Terms & Conditions

General Terms and Conditions of Sale

Definitions

1.1 “Buyer” means the party or parties, jointly and severally, named on the Order Confirmation for whose account the sale has been contracted. The Buyer shall always include the Owner, or, if applicable, the Disponent Owner.

1.2 “Containers” mean intermediate bulk containers (IBC), drums or any other sealed containers or segregated units.

1.3 “Contract” means an Order Confirmation or any other agreement between the Seller and the Buyer for the supply of Energy Products, always subject to these T&Cs.

1.4 “Disponent Owner” means any party contracting with the Owner to charter or otherwise commercially dispose of the Vessel, typically a bareboat/demise charterer, or any other party who controls the Vessel and enjoys the benefit thereof under a similar arrangement.

1.5 “Energy Products” means the Seller’s different grades of heavy fuel, diesel, gasoil and lubricating oils and any other products and/or services offered for sale by the Seller.

1.6 “End User” means the party who ultimately purchases, uses or consumes the product, e.g. the Vessel’s owner, charterer, operator, commercial manager, etc.

1.7 “Intermediary” means trading companies, entities or persons that enter into an agreement as a buyer of the Energy Products for the purpose of reselling the products to an End User or to another intermediary.

1.8 “Order Confirmation” means a written confirmation issued by the Seller to the Buyer in respect of an order placed by the Buyer and/or confirmation of a similar agreement.

1.9 “Owners” means the registered owner(s) of the Vessel and any party or parties with actual ownership.

1.10 “Payment Interference” means confiscation, freezing, detainment, arrest, stoppage, blocking of funds or any other interference exercised by banks, courts, public authorities or otherwise (and whether or not such interference is justified).

1.11 “Physical Supplier” means Malik Energy A/S or a third party supplier appointed by the Seller to deliver the Energy Products to the Vessel, as applicable. Malik Energy A/S is both Seller and Physical Supplier.

1.12 “Sanctions Regulations” means any export or import controls, embargos, trade restrictions, listing of persons or entities, asset freezing, prohibitions to sell, purchase, import, export, transfer or transport, or any other economic or trade sanctions adopted by the United Nations, the European Union or any Member State of the European Union, the United Kingdom and the United States of America or any other jurisdiction where the Seller delivers Energy Products or otherwise carries out business.

1.13 “Seller” means Malik Supply A/S, Malik Energy A/S or any of their servants, officers, agents, brokers, designated representatives and their subsidiaries or affiliates, wherever applicable.

1.14 “T&Cs” means these General Terms and Conditions.

1.15 “Vessel” means the vessel, rig, platform, storage unit or other installation or unit whether floating or not to which the Energy Products are delivered under the Contract.

Scope

2.1 Integral part. These T&Cs shall always apply to supplies of Energy Products and constitute an integral part of any offer, quotation, order, agreement, service, Order Confirmation and/or Contract setting out the legal terms of the Seller’s supply of Energy Products, even if the Seller has not referred in terms to the T&Cs in the Order Confirmation. These T&Cs are made known to any Buyer on the Seller’s website and will be sent in pdf-copy via email to the Buyer upon request. Subject to clause 2 below, these T&Cs and the Order Confirmation embody all the terms and conditions applicable to the Contract and supersede and cancel in all respects any previous conditions by the Seller.

2.2 No amendment. The Seller shall not be bound by, and the Buyer may not rely on, any statement, representation or warranty, collateral or other piece of communication to the extent that would amount to an amendment from these T&Cs, unless and always provided a senior officer or member of management of the Seller (who cannot be a bunker trader), or the Seller’s legal desk, confirms the amendment in writing.

2.3 Severability. If any part(s) of these T&Cs are rendered invalid that shall not prejudice or limit the validity of the remaining T&Cs or of any Contract made between the Seller and the Buyer. If any provision of the Contract is held to be invalid, void or unenforceable, that will not affect the validity, legality or enforceability of any other provision of these T&Cs or any other rights of the Seller under the Contract.

2.4 No waiver. Failure by either party at any time to enforce any part of these T&Cs shall not be deemed a waiver of rights by such party and shall not in any way affect the validity of these T&Cs.

2.5 Whole agreement. Together with the Order Confirmation, these T&Cs constitute the whole agreement made between the Seller and the Buyer, and the Buyer may not rely on any pre-contractual or post-contractual statement, representation or warranty, collateral or other piece of communication to the extent that prejudices the Seller’s rights under these T&Cs. No amendment of these T&Cs shall be binding on the Seller unless confirmed in writing by the Seller pursuant to clause 2.

Liability for payment and acceptance of these T&Cs

3.1 Acceptance by the owner. All orders of Energy Products are deemed to have been made under instruction from the Master of the Vessel acting as an agent of the Owner. The Owner accepts that the Master (or any other officer or representative of the Vessel), by signing and/or stamping the bunker delivery note(s) or other similar document, shall be deemed to have full authority on behalf of the Vessel and her Owner to take delivery of the Energy Products and to accept these T&Cs on behalf of the Owner. The Buyer warrants that these T&Cs are communicated to the Owner, that the Buyer is authorized as an agent to order the Energy Products for and on behalf of the Vessel and the Owner and that the Seller has a maritime lien on the Vessel in accordance with the applicable law (see clause 1 below).

3.2 Disponent Owner. If, at the time of delivery of the Energy Products, the Vessel is under the control of a Disponent Owner, the Disponent Owner shall be deemed liable for payment as party to the Contract in the Owner’s stead even if not named as a Buyer under the Contract and regardless of whether the agent acting for the Disponent Owner when ordering the Energy Products from the Seller has disclosed the existence and/or identity of the Disponent Owner. This clause only applies if the Disponent Owner has agreed under its contract with the Owner to be liable for the supply of Energy Products to the Vessel. If this clause applies, any references to “Owner” in these T&Cs shall apply mutatis mutandis to the Disponent Owner.

3.3 “No-lien stamps”. When the master of the Vessel (or any other person authorized by the Owner) is handed the bunker delivery note for signature on behalf of the Vessel it shall not be permitted to make any endorsements, complaints or comments (such as the insertion of ‘’No-lien’’ clausing) on the bunker delivery note, and any such clausing shall be without legal effect. This clause 3 reflects the contractual principle that the Energy Products are delivered to the Vessel for account of the Owner and that the Vessel is authorized by the Owner to purchase and take delivery of the Energy Products for the Owner’s account.

3.4 Agents. When the Seller’s Order Confirmation states that the sale is for account of a party, that party shall be deemed to have transacted as principal and shall be the Buyer and be jointly and severally liable to settle payment with the Owner. The Buyer shall be liable and may not be excused from liability by relying on ex-contractual statements (e.g. in correspondence) saying that it transacts as agent only.

