General Terms and Conditions of sale
(GTC) for Marine Bunkers

A. USEFUL AND IMPORTANT DEFINITIONS AND NOTES

1.01 Agreement:
The term agreement is used for an agreement for the sale of a Product is between Agataz Energy S.A. as the Seller and the Buyer is subject to these Standard Terms and Conditions and the Confirmation. In the event of any conflict between the Standard Terms and Conditions and the terms of the Confirmation, the terms of the Confirmation shall prevail.
1.02 Seller:
The Seller is Agataz Energy S.A. acting through any of its branches, servants, agents, assigns, subcontractors and any and all other persons acting under the Seller’s written instructions in fulfilment, compliance or observance of the Agreement unless the context otherwise requires or permit.
1.03 Written, in Writing and Notice:
Any requirement for written communication, including the giving of any notice, may be fulfilled by the use of electronic mail, letter post, courier, telex, facsimile transmission or any other medium that produces a tangible result for the intended recipient, such as “WhatsApp” or other similar “iPhone” or “Android” applications. The communication shall be deemed to have been given and received upon completion of transmission for any electrical or electronic medium, within three working days of dispatch for inland letter post and on the expiry of the declared or guaranteed time of delivery of any courier or monitored service.
1.04 Confirmation:
A confirmation in writing from the Seller to the Buyer setting forth the particular details of the product and any other details that the Seller wishes to add beyond the STC of the Seller.
1.05 Buyer:
The person, party or entity so identified in the Confirmation as the Buyer, and/or any agent, principal, associate, manager, partner, servant, parent, subsidiary, owner, or shareholder thereof and jointly and severally the Vessel and/or Vessel’s owner and/or disponent owner and/or master and/or operator and/or charterer and/or sub-charterer, and/or bareboat charterer, and/or any party benefiting from consuming the Product delivered, and/or any other party ordering the Product, all of whom shall be jointly and severally liable as Buyer under an Agreement.
1.06 Gender, Singular and Plural:
Unless the context otherwise requires, all references in the Agreement to one gender shall be deemed to include all others and references to the singular shall be deemed to include the plural and vice versa.
1.07 Physical Supplier:
The party and/or person who has been instructed by the Seller to physically supply the Product to the Vessel together with that party’s or person’s servants, agents, successors, subcontractors and assigns. The Physical Supplier may be the Seller or any other party and/or person.
1.08 Place of Supply:
The port or other readily identifiable geographical location specified in the Confirmation wherein or adjacent to which is the Point of Delivery.
1.09 Point of Delivery:
The precise place at which Delivery is to be effected as provided in the Confirmation or as thereafter confirmed, advised or revised by the Seller or the Physical Supplier being a berth, mooring, anchorage or other point within, adjacent to or associated with the Place of Supply.
1.10 Product:
Means Marine Bunker which are The marine fuels, oils, lubricants, goods, items, equipment and materials of whatever type and description as specified in the Confirmation, being the subject of the Agreement.
1.11 Price:
The cost of the service of the Supply in United States Dollars (or such other currency specified in the confirmation) per Metric ton (or such other unit of measurement specified in the confirmation) of Product as specified in the Confirmation.
1.12 Vessel:
The Vessel, ship, barge, yacht, craft, tank, container, facility or any other unit nominated to receive Product as specified in the Confirmation.
1.13 The use of headings and explanatory notes is for convenience only. They are not part of the Agreement.
1.14 Binding Agreement:
The order for the delivery of a Product in the place of supply/delivery shall be considered firm and binding to the Buyer, upon Buyer’s acceptance of price quoted by Agataz Energy S.A.. A confirmation in writing from the Seller to the Buyer may be further provided to the Buyer, but the absence of such confirmation shall not make the agreement of sale void or voidable. Under no circumstances will Buyer’s Terms and Conditions be considered part of the Agreement.
1.15
These Terms and Conditions apply to all offers, quotations, orders, agreements, services and all subsequent contracts of whatever nature, except where otherwise is expressly varied or modified in writing b any Confirmation of Order that may be sent by the Seller.
 

