This Agreement shall have effect, or be deemed to have had effect, on or from the date of acceptance by Buyer of prices quoted by AVINOIL (hereinafter called «AVIN») and shall, subject as hereinafter provided, remain in force until terminated by not less than 30 days’ notice given by AVIN to the Buyer. This Agreement shall prevail in the absence of any contact signed between Buyer and AVIN.
The termination of this Agreement shall be without prejudice to any rights accruing to either party at or before or in connection with such termination or to any remedies or proceedings with respect to such rights.
In this Agreement the following words and expressions shall have the following meanings:
3.1 ‘’Delivery Port’’ means the port at which Marine Lubricants are delivered to a vessel.
3.2 ‘’Avin Marine Lubricants Ports, Services and Facilities’’ is the publication of the same name published by AVIN as amended from time to time and containing lists of serviceable ports, available grades of Marine Lubricants, notification lead times, contact numbers, and other special conditions attaching to the particular port. The most up to date source of this information is the Avin Marine Products web site www.avinoil.gr/marine.
3.3 ‘’Price List’’ means the price of marine lubricants as published by AVIN. Unless otherwise agreed between AVIN and the Buyer, the price to be paid shall be the price shown in the relevant invoice which agreed upon the date of nomination for the relevant delivery.
3.4 ‘’Marine Lubricants’’ means the products listed in the attachments to the Agreement.
3.5 ‘’Nomination’’ means the official formal notice given by the buyer or his agent to AVIN under which marine lubricants are required for a vessel, specifying grades, quantities, method of delivery and expected date of arrival at a Delivery Port.
3.6 ‘’Delivery Date’’ means the date on which the marine lubricants are to be delivered to the Delivery Port.
3.7 ‘’Delivery’’ means the delivery of Marine Lubricants to a Buyer’s vessel at a Delivery Port in response to a Nomination.
3.8 ‘’Ship’ s Receipt’’ has the meaning ascribed in Clause 10.1.
4. Purchase and Sale of Lubricants
4.1. During the validity of this Agreement AVIN will sell and deliver to the Buyer and the Buyer will buy and take delivery under the terms hereof the Buyer’ s requirements of Marine Lubricants at the Delivery Ports for the vessels listed in the attachments to the Agreement.
4.2. Notwithstanding Clause 3.4, if AVIN gives notice to the Buyer discontinuing the availability of any grade (either generally or at any Delivery Port) that grade shall thereupon cease to be a specified Marine Lubricant (generally or at the Delivery Port as the case may be).
Except as otherwise agreed between AVIN and the Buyer or as specified in the attachments to the Agreement, the price to be paid for Marine Lubricants delivered hereunder shall be the price shown in the relevant invoice.
6.1 «Charges» mean all charges listed in the Price List, including those for delivery ex-lighter / barge and packed deliveries as well as any additional costs incurred in respect of a delivery
6.2 In addition, any expenses incurred as a result of the Master of the vessel rejecting, canceling or significantly delaying the whole or any part of the delivery requested under a Nomination.
6.3 The Buyer or his agent shall also be liable for any mooring or unmooring charges or port dues which may be incurred (whether at the Delivery Port or otherwise) in connection with any Delivery; and for any duties, taxes incurred in respect of a Delivery.
6.4 Where AVIN delivers to the Buyer from duty paid stocks in accordance with Clause 7.4, the amount of such duty; and any additional costs incurred in respect of a delivery.
7.1. A nomination shall be given at least five working days prior to the delivery date, except otherwise is applied. If any circumstances arise which prevent AVIN or its delivering affiliate or agent from making a delivery then the Buyer shall be informed. Subject to the terms of this Agreement acceptance of a valid notice by Seller shall constitute a commitment by the Buyer to accept and AVIN to effect delivery of the agreed Marine Lubricants.
7.2 In addition to Nominations outlined under Clause 7.1 a Nomination will be considered as having been made within time when a vessel is supplied with Marine Lubricants at a Delivering Port on the authority of the Master of the vessel.
7.3 If the vessel fails to arrive at the Delivery Port within forty eight hours after the notified date of arrival then the Nomination is considered as cancelled. In this case for any expense incurred by AVIN or its delivering affiliate or its agent the buyer is liable.
7.4 Where a Nomination gives notice of a requirement by a vessel for delivery in a Delivery Port of grades of Marine Lubricants that AVIN cannot supply in that Delivery Port from duty-free stocks, AVIN may advise the Buyer accordingly (which option must be exercised within a reasonable time) and upon such advice the Buyer shall be deemed to have requested to be supplied the grades in question from duty paid stocks and the provisions of Clause 6.4 shall apply.
