Terms and Conditions (GTC)
This is statement of the general terms and conditions (GTC) whereunder UAB „Litiksa“ , of Lithuania (“Seller”) agrees to sell and deliver, or to arrange for the sale and delivery of, Marine Lubricants.
These conditions apply to all offers, quotations, nominations, order confirmations, agreements, services and all subsequent contracts of whatever nature, except where otherwise is expressly agreed in writing by Seller.
Unless otherwise agreed in writing between Seller and the Buyer, these terms and conditions, as amended from time to time, which supersede any earlier terms and conditions issued by Seller, shall override any terms and conditions stipulated, incorporated or referred to by the Buyer whether in its order, stamping of documentation or elsewhere.
1. DEFINITIONS
Unless the context otherwise demands:
(a) “Seller” includes in addition to the seller Itself, its agents assigns, subcontractors and other persons acting under the Seller's instructions in fulfillment , whose name is included in the Order Confirmation, sent to the Buyer.
(b) "Buyer" means the vessel supplied and jointly and severally her Master, Owners, Managers/Operators, Disponent Owners, Time Charterers, Bareboat Charterers and Charterers or any party requesting offers or quotations for or ordering Marine Lubricants and/or Services and any party on whose behalf the said offers, quotations, orders and subsequent agreements or contracts have been made;
(c) "Delivering Company" means a party requested by Seller to deliver to the Buyer or the Owner on Seller’s behalf.
(d)“Owner” means the party on whose behalf the Buyer is acting for and is the registered Owner or Bareboat Charterer of the vessels with legal and beneficial ownership.
(e) "Vessel" means Buyer‘s vessel, ship, barge or off-shore unit nominated to receive Marine Lubricants as specified in the Nomination.
(f) "Marine Lubricants" means lubricating oils, greases and other marine lubricating products.
(g) “Delivery” means the delivery of Marine Lubricants to a Buyer’s or Owner’s vessel at a Delivery Port in response to a
Order Confirmation.
(h) "Delivery Port" means the port or place at which Marine Lubricants are delivered to a vessel.
(i) “Nomination” means the written request/requirement by the Buyer to the Seller, for the supply of the Marine Lubricants;.
(j) „Order Confirmation’’ means the written confirmation as issued by the Seller and forwarded to the Buyer to conclude the conclusion of the negotiated sale/purchase of the Marine Lubricants. In case of conflict between the Nomination and the Order Confirmation, unless the Seller otherwise agrees in writing, the wording and content of the Order Confirmation is deemed contain the prevailing terms of the Agreement.
(k) "Agreement" means the concluded terms for the sale/purchase of the Marine Lubricants.
(l)“Delivery Receipt” has the meaning attributed to it in section 9.
2. NOMINATIONS AND ORDER CONFIRMATIONS
2.1 Unless otherwise agreed between the Seller and the Buyer, Nominations shall be sent to: UAB „Litiksa“
Tel. +370 46 345009 ; Fax +370 46 345621;
e-mail: [email protected]
2.2 The Buyer or his agent shall give the Seller or its designated representative notice (a “Nomination”) of a requirement by a vessel for delivery of Marine Lubricants specifying:
1. Name of the vessel and IMO
2. Flag of the vessel,
3. Delivery Port,
4. Vessel’s ETA and ETD,
5. Delivery date,
6. Shipping agent at the port of delivery and their telephone number.
7. Type of delivery,
8. Products, grades and quantities required.
2.3 Unless otherwise agreed, a Nomination shall allow not less than 3 Working Day’s (excluding weekends and holidays ) of vessel's readiness to receive delivery and the exact required quantity of the Products . If any circumstances arise which prevent the Seller or its Delivering Company from making a delivery then the Buyer shall be informed. The Seller or its Delivering Company will make reasonable efforts to satisfy the Nomination but shall otherwise have no liability.
2.4 In addition to Nominations outlined under section 2.2, a Nomination will be considered as having been made within time when a vessel is supplied with Marine Lubricants at a Delivery Port on the authority of the Master of the vessel.
