The present Terms and Conditions of Sale (hereinafter referred to as the “Terms and Conditions”) are applicable and constitute part of all offers, nominations and sale agreements entered into between the Buyer and ELIN. No variations, modifications, amendments or waiver of these Terms and Conditions shall be binding upon ELIN, unless ELIN expressly agrees to such variations, modifications, amendments or waivers in writing.
DEFINITIONS
In these Terms and Conditions unless the context otherwise requires, the following definitions shall apply:
“ELIN” or “Seller” means ELINOIL HELLENIC PETROLEUM COMPANY S.A. and as the context may require its servants, agents, assigns, subcontractors and any other persons acting under the Seller's instructions in fulfillment, compliance or observance of the agreement;
"Buyer” means the addressee named as the party purchasing Products from the Seller;
"Confirmation" means any confirmation of a nomination provided by the Seller in writing;
"Nomination(s)” means any order placed by the Buyer for the purchase of Products from the Seller;
"Products” means any of ELIN’s or other brand marine lubricants which the Buyer purchases from the Seller in accordance with the present Terms and Conditions;
"Quotation” means any offer by the Seller after the Buyer’s inquiry regarding request for Product availability and prices;
"Supplier” means any company which physically supplies the Products to a vessel;
CHANGES
The following Terms and Conditions are subject to change at any time without advance notice by the issuance of revisions hereto and/or new editions of general Terms and Conditions of sales and all such changes shall be effective from the date stipulated by the Seller.
ACCEPTANCE
The contract of sale shall be finalized and concluded upon dispatch of the Seller's Confirmation in writing (either by fax or by email) to the Buyer or his agent in respect to the Nomination and the contract shall be subject to the overriding Terms and Conditions set out herein which, shall in every case be deemed to include the present general Terms and Conditions of sale except as explicitly modified in writing.
The Buyer shall be obliged to promptly notify the Seller, if subsequent to placing a Nomination for Products, the Buyer needs to cancel or recall that Nomination. In case of a Nomination cancellation, the Buyer shall indemnify the Seller in full against all losses, costs, damages, charges and expenses of any kind incurred by the Seller as a result of cancellation.
DELIVERIES
a) Deliveries of Products shall be made into the Buyer's facilities or vessel(s) in the manner specified in the Seller's Confirmation of Nomination.
b) The Buyer shall give to the Seller a firm Nomination at least three working days in Greece (weekends and holidays excluded) or more, depending on supplier’s advice in delivery port, prior to the requested delivery date specifying the port of delivery, the exact location at which delivery is required, the name of the vessel and vessel's agent contact details, estimated time of arrival, quantity and specific type of Products, unless otherwise agreed.
c) Deliveries shall be made during normal business hours, unless requested for other times and permitted by local and port regulations, in which event the Buyer shall bear all additional expenses in connection therewith as these may arise. If government permission is required for deliveries hereunder, it is a precondition to delivery that the Buyer shall obtain such permission prior to the delivery and at its own cost.
d) In all cases, the Buyer has to comply fully with the Seller’s and Supplier’s instructions in respect to handling, storage and use of Products. When deliveries are to be effected by the Seller's barge, the Buyer shall, at his risk and expenses, procure clear and safe berth alongside vessel's receiving lines, make all connections and disconnections between delivery hose and vessel's intake pipe, render all other necessary assistance and provide sufficient tankage and equipment to receive promptly and safely all deliveries hereunder. The master of the barge may, in his discretion, refuse to make deliveries in adverse weather conditions or in case the buyer’s vessel refuse to comply with his reasonable order or directions in regards to maneuvering alongside the barge and making safe and proper connections.
e) The Buyer shall be liable for any expenses incurred by the Seller resulting from the Buyer or his representative failing to take delivery of or rejecting, in part or in full, any quantity agreed to be supplied. If acts or omissions of the vessel and/or of the Buyer or his agent cause delays to the Seller's or its Supplier's facilities or barges in effecting deliveries, the Buyer shall bear all costs and expenses directly or indirectly resulting therefrom. The Buyer shall bear any overtime and/or other additional expenses arising from late notice and/or amendment of the aforesaid delivery details.