Terms for offers and Contracts

4.1 Formation of Contract. The Seller’s Order Confirmation is evidence of the terms of the Contract agreed between the Seller and the Buyer and the Contract is binding when Seller issues the Order Confirmation to the Buyer. The Seller shall be entitled to issue amended Order Confirmations recording variations agreed with the Buyer. If, for any reason, the Buyer takes delivery of Energy Products from the Seller without having been provided with an Order Confirmation, a Contract shall be deemed to have been formed, incorporating these T&Cs, at the time of delivery.

4.2 Quotations, offers and estimates. The Seller’s offers, quotations and estimates of prices and other costs are to be understood as being conditional and subject to availability and alteration.

4.3 Approximate prices, values and information. Unless otherwise expressly provided for in the Order Confirmation, the Seller’s descriptions of its products and/or services (e.g. analytical data, delivery times, names of delivery vessels, specifications of the Energy Products, etc.) and all documents to which the Buyer has been given access shall be deemed to contain only approximate values pursuant to trade custom and do not constitute undertakings or warranties. The Seller further reserves the right to alter such descriptions or documents, and the Seller’s offers and quotations are conditional upon availability and subject to unilateral right of alteration.

4.4 FoB and Incoterms. The Energy Products are always delivered on FoB terms unless another Incoterm is expressly stated in the Order Confirmation. References to FoB or other Incoterms shall be deemed to have the meaning contained in the most recent edition of the Incoterms. This clause and any applicable Incoterms shall always be subject to, and be deemed varied in accordance with, clause 13 below.

Prices, Invoicing, Payment, Interest, Legal and Collection Costs, Allocation

5.1 Prices. The Buyer shall pay the agreed prices as set out in the Seller’s Order Confirmation and invoice. If the price has not been agreed in advance of delivery, the Buyer is obligated to pay the price offered by the Seller at the place and date of supply as stipulated in the invoice(s) sent by the Seller.

5.2 Additional expenses and costs – customs, VAT and other taxes. The Buyer shall pay any expenses and costs in addition to the price of the Energy Products, such as barging, overtime, demurrage, detention, costs owing to delay, wharfage, dockage, port/harbor/agency fees, dues, duties, excise taxes, sales taxes, environmental taxes or fees, VAT, customs, levies and any other similar costs, including but not limited to those imposed by governments and local authorities and regardless of whether now or hereafter imposed, levied or assessed ("Additional Expenses”). The Buyer shall always pay any Additional Expenses promptly upon receiving the Seller’s invoice even if the Additional Expenses are not recorded in the Order Confirmation. Additional Expenses which arise pursuant to local law and/or local custom at the place of supply and are invoiced by the Physical Supplier to the Seller and paid by the Seller to the Physical Supplier shall be presumed validly imposed by the Physical Supplier in accordance with local law and/or local custom. The Buyer may discharge this presumption and bears the burden of proof in arbitration.

5.3 Due date for payment. Payment shall be received by the Seller in full no later than on the due date stated in the Seller’s invoice free of bank charges and other cost, which the Buyer shall not be permitted to set off.

5.4 Currency. Unless otherwise specified in the Order Confirmation or in the Seller’s invoice, prices shall be in US dollars and shall represent only the purchase price for the Energy Products (typically quoted in USD per metric ton). In case of a Payment Interference, or if the Seller has reason to believe that a Payment Interference will occur, the Seller shall be entitled to demand payment into the Seller’s account in a different currency than US dollars, with the applicable currency conversion rate to be set by the Seller, acting reasonably.

5.5 No set-off. Payment shall be made in full, without any set-off, deduction and/or discount, unless agreed in writing prior to payment being made. The Buyer’s submission of any claim against the Seller does not relieve the Buyer of its obligation to make full payments as required under the Contract and such claim does not grant the Buyer any right of set-off.

5.6 Interest and administration charges. If payment is not received by the Seller on the due date the Seller is entitled to interest at the rate of 3 (three) percent per month compounded each month pro rata without prejudice to any other rights or remedies available to the Seller. The Seller shall also be entitled to charge a delayed payment administration fee of USD 5.00 per metric ton supplied with a minimum administration fee of USD 1,000.00.

5.7 Legal and Collection costs. Any costs incurred by the Seller due to a breach of the Buyer shall be solely for the Buyer’s account. If the Buyer fails to make payment in full on the due date or otherwise breaches the Contract, the Seller may without notice take legal action (such as ship arrest and/or arbitration) to collect the overdue payment. Any and all costs that the Seller reasonably incurs as a consequence of the Buyer’s breach shall be indemnified by the Buyer upon demand from the Seller. These costs and expenses include, but are not limited to, interest charges, internal costs, and external costs such as expenses to lawyers, debt collectors, arbitrators or other consultants, court fees, costs for translating documents, bailiff’s or Marshall’s fees and any collection costs of whatsoever nature. These costs shall be indemnified by the Buyer to the Seller, and the Seller may invoice those costs from time to time.

5.8 Allocation of payments. All payments received by the Seller shall be applied to settle, first, any overdue interest and administration charges (accrued in accordance with clause 6 above), then, to any collection costs incurred (such costs to be indemnified by the Buyer as set out in clause 5.7 above), and, then, to principal.

5.9 Anticipatory breach. If the Buyer’s right to possession of the Energy Products ceases as provided for in clause 3, the Seller shall be entitled to demand all payments settled immediately, whether or not such payments have fallen due under the Seller’s invoice.

Quality and Samples – claims

6.1 Quality. The agreed quality shall always be limited to the quality description set out in the Order Confirmation; for instance, by reference in the Order Confirmation to the quality standard term ISO 8217:2017, which is mentioned in this clause only as an illustrative example. If the Order Confirmation does not contain any such quality standard term, the Energy Products shall be of the quality that is generally offered by the Seller to its customers at the time and place of delivery and subject to availability. Absent any special agreement, lubricating oils, additives and similar products are sold and supplied by reference to the technical specification (data sheet) published by the producer at the time of entering the Contract.

6.2 No implied warranties. Any implied conditions, obligations and warranties – including warranties for merchantability, fitness for a particular purpose and/or any similar warranty or implied condition – are expressly excluded and disclaimed and shall not apply to the Contract. Clause 5 pursuant to ISO 8217:2010 (or any later version agreed) shall not apply.

6.3 The Buyer’s responsibility. The Buyer, having greater knowledge than the Seller of the Buyer’s own requirements and needs, shall have the sole responsibility for the prior selection of grade(s). The Order Confirmation shall be deemed to describe the type of Energy Products requested by the Buyer, and the Buyer shall immediately upon receipt of the Order Confirmation notify the Seller of any wrongful description in the Order Confirmation. Unless the Buyer promptly notifies the Seller of such wrongful description, the Order Confirmation shall be binding on the Buyer. It is the Buyer’s duty to ensure that any lubricating oils or similar products, additives or other Energy Products are compatible for use with the Vessel’s machinery, compressors, bearings and circulation systems, gear systems, hydraulic systems, etc.