2.5 If the vessel has not arrived at the Delivery Port within seven (7) days after the expected date of arrival notified pursuant to clause 2.2, the Nomination will be considered as cancelled by the Buyer. The Buyer shall, in addition to any liability under these terms and conditions, be liable to the Seller for any expense incurred by the Seller or its Delivering Company as a result of the Nomination. If the vessel arrives earlier than the expected date of arrival notified pursuant to clause 2.2, the Seller shall exercise reasonable efforts to supply the vessel upon request but shall not be bound to do so until the expected date of arrival and reserves the right to renegotiate the prices/quantities.
2.6 An Agreement shall only be concluded and binding on the Seller when the Seller sends the Order Confirmation to the Buyer or his agent. Each Order Confirmation shall incorporate these GTC by reference so that the GTC are considered a part of the Confirmation.
3.PRICE
3.1 Except as otherwise agreed between Seller and the Buyer, the price to be paid for Marine Lubricants delivered hereunder shall be the price specifyed in the Order Confirmation and stated in Invoice.
3.2 The Buyer shall be liable for all costs, expenses and/or charges incurred by Seller or its Delivering Company on account of the Buyer's failure, breach and/or non-compliance with its obligations under any Nomination as set out in section 2.
3.4 All prices and/or tariffs are exclusive VAT, unless specifically stated otherwise.
4.CHARGES AND FUTHER COSTS
In addition to the prices payable for Marine Lubricants, the Buyer shall pay to the Seller the following charges:
4.1 In addition to the Price of the Marine Lubricants the Buyer agrees to pay for any charges raised in respect of taxes (other than taxes on profits), freight, barge, vehicle, wagon or clean up costs including overtime, mooring/unmooring charges or port dues etc. incurred (whether by the Seller or by the Delivering Company), or for which the Seller or the Delivering Company is accountable, in respect of a Delivery. Also, any expenses created for the calling-in of an independent surveyor in order to settle any quantity dispute, as well as laboratory analyses for any quality dispute raised by the Buyer but eventually not verified.
4.2 Any expenses incurred as a result of the Master of the vessel rejecting, cancelling or significantly delaying the whole or any part of the delivery requested under a Nomination.
4.3 Any later or additional tax, assessment, duty or other charges of whatever nature and however named, or any additional costs borne by the Seller whatsoever caused by any change in the Seller’s contemplated source of supply or otherwise, coming into existence after the Agreement has been concluded, shall be added to the agreed purchase price, provided that the Seller shall give the Buyer prior notice of this effect within a reasonable time after the Seller becoming aware of the relevant circumstances.
5. INVOICES
5.1 The Seller shall invoice the Buyer in such other currency as may have been agreed between the Seller and the Buyer before delivery and specified in Order Confirmation.
5.2 By agreement between the Seller and the Buyer the invoice may be submitted to the Buyer by electronic means including without limitation facsimile.
6. PAYMENT
6.1 Unless otherwise agreed between the Seller and the Buyer and specified in Order Confirmation, all payments hereunder shall be due 30 days from the date of delivery.
6.2 Payment shall be made in full, without set-off, counterclaim, deduction and/or discount free of bank charges to the bank account indicated by the Seller on the respective invoice(s).
6.3 Payment shall be deemed to have been made on the date of which the Seller has received the full payment and such is available to the Seller. If payment falls due on a non-business day, the payment shall be made on or before the business day nearest to the due date. If the preceding and the succeeding business days are equally near to the due date, then payment shall be made on or before the preceding business day.
6.4 Delivery documents may be provided to the Buyer if requested, but payment shall not be conditional upon the Buyer’s receipt of such documents.
6.5 Any delay in payment of the full sum due shall entitle the Seller to interest at, the rate of 4 (four) per cent per month (compounded monthly for each month (or part thereof) of non payment) without prejudice to any rights or remedies available to the Seller. Furthermore the Seller holds the full right to involve internal and external legal assistance and to charge costs for same against Buyers.
6.6 Payments made by the Buyer 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, or in Seller’s sole discretion to specify a payment to any such invoice Seller considers relevant.
6.7 All costs borne by the Seller in connection with the collection of overdue payments, whether made in or out of court and in general all costs in connection with breach of this agreement by the Buyer, shall be for the sole account of the Buyer.
