STANDARD TERMS AND CONDITIONS FOR THE SALE OF MARINE SPARE PARTS AND RELATED MATERIALS
1. INTRODUCTORY. These are the standard terms and conditions of sale, which shall apply to all contracts entered into with Inshore S.A., of the Marshall Islands (hereinafter the “Company”).
2. DEFINITIONS. In these conditions the following words shall have the following meaning:
2.1. Agreement. The agreement between the Company and the Buyer evidenced by the Standard Terms and the Confirmation. If there is any conflict between the Standard Terms and the Order Confirmation, the terms of the Order Confirmation shall prevail.
2.2. Buyer. The person or entity so identified in the Order Confirmation and shall include any agent, principal, associate, manager, partner, servant, parent, subsidiary, owner or shareholder thereof and/or the registered owner of the Vessel and/or the charterer to which Product has been delivered.
2.3. Seller. Inshore S.A., its servants, agents, assigns, sub-contractors and any and all other persons acting under the Company’ s instructions in fulfilment compliance or observance of the sale Agreement.
2.4. Order Confirmation. The Company’s written confirmation of the Buyer’s order on the purchase of goods.
2.5. Due Date. The date specified in the Order Confirmation for the payment of the agreed revenue of the sale or, in the absence of such date the date of delivery. In respect of additional costs (e.g., customs dues, delivery charges etc.) the Due Date shall be seven days from notification to the Buyer of such costs.
2.6. Physical Supplier. The manufacturer of the goods, or person/entity that physically supplies the goods to the Buyer or to the Vessel and shall include the Physical Supplier’s servant, agent, successors, sub-contractors and assigns. The Physical Supplier may also be the Company.
2.7. Place of Supply. Unless otherwise agreed all sales shall be on “ex works” basis and the place of supply shall be the premises of Physical Supplier, where the Buyer shall be taking delivery, either directly, or through forwarders appointed, instructed and paid by the latter. The risk shall pass to the Buyer upon delivery of the goods at the premises of Physical Supplier.
2.8. Point of Delivery. The place where delivery of the goods is to be effected as per the Buyer’s instructions, at the Buyer’s risk and at the Buyer’s cost. Such place may be the Buyer’s premises, a port agent indicated by the Buyer, a receiving facility, a forwarder, or any other place/third party as the case might be.
2.9. Goods. The marine spare parts, goods, items, equipment, and materials of whatever type and description as specified in the Order Confirmation.
2.10. Commercial Invoice/Packing List. A document issued by the Seller with relation to the Goods, which is destined to by used by the Buyer solely for its transactions with the Customs authorities or other government bodies. If the prices referred to on such Commercial Invoices/Packing Lists differ from the ones referred to in the Order Confirmation, the latter shall apply and prevail. Commercial Invoices/Packing Lists might be issued by the Seller on occasion, at the Buyer’s request, for the Buyer’s sole benefit and at the Buyer’s sole responsibility.
3. HEADINGS. The use of headings and sub-headings is for convenience and elucidation only and do not form part of the Standard Terms.
4. ENTIRETY AND VALIDITY. The Standard Terms together with the Order Confirmation constitute the entire Agreement and supersede all prior oral or written agreements, representations and/or warranties. No derogation, addition or amendment to the Agreement shall be of any effect unless and until expressly confirmed in writing by the Company. If any provision of the Agreement shall to any extent be invalid or unenforceable the remainder of the Agreement shall not be affected thereby.
5. FORCE MAJEURE. The Company shall not be liable for any loss, damage, costs or expenses arising from the Company’s failure to fulfil or comply with any term or condition of the Agreement if fulfilment or compliance has been delayed, hindered or prevented by circumstances which exceed the immediate and reasonable control of the Company, including, but without limiting the generality of the foregoing, any acts of God, fires, floods, perils of the sea, war (declared or undeclared), hostilities, embargoes, sanctions, pandemics, accidents, strikes, lockouts or labor disputes or reasonable apprehension thereof, any government order, request or restriction, or acts in compliance with requests of persons purporting to act on behalf of a government authority, or any other similar causes, any limitation restriction or interruption to existing or contemplated sources of supply of the Goods and/or the means of supply and/or the means of delivery.
6. BROKERS AND AGENTS.
6.1 Unless the person or the entity which places the purchase order, declares to the Company in writing, prior to the dispatch of the Goods by the Company, that it is not the Buyer and at the same time provides in writing to the Company the full name, details and address of the Buyer, then the person or entity which has placed the order shall be deemed to be the Buyer.
6.2 Without prejudice to the provisions of clause 6.1, in the event that the person or the entity which has placed the purchase order is an agent of the Buyer then such person or entity shall be jointly and severally liable with the Buyer to perform the Buyer’s obligations under the Agreement, notwithstanding any that such person or entity purports to contract as a mere agent.