B. ENTIRE AGREEMENT – DEFAULT OF BUYER

2.00
These Terms and Conditions together with the Confirmation if any, constitute the entire Agreement. No derogation, addition or amendment to the Agreement shall be of any force or effect unless and until expressly confirmed in writing by the Seller. If any provision of the Agreement shall to any extent be invalid or unenforceable, the remainder of the terms of the Agreement shall remain in full force and effect.
2.01
If the supply of the order is effected through another trader who is not the physical supplier, The Seller has the right not to pay the relevant Invoice of the Buyer unless confirmation that the Physical Supplier is paid is provided by the Buyer. In that case, i.e. when the physical supplier is not paid by the time the Invoice of the intermediate trader/Buyer is due, the Seller has the right to elect to pay the invoice of the physical supplier directly and then pay any balance to the Buyer. The same right applies if it becomes transparent that the intermediate trader/Buyer is bankrupt or under the status of liquidation or receivership or other similar status. In that case, the Seller may elect to pay directly the physical supplier bypassing the said trader.
2.02
The Buyer shall not assign its interest in the Agreement without the prior written approval of the Seller.
2.03 Condition of Agreement
2.03.1
The Buyer confirms that the Agreement is entered into on behalf of the owner and the vessel in rem. The Bunker Confirmation, the invoice and the Bunker Delivery Receipt shall incorporate the Seller’s GTC and together constitute the complete agreement for sale and delivery of Marine Bunker. The buyer buys and the Seller sells Marine Fuels in accordance with the seller’s GTC and these shall be incorporated into all Order Confirmations and bunker delivery receipt.
2.03.2
If a purchase of Marine Bunker is contracted by a trader, an agent or a manager for the Owner, each such trader, agent or manager shall be bound by and be fully liable to pay the Physical Supplier / Seller the Invoice plus interest and costs jointly and severally together by terms of the GTC Furthermore, delivery shall always take place for the account of the registered owners and the vessel in rem as the Buyer. The Buyer warrants that it is authorized as an agent to order the Marine Bunker for delivery to the Vessel. The Owner and the master of the Vessel agree that the Physical Supplier / Seller has a maritime lien and contractual lien in the Vessel and also pledge on their company registry for Marine Bunker supply. The maritime lien and contractual lien and will extend to her bunker, freight and hire, from insurance company payment for any voyage and ship sale value as surrogate. The master agrees that Marine Bunker will be delivered in order to continue the voyage as credit for the vessel.
2.03.3
Buyer’s warranty of authority Buyer, if not the owner of the Vessel, expressly warrants that he has the full authority of the owner of the Vessel to act on behalf of the owner and/or disponent owner and/or vessel in rem in entering into bunker purchase Agreement for vessel’s continuation of voyage, and has the authority of the owner and/or disponent to contract on the owner and/or disponent’s personal credit and the credit of the Vessel. Bunker for the Vessel, Buyer is deemed to be in possession and control of the Vessel. Buyer further warrants that he has given or will give notice of the provisions of this clause and Credit and Lien Clause 12.1 to the owner and/ disponent owner.
2.03.4
Buyer agrees on behalf of the owner that Charterers have authority to procure necessaries for vessel under 46 U.S. Code § 31341 and any agent appointed by charterer will have authority to order necessaries including bunker on behalf of the vessel in rem under 46 U.S. Code § 31341 (a.4.B). Charterer is authorized person to order marine bunkers for account of the vessel in rem under 46 U.S. Code § 31341 (a.4.B) The authority of charterer will be decided by 46 U.S. Code § 31341
2.03.5
If the Owner and/or charterer alleges that They are not party to the seller’s bunker order confirmation and the GTC, The owner and/or charterer’s all allegations will be decided by terms of the seller’s GTC The owner and/or charterer must object to this clause within 3 calendar days after the seller sends claim notice. It would be accepted that the owner and charterer agreed the seller’s bunker confirmation and GTC after 3 days of claim notice. Their objection will be null and void after 3 days.
2.04 Non Lien Notice
Any notice or any stamp in the Bunker Delivery Receipt or similar cannot waive the Physical Supplier / Seller’s maritime lien on the Vessel. Any remark such as “the bunker is on the charterer’s account under 46 U.S. Code § 31341 (a.4.B)” will not be accepted if it was not notified the seller before bunker supply. Any charter notification after bunker supply will be ineffective. The Owner will not be able to use non lien clause of any charter party as defense that the owner is not liable for bunker invoice If the owner failed to notify the seller/physical supplier before bunker supply. The seller 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 Seller before it sends its Confirmation to the Buyer.
2.05 Agents
The Buyer represents and expressly warrants to the Seller when the Buyer is not the owner and/or disponent of the Vessel that: i) It is acting as duly named and appointed Agent of the registered owner and has ostensible authority to bind the registered owner to the Supply Contract arises ii) It has full authority to bind to the owner and Vessel in rem; iii) Agent informed the owner about the Seller being the supplier of the Bunkers and that the seller’s General Terms and Conditions are seen and accepted iv) The seller’s GTC, bunker confirmation and bunker delivery receipt were sent to the Vessel’s v) That the Master/Owner have authorised the Agent to agree with the Seller as supplier of the Marine Fuels to the Vessel through the Physical Supplier.
2.06 Bunker Delivery Receipt/Note (BDR)
When the supply is completed, BDR must be signed by the Vessel’s Master or any other person acting in his name and behalf. Where the person signing the BDR is not the Vessel’s Master, the Buyer confirms and warrants to the Seller that the signing person has full authority to bind the Vessel in rem. The BDR will remain “clean” without any remark and non-lien clause.
2.07
When the Buyer does not timely pay the purchase price to the Seller, any rights and claims against the vessel in rem and owner and/or disponent owner will be automatically assigned to the Seller. By this automatic assignment the Seller shall be also automatically subrogated in the contractual position against the Buyer/ the Vessel’s Owner. The seller will have maritime lien of the physical supplier and will stand shoes of the physical supplier after the seller paid bunker invoice to the physical supplier.
 