6.4 Agreed procedure for sampling and analysis (testing) of samples. The following clauses shall exclusively govern the taking of samples and the analysis (testing) of such samples:

1. During delivery, a primary sample shall be drawn at a point as close as possible to the bunker barges/the delivery facility’s manifold and in accordance with the rules and procedures of IMO resolution MEPC.182(59) (Guidelines for the Sampling of Fuel Oil for Determination of Compliance with MARPOL 73/78 Annex VI or any subsequent amendments thereto). The primary sample must be thoroughly mixed and divided into at least four (4) identical samples, one of which is the MARPOL-sample, one of which is given to the Vessel and one of which is given to the Physical Supplier. Any additional samples that the Buyer may draw are not representative of the quality of the product and can only be used for the Buyer’s own purposes, which are irrelevant to the Seller.
2. Sampling shall be witnessed by both the Buyer and the Seller, or their representatives. Failure of the Buyer to attend the sampling process shall not prejudice the validity of the samples.
3. The samples must be sealed with a security seal and provided with a label containing information on the name of the Vessel and the bunker barge/delivery facility, a specification of the product delivered, the date of delivery, place of delivery and seal number. The seal numbers for the samples taken must be stated in the bunker delivery note, and the parties declare by their signature to the BDN that the samples have been validly taken in conformity with the guidelines in these T&Cs.
4. In the event of a dispute regarding the quality of the Energy Products delivered, no other samples than the sample drawn pursuant to clause 4A, and which is kept by the Seller and/or the Physical Supplier, may be tested, unless the parties specifically have agreed otherwise. This sample shall be forwarded to an independent laboratory that analyses the content of the sample and performs a set of tests based on a testing protocol agreed by the parties, or, in the event of disagreement, the Seller’s testing protocol. In order to avoid uncertainty of evidence, the analysis undertaken by the laboratory shall not include other parameters for the quality of the Energy Products than the parameters specified in ISO 8217:2017, Table 1 and 2 (or equivalent, if the parties in the Contract have agreed to any other version of the ISO 8217 standard). It is emphasized that in case the Buyer unilaterally draws samples or conducts testing, any such samples and/or test results cannot validly be used as evidence in arbitration; see also clause 6.4 G below. As provided for in Annex B of ISO 8217:2017 (or any other agreed edition of ISO 8217), identifying and determining a concentration of a material that causes the fuel to be unacceptable for use is difficult, and it is not practical to conduct a detailed chemical analysis beyond testing for compliance with the characteristics. Some ship owners routinely include detailed chemical analysis (such as FTR and GC-MS test methods) in fuel testing programs. The Buyer accepts that such test methods are speculative and do not aid in evidencing compliance with the Table 1 or 2.
5. The parties are to use best endeavors to agree on the independent laboratory to perform the tests. If the parties have not reached an agreement on the choice of laboratory within 7 calendar days from the date on which one of the parties requested testing, the Seller is at liberty to send the sample mentioned in clause 4 D to a reputable and independent laboratory of its choice to carry out such tests as are mentioned in the Seller’s testing protocol. THE TEST RESULTS WILL BE FINAL AND BINDING UPON THE PARTIES WITH RESPECT TO THE PARAMETERS ANALYSED.
6. The samples’ seal may only be breached in the presence of both parties, unless the Buyer (or its representative) fails to be present after being notified of the place and time for the testing. The seal may also be breached without both parties being present, if the Seller – in cases where the parties have not been able to agree on the choice of laboratory and/or the testing protocol (as mentioned above) – sends the sample to an independent laboratory for testing in accordance with the clauses above. Both parties shall have the right to appoint independent surveyor(s) to witness the seal breaking and testing.
7. Samples and tests which are not drawn/conducted in accordance with the procedure described above CANNOT BE USED AS EVIDENCE for the quality of the Energy Products. The Buyer is thus not entitled to submit its own test results in arbitration. The fact that such samples may bear the signature of personnel on board the bunker barge/delivery facility shall have no legal significance since such personnel has no authority from the Seller to deviate from these T&Cs. The purpose of this clause is to ensure that an alleged claim for deficient Energy Products is settled under simple and predictable guidelines and to avoid the taking of conflicting evidence based on non-representative samples.
8. If the seal on a sample is broken, the sample in any other way has been tampered with, or if attempted tampering is obvious, any such sample shall have no evidentiary value.
9. The Buyer shall never be entitled to remove the Energy Products (debunker) unless preapproved in writing by the Seller and always provided that the Seller’s and the Physical Supplier’s instructions are strictly adhered to. The Seller may assist in obtaining prices from other suppliers who are willing to purchase the debunkered Energy Products, provided that the purchase price corresponds to the value of the Energy Products. The Energy Products cannot be sold at a price below what is acceptable to the Seller, as the Buyer is obligated to mitigate the loss as much as possible. All costs and expenses related to debunkering, storage, etc., shall always be borne by the Buyer.
10. The Parties shall agree to follow the claims process annexed hereto.

6.5 Lubricating oil. For the sale of lubricating oils, additives and similar Energy Products it has been agreed (i) that clause 4 does not apply as the quality of the lubricant must live up to the manufacturer's fact sheet or other technical description of the product issued by the manufacturer, which may be provided by the Seller upon request; (ii) in the event of a dispute relating to the quality of the lubricating oil delivered, the Buyer shall prove that the product was delivered by the Seller and joint testing shall be carried out on unopened Container(s) on board the Vessel in accordance with the manufacturer's testing and in compliance with the Seller's instructions.

6.6 Quality claims – notification and time bar. The Buyer or the Vessel must notify the Seller of any claims relating to the quality of the Energy Products without delay and AT THE LATEST WITHIN FOURTEEN (14) DAYS AFTER COMPLETION OF DELIVERY. The notification must be in the form of a written letter of protest with full supporting documentation. If the Buyer or the Vessel fails to present such letter of protest to the Seller within the mentioned timeframe, the buyer’s claim shall be extinguished as non-existent and the Buyer shall be deemed to have expressly waived any such claim against the Seller. In addition, any and all claims of the Buyer that have been notified to the Seller in due time shall become time-barred unless arbitration has been commenced as per clause 19 below within 6 (six) months from the date of delivery.

6.7 Determination of quality – evidence. Any claims relating to quality shall be solved amicably or in arbitration in accordance with clause 19 The evidence obtained under the procedure that governs the taking of samples and the testing of such samples (the full procedure is detailed in clause 6.4 above) shall be final and binding on the parties and shall accordingly be conclusive for the arbitral tribunal’s decision with respect to the evidence relied on by the tribunal to assess quality.

6.8 Use of own Containers. The Buyer may not make any quality claim if the Energy Products have been transported or stored in Containers not provided or approved by the Seller, unless the Buyer can prove that such use of own containers is not the root-cause of the alleged quality deficiency.

6.9 No liability for commingling. The Seller’s potential liability ceases in circumstances where the circumstances indicate that the Buyer has commingled the Energy Products on board the Vessel with other fuel products.