6.3 Notwithstanding the provisions of clause 10 and without prejudice to the provisions of clauses 6.1 & 6.2, in the event that the Goods are ordered for being used by, or scheduled to be delivered to a sea-going vessel (hereinafter the “Vessel”), the registered owner or the bareboat charterer of such Vessel, as the case might be, shall be the Buyer and, if not (for any reason whatsoever), they shall be jointly and severally liable with the Buyer to perform the Buyer’s obligations under the Agreement. The person or the entity which has placed the purchase order with the Company, shall be presumed to have full authority and power to bind the registered owner and/or the bareboat charterer of the Vessel in contract.
7. ASSIGNMENT. The Buyer shall not assign its interest in the Agreement without the prior written approval of the Company. The Company may assign alternatively, novate the Agreement and shall thereafter give notice to the Buyer. By entering into the Agreement, the Buyer hereby consents to any subsequent novation.
8. CANCELLATION AND BREACH. In the event that the Buyer, at any time, cancels a request for Goods, or fails to take delivery of part or all of the requested Goods for any reason, regardless of fault or causation, the Company shall have the right to pursue a claim against both the Buyer and the Vessel and the Buyer and the Vessel shall be jointly and severally liable for all losses and/or damages and/or expenses thereby suffered, including loss of profit. The Company may treat any other breach by the Buyer of any express term of the Agreement as a material breach and it may, at its discretion, accept the breach, treat the Agreement as being repudiated and seek such remedies as it considers appropriate.
9.1 The payment of the agreed revenue of the sale (as stipulated in the Order Confirmation) shall be paid in full and free from all bank charges and deductions, within the agreed credit period (if any) by wire-transfer to the bank account specified in the Company’s invoice.
9.2 In respect of all sums which are overdue the Buyer shall be liable to pay to the Company interest calculated at 2% per calendar month pro-rated and compounded on a daily basis from the Due Date until receipt by the Company of sufficient cleared funds. Accrued interest and costs and/or expenses incurred by the Company in requesting payment of outstanding amounts will be added at monthly intervals to and become part of the outstanding sum. In the event that this contractually agreed rate of interest is in excess of that permitted by relevant law there shall be substituted the maximum rate so permitted. 9.3 In case of multiple sales and/or purchase orders and regardless of any allocation stipulated by the Buyer upon making any payment, the Company shall be entitled to apply payments received from the Buyer in any way that it considers appropriate, including allocation of the receivables firstly to accrued interest, which will always be deemed to have been paid first.
10. LIENS. Where Goods are supplied to a Vessel, in addition to any other security, the Agreement is entered into and the Goods are supplied upon the faith and credit of the Vessel itself. It is agreed and acknowledged that a lien over the Vessel is thereby created for the Price of the Goods and that the Company has agreed to sell the Goods by relying upon faith and credit of the Vessel. The Buyer, if not the registered owner of the Vessel (namely the manager, agent, charterer, bareboat charterer etc.), hereby expressly warrants that he has the authority by the owner to pledge the Vessel’s credit as aforesaid and that he has given notice of the provisions of this clause to the owner. The Company shall not be bound by any attempt by any person or entity to restrict, limit or prohibit its lien or liens attaching to a Vessel unless notice in writing of the same is given to the Company before it sends its Order Confirmation to the Buyer.
11. INDEMNITY. The Buyer hereby indemnifies the Company against any claim for injury and/or death occurring to any person and/or all damage and/or damage to any property and against all actions, suits, claims, security measures, demands, costs, charges or expenses arising in connection therewith to the extent that the same shall have been occasioned by the negligence of or arising out of or in connection with the Agreement.
12. LIABILITY. The Company shall not be liable to the Buyer for any loss or damage including loss of profit, loss of time (including but not limited to hire, demurrage or detention or any other consequential loss whatsoever arising from any cause whatsoever) whether in contract tort or otherwise including the negligence of the Company, its servants, agents or sub-contractors.
13. COMPENSATION. Without prejudice to the provision of clause 12, in the event that the Company is found to be liable to the Buyer, the total amount payable by way of compensation other than in respect of personal injury or death shall not exceed the Price (excluding Further Costs, interest and other charges payable by the Buyer) of the Goods supplied under the Agreement. It is pre-condition to the payment of any compensation by the Company that all sums due to the Company from the Buyer are first paid and settled.
14. APPLICABLE LAW AND JURISDICTION.
14.1 This Agreement and any disputes arising out of or in connection with it concerning the interpretation and/or the validity of these Standard Terms and/or the creation, existence, validity, extent, nature, construction and interpretation of a maritime lien over the Vessel, shall be governed by and construed in accordance with the substantive laws of the United States of America, including but not limited to the Commercial Instruments and Maritime Lien Act, which shall always apply.
14.2 All claims and disputes, arising under or in connection with the Agreement, shall be referred to the exclusive jurisdiction of the competent Greek Courts of the City of Piraeus.