7. CREDIT
7.1 If Marine Lubricants are supplied or to be supplied on credit and if the financial condition of the Buyer or the Owner becomes in the opinion of Seller impaired, or unsatisfactory, Seller may demand that payment be made at any time before the date due for payment whether before or after delivery of the Marine Lubricants or may demand the giving of such security as it may specify.
7.2 Marine Lubricants are supplied under a Nomination on the faith and credit of the vessel to which they are supplied as well as on the faith and credit of the Buyer or the Owner. The Seller and the Delivering Company shall not be bound by any attempt by any person to restrict, limit or prohibit its lien or liens attaching to a vessel.
8. DELIVERY AND HEALTH AND SAFETY AND ENVIROMENTAL REQUIREMENTS
8.1 Subject to any special agreements between the parties as to the manner of delivery, the Seller or its Delivering Company shall arrange delivery in bulk or container at the nearest point to the vessel at which delivery is in the opinion of the Seller or its Delivering Company reasonably possible.
8.2 Subject to section 8.3, delivery of Marine Lubricants will be made during customary hours of work at the Delivery Port.
8.3 Delivery of Marine Lubricants may continue, if the Master of the vessel so requests, during night hours and religious and secular holidays (unless prohibited by laws or regulations applicable in the Delivery Port), in which event the Buyer shall reimburse Seller for all additional expenses incurred by Seller or the Delivering Company.
8.4 The vessel will be supplied as promptly as circumstances permit, but neither the Seller nor its Delivering Company shall be liable for any loss, expense, damage, delay or demurrage whatsoever which may be suffered by the Buyer as a result of any delay arising from congestion at the terminal or to prior commitments of available barges, or when in the Seller’s or in the Delivering Company’s opinion clear and safe berth or the assistance of qualified staff to secure moorings is unavailable.
8.5 In any case where delivery is ex barge, the Buyer shall provide free of cost a clear and safe berth for the barge(s) alongside the vessel's receiving lines and the assistance of qualified staff to secure the barge(s) moorings. The receiving vessel is responsible for a safe access to and from the barge. Vessels, including tankers, will be bunkered in turn as promptly as circumstances permit but the Seller shall not be liable for demurrage or for any loss, expense, damage or delay due to congestion at the terminal or to prior commitments of available barges, or when in the Seller’s opinion clear and safe berth or the assistance of qualified staff to secure moorings is unavailable.
8.6 If a bulk delivery is not feasible for any reason whatsoever, the Seller reserves the right to deliver the marine lubricants in drums subject to the agreement of the Buyer who shall not withhold his agreement without valid reason.
8.7 Neither the Seller nor the Delivering Company shall be required to supply or arrange to supply Marine Lubricantsfor the export of which a Government permit is required but which has not been obtained by the Buyer or the Buyer's accredited epresentative.
8.8 If in the course of any delivery under a Nomination there is any escape or spillage of Marine Lubricants:
(a) The Buyer agrees that, if a Pollution Event occurs before, during or after delivery of the Marine Lubricants, Seller may at its sole discretion take reasonable steps to control and terminate the Pollution Event, contain and remove the escaped Marine Lubricants and clean the affected area. The Buyer must afford Seller and the Delivering Company its reasonable co-operation in implementing steps under this section. If the Pollution Event is caused by an act or omission of the Buyer, its servants or agents (other than Seller and the Delivering Company), the Buyer must indemnify Seller and the Delivering Company for the cost of any steps taken under this section 8.7(a). In this section 8.7(a), "Pollution Event" means any occurrence as a result of which the Marine Lubricants escaped onto or into land or water.
(b) The Buyer or his agent shall supply the Seller or its Delivering Company with any documents and information concerning the same or any programme for the prevention thereof as are requested by the Seller or its Delivering Company or are required by law or regulations applicable at the Delivery Port.
8.9 The Buyer shall be fully responsible for the proper use, maintenance, and repair of the Equipment. The Buyer will immediately inform Seller of any defects, ruptures, spills, or other problems with or related to the Equipment which occur during the delivery process.
8.10 The Buyer will provide ready and safe means of access to the Equipment for delivery of the Marine Lubricants at the Delivery Port and shall not obstruct access to the Equipment for delivery.