6.10 Reproducibility or repeatability. ISO 4259 and as provided for in ISO 8217:2017 (or any other agreed quality standard for the Products supplied) shall apply. To the extent that the components/parameters detected during testing are within the allowed tolerances in respect of reproducibility or repeatability as set out in ISO 4259 the Energy Products shall be deemed to be on-specification and conforming to the Contract.

6.11 Duty of mitigation. The Buyer and the End User shall mitigate their losses and minimize the consequences of the Vessel receiving defective Energy Products, e.g. by using additives, diluting the Energy Products and/or heating the Energy Products, or otherwise treating the Energy Products as to ensure that the Energy Products may be used for the propulsion of the Vessel. The Buyer and the End User are at all times required to treat and handle the Energy Products according to current standards, including the standards set out in ISO 8217:2017, Clause 1 Scope ("conventional onboard treatment (settling, centrifugation, filtration) before use”) (or any other agreed version of ISO 8217).

Quantity – claims

7.1 All quantities referred to in the Contract are understood to be approximate with a margin of 10 per cent more or less in the Seller’s option.

7.2 Determination of quantity – evidence. The quantity of the Energy Products delivered shall be determined solely from the information on quantity inserted into the bunker delivery note, or, if the BDN has not been signed, a Mass Flow Meter (if applicable) or the official gauge/sounding of the delivering barge, road wagon, or rail tank car, delivery note for drum deliveries, or by gauging in the Seller’s shore tank or by the Seller’s oil meter, at the Seller’s election. The Buyer is entitled to be present or represented by a properly accredited agent or surveyor when quantity measurements are taken. If the Buyer is not present or represented, the Seller’s determination of quantities shall be final and binding on the parties. Quantity calculations based on the Vessel’s own soundings shall not be considered.

7.3 Quantity claims – notification and time bar. Unless the Buyer or the Master of the Vessel immediately and prior to signing the bunker delivery NOTE claims a short supply or other quantity deficiency, the claim shall be extinguished as non-existent and shall be deemed to have been waived and absolutely barred. In addition, any and all claims of the Buyer that have been notified to the Seller in due time shall become time barred unless arbitration has been commenced as per clause 19 below within 6 (six) months from the date of delivery.

Delivery and Risk of Delay

8.1 Approximate times. The time of delivery stated by the Seller is an approximate time.

8.2 72 hours’ notice. The Buyer shall always notify the Seller at least 72 hours (Saturday, Sunday and local holidays excluded) in advance of the Vessel’s readiness to take delivery. This duty of the Buyer shall ensure that the Seller has ample time to make the necessary preparations with respect to delivery.

8.3 Range for delivery. The Order Confirmation includes the earliest estimated time of the Vessel’s arrival (ETA) as advised by the Buyer. The Vessel shall always begin to take delivery within the ETA provided for in the Order Confirmation. If the ETA listed in the Order Confirmation exceeds 3 (three) calendar days, the Vessel shall always begin to take delivery of the Energy Products within the first 3 (three) calendar days. The Contract price shall be valid only for deliveries begun within the ETA stated in the Order Confirmation, or, within the 3 (three) calendar day-period if the ETA as informed by the Buyer exceeds 3 (three) calendar days. If the Buyer takes delivery or requests delivery to begin later, the Seller shall – without prejudice to the Seller’s potential claim against the Buyer – be entitled to amend the agreed price(s) under the Contract.

8.4 Failure to take delivery. If the Buyer fails to take delivery of the Energy Products within the agreed time frame, the Seller shall be entitled, at the Buyer’s risk and expense, either, to transport the products back to storage, or, to sell the products at the price available in the market and claim damages against the Buyer, without prejudice to the Seller’s other rights. The Seller shall also be entitled to charge a minimum cancellation fee of 5 (five) percent of the agreed prices.

8.5 Delivery circumstances permitting. The Vessel shall be bunkered as promptly as the prevailing circumstances permit, having regard to circumstances such as weather, ship traffic, congestion and bunker barge/delivery facility’s accessibility and other delays caused by local authorities and other local conditions. The Seller and/or the Physical Supplier shall not be liable for any time lost or other consequences of the bunkering not commencing or being completed. The Seller shall not be obligated to deliver prior to the ETA.

8.6 Shortage of supply. If the Seller anticipates any shortage of supply at the agreed place for delivery, the Seller may allocate its available and anticipated supply among its buyers in such a manner as it may in its sole discretion determine, acting reasonably. The Buyer may raise no claim against the Seller in these circumstances.

8.7 Buyer’s fault. The Buyer shall be in breach of contract and be liable accordingly for having caused delay.

8.8 Permitted tanks only. The Seller shall not be required to deliver the Energy Products into any of the Vessel’s tanks which are not permitted for use with such products or which are not normally used for such product. The Buyer may use own Containers on its own risk.

8.9 Port Licenses and permits. The Buyer and the Vessel shall comply with requirements of local authorities and facilitate a smooth delivery. If the Buyer fails to comply with such requirements, the Buyer shall be deemed to have breached the Contract. The Seller is entitled to cancel and/or stay delivery if any customary requirements, or requirements/permit by local authorities, are not met or obtained in due time before delivery.

8.10 Modes for delivery. Delivery shall be made either from a shore terminal, by barge, truck or by any other accredited method of delivery. If one, or more than one, method of delivery is available, The Seller may at its discretion select one, provided that the Seller does not breach its obligations under the Contract.

8.11 The Buyer’s obligation to provide a safe berth, position or anchorage. The Buyer shall provide a clear and safe berth, position or anchorage alongside the Vessel’s receiving lines from where the Seller and the Physical Supplier may deliver the agreed quantity at no extra costs. The Seller and/or the Physical Supplier has the sole discretion to determine if such berth, position or anchorage is available. The Buyer shall indemnify the Seller against all claims, expenses, loss, damage, demurrage or delay, or similar, caused by the Buyer’s failure to provide a safe berth, position or anchorage.

8.12 Assistance from the Buyer. The Buyer shall make all connections and disconnections between pipelines or delivery hoses and Vessel’s intake lines and shall render all necessary assistance that is necessary to perform delivery. The Buyer must also ensure that the Vessel has the necessary equipment and sufficient tank capacity to take prompt delivery of the agreed quantity of Energy Products.

8.13 Transfer of risk. The Energy Products shall be delivered, and all risks in and liabilities arising from the Energy Products, shall be deemed transferred to the Buyer, (a) once the Energy Products have passed the flange connecting the pipelines or delivery hoses of the supply barge with the intake lines of the Vessel, or (b) in case of any other mode of delivery, such as Energy Products delivered in Containers, once the Energy Products have landed from the delivery vehicle to the ground at the agreed point or place of delivery (whether (i) on the quay or at any other point of land near to the Vessel, (ii) at any terminal, storage or warehouse facility designated by the Buyer, (iii) in the custody of the Vessel’s local agent, (iv) in case of delivery using lifting equipment operated by the Seller or the Physical Supplier, when the Energy Products are landed on the deck of the Vessel, or (v) if delivered by using lifting equipment operated by any other party, when the Energy Products are lifted off the deck of the barge or off the delivery vehicle).