8.1 «Delivery» considering bulk deliveries, will be delivered either in sealed tanks of three metric tones capacity each, transported by barge, or by truck at the nearest point to the vessel where is considered reasonably possible.
8.2 Subject to any special agreements between the parties as to the manner of delivery, AVIN or its delivering affiliates or its agents shall arrange delivery in bulk or containers at the nearest point to the vessel at which delivery is in the opinion of AVIN or its affiliates or its agents reasonably possible.
8.3 The delivery of marine lubricants will be affected during working hours at the delivery port, unless the master of the vessel considers necessary that the delivery can be continued during night hours or holidays. The above can be realized only if the applicable law of the delivery port permits it.
8.4 Neither AVIN nor its delivering affiliates or its agents shall be liable for any demurrage or loss incurred by the Buyer caused directly or indirectly by delays due to or resulting from weather, local congestion at the delivery port affecting the delivering facilities.
8.5 In any case where delivery is ex-lighter the Buyer shall provide free of cost a clear and safe berth for the lighter(s) alongside the vessel’ s receiving lines.
8.6 The responsibility for connecting the bulk delivery facilities to the receiving facilities provided by the Buyer shall be in accordance with the custom of the Delivery Port.
8.7 AVIN shall not be required or arrange to supply Marine Lubricants for the export of which a Government permit is required but which has not been obtained by the Buyer or the Buyer’ s representative.
8.8 Prior to any delivery in bulk of marine lubricants to a vessel the master of the vessel or the buyer’ s representatives will be provided the opportunity to witness the breaking of tanks seals.
8.9 If in the course of any delivery under a Nomination there is an escape or spillage of Marine Lubricants :
a) The Buyer or his Agent shall promptly take, and shall assist and co-operate with AVIN or its delivering affiliate or agent in taking, any necessary action to remedy or mitigate the consequences thereof,
b) The Buyer or his Agent shall supply AVIN or its delivering affiliate or its agent with all such documents and information concerning the spillage or any program for the prevention thereof as are requested by AVIN or its affiliate or its agent or are required by law or regulations applicable at the Delivery Port.
9.1 Payment shall be made in euros/U.S. dollars or in any other currency as may have been agreed between the parties before delivery. AVIN and the Buyer can agree before delivery that the invoice may be submitted to the buyer by electronic means including limitation facsimile.
9.2 Payment for each delivery and of other charges payable shall be made by Buyer within 60 days from the date of delivery (unless otherwise agreed) without withhold or offset. Any amounts not paid by such time shall bear interest at a rate of one point five percent (1,5%) per month.
9.3 .If the buyer’s credit is deemed by AVIN to be impaired or unsatisfactory, AVIN may (without prejudice to its other rights) require the buyer either to pay cash before delivery or to provide security satisfactory to AVIN. In the event of failure by the buyer to comply with AVIN’s requirement, AVIN shall have no obligation to make delivery and may terminate the deliveries and assert all its rights against the vessel or vessels belonging to the Buyer.
10.1 The master of the vessel or the buyer’ s representative will be invited to stamp with the vessel stamps and sign the document named Certificate of witness.
10.2 On completion of a Delivery of Marine Lubricants to a vessel the Master of the vessel or the Buyer’ s representative shall sign a receipt for the grades and quantities delivered in a form required by AVIN (‘’Ship’ s Receipt’’) of which one signed copy shall be retained by the Master or his representative.
10.3 The quantity to be entered on the Ship’ s Receipt shall be in accordance with the measurements of AVIN or its delivering affiliate or its agent.
10.4 The Buyer may, if he so desires, check or appoint a representative to check measurements at the time of delivery.
10.5 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 Ship’ s Receipt (but not later) annotate the Ship’ s Receipt accordingly, giving brief particulars of the quantity he alleges to have been delivered.
10.6 A clean Ship’ s 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 Ship’ s Receipt is annotated in accordance with 11.5 above, Buyer shall be required to make timely payment in accordance with Seller’ 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 such claim is made in writing (in addition to the Ship’ s Receipt annotation) as soon as possible and in any event within thirty days of the date of delivery, in default of which the Buyer shall be deemed to have waived such complaint or claim. Any unresolved disputes shall be determined in the same manner as set forth for quality disputes in 12.3 below.
11. Risk and Title
Delivery shall be complete and title and risk for bulk deliveries, shall pass from the seller to the buyer as the Marine Lubricants pass the flange connecting the delivery facilities with the receiving provided by the buyer or in the case of delivery in containers when the ship’s receipt is signed in accordance with the above Clause 10.1 hereof.
12.1 For any potential dispute concerning the quality of marine lubricants one sealed sample of any grade will be delivered on board the vessel and two are going to be kept by the supplier for at least sixty days.