C. FORCE MAJEURE

3.00
The Seller will not be liable for any loss, claim, damage, demurrage, costs or expenses of whatever nature arising from the failure to fulfill or comply with any term or condition of the Agreement if fulfillment or compliance has been delayed, hindered or prevented by any circumstances whatsoever which are not within the immediate and reasonable control or contemplation of the Seller, including, but without limiting the generality of the foregoing, any act of God, fires, floods, perils or sea, earthquake, storm, swell, ice, any act of war (declared or undeclared), hostilities, embargoes, Sanctions accidents, act of third party, congestion, changed market conditions, unavailability of barges, failure of equipment, fault or failure of Vessel, master or crew, act or omission of Buyer, strike, lockout or labor dispute 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 Product or the means of supply thereof and/or the means of delivery.
 

D. DELIVERY

4.00 Allocation
If the Seller or Physical Supplier at any time and for any reason believes that there may be a shortage of Product at the Place of Supply, it may allocate its available and anticipated supply of Product among its Buyers in such a manner as it may, in its absolute discretion, thinks fit.
4.01 Restrictions
The Seller or Physical Supplier shall not be required to deliver Product into any of the Vessel’s tanks or other places that are not regularly used for storage of bunkers or lubricants or other products as the case may be and shall not be required to deliver any Product for the export or delivery of which a Government or any other type of permit is required and has not been obtained.
4.02 Means of Delivery
Delivery shall be effected in one or more consignments at the Point of Delivery by such means as the Seller or Physical Supplier shall deem appropriate in the circumstances.
4.03 Barging
In the event of delivery by barge, it will be the responsibility of the Buyer at its own expense to provide a clear and safe berth for the barge alongside the Vessel’s receiving lines and shall further provide all necessary facilities and assistance required to effect the delivery. The Buyer agrees to pay and indemnify the Seller against all claims, costs, losses and expenses in respect to any loss, damage or delay caused by the Vessel and/or Vessel’s personnel to any barges and/or its equipment and injury and/or death caused by the Vessel and/or the Vessel’s personnel to any of the personnel effecting delivery in the course of or in connection with delivery of Product. Where lighterage is employed, lighterage charges shall be also for the account of Buyer. Lighterage will be charged on the quantity delivered to the Buyer’s Vessel in accordance with the rates and charges of the barge contractor. Deliveries of Products on two or more barges will be subject to separate charges.
4.04 Connection
The Buyer shall be responsible for making all connections and disconnections between the pipelines or delivery hoses and the Vessel’s intake line and shall render all other necessary assistance and provide sufficient equipment to receive promptly each and every consignment of the Delivery. The Buyer is responsible for ensuring that Product is delivered at a safe rate and pressure and that all equipment utilized therefore is in a safe and satisfactory condition.
4.05 Completion of delivery
Delivery shall be deemed completed when the Product has passed the flange connecting the Physical Supplier’s delivery facilities with the receiving facilities provided by the Buyer, and/or, where appropriate, has passed the Vessel’s rail and/or Point of Delivery whether product is delivered ex-wharf or by barge. At either location, pumping shall be performed under the direction and responsibility of Buyer or Buyer’s Vessel personnel.
4.06 Title
Title in and to the Product delivered and/or property rights in and to such Product shall remain vested in the Seller and shall pass to the Buyer only after the Price has been received by the Seller. Until such time as the Price is received by the Seller the person or entity in possession of the Product delivered shall hold the Product as a mere bailee and shall hold the Product on behalf of the Seller and to the Seller’s order. For the avoidance of doubt, where a mortgagee bank enforces any rights against the Vessel and becomes a mortgagee in possession of the Product then as bailee the mortgagee bank is liable to the Seller for fulfillment of the Agreement.
4.07 Risk
The Seller’s responsibility for the Product shall cease and the Buyer shall assume all the risks and liabilities relating thereto, including loss, damage, deterioration, depreciation, contamination, evaporation or shrinkage of Product and responsibility for loss, damage and harm caused by pollution or in any other manner to third parties at the time Product leaves the Physical Supplier’s fixed depot or wharf facilities.