8.14 Bunker Delivery Note. The master, or other authorized representative of the Vessel, shall confirm the delivery on behalf of the Vessel and the Buyer by signing a bunker delivery note provided by the Physical Supplier. The Seller may assume that the Buyer’s representative signing the BDN is duly authorized. The Seller shall not be deemed to have any constructive knowledge of the authority or lack of authority of any purported local representative of the Buyer and shall be under no duty to verify authority of such purported representative.

8.15 Normal working hours. Delivery shall be made during normal working hours. Unless otherwise agreed, deliveries outside normal working hours shall be subject to additional costs, which shall be borne by the Buyer.

Health, Safety and Environment

9.1 Requirements. It shall be the sole responsibility of the Buyer to comply with, and to advise its personnel, agents and/or customers to comply with, all health, safety and environmental requirements applicable to the handling of the Energy Products, both before and after delivery. The Seller accepts no responsibility for any consequences arising from the Buyer’s failure to comply with such requirements. The Buyer acknowledges that it is knowledgeable of the hazards inherent in the Energy Products and shall protect, indemnify and hold the Seller harmless against any claims and liabilities incurred as a result of the Buyer’s failure to comply with the aforementioned requirements.

9.2 Environment and duty of mitigation. The Seller and the Physical Supplier shall bear no risk of harm to the environment. In the event of any leakage, spillage, overflow of the Energy Products causing, or likely to cause, harm to the environment, the Buyer shall, regardless as to whether the Buyer, the Seller or any third party is responsible, immediately take such action to limit the damage and, as is necessary, to effectuate clean up. If the Buyer fails to take prompt action, the Buyer (who hereby warrants that it has been authorized by the Vessel’s Owner) hereby authorizes the Seller to take all reasonable measure(s) which the Seller deems necessary to efficiently clean up and restore the environment at the Buyer’s cost and expense, acting reasonably. The Buyer shall defend, indemnify and hold the Seller and/or the Physical Supplier harmless against any claim or liability arising out of any leakage, spillage or overflow. This clause does not apply if environmental harm is caused by the Seller’s and/or the Physical Supplier’s gross negligence, it being understood that the Seller has no liability in contract, tort or otherwise for acts and omissions of the Physical Supplier or any person acting on behalf of the Physical Supplier.

9.3 Dangerous Goods. The Seller may from time to time deliver Energy Products that constitute dangerous goods (hazardous material). The Buyer is solely responsible for selecting these goods and assumes all risks in receiving and handling such goods. Clause 2 shall apply mutatis mutandis hereto, except that “gross negligence” shall be replaced with the “Seller’s recklessness committed with the intention of causing loss”.

9.4 Regulations. The Buyer warrants that the Vessel at all material times complies with all applicable national and international regulations. It shall be the responsibility of the Buyer and the master of the Vessel to notify the Seller of any condition or defects in the Vessel which could adversely affect delivery.

Indemnity

10.1 The Buyer shall defend, indemnify and hold the Seller harmless with respect to any and all liability, loss, claims, expenses or damage the Seller may suffer or incur by reason of, or in any way connected with, the fault or default by the Buyer and/or its agents in the purchase of, receipt, use, storage handling or transportation of the Energy Products in connection with each transaction.

Warranty

11.1 Seller’s warranty. Subject to clauses 2, 11.3 and 11.4, the Seller warrants that at the time of delivery the Energy Products conformed to the Contract and were delivered with reasonable skill and care.

11.2 The Buyer’s remedy for the Seller’s breach of warranty. In the event of a breach by the Seller of the warranty in clause 1, the Seller shall only be obliged (and shall have no further liability in contract, tort, law or otherwise) at its option either to:

1. Credit the price (if already paid) attributable to the non-conforming products; or
2. Replace and/or redeliver the non-conforming products, provided that any products are returned to the Seller in their delivered state at the Buyer’s expense. The Seller shall not be responsible for debunkering, nor for storage, transportation, customs clearing and/or any other precondition necessary to return the non-conforming products.

This clause 11.2 shall be the Buyer’s sole remedy for breach in lieu of any other rights and remedies which might otherwise have been available to the Buyer under law. Any repair, rectification or replacement of the products can only be performed on the terms set out in this clause 11.2. The Seller will assist the Buyer in obtaining best possible prices from the suppliers at the place of debunkering.

11.3 No liability beyond warranty. The Buyer accepts that the Seller has no further liability beyond the warranty that the Seller undertakes pursuant to the preceding clauses and that the Buyer may not exercise any other remedies for breach beyond theses clauses.

11.4 Exclusions from the scope of warranty. The warranty given under these clauses will not apply:

1. Where the warranty claim arises from normal wear and tear, the Buyer’s willful damage or willful misconduct, the Buyer’s negligence, abnormal working conditions, use for unintended purpose, misuse, abuse or lack of maintenance;
2. If the Buyer fails to comply with the Seller’s and/or the Physical Supplier’s specific advice or general instructions (whether oral or in writing);
3. If the Energy Products supplied are debunkered, unless the Seller has accepted debunkering in advance;
4. If the Buyer has not notified the Seller of the warranty claim within 14 days after the time the Buyer discovered, or ought to have discovered, the material circumstances which gave rise to the claim; or
5. In the event the Buyer has not complied with the notification and time-barring provisions set out in clauses 6 and 7.3 above.

Limitation of Liability

12.1 Limitation of liability. Considering that the Seller undertakes certain warranty obligations (as set out in clause 11), the Seller shall be under no liability whatsoever to the Buyer for any loss, damage, delay or expense incurred of whatsoever nature, whether direct or indirect – including but not limited to – (i) any loss of profit, hire, time, demurrage, detention, towage, business contracts, trading, revenues or anticipated savings, or (ii) for damage to the Buyer’s reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) for any special, indirect, consequential or incidental loss or damage of any nature whatsoever.

12.2 Liability cap. The Seller’s liability shall never exceed the lowest of (i) USD 500.000 or (ii) the AGREED price for the Energy Products.

12.3 Data Protection. The Seller shall in no event be held liable for having disclosed any data or information of any kind whatsoever, including, without limitation, in compliance with rules of law, market rules or trade custom.

12.4 Cyber risks. The Seller shall in no event be held liable for any reduction in the functionality, any breakdown, alteration, termination, damage to, intervention in (hacking or similar) or lack of access to the internet or other forms of tele- or datacommunication, computer systems, hardware, applications, software, data, microprocessor(s), integrated circuits or networks or similar computer- and not computer-related devices, whether or not owned or in the possession of the Seller, the Buyer or a third party. This includes any hacking of invoices. Such cyber risks are not within the control of the Seller and are assumed by the Buyer.