9. DOCUMENTS
On completion of a Delivery of Marine Lubricants to a vessel under a Nomination, the Master of the vessel or the Buyer's accredited representative shall sign a receipt for the grades and quantities delivered in a form required by the Seller or its Delivering Company (“Delivery Receipt”) of which two copies shall be retained by the Master or such representative.
10. RISK AND TITLE
10.1 Except as may be otherwise agreed, delivery of Marine Lubricants at a Delivery Port shall be deemed to be complete and risk shall pass to the Buyer either:
(a) for bulk Deliveries, when the Marine Lubricants pass the flange connecting the delivery facilities with the receiving facilities
provided by the Buyer; or
(b) for delivery in containers upon delivery of the Marine Lubricants alongside the ship according to the ICC Incoterms issue in force at the date of delivery, or when they have been delivered to the point closest to the vessel that the Seller considers practicable.
10.2 Except as may be otherwise agreed, the transfer of the ownership of the Marine Lubricants delivered to Buyer shall be subject to the effective, definitive and complete payment of the price.
10.3 The responsibility for connecting the bulk delivery facilities provided by the Seller or its Delivering Company to the receiving facilities provided by the Buyer shall be in accordance with the custom of the Delivery Port.
11. QUALITY
Marine Lubricants shall meet specifications that are applicable at the time and place of delivery, The Buyer shall be solely responsible for the selection and acceptance of Marine Lubricants tendered for delivery to the Vessel.
12. MEASUREMENT AND SAMPLES / QUANTITY AND QUALITY CLAIMS
12.1 The quantity to be entered on the Delivery Receipt shall be in accordance with the measurements of the Seller or its Delivering Company. The quantities of Marine Lubricants delivered shall be measured by volume, and calculated in accordance with the methods at the discretion of the Seller or its Delivering Company.
12.2 The Buyer or Buyer's accredited representative shall be at liberty to witness and check the weights and measurements at the time of delivery.
12.3 If the Buyer’s representative or the Master of the vessel disputes the quantity delivered in any Delivery, he may at the time of signing the Delivery Receipt (but not later) annotate the Delivery Receipt accordingly, giving brief particulars of the quantity he alleges to have been delivered.
12.4 A clean Delivery Receipt once signed shall be conclusive evidence of the quantity delivered unless the Party challenging the receipt can prove manifest error. In the event that a Delivery Receipt is annotated in accordance with section 12.3 above, Buyer shall be required to make timely payment in accordance with Seller’s or its Delivering Company’s figures (which shall in the absence of contrary proof be deemed correct) provided that such payment shall not prejudice Buyer’s right to make any claim with respect to quantity provided further that such claims shall be made in writing (in addition to the Delivery Receipt annotation) as soon as possible and in any event within 7 days of the date of delivery, in default of which the Buyer shall be deemed to have waived such complaint or claim.
12.5 During bulk deliveries, the Seller or its Delivering Company shall take three representative samples of the Marine Lubricants. The Buyer or its representative will be provided the opportunity to witness the taking of such samples. One sealed sample shall be handed to the Master of the vessel receiving the Marine Lubricants and the other two retained by the Seller or its Delivering Company for a 15 day period from the date of delivery. At the end of the said period the remaining samples may be discarded unless the Buyer has made a complaint or claim under section 12.6 within the said period, in which case one of the samples shall be retained by the Seller or its Delivering Company for its own use and the other sample shall be retained by the Seller or its Delivering Company for analysis by the expert referred to in section 12.8.
12.6 Any complaint or claim on the part of the Buyer with regard to the quality of Marine Lubricants delivered must be made to Seller in writing as soon as possible and in any event within 15 days after the date of delivery, in default of which the Buyer shall be deemed to have waived all complaints or claims in relation to the quality of the Marine Lubricants so delivered.
12.7 No claim for any defects in quality may be made in respect of Marine Lubricants that have been transported or stored in containers provided by the Buyer.
12.8 Any dispute as to quantity or quality of Marine Lubricants delivered shall, save for in instances of manifest error or fraud, be determined finally and conclusively by an independent expert appointed jointly by the Buyer and the Seller In the case of quality disputes, the expert shall be requested to analyse one or more of the quality samples taken in accordance with clause 12.5 above and where possible, base his or her decision upon the results thereof.