4.08 Measurement
The quantity of Product delivered hereunder shall be determined at the Physical Supplier’s option by one of such generally recognized methods of measurement as is appropriate in the circumstances.
4.09 Specification
The Product shall be as specified in the Agreement and, other than as more precisely specified therein, shall be one of the Seller or Physical Supplier’s commercial grades of Product as currently offered generally to its Buyers at the time and Point of Delivery for marine Products. No other warranties, express or implied as to quality or fitness for any purpose, are given or form part of the Agreement. Buyer shall also assume sole responsibility for the selection and fitness of its choice of Product for any particular use or purpose, and the Seller shall assume no responsibility whatsoever for the compliance or fitness of the Product for a specific type of engine or equipment. This includes but is not limited to the quality, sulfur content and any other specific characteristics of the Product whatsoever. Any and all warranties regarding the satisfactory quality, merchantability, fitness for purpose, description or otherwise, are hereby excluded and disclaimed. Where specifications designate a maximum value, no minimum value is guaranteed unless expressly stated in the Confirmation, and conversely where minimum values are provided in a specification, no maximum values are guaranteed unless expressly stated in the Confirmation.
4.10 Compatibility and Segregation
The responsibility for establishing compatibility of the Product delivered with any other product or products and for segregating or co-mingling the same rests solely with the Buyer.
4.11 Substitution
The Seller may discharge its obligation to deliver the Product as specified in the Confirmation by supplying in substitution thereof product of a different grade and/or brand name provided always that such substitute product is of an equivalent or superior specification to that specified in the Confirmation.
4.12 Availability
The Seller or Physical Supplier will use its best endeavors to ensure that Product is delivered promptly upon the Vessel’s arrival but the Seller or Physical Supplier shall not be responsible for any loss, expense, damage or increased costs incurred in consequence of the Vessel not being supplied promptly or otherwise being delayed or restrained for any reason whatsoever. The Buyer is responsible for ensuring that the Vessel is ready to receive the Product at the Point of Delivery on the expiry of the notice given by the Seller.
4.13 Delay
In the event that the Vessel’s arrival at the Point of Delivery is delayed or likely to be delayed, the Buyer must so advise the Seller. The Buyer should also ensure that the Vessel’s agent at the Place of Supply is similarly informed and that the agent advises the Physical Supplier accordingly. At the Buyer’s request the Seller or Physical Supplier will use its best endeavors to supply a delayed Vessel on the terms originally agreed but reserves the right to pass on to the Buyer all additional costs, including increased Basic Cost of the Product arising from the Vessel’s delayed arrival.
4.14 Notice and Other Delivery Requirements
The Buyer must give not less than 72 hours’ notice (excluding Sabbaths, holidays and other non-working days at the Place of Supply) of the Vessel’s readiness to receive Product to the Seller and to the Physical Supplier. Notice must be given during the Seller’s normal business hours: (Monday to Friday inclusive, 0900-1700 Athens time). Notice given outside these hours will be deemed to have been given at 0900 on the first business day thereafter. Furthermore, it is in all circumstances and on all occasions the responsibility and duty of the Buyer to ascertain and, where appropriate, to comply with:
  1. The precise requirements of the Physical Supplier and any other person, body or authority in respect of the giving of notice of the Vessel’s time of arrival at the Point of Delivery.
  2. The exact location of the Point of Delivery.
  3. Any particular requirements to enable Delivery to be effected.
4.15 Environmental Protection
The Seller or Physical Supplier may at any time and without notice take any steps which it considers necessary to protect the environment from damage arising from spillage or transport of Product. Any action so taken shall be on behalf of and at the expense of the Buyer.
4.16 Cancellation by Buyer Prior to Delivery
On Buyer’s cancellation of a delivery or portion thereof, within 48 hours prior to the scheduled delivery time and date, the Seller shall be entitled to a fee of USD 5.00 per metric ton by way of liquidated damages. The above rate of compensation is considered fair and reasonable. No cancellation will be accepted at any time less than 48 hours prior to the scheduled delivery.
 