12.5 Validity and enforcement of limitation of liability clauses. The Buyer accepts that the clauses herein which limit the Seller’s liability are valid even for claims arising from the Seller’s own negligence, whether simple or gross, or that of the Seller’s agents or subcontractors. Only if damage or loss is caused intentionally shall the Seller not be contractually entitled to limit or exclude its liability under the Contract.

The Seller’s right of cancellation

13.1 Cancellation. Without prejudice to any other remedies and rights under the contract, the Seller may cancel the Contract, shall have no liability and may store or procure the storage of the Energy Products for the account and risk of the Buyer and may charge the Buyer the expenses thereby incurred or take any other measures which the Seller deems appropriate, including claiming damages, in any one of the following cases:

1. The Buyer, for whatever reason, fails to take timely delivery of the Energy Products, in whole or in part, at the agreed place for delivery; or
2. the Buyer fails to pay any amount due to the Seller or otherwise is in breach; or
3. it becomes apparent in the reasonable opinion of the Seller that the financial position of the Buyer entails a risk to the Seller; or
4. the Buyer is declared bankrupt; or
5. the Buyer enters into any other form of insolvency proceedings, such as US Chapter 11 proceedings or similar proceedings in other jurisdictions, such as rehabilitation or reconstruction proceedings, compulsory agreements with creditors, suspension of payment or any other form of proceedings in contemplation of a structural debt arrangement being made vis-à-vis the Buyer and its creditors; or
6. the Buyer makes any proposal to any of its creditor(s) for a reorganization, restructuring, rehabilitation or any other form of voluntary arrangement; or
7. a receiver, liquidator, administrator or the like is appointed in respect of the Buyer’s business; or
8. the Buyer breaches any of its financial covenants or warranties provided by the Buyer to its financiers; or
9. in case of force majeure (as defined in clause 15 below), or, if the Seller has reasonable grounds to expect force majeure; or
10. in case of any breach, or any suspected breach, of clause 14 below.

Compliance: Sanctions, anti-corruption and bribery

14.1 Compliance with international sanctions. The Buyer represents, warrants and undertakes that:

1. the Buyer and any of its assignees, agents, principals of agents, shareholders, subsidiaries, sister companies, associated companies and/or parent companies (including their successors);
2. any person or entity (i) which the Buyer enters into transactions with, (ii) which beneficially owns or controls the Buyer, or (iii) which is controlled by the same interest(s) that own and/or exercise control over the Buyer;
3. the Buyer’s contractual counterparty(ies) for the Energy Products and/or any other person or entity further downstream, including the End User;
4. the Owner of the Vessel and/or her charterer, operator, manager, agent or Disponent Owner;
5. the Vessel or other vessels that take delivery of the Energy Products and/or which are within the beneficial ownership or control, management or charter of the Buyer; and
6. the cargo onboard the Vessel and the owner of the cargo;

is/are not covered by, subject to or the target of any Sanctions Regulations and that the Energy Products will not be used directly or indirectly for any purpose contrary thereto, including any acts of circumventing Sanctions Regulations.

14.2 The Buyer further represents, warrants and undertakes that the Vessel or any other vessel under the Buyer’s ownership, management, charter or otherwise controlled by the Buyer has not called and will not call any port or perform any ship-to-ship transfer in violation of any Sanctions Regulations.

14.3 The Seller shall not be required to carry out any act or omission which constitutes, or may constitute, in the Seller’s sole discretion, acting reasonably, a violation of Sanctions Regulations and/or any other laws and regulations in force where the Seller carries out business. This applies equally to any law to which the Seller is made subject pursuant to any contract.

14.4 Specifically for tanker vessels sailing to or from a port in Russia and/or laden with cargo of Russian origin, the Seller shall be entitled to cancel and/or stay delivery if the Buyer has not provided information about the Russian origin of the products and/or that the vessel is sailing to or from a port in Russia, including that the information provided by the Buyer is incorrect or later shows to be incorrect. In any of these cases, the Seller shall also be entitled to charge a minimum cancellation fee of 5 (five) percent of the agreed prices.

14.5 If the Buyer at any point becomes aware of a breach, or a potential breach, of this clause 14, the Buyer shall immediately inform the Seller in writing and the Seller shall be entitled to cancel the Contract and/or exercise other remedies for breach, to notify the relevant authorities in any relevant jurisdiction and/or say or do any act to comply with the laws and regulations of any such authorities and to comply with the Sanctions Regulation, and the Buyer shall indemnify and hold the Seller harmless against any claims, damages, costs, losses, liabilities, and expenses, including but not limited to fines and attorneys’ fees, arising as a consequence of any breach, or a potential breach, of this clause 14.

14.6 Duty of disclosure and auditing. Upon demand and without delay, the Buyer is obligated to provide any and all information and documentation to the Seller, as required in the Seller’s sole discretion, acting reasonably, for the Seller to perform reasonable compliance screenings or other due diligence to avoid breaching any Sanctions Regulation. The Seller may require auditing of the Buyer as part of the Seller’s due diligence to mitigate against and avoid breaching any Sanctions Regulations.

14.7 Payment Interference. The Buyer shall bear the risk of any Payment Interference. Payment shall always be received by the Seller in the bank account designated by the Seller. The Buyer’s payment obligations shall by no means be deemed performed, and the Buyer shall not be released, unless and until the funds are received in full in the Seller’s account. Any funds frozen or otherwise blocked by the Seller’s bank, or its correspondent bank are not deemed paid into the Seller's account.

14.8 Anti-corruption, anti-bribery, anti-money laundering & anti-terrorist financing. The Buyer represents, warrants and undertakes to comply with all applicable anti-corruption, anti-bribery, anti-money laundering and anti-terrorist financing laws, rules and regulations by the United Kingdom, the United States of America, the European Union or any member state thereof or any other jurisdiction where the Energy Products are supplied or where the Seller carries out business. This includes, but is not limited to, the UK Bribery Act 2010, UK anti-money laundering and anti-terrorism laws and regulations and the US Foreign Corrupt Practices Act, including both the effective versions and any successor versions thereof. The parties represent, warrant and undertake never to take action that would subject the other to any fines or penalties under such laws, regulations, rules or requirements. Clause 3-14.6 will apply mutatis mutandis to this clause 14.8.

14.9 Return of suspicious payments. The Seller is committed to complying with all laws and regulations and is not obliged to accept any suspicious payments. The Buyer is not allowed to route payment to the Seller via non-contractual entities. The Buyer accepts that the entity stated in the Seller’s invoice shall always remit payment, and the Seller is not obliged to accept any payment made by a third-party on behalf of the Buyer. The Seller may reject such payments, may return the funds and demand payment from the Buyer.