12.2 Complaints and claims as to quality of marine lubricants delivered, must be made to AVIN in writing within thirty days of the date of delivery, in default of which the buyer shall be deemed to have waived such complaint or claim.
The complaints shall only be admissible if based on tests or inspection made by AVIN, and a full statement shall support the complaints or claims.
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.
12.3 Any dispute concerning the quality of Marine Lubricants which cannot be resolved amicably between AVIN and the Buyer shall be determined conclusively by an independent expert appointed jointly by the Buyer and AVIN.
13. Technical Service
13.1 In addition to technical advice and services which may be provided by AVIN or its affiliates upon the Buyer ‘ s request and at its cost (which advice and service shall be provided not pursuant to this Agreement but pursuant to a separate services agreement), the Buyer may avail himself of certain technical advice and services which are provided free of charge by AVIN or its affiliates. Such free services are provided voluntarily and not as an obligation under this contract.
13.2 Neither AVIN nor its affiliates or its agents shall be liable for any loss or damage suffered by the Buyer or its servants or agents in respect of or arising from the provision by AVIN or its affiliates or its agents of any advice or services provided voluntarily as aforesaid.
Unless otherwise agreed the Buyer undertakes that the Marine Lubricants supplied under a Nomination will be used solely for the lubrication requirements of the vessel to which they are delivered.
15.1 Neither AVIN nor the Buyer shall be responsible for any failure to fulfil their respective obligations (other than the payment of money) hereunder if fulfilment has been delayed, hindered, interfered with, curtailed or prevented by:
a) Any circumstance which is beyond the reasonable control of AVIN or AVIN’s suppliers or the buyer as the case may be
b) Any curtailment, failure or cessation of supplies of Marine Lubricants or the petroleum or other substances from which such Marine Lubricants are derived or any of AVIN’ s or AVIN’ s suppliers’ sources of supply (whether in fact sources of supply for the Marine Lubricants to be delivered under this Agreement or not) or packages into which they might be filled or
c) Compliance with any order, demand or request of any international, national, port, transportation, local or other authority or agency or of any body or person purporting to be or to act for such authority or agency or
d) Any strike, lock-out or labor dispute (whether or not AVIN or AVIN’ s suppliers or the Buyer as the case may be is party thereto or would be able to influence or procure the settlement thereof).
15.2 If by reason of any of the causes referred to in Clause 16 either the availability of Marine Lubricants from any of AVIN or AVIN’ s suppliers’ sources of supply (whether situated), whether deliverable under this agreement or not, or the normal means of transport of such Marine Lubricants is delayed, hindered, interfered with, curtailed or prevented, then AVIN shall be at liberty to withhold, reduce or suspend supplies hereunder to such extent AVIN at its absolute discretion thinks fit, and AVIN shall not be bound to purchase or otherwise make good shortages resulting from any such cause.
15.3 The Buyer shall be free to purchase from other suppliers any deficiency of deliveries caused by the operation of Clause 16.
15.4 The performance of any obligation, whether arising out of any contract, arrangement or otherwise, by which any authority, agency, body or person is entitled to require and does require any Marine Lubricants by way of royalty in kind shall be deemed to constitute a compliance with an order or request as provided in Clause 16.
The Buyer will indemnify AVIN and its delivering affiliates and its agents against any claims, losses, costs, damages, liabilities, fines, penalties and expenses incurred or sustained arising out of or in connection with the delivery of Marine Lubricants under this Agreement (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 AVIN or its delivering affiliate or its agents.
Any waiver by AVIN or the Buyer of any of their respective rights hereunder in any particular instance shall not prejudice their respective rights to enforce the same strictly and in full on any subsequent occasion.
If a Nomination is made by an agent acting for or on behalf of the Buyer, whether such agency is disclosed or undisclosed then such agent shall be liable (as well as the Buyer) not only as agent but also as principal for the performance of all the obligations of the Buyer made under this Agreement.
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 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 party giving the notice.
19.3 Notice shall be given by radio, telex, cable or other electronic means. Notice shall be effective upon receipt by Seller or its designated representative.
Neither party shall assign their rights or delegate their obligations under this Agreement to a third party.
21. Appointment of Experts
21.1 Where pursuant to any provisions in the agreement a matter must be determined by an expert, the expert shall be a person fitted by the possession of expert knowledge for the determination of the particular matter in question. The expert shall be appointed by agreement between Seller and Buyer.
21.2 Sellers and Buyers shall furnish the expert with all written or oral information that he may reasonably require for his determination.
21.3 The cost of the services of the expert, if appointed, shall be shared equally between Sellers and Buyers.
Except as provided in this Clause 23, 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.
23. Governing Law
This Agreement shall be construed and take effect in accordance with the law of Greece and the parties hereby submit to the jurisdiction of the First Instance Court of Athens.