E. CANCELLATION AND BREACH

5.01 Breach of Agreement
In the event of a breach by the Buyer of the Agreement, the Seller shall have the right to pursue a claim against both the Buyer and the Vessel for all the resulting losses and damages, including loss of profit. All the terms of the Agreement should be treated as conditions.
5.02 Options in Case of Breach
Without prejudice to any other remedies and rights, the Seller shall have the option immediately to cancel the Agreement in full or in part, or to store or procure the storage of the Bunkers, in whole or in part, for the account and risk of the Buyer and to charge the Buyer the expenses thereby incurred, or to hold the Buyer fully to the agreement, or take any other measures which the Seller deems appropriate, in any one of (but not limited to) the following cases:
  1. when the Buyer, for whatever reason, fails to accept the Bunkers in part or in full at the place and time designated for delivery;
  2. when the Buyer fails in part or in full to comply with its obligations to pay any amount due to the Seller and/or provide security, whether this failure relates to current or past supplies;
  3. when, before the date of delivery, it is apparent in the opinion of the Seller that the financial position of the Buyer entails a risk to the Seller;
  4. when, in case of force majeure, the Seller is of the opinion that the execution of the agreement should be cancelled.
5.03 Cancellation Fee
Without prejudice to clause 5.02 above and in addition to the rights of the Seller derived from that clause, the Seller has the right to charge a cancellation fee equivalent to 3% of the value of the order if the same is cancelled due to the fault of the Buyer.
5.04 Arrest of the Vessel
Notwithstanding anything to the contrary herein and without prejudice to any rights or remedies otherwise available to the Seller, the Buyer, by its acceptance of these conditions, expressly authorizes the Seller to arrest the Vessel in question, or any other Vessel owned or operated by the Buyer, under any applicable jurisdiction as security for the obligations of the Buyer. Should the Buyer fail to make any payment to the Seller immediately when due the Seller may dispose of such arrested Vessel whether by sale or otherwise as applicable under the relevant jurisdiction. Any costs or expenses of whatever kind incurred by the Seller in respect of such arrest shall be for the sole account of the Buyer and shall be added to the claim for which arrest is made.
5.05 Liens
5.05.01 Maritime Lien
In addition to any other security that may be provided by Buyer, the Product supplied to a Vessel pursuant to the Agreement is sold and effected on the credit of the Vessel, as well as the promise of the Buyer to pay for the Product. It is agreed and acknowledged that the Seller shall have a maritime lien maintained against the Vessel for the Price of the Product supplied and that the Seller’s agreement to deliver the Product to the Vessel is in reliance on the credit of the Vessel. The Seller’s maritime lien shall extend to the vessel’s freight payments for that particular voyage during which the Product was supplied and to freights on all subsequent voyages. The Seller may enforce any maritime lien against the Vessel arising under this Agreement in any court of competent jurisdiction. The Buyer, if not the owner of the Vessel, hereby expressly warrants that the Buyer has the authority of the Owner to pledge the Vessel’s credit as aforesaid and that the Buyer has given notice of the provisions of this Clause to the Owner. The Seller shall not be bound by any attempt by any person to restrict, limit or prohibit Seller’s maritime lien against the Vessel unless notice in writing of the same is given to the Seller before it sends its Confirmation to the Buyer.
5.05.02 Notice of Prohibition of Lien