Force Majeure

15. 1Neither the Seller nor the Physical Supplier shall be liable for any loss, claim, damage, delay, demurrage, etc., in case of failure in their performance under the Contract due to:

1. Orders/directions from public authorities or persons who act or purport to act on their behalf;
2. Failure in, or unavailability of, the production, manufacture, supply, storage, transportation, distribution or delivery of the Energy Products, or if the delivery cannot be completed due to shipping traffic or for other reasons irrelevant to the Seller;
3. Any cause not within the immediate control of the Seller, such as labor disputes, strikes, stoppages, lock-out, governmental intervention, embargo, import or export restriction, lockdown, wars, civil commotion, riot, quarantine, fire flood, earthquake, accident, storm, swell, ice, adverse weather, epidemic or pandemic and any act of God;
4. Any cyber risks mentioned in clause 4; or
5. Any other similar circumstances;

Any of the events set out above are deemed force majeure. Neither the Seller nor the Physical Supplier shall be required to remove any such cause or replace any affected source or supply or facility if doing so shall involve additional expense.

If a case of force majeure falls within the scope of the sanctions compliance clause (clause 14), this clause 15 shall not apply.

Assignment

16.1 The Seller’s right of assignment. The Seller may assign/transfer any/all of its rights and obligations under the Contract.

16.2 No assignment for the Buyer. The Buyer shall not assign/transfer any/all of its rights under the Contract, without written consent of the Seller.

Title

17.1 Retention of title. Title shall only transfer to the Buyer when (i) the Seller has received full payment in accordance with the Seller’s invoice(s) and (ii) the Seller has paid the Physical Supplier in full (the latter requirement shall not apply when Malik Energy is the Seller, in which case title will transfer upon the Buyer’s payment).

Until the time when title is transferred to the Buyer, the Buyer shall:

1. Hold the Energy Products as bailee for the Seller and shall not be entitled to use them other than for the propulsion of the Vessel;
2. Store them in such a way that they can be identified as the Seller’s property and keep them separate from the Buyer’s own property and the property of any third-party;
3. Keep them at the Buyer’s risk and expense from the time of delivery and until the time when the Seller takes redelivery or repossession (in case of default by the Buyer); and
4. Insure them against any loss and damage, and, in the event of such loss or damage, the Buyer shall notify the relevant insurers that the insured property is owned by the Seller and that insurance proceeds are to be paid out to the Seller; any insurance proceeds received by the Buyer shall be held by the Buyer on behalf of the Seller as trustee to be wired to the Seller upon demand.

17.2 Res Cogitans clause. The transaction contemplated under these T&Cs is not a contract for the sale of goods but a sui generis The Contract is not subject to any express or implied terms for the transfer of title as a condition to the Buyer’s obligation to make payment on the due date. The Buyer has agreed to contract not for the transfer of property in the whole of the Energy Products prior to payment but for the delivery of a certain quantity of Energy Products which the Buyer has an immediate right to use for the Vessel’s propulsion against not having to pay the price for the Energy Products until the agreed period of credit has expired.

17.3 Cessation of the Buyer’s right of possession and usage. Notwithstanding clause 1 above, the Buyer’s rights to possession and use of the Energy Products shall cease if:

1. The Buyer defaults on its obligations towards the Seller when due, or the Seller has reason to believe that the Buyer will not fulfill its obligations;
2. The Buyer enters into any other form of insolvency proceedings, such as US Chapter 11 proceedings or similar proceedings in other jurisdictions, rehabilitation or reconstruction proceedings, compulsory agreements with creditors, suspension of payment or any other similar in-court proceedings;
3. The Buyer makes a proposal to its creditor(s) for restructuring or rehabilitation;
4. A receiver, liquidator, administrator or the like is appointed in respect of the Buyer’s business; or
5. The Buyer breaches any of its financial covenants or warranties provided by the Buyer to its financiers.

Upon cessation of the Buyer’s right to possession of the Energy Products as provided for under these T&Cs, the Buyer shall at his own expense make the Energy Products available to the Seller and allow the Seller to repossess them. The Buyer hereby grants the Seller, his agents and employees an irrevocable license to enter any premises where the Energy Products are stored in order to repossess them at any time.

Special Clauses applicable to sales of Energy Products to Intermediaries (traders)

18.1 The following clauses shall apply in each case where the Contract is made with an Intermediary as the buyer and notwithstanding anything to the contrary contained in these T&Cs:

1. The Intermediary’s claim against its customer is assigned to the Seller as security for the Intermediary’s due payment of the Seller’s claim for payment against the Intermediary. Until the Seller receives payment from the Intermediary, the Intermediary shall have no right to collect payment from its customer or from the End User. If the Intermediary receives payment from its customer or from the End User prior to the Intermediary’s payment to the Seller, the payment to the Intermediary shall be held in trust by the Intermediary on behalf of the Seller and the amount, minus the Intermediary’s margin/profit, shall be paid to the Seller.
2. In the event of the Intermediary’s bankruptcy or similar situation of insolvency as set out in clause 3, the Energy Products and the Seller’s claim for payment shall not form part of the insolvency estate, and the Intermediary or insolvency estate must transfer any sum to the Seller that it has received from its customer or from the End User. If the Intermediary or its insolvency estate has not received payment yet for the Energy Products, its customer or the End User shall be entitled to pay the purchase price directly to the Seller. Such payment will constitute fulfillment of the customer or the End User's payment obligations towards the Intermediary, and the payment shall also constitute fulfillment of the Seller's claim against the Intermediary for the sale of the Energy Products, minus the Intermediary's margin/profit, which shall be the Intermediary's sole entitlement.
3. The Intermediary must ensure that this clause is incorporated in every contract, concluded with or by other parties in the supply chain down to and including the contract that is concluded with the End User.

1. Governing law and arbitration

19.1 Law.These T&Cs and any Contract shall be governed by and construed in accordance with Danish law, except with respect to the existence of the Seller’s maritime lien. The General Maritime Law of the United States of America shall always apply with respect to the existence of the Seller’s maritime lien, regardless of the country in which the Seller takes legal action. The Seller shall be entitled to assert its rights of lien or attachment or other rights, whether in law, in equity or otherwise, in any jurisdiction where the Vessel may be found.

19.2 Arbitration. Any dispute arising out of or in connection with a Contract, including any disputes regarding the existence, breach, validity or termination thereof, shall be finally settled by arbitration under the Nordic Offshore and Maritime Arbitration Association ("NOMA")’s arbitration rules in force at the time when such arbitration proceedings are commenced. NOMA’s Best Practice Guidelines in force at the time when such proceedings are commenced shall be taken into account. The arbitral tribunal shall be composed of a sole arbitrator, unless the total value of the Seller’s principal claim(s) exceed USD 1,000,000 in which case the arbitral tribunal shall consist of three arbitrators. The place of arbitration shall be Copenhagen. The language to be used in the arbitration shall be English. The arbitral tribunal may consist of one or more arbitrators of Danish nationality, which also applies if NOMA appoints an arbitrator, including a sole arbitrator. The NOMA Rules on the Taking of Evidence shall apply. Danish law shall be the applicable law to the arbitration (lex arbitri). The arbitral tribunal shall endeavor to issue the award as soon as possible and no later than within 8 weeks from the date of the final oral hearing or the last written submission of the parties.