13. RESTRICTIONS ON USE
Unless otherwise agrred the Buyer undertakes that the Marine Lubricants supplied under a Nomination will be used salely for lubrication requirements of the vessel they are delivered.
14. FORCE MAJEURE
14.1 Neither the Seller nor the Buyer shall be responsible for any failure to fulfil their respective obligations under a contract governed by these terms and conditions (other than the payment of money) if fulfilment has been delayed, hindered, interfered with, curtailed or prevented by compliance with any regulation or other government restriction or by compliance with any order or request of any government authority or person purporting to act therefore, or other disorders, wars, acts of enemies, strikes, lockouts, fires, floods, acts of God, perils of the sea, accidents of navigation, breakdowns or injury to ships, failure of or interference with supply from Sellers' sources of supply, breakdown or injury to, or expropriation or confiscation of the facilities used for the production, transportation, receiving, manufacturing, handling or delivery of the Marine Lubricants.
14.2 The Seller reserves the right to increase the price charged for any Marine Lubricants (whether the price was originally determined by reference to the Seller’s prices or separately agreed in writing) if there is any increase in the costs incurred or to be incurred by the Seller or the Delivering Company in making the relevant supply due to factors which are beyond the control of the Seller or the Delivering Company. These factors include without limitation any increased taxes, duties, the making of any law, order, bye-law or other regulation, the occurrence of any currency fluctuation affecting the cost of any imported items.
15. INDEMNITY
The Buyer will indemnify the Seller and its Delivering Company against any claims, losses, costs (including costs as between Attorney or Solicitor and Client), damages, liabilities, fines, penalties and expenses incurred or sustained arising out of or in connection with a contract governed by these terms and conditions and/or a Nomination (including but not limited to recovery of any sums due hereunder) except to the extent that such claims, losses, costs, damages, liabilities and expenses arise through the negligent act or omission of Seller or its Delivering Company.
16. LIABILITY
16.1 The Seller and its Delivering Company shall have no liability to the Buyer under or in connection with a contract governed by these terms and conditions and/or a Nomination for: loss of actual or anticipated profit; losses caused by business interruption; loss of goodwill or reputation; or any indirect, special, extraordinary or consequential cost, expense, loss or damage or otherwise.
16.2 Notwithstanding the foregoing in the event that the Seller and Delivery Company are found to be liable to the Buyer, the total amount payable by way of compensation shall not exceed the value charged to the Buyer for the Marine Lubricants supplied under this Agreement. It is a precondition to the payment of any compensation by the Seller that all sums standing due to the Seller from the Buyer are first paid and settled.
17. AGENT OR MANAGER
If a Nomination is made by an agent or manager, then unless otherwise agreed such agent or manager, as well as the principal, shall be bound by, and liable for, all obligations as fully and as completely as if he were himself the Principal whether such Principal be disclosed or undisclosed, and whether or not such agent or manager purports to contract as agent only, and accordingly both Principal and agent shall be considered Buyer for the purposes of this agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 This agreement shall be governed and construed in accordance with the laws of Lithuania.
18.2 All disputes arising in connection with this agreement or any agreement relating hereto, save where the Seller decides otherwise in its sole discretion, shall be finally settled by arbitration in Lithuania in accordance with the Lithuanian Arbitration Act as in effect from time to time.
18.3 Any eventual National or International Laws or Regulations (CISG) being referred to by the Buyer in any event, shall be deemed not be valid in any respect, in whole or in part, but solely the articles related to Arbitration as stated elsewhere in this section 18.
18.4 For the sole benefit of the Seller it is further agreed that the Seller without prejudice to any rights hereunder of the Seller or any claim raised pursuant to clause 18.2 above have the right to proceed against the Buyer, any third party or the Vessel in such jurisdiction as the Seller in its sole discretion sees fit inter alia for the purpose of securing payment of any amount due to the Seller from the Buyer or the Owner (pursuant to a payment guarantee). In such circumstances the proceedings shall be governed by the law (substantive and procedural) of such jurisdiction.
19. NOTICES
19.1 Notices to be given hereunder shall be sent to the addresses specified in the seller’s confirmation to the buyer’s Nomination.
19.2 Except where expressly stated otherwise, a notice, demand, request, statement, or other communication under or in connection with these terms and conditions shall only be effective if it is in writing. Faxes and e-mail are permitted provided however that any notice of breach sent by email must be followed by a fax or letter.
19.3 Where a Nomination is made by an agent acting for the Buyer then notice may be given either to the agent or to the Buyer at the option of the Seller.
20. ASSIGGNMENT
20.1 Any contract governed by these terms and conditions shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. The Buyer shall not assign all or any part of the benefit of, or any rights or benefits under, a contract governed by these terms and conditions without the prior written consent of the Seller, which consent shall not be unnecessarily or unreasonably withheld or denied.
20.2 The Seller may at any time assign all or any part of the benefit of, or its rights or benefits under, a contract governed by these terms and conditions. Seller may at any time sub-contract or enter into any arrangement whereby another person is to perform any or all of its obligations under a contract governed by these terms and conditions.
21. CONFIDENTIALITY
Except as provided in this section 18, Buyer shall not communicate to any third parties any pricing information, or any information marked as confidential and provided by Seller or seller’ s representatives hereunder. Notwithstanding the preceding sentence, Buyer may communicate to parent companies, subsidiaries, or affiliates such information as is necessary to the management of the business of such companies provided that buyer obtains an agreement of confidentiality similar to this clause.
22. WAIFER
No modification or waiver by either of the parties of any provision of the contract shall be effective unless made explicitly and confirmed explicitly in writing.
23. SEVERABILITY
In the case that, for whatever reason, one or more of the (sub)clauses of these GTC are invalid, the other (sub)clauses hereof shall remain valid and be binding upon the parties. Then the parties shall meet and negotiate in good faith in order to arrive at an amendment of the provisions(s) of the contract so affected, in such manner as will most closely and accurately reflect the intents and purposes of the contract.
24. TERMINATION
24.1 Either party may terminate a contract governed by these terms and conditions for any reason by giving not less than 2 months’ prior written notice to the other party.
24.2 Without prejudice to any other rights and remedies, Seller may by notice to the Buyer terminate a contract governed by these terms and conditions with immediate effect if:
(a) the Buyer is in breach of any of its obligations under a contract governed by these terms and conditions and fails to remedy such breach within 30 days after written notice of the existence of such breach;
(b) the Buyer or the Owner should go into liquidation or should do or suffer any similar act or thing under any applicable law, such as (a) the making of a general assignment for the benefit of creditors by the Buyer or the Owner; or (b) the entering into of any arrangement or composition with creditors (other than for the purposes of a solvent reconstruction or amalgamation); or (c) the institution by the Buyer or the Owner of proceedings seeking to adjudicate the Buyer or the Owner as bankrupt or insolvent, or seeking protection or relief from creditors, or seeking liquidation, winding up, or rearrangement, reorganization or adjustment of the Buyer or the Owner of its debts (other than for purposes of a solvent reconstruction or amalgamation), or seeking the entry of an order for the appointment of an administrator, a receiver, trustee or other similar official for the Buyer or the Owner or for all or a substantial part of the Buyer’s of the Owner's assets; or (d) the institution of any proceeding of the type described in (c) above against the Buyer or the Owner;
(c) there is a change in Control of the Buyer of the Owner; or
(d) anything analogous to any of the events described in paragraph (b) happens to or in relation to the Buyer or the Owner in any jurisdiction.
24.3 For the purposes of these terms and conditions, Control means, in relation to any company, having legal and beneficial ownership of not less than 50 percent of the voting rights attached to the issued share capital of thatcompany.
24.4 On termination of a contract governed by these terms and conditions all sums owed to Seller shall become immediately due and payable.
24.5 Without prejudice to any other rights or remedies, Seller may suspend deliveries or vary the stipulated method of payment with immediate effect if the Buyer is in breach of any of its obligations under any contract governed by these terms and conditions.
25. VALIDITY
25.1 These terms and conditions shall be valid and binding for all offers, quotations, prices and deliveries made by the UAB „Litiksa“, any associated company, representative or agent as of September 1, 2010, or at any later date.
25.2 These terms and conditions are available at the website www.litiksa.lt , on which site as well the Sellers may notify amendments, alterations, changes or verifications to same. Such amendments, alterations, changes or verifications are deemed to be a part of the entire terms once same have been advised on the website.