Any notice by the Buyer that a maritime lien on the Vessel may not be created because of the existence in Buyer’s charterparty of a Prohibition of Lien Clause, or for any other reason, must be given to Seller in the initial enquiry/order for Product, in which case no credit may be granted to the Buyer and the Product, at the discretion of the Seller, may have to be paid in cash or equivalent prior to delivery. Any notice of such restriction given by Buyer, its agents, ship’s personnel or other person after the Agreement is concluded shall not have any effect on the terms and conditions of sale, including Seller’s maritime lien against the Vessel.
5.05.03 Creation of Maritime Lien
It is agreed and acknowledged that the Seller is providing necessaries including marine bunker to the Vessel on the order of the Buyer and the Buyer is an authorized agent of the Owner and/or Master. It is expressly agreed and acknowledged that a maritime lien and/or contractual lien over the Vessel is thereby created for the Price of supplied marine fuels. The owner/charterer owner also agrees that the seller will have pledge on their company registries for bunker invoice, interest and cost. The director of owner/charterer is also liable for bunker invoice, interest and costs personally and party to the seller’s GTC. The Buyer further warrants that the Seller has the right to assert and enforce a maritime and/or contractual lien (any such lien shall extend but will not be limited to the Vessel’s freight and/or hire payments voyages and insurance collections) in against the Vessel or ship sale value as surrogate or any sister or associated vessel for the amount of the Bunkers provided, plus without limitation, contractual interest and any legal and other expenses related to enforcement of the lien.
5.05.04 Application of US Maritime Lien Act
The laws of the United States, including but not limited to 46 U.S. Code § 31341,31342 and 31343 the Commercial Instruments and Maritime Lien Act, shall always apply with respect to the existence of a 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. The Buyer warrants that the Physical Supplier / Seller will have and assert a maritime lien under the flag law too (if applicable under the relevant jurisdiction). The Arbitrator will apply US Maritime Lien Act. 12.1.3 The Buyer or the Vessel or its owners must notify the Seller of its intention to exclude the liability of the Vessel at least 12 hours in advance before the supply to the seller in writing to email: info@agataz.com
5.05.05 Joint and Several Liability
If the Director of the Vessel’s Manager is also the director of the ship owners of other vessels in their fleet, they, as directors of other vessel ship owners, accept and agree that the ship owners of other vessels will be jointly and severally liable to pay the outstanding Invoice including any interest and legal costs.
6.03 Notice of the Lien Clause to Master Owner
Where the Product is ordered by a charterer of a vessel and not by the owner/manager of the vessel, the ordering party has a duty prior to concluding the Agreement with the Seller to notify the owner/manager of the Vessel of the Seller’s Standard Terms and Conditions. The Seller will consider that such notification has taken place and that Seller’s Standard Terms and Conditions are accepted by the owner/manager of the Vessel upon the conclusion of the Agreement. Any attempt by the owner/master of the Vessel, or any other crew member of the Vessel or the Owners or managers of the Vessel to revoke or otherwise prejudice Seller’s maritime lien against the Vessel by imposition of a “no lien stamp” on the delivery note shall be null and void if affixed after the supply of the Product is commenced. Any such unilateral conduct will give Seller the right to treat the invoice for the supply of the Product as being immediately due and owing and will entitle the Seller to enforce all its rights against the Buyer, as well as Seller’s maritime lien against the Vessel.
 