19.3 Fast Track Arbitration. The Seller or Buyer may elect to refer any dispute to the Fast Track Arbitration Rules of NOMA if the aggregate amount of the claim and/or counterclaim in dispute does not exceed USD 250,000 or the equivalent amount in another currency, or such other amount as the parties have agreed. There shall be a sole arbitrator. The arbitration shall take place in Copenhagen. The language of the arbitration shall be English. The arbitrator shall expedite the proceedings as swiftly as possible and shall render an award no later than 4 weeks after the date of the hearing.

19.4 Mediation. The Parties are encouraged to seek dispute settlement under the NOMA Mediation Rules version 2023, or a later version. A Model Mediation Agreement is available on the NOMA website. Mediation presupposes the consent of both parties.

19.5 Confidentiality. The arbitrators, the parties, their attorneys, their representatives and all the persons accompanying them shall keep confidential the existence and contents of the arbitration including any arbitral award, written and oral pleadings and all documents produced for or arising from the arbitration. Nevertheless, nothing in the present clause shall prevent a party from disclosing such information as required by law or insurers, or to protect or pursue a legal right, or to legal advisers or accountants, or for NOMA to publicize an anonymized copy of any award.

19.6 Enforcement of rights – ship arrest. If the Buyer fails to pay on the due date for payment or in the event of any other form of breach of contract the Seller is entitled to take any such legal action as it shall in its sole discretion consider necessary to enforce, safeguard or secure its rights under the Contract. The Seller is entitled to take such action in any court or tribunal in any state or country, including for the purpose of obtaining security (such as the arrest of the Vessel or of other ships or attachment of other assets). Following any such legal action as mentioned herein, the Seller may bring substantive legal action in any competent court against the Buyer or against the owner of the arrested vessel or other attached asset.

1. Entry into force

20.1 Entry into force. These T&Cs enter into force with effect from 2^st of January 2024 at 00.01 hours (GMT) and shall apply to all Contracts and Order Confirmations agreed on this date and time or thereafter.

20.2 Availability. These T&Cs are available at the website www.maliksupply.com/terms-conditions/, on which site the Seller may publish amendments, alterations, changes or verifications to the T&Cs. Such amendments, alterations, changes or verifications are deemed to be a part of the entire T&Cs once the same have been published on the said website.

Annex A. Claims Process

The Malik Group is committed to acting diligently and professionally in the event of a complaint, claim or dispute pertaining to the Energy Products supplied. Buyers and Physical Suppliers shall always adopt the same approach and full co-operation must be afforded between the parties in the supply chain to mitigate issues and solve or deal with claims & disputes amicably. This means but is not limited to answering any reasonable questions relevant to the issue accurately, in good faith and in a timely manner. Any parties shall always respect each other’s points and positions even if not agreed with while working to resolve any claim or dispute. Notwithstanding this there is also a contractual duty on all parties to stay compliant with the contractual terms in force for the transaction in question alongside any standard, custom or other accepted industry practices.

In case of claims related to the quality or quantity of the Energy Products supplied, the Buyer shall always provide answers to these questions:

If Quality

Have you had the product(s) tested?
Have you started burning the product(s)? If so, how much has been burnt and what problems are you presently encountering?
When did the produc(s) in question first start to get consumed and when did the current issues become known?
Have you got a retained, signed, and sealed sample(s) of the product(s) in question? If so, by whom was this taken, and can you please provide sample number(s)?
Has/have the product(s) been mixed with previous product(s) on board, even in the slightest way?
Has/have any additive(s) been added in the storage/settling/service tank(s) or during treatment of the product(s) in the system?
What is/was the temperature of the product(s) during transfer from storage and settling-tank?
What is/was the temperature of the product(s) during the separation process?
What is/was the temperature of the product(s) during storage in the settling-tank?
What is/was the temperature of the product(s) during transfer from settling to service-tank?
What is/was the temperature of the product(s) during consumption of the product(s)?
Have/has there been any filter clogging and/or related problems?
Did any excessive sludge formation or deposits occur during the separation process?
What was the delivered quantity of the product(s) as per the BDR, and what is the remaining quantity?
Has the Vessel been experiencing any problems related to products of any kind in the last 3 months? If so, please advise.

If Quantity

What was the quantity stated on the BDR?
What is the alleged received quantity and therefore discrepancy in question?
Have your personnel on board the Vessel signed for the quantity stated on the BDR? If so, has any comment been made as to the alleged discrepancy or any letter of protest been issued at the time of delivery?
What makes you believe that any short supply has occurred? What evidence do you have to sustain such allegation?

Depending on the responses to these questions and the status of the claim, further questions might be asked, especially in a quality scenario, again such as but not limited to:

Product History

Please provide details of last 3 deliveries of Energy Products including copies of BDRs.
Please provide ullage reports immediately prior to and after bunkering, listing all grades of Energy Products onboard including their location by tank number.
Please provide copies of engine room logbooks showing entries made for up to a week immediately prior to delivering the product(s) in question and during the delivery of the product(s) in question.
Which tanks were used to receive the product(s) in question?
Were the product(s) mixed with Energy Products already on board? If yes:
1. Please advise quantities of existing products in each tank prior to receipt of new Energy Products.
2. Was an onboard compatibility test performed? If yes, please provide results.
Please provide details of all product tanks onboard including service and settling tanks including their capacities.

Reported Problems

Please provide specific time, date, and location of the vessel when the problems were first encountered. Please also provide details of when the problems were first reported to your technical department.
Please provide all logbook entries of any kind relating to the product(s) in question and / or the problems encountered by the vessel.

Product Treatment

Please provide details of all separators on board, including type (conventional / high density), make and model.
Please indicate if the vessel is using a homogenizer. If yes, please indicate if this is before or after separators.
Were any product treatments or additives used, including biocides? If so, please provide details and copies of corresponding log book entries and dosage rate and injection location and whether it is added before or after purifier.
Can the Vessel discharge Energy Products from the various product tanks? If so at what rate per hour?

***

Once the answers have been received with sufficient detail, the Seller will provide a full response, where necessary, after consultation with the other third parties and after seeking appropriate advice (such as chemists, independent laboratories, or other experts on Energy Product quality).

Next steps in terms of finding a solution will be communicated by the Seller to the Buyer and the Physical Supplier for their review and consideration.

Mutually agreed next steps will then be executed with full co-operation of the parties, including any agreed testing.

If a mutually acceptable way forward cannot be found, the terms of the contract in force are referred to for the formal and contractually binding dispute resolution process to be effected.

The Seller does not waive any right under these T&Cs by engaging in a process for amicably trying to solve a claim, including by following the claims process described above in cooperation with the Buyer. Even if the Seller has not in terms reserved its rights under these T&Cs, the Buyer accepts that the Seller retains the right to defend a claim inter alia by asserting contractual time bars under clause 6 and 7 or any other contractual right or defence.