsibility of the receiving Vessel and the Buyer. In any event, the Seller shall not be responsible for any on-board safety or storage failure that may affect the delivery as requested and shall have the right to recover from Buyer any and all loss, damage or expenses whatsoever incurred as a result of such failures.
 
6.d. The Seller can in no circumstances be held responsible for any consequences of the misuse or defective application of the Bunkers if caused by lack of information or misinformation given by the Buyer on the use or application of the Bunkers:
 
7. Sampling:
 
7.a. The Sellers shall arrange for a representative sample of each grade of Bunkers to be drawn throughout the entire bunkering operation and that sample shall be thoroughly mixed and carefully divided into four (4) identical samples. The sampling shall be performed in the presence of both the Sellers and the Buyers or their respective representatives. The absence of the Buyers or their representatives shall not prejudice the validity of the samples taken.
 
7.b. In case that drip-sampling is not available onboard barge, tank-truck or shore tank, samples shall be taken according to ISO 3170 Standarts (Petroleum Liquids-Manuel Sampling) as a composite of each tank.
 
7.c. The samples shall be drawn using a mutually accepted sampling device which shall be constructed, secured and sealed in such a way so as to prevent the sampling device and the sample being tampered with throughout the transfer period.

7.d. The samples shall be securely sealed and provided with labels showing the Vessel's name, identity of delivery facility, Bunkers’ product name, delivery date and place and seal number, authenticated with the Vessel's stamp and signed by the Seller's representative and the Master of the Vessel or his representative.

7.e. Two (2) samples shall be retained by the Sellers for minimum forty five (45) days after delivery of the Bunkers to the Vessel or, on being requested in writing by the Buyer, for as long as the Buyer may reasonably require, and the other two (2) samples shall be retained by the Vessel.

7.f. If the quantity is delivered by more than one Bunker Tanker, the sampling procedure shall be repeated as outlined in this Clause 7.

7.g.  In the event of a dispute in regard to the quality of the Bunkers delivered, the samples drawn pursuant to the sub-clause 7.e hereof and retained by the Seller shall be deemed to be conclusive and final evidence for the quality of the product delivered. In case of disputes one of the samples retained by Sellers shall be forwarded to an independent laboratory at the port/place of delivery agreed by both Sellers and Buyers, for final and binding analysis. The seal must be broken only in presence of both parties unless one/both in writing have declared that they will not be present; and both parties shall have the right to appoint independent person(s) or institute(s) to witness seal breaking. No samples subsequently taken shall be allowed as (additional) evidence. If any of the seals have been removed or tampered with by an unauthorized person, such sample(s) shall be deemed to have no value as evidence. The analysis costs shall be born by the Buyer.
 
8. Delivery and Measurement:

8.a.  The measurement of the bunker quantity shall be made by the Seller before the supply when the bunker is in the Bunker Tanker. The Buyer may appoint an independent company for the measurement of the Bunker before the actual delivery has taken place, if he wishes. Should there be an inconsistency between the two measurements; the measurement made by the Seller shall prevail. The Buyer's claim and notice on short delivery after the delivery of the Bunkers shall not be valid and acceptable.
 
8.b.  The Bunkering operation to the  Vessel shall be carried out as promptly as the circumstances allow. In case of any delay due to any reason whatsoever including but not limited to congestion at the terminal where the bunkering takes place except  gross negligence or willful misconduct of the Seller., the Seller shall not be responsible and liable for the demurrage or detention charges, direct or indirect loss, damage or delay whatsoever which is/would be incurred and/or paid by the Vessel.
 
9. Claims:

9.a.  Claims concerning the quality of the bunkers delivered shall be submitted to the Seller in writing within 30 (thirty) days after delivery. After expiration of 30 (thirty) day-period upon delivery, the rights to complain or claim compensation of whatever nature shall be deemed to have been waived and barred for all times.
 
9.b.  The Buyer shall be obliged to make payment in full and fulfill all other obligations in accordance with the Bunker Contract, whether or not they have any claims or complaints.
 
9.c.  In any case, Buyer expressly agrees that any and all kind of his claims in regard of quality shall be time-barred unless legal proceedings have been initiated before the competent court within 6 (six) months after the date of delivery or the date that delivery should have commenced pursuant to the written confirmation from the Seller.
 
10. The Limitation of Liability:

The Buyer and the vessel expressly agree that, in regard of any claims whatsoever including but not limited to any quality or any quantity claims-, the liability of the Seller to the Buyer and/or third persons concerning the bunker shall by no means exceed the bunker price specified in Bunker Confirmation and shall not include any consequential or indirect damages, including, without limitation, demurrage claims, loss of opportunity or loss of profit. Should the Buyer remove the Bunkers without the prior consent of the Seller, all such costs incurred in doing so shall be for Buyer's account. This consent can only be given in written signed by the authorized managers of the Seller. In regard of above duty, the Buyer undertakes to hold the Seller harmless in respect of any actions and claim s of third persons against the Seller and the Suppliers.
 
11. Safety and Environmental Protection:

11.a.  Buyer is familiar with the health effects related to the Bunkers supplied hereunder and with relevant protective safety and health procedures for the handling and use of such Bunkers. Buyer shall adhere to such safety and health procedures while using or handling Seller's Bunkers. Buyer shall also facilitate the dissemination of health and safety information to all employees, users, and others potentially exposed to the Bunkers sold hereunder. Buyer shall be responsible for compliance by its employees, agents, and other users with all health and safety requirements or recommendations related to the Bunkers supplied hereunder and shall exert its best efforts to assure that any of its employees or agents, users, and others avoid frequent or prolonged contact with or exposure to the Bunkers both during and subsequent to delivery. Seller or Seller's supplier accepts no responsibility for any consequence arising from failure by Buyer, its employees or agents, any users, or any other party to comply with relevant health and safety requirements or recommendations relating to such contact or exposure.
 
11.b.  If a spill occurs while Bunkers are being delivered, Buyer and Seller shall promptly take such action as is reasonably necessary to remove the spilled Bunkers and mitigate the effects of such spills. Seller is hereby authorized, at its option and at the expense of Buyer, to take such measures and incur such expenses (whether by employing its own resources or contracting with others) as are reasonably necessary in the judgment of Seller to remove the spilled Bunkers and mitigate the effects of such spills. Buyer shall cooperate and render such assistance as is required by Seller in the course of such action. All expense, claim s, loss, damage, liability and penalties arising from spills shall be borne by the party that caused the spill. If both parties are at fault, all expense, claim s, loss, damage, liability and penalties shall be divided between the parties in accordance with the respective degrees of fault.
 
11.c.  In the event of a spill during fueling, Buyer shall provide Seller with such documents and information concerning the spill and any programs for the prevention of spills as may be required by Seller or by law or regulations applicable in the port where the spill occurred.
 
11.d.  Buyer warrants that the Bunkers purchased hereunder are for the operation of the nominated Vessel and that Vessel only.
 
11.e.  Buyer warrants that the Vessel is in compliance with all applicable national and international laws and regulations. The Vessel is subject to Seller's acceptance and will not be supplied fuel unless free of all conditions, difficulties, peculiarities, deficiencies or defects which might impose hazards in connection
 
12. Assignment:

Seller may assign/transfer any/all  of its right and delegation of performance under the Contract. Buyer shall not assign/transfer any/all of its right under the Contract voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner without written consent of the Seller.   The Buyer shall not assign any performance under this Contract, except with the prior written consent of the Seller. Any purported assignment of rights or delegation of performance of the Buyers in violation of this section is null and void.
 
13. Force Majeure:

Neither Party shall be liable for any loss, damage or delay due to any of the following force majeure events and/or conditions at the port of delivery to the extent the Party invoking force majeure is prevented or hindered from performing any or all of their obligations under this Contract, provided they have made all reasonable efforts to avoid, minimize or prevent the effect of such events and/or conditions:

(a) acts of God;

(b) any Government requisition, control, intervention, requirement or interference;

(c) any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorism, sabotage or piracy, or the consequences thereof;

(d) riots, civil commotion, blockades or embargoes;

(e) epidemics;

(f) earthquakes, landslides, floods or other extraordinary weather conditions;

(g) strikes, lockouts or other industrial action, unless limited to the employees of the Party seeking to invoke force majeure;

(h) fire, accident, explosion except where caused by negligence of the Party seeking to invoke force majeure; (i) any other similar cause beyond the reasonable control of either Party.
The party seeking to invoke force majeure shall notify the other Party in writing within two (2) Days of the occurrence of any such event/condition.
 
14. Arrest of Vessel

The Bunker Fuel supplied to the Vessel is sold and delivered on the credit of the Vessel, as well as on the promise of the Buyer to pay therefore, and the Buyer agrees and warrants that the Seller shall have and may assert a maritime lien against the Vessel and may take such other action or procedure against the Vessel and any other vessel or asset beneficially owned or controlled by the Buyer, for the amount due for the Bunker Fuel and the delivery thereof. The laws of the United States, including but not limited to the Commercial Instruments and Maritime Lien Act, shall always apply with respect to the existence of a maritime lien, regardless of the jurisdiction in which Seller takes legal action. Nothing in this Bunker Contract shall be construed to limit the rights or legal remedies that the Seller may enjoy against the Vessel or the Buyer in any jurisdiction.
 
15. Governing Law And Jurisdiction:

15.a. The Bunker Contract shall be construed and governed by Turkish Law. However, for maritime liens only,  The General Maritime law of United States of America shall apply with respect to the existence of maritime liens, regardless of the country in which Seller takes legal action.

15.b. Any disputes arising out of, or in connection with the present contract shall be finally settled through arbitration under the Istanbul Arbitration Centre Arbitration Rules. Arbitration language shall be in English and the seat of Arbitration shall be in Istanbul.

15.c.  Notwithstanding section 15.b above, the Seller shall be entitled to avail itself of any and all remedies under maritime law to obtain security for its claims against the Vessel, her owners, agents, managers, servants, buyers and/or charterers including but not limited to Vessel arrest and attachment procedures. Where the Seller elects to take such action the Seller has the option to submit to the jurisdiction of the Court where security is obtained and to the substantive and procedural laws of that jurisdiction.

16.Miscellaneous

16.a. The headings of each section herein are descriptive only.

16.b. If any part of this agreement is declared invalid, it shall not affect the validity of the remainder of the agreement or any part thereof.

16.c. In no event the Seller shall be liable for punitive damages or penalties. 



 
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