G. THE PRICE

7.01 Price
The cost of marine Products per ton is volatile and the Seller therefore reserves the right to increase the Price at any time before delivery. Notice of the increase will be given during the Seller’s normal business hours (Monday to Friday inclusive, 0900-1800 Athens time as the case may be). Notice given outside these hours will be deemed to have been given at 0900 on the first business day thereaŌer. In such event, the Buyer may forthwith give wriƩen notice to the Seller, cancelling the Agreement. If no such notice is received within two (2) hours of the Seller advising the Buyer of the increase of the Price, the Buyer shall be deemed to have agreed to the revised Price and the Agreement so revised shall remain in full, force and effect.
7.02 Further Cost
In addition to the Price of the Product, the Buyer agrees to pay for any charges raised in respect of taxes, wharfage, freight, barge, vehicle, wagon or clean up costs including overtime or other like payments; insurance pilotage; port dues and any and all other like costs and expenses incurred by or charged to the Seller. Suchcharges, costs and expenses will be passed on to the Buyer as and when they are advised to the Seller and together with the Price shall for all purposes constitute the full cost due from the Buyer to the Seller for the Product supplied.  

H. PAYMENT

8.01 Payment of the Price
Payment will be made in United States dollars to the bank and account specified by the Seller in full without deduction for any reason whatsoever so as to ensure that the Seller receives value for the payment in cleared funds on or before the Due Date.
8.02 Timely payment
Timely payment is of the essence of the Agreement i.e. the payment term is a condition of the Agreement like the rest of these terms.
8.03 Late payment
Late payment will incur a financial charge to the Buyer of 3% per calendar month on the outstanding sum calculated on a daily basis from Due Date until receipt or payment by the Seller. Accrued financial charges will be added to and become part of the outstanding sum at monthly intervals. In the event that the contractually agreedrate of financial charge specified in the Agreement.
8.04 Payments received
Payments received by the Seller from or on behalf of the Buyer, notwithstanding any specific request to the contrary, will be applied in the following order in diminution or extinction of:
  • Accrued financial and other charges in respect of transactions for which the principal sum has been previously paid.
  • Accrued financial and other charges arising from all other transactions.
  • Any principal sum or sums due and outstanding commencing with the oldest and proceeding chronologically thereaŌer to the most recent.
  • Any principal sum which the Seller knows or reasonably expects will fall due at a future date.
8.05 Buyer’s reputation
If at any time the reputation, standing, creditworthiness, liquidity or solvency of the Buyer or any subsidiary, parent, associate or affiliate thereof should give the Seller reasonable cause for concern, the Seller may, without prejudice to all other rights and remedies which it may have, give notice to the Buyer that credit facilities from the Seller to the Buyer are withdrawn or suspended as the case may be and all sums outstanding shall thereupon fall due for immediate payment.
8.06 Costs and expenses
The full legal and other costs and expenses incurred by the Seller in connection with any breach by the Buyer of any term of the Agreement including but not limited to actions for debt shall be for the Buyer’s account and shall for all purpose form part of the Price due from the Buyer to the Seller for Product supplied.
8.07 Agent’s liability
Should Product be ordered by an agent, then such agent, as well as the principal, shall be bound by, and liable for all obligations as fully and as completely as if he were himself the principal, whether such principal be disclosed, partially disclosed, or undisclosed, and whether or not such agent purports to contract as agent only.
8.08
Payments made by the Buyer shall at all times be credited in the following order: (1) legal and arbitration costs, (2) interest and administrational fee, and (3) invoices, also if not yet due.
 