f) The Seller shall not in any circumstances be liable for loss, damage or delay resulting from breakdown of machinery and/or equipment, failure of the Supplier or of the master of the barge to effect deliveries on time or due to congestion at the terminal or prior commitments of available barges.
g) Deliveries shall be complete and risk of loss shall pass to the Buyer at vessel's permanent intake connection, or, in the case of delivery in drums, when the product passes the vessel's rails. Title of ownership to Products shall pass to the Buyer when the Seller has received payment in full of the respective Nomination.
QUANTITY
Quantity shall be determined at the Seller's or Supplier's option from the gauge or meter of shore or barge tanks. The Seller’s determination of quantity shall be final and conclusive, but the Buyer shall have the right to be represented at the measuring. Any challenge by the Buyer of the said measurements shall only be admissible if made to the Seller's representative and noted on the delivery receipt (or by letter) at the time of delivery. The Buyer shall be obliged to accept the entire quantity ordered. If the Buyer cannot accept the entire quantity ordered due to its own fault, then the Buyer will reimburse the Seller for all transportation, insurance, return freight, loading and unloading costs and fees and/or all other damages in respect to the excess quantity which the Buyer did not accept.
QUALITY
a) The Buyer shall be solely responsible for specifying to the Seller the grade and type of Products to be delivered to the vessel. The type and/or the grade and/or brand of the Product supplied (as selected by the Buyer) shall be the commercial type, grade and/or brand offered generally at the place and time of delivery, but no guarantees or warranties are given, express or implied, arising under law, equity, custom or trade including without limitation warranties of merchantable quality or fitness for any particular purpose or otherwise.
b) Complaints as to quality shall only be admissible for further consideration if based on tests made as soon as possible by an independent laboratory of samples taken at time of delivery from the shore tank or barge from which delivery is made. Samples taken by the Buyer shall be sealed and identified by the signature of the Seller or its Supplier's representative. Three sample-bottles, fully sealed, stamped and signed by barge and vessel, taken as above, shall be kept by vessel, barge and Supplier for one (1) month after delivery.
c) In order to settle any quantity and/or any quality dispute that may arise, the Seller and the Buyer will appoint a mutually acceptable independent surveyor. In case the Buyer and the Seller are not able to appoint a mutually acceptable surveyor, they will be entitled each to appoint one surveyor. The two (2) surveyors will cooperate closely in order to issue a common report regarding the quantity or quality dispute. Any relevant expenses (i.e. surveyor 's attendance, laboratory analysis etc) shall be borne by the party which, according to the independent surveyor(s) report, is proved to be in fault.
PRICE
Prices quoted for each and every delivery, unless otherwise stated in the Quotation or Confirmation of the Nomination, are:
a) For delivery at the Buyer’s facilities or vessel, net and exclusive of taxes, duties, dues, custom clearance and other charges of whatsoever nature leviable in respect of Products which, if incurred, shall be for the Buyer's account unless otherwise stated.
b) Valid only for the delivery date stipulated in the Seller's Confirmation of the Nomination, outside which the Seller shall have the right to amend the price or cancel supply.
c) Subject to the Seller's reservation to cancel supply or amend the price if:
i. The quantity requested by the Buyer is either decreased or increased.
ii. The quality or type of the requested Products is changed.
USED OIL ANALYSES
Used oil analyses are provided at cost or free of charge depending on agreement between the Seller and the Buyer as per the contract/ price list agreed between the parties. Details of used oil analyses procedure are included in the company’s web site i.e. www.elin.gr.
PAYMENT
a) Payment for each delivery and of other charges payable shall be made by the Buyer within thirty (30) days from the date of delivery (unless otherwise agreed) without set off or counter claim strictly in accordance with the terms specified in the Seller's Confirmation of the Nomination and /or invoice and/or contract.
b) In the event that the Nomination and sale agreement is made by an agent acting for or on behalf of a Buyer/principal, disclosed or undisclosed, then such agent shall be liable not only as agent, but also for the performance of all the obligations of the Buyer/principal under the agreement.
c) Where the Products are supplied to a vessel, the sale agreement is entered into and the Products are supplied by the Seller upon the faith and credit of the vessel. It is acknowledged and agreed that a lien over the vessel is thereby created for the value of the Products supplied and that the Seller in agreeing to deliver the Products to the vessel does so relying upon the faith and credit of the vessel. The ordering customer or the Buyer, if not owner of the vessel hereby expressly warrants that it has the authority of the vessel’s owner to pledge the vessel’s credit as aforesaid and that he has given notice of the provisions of this clause to the vessel’s owner. Irrespective of the party requesting to be invoiced, the shipowner of the vessel jointly assumes the obligation and is jointly and severally liable with the invoiced party for the payment of amounts owed to the Seller.
d) If the Seller's bank is closed for business on the last day of the applicable credit period, payment shall be made the day before the last day of the credit period when the Seller's bank is open for business.
e) If payment is made by telegraphic or electronic transfer, the Buyer shall notify (or instruct his bank to notify) the Seller, as soon as payment has been made, the date on which payment was made, the amount, the name of the bank effecting payment and details of the invoice(s) to which the payment relates. Payment shall be deemed to have been made net on the value date confirmed by the Seller's bank. Any bank charges to be for the Buyer's account.
f) If the Buyer's credit is deemed by the Seller to be impaired or unsatisfactory, the Seller may (without prejudice to its other rights) require the Buyer either to pay cash before delivery or to provide security satisfactory to the Seller. In the event of failure by the Buyer to comply with the Seller's requirement, the Seller shall have no obligation to make delivery and may terminate the contract on giving notice to that effect to the Buyer.
g) Without limitation to the foregoing and of the Seller's other rights under the contract or otherwise, the Seller shall have the right to require, in respect of any payment not made by the due date, the payment of interest thereon, at the rate of one percent (1%) per month or at the maximum allowed by law (if less). Such interest to run from the due date until the date full payment is received by the Seller.
DOCUMENTS
If the Buyer requires delivery trade documents (e.g commercial invoice(s), delivery note/receipt etc.) he shall require so at the time of Nomination and Seller will, without obligation, ask its Supplier to arrange for the said documents to be passed to the Buyer's representative at the time of delivery.
ASSIGNMENT
The Seller may assign all or any of its rights and/or obligations hereunder. Any assignment by the Buyer without the Seller's prior written consent shall be null and void. Notwithstanding any assignment by the Buyer, the Buyer shall remain responsible jointly with the assignee for performance of all its obligations hereunder.
FORCE MAJEURE
No failure or omission by either party to carry out or observe any of the terms or conditions of the contract shall give rise to any claim against the party in question or be deemed a breach of the contract if such failure or omission arises from any cause beyond the control of that party including (without limitation) labour disputes, strikes, governmental intervention, wars, civil commotion, fire, flood, accident, storm, perils of the sea or act of god, failure of or interference with supply from the Seller's or Supplier’s sources of supply, breakdown of the facilities or expropriation or confiscation of the facilities used for the production, transportation, receiving, manufacturing, handling or delivery of the Products. The Seller shall not be under any obligation whatsoever with regard to any deliveries omitted in accordance with this section. The provisions under this clause shall not apply in relation to payment obligations under the sale agreements.
INTELLECTUAL PROPERTY
By purchasing the Products, the Buyer may obtain access to methods, formula, designs, signs, trademarks and other rights of intellectual or industrial property owned by the Seller. The Buyer acknowledges that the above embodies significant value for the Seller and constitutes exclusive property of the Seller in which the Buyer may not acquire any right whatsoever. Thus, the Buyer undertakes to treat any knowledge as well as the documents it acquires with the utmost care and as strictly confidential and to not make it available or disclose it to third parties on any terms, and not use it for any other purpose than for the normal execution of any sale agreement with the Seller.
INDEMNITY
Buyer shall indemnify and hold the Seller and/or its Supplier harmless against any liability, loss, claims, expenses or damage of whatsoever nature which the Seller and its Supplier may suffer or incur by reason of, or in any way connected with the purchase, receipt, use, storage, handling or transportation of the Products except insofar as the Buyer shall establish (the burden of proof being upon the Buyer) that the said liability resulted exclusively from gross negligence or willful misconduct of the Seller or its Supplier.
ENVIRONMENTAL PROTECTION
If a spill occurs while Products are being delivered hereunder, the Buyer shall, promptly take all such action as is reasonably necessary to remove the spilled Products and mitigate the effects of such spill. If the Buyer fails to take all such steps as are reasonably necessary, the Seller or its Supplier are hereby authorized, at their option and at the expense of the Buyer to incur such expenses as are reasonably necessary in their judgment in order to remove the spilled Products and mitigate the effects of such spill.
The Buyer shall cooperate with and render all such assistance as is required by the Seller or its Supplier in the course of such action and, without prejudice to the generality of the foregoing, the Buyer shall supply the Seller with all documents and other information concerning the spills or any programme for the prevention thereof, which are required by the Seller or its Supplier or which may be required by law or regulation applicable at the time and place of delivery hereunder. All expenses, claims, loss, damage and/or penalties of whatsoever nature arising out of or in connection with a spill shall be borne by the Buyer, unless the Buyer establishes (the burden of proof being upon the Buyer) that the spill was caused directly and exclusively by the gross negligence or willful misconduct of the Seller or its Supplier. If both parties have acted negligently, all expenses, claims, loss, damage, liability and penalties shall be divided between the parties in accordance with the respective degree of negligence. The burden of proof to show the Seller's negligence shall be on the Buyer.
CLAIMS
a) The Seller shall be discharged and released from all liability in respect of any claims the Buyer may have arising out of or in connection with the delivery of Products (such as, but not limited to, price, quantity or quality) unless a claim has been received by the Seller in writing with all necessary particulars and supporting documents within five (5) days from date of delivery in question and same is due to the Seller’s gross negligence or willful misconduct. In no event shall the Seller be liable for consequential, indirect or special losses or special damages of any kind arising out of or in any way connected with the performance of or failure to perform the contract.
b) The Buyer undertakes that goods supplied by the Seller will be solely used for the requirements of the vessel to which they are delivered and will not be further sold or exchanged.
LAW AND JURISDICTION
The Nominations and the sale agreements to which these Terms and Conditions relate as well as the present Terms and Conditions and any dispute whatsoever arising under the present Terms and Conditions or howsoever connected with the sale/purchase/delivery of the Products shall be governed by and interpreted in accordance with Greek law and be subject to the exclusive jurisdiction of the Courts of Piraeus, Greece. This jurisdiction agreement does not preclude the Seller to proceed against the ordering Buyer, any third party or the vessel in any jurisdiction for the purpose of obtaining security for the payment of any amounts due to Seller.
SANCTIONS
The ordering customer / Buyer warrant that at the date of and throughout the duration of the contract of sale, they, the vessels in which the products will be delivered and any parties connected thereto are not listed directly or indirectly on sanctions lists maintained by the UN, US, EU, UK or any other relevant authority and further warrant that the products will only be delivered to and used by vessels engaged in trade that is in full compliance with international sanctions, including but not limited to those maintained by the UN, US, EU and UK. If at any time the ordering customer / Buyer are in breach of the above warranty, then the Seller may terminate the contract of sale and the ordering customer / Buyer shall indemnify the Seller and/or any Supplier for any liability, costs, damages or losses of whatsoever nature which the Seller and its Supplier may suffer or incur as a result of breach of such warranty.