I. CLAIMS, DISPUTES AND PRECAUTIONS

9.01 Time Limits
Because the Seller is frequently placed under strict limits by its suppliers for the presentation of claims, it is necessary that it too impose strict time limits on receiving notice of claims from its Buyers.
9.02 Notification
WriƩen notice of any claim or potential claim must be given to the Seller within the time limit specified below herein. It is the Buyer’s responsibility to ensure that notice is received by the Seller, whose confirmation of receipt should always be sought. Regardless of whether a claim or dispute has arisen or is anticipated, the Buyer must always give prompt notice to the Seller of any discrepancy, error or omission present in any form or document tendered, submiƩed or produced by the Physical Supplier and of any unusual occurrence relating to the Delivery.
9.03 Sufficiency of Information
To enable the Seller to investigate and pursue a claim the notice must give sufficient information for the Seller to be able to identify the relevant transactions, the nature of the complaint and the loss or damage alleged. Any notice which does not give such sufficient information will not be valid. For the same reasons, the Buyer must provide a full and complete response to any and all questions, enquiries and requests made of it by the Seller concerning the claim and maƩers relating thereto.
9.04 Quantity claims and disputes
The Buyer’s representative shall, together with Seller’s or Physical Supplier’s representative measure and verify the quantities of Product delivered from the tank from which delivery is made. For bulk deliveries, delivery barges, wagons and vehicles must be checked by tank dipping to measure the contents and ensure full turnout. Flow meters must be checked for seals, correct seƫngs and calibration, and general condition. All of these checks must be carried out before and aŌer delivery of each consignment and each barge, wagon or vehicle tank load. Any discrepancies must be recorded on the Physical Supplier’s delivery receipt. Unless these procedures are followed it is nearly always impossible for a claim to be substantiated. The Seller regrets therefore that it will be obliged to reject claims for short delivery where these receiving procedures are not followed.
9.05 Short delivery claims
The Seller will not accept a claim for short delivery based upon figures obtained by measuring the Product in the Vessel’s tanks. When the Product is supplied by barge, the particular barge will present its tank calibration and ullage sounding records, which are considered to be the sole valid and binding documents to determine the quantity supplied. Quantities calculated from the receiving Vessel’s sounding shall not be considered.
9.06 Buyer’s failure to verify
Should the Buyer’s representative fail or decline to verify the quantities, the measurements of quantities made by the Seller or Physical supplier shall be final, conclusive and binding and the Buyer shall be deemed to have waived any and all claims in regard to any variance.
9.07 Endorsement on Delivery Receipt
The Buyer expressly undertakes not to make any endorsement, complaint/comment on the Product Delivery Receipt when presented for signature. In the event of complaint/comment on the quantity of the Product delivered, the Buyer or the Master of the Vessel shall give to the Seller or Physical Supplier a leƩer of protest separately, followed by a complaint in detail to the Seller, with full supporting vouchers, in writing within 7 (seven) days thereof, failing which, the Buyer shall be deemed to have expressly waived any such right to claim against the Seller or Physical Supplier, and the Seller or Physical Supplier’s weight and measurements shall be conclusive evidence of the quantity of Product delivered.
9.08 Variation
The Seller or Physical Supplier shall be at liberty to provide, and the Buyer shall accept a variation of 5% from the agreed quantity, with no other consequence than a similar variation to the corresponding invoice from the Seller.
9.09 Time Limit for Quantity Dispute
The time limit for receipt by the Seller of notice of a quantity dispute is 7 (seven) days from the date of Delivery unless the Agreement provides otherwise.
9.10 Quality Claims and Disputes
It is the Buyer’s responsibility to ensure that the products for Delivery are those which are required by the Vessel and are delivered into the correct tanks. The Vessel shall provide and have appropriate and segregated tanks to receive the contracted quantity of Product. The Vessel shall always be able to perform its own blending on board if any blending is deemed to be required by the Buyer. The Vessel shall upon delivery test the Product supplied by running her engines or auxiliaries or equipment, for which the Products are supplied, for a minimum of 1 (one) hour to determine that the Products are satisfactory. In the event the Products are not considered satisfactory, the Seller and Physical Supplier are to be notified immediately after such test period has expired.
9.11 Instructions for Sample Collection
It is the duty of the Buyer to instruct the Physical Supplier to take four (4) representative samples of every consignment and load of the Product on commencement of the delivery in accordance with the custom at Point of Delivery. The four representative samples must be signed, labelled and sealed by a representative of the Physical Supplier and by an officer of the Vessel or other senior representative of the Buyer. Samples have to be provided with labels showing the Vessel’s name, Place of Supply, Point of Delivery, Product name, Delivery Date and seal number. The seal numbers shall be inserted into the Physical Supplier’s delivery receipt. By signing and stamping the Physical Supplier’s delivery receipt, both parties agree to the fact that the samples referred to therein are deemed valid and taken in accordance with the requirements as specified in this clause.
9.12 Sampling Procedure
In case that drip sampling is not available onboard barge, truck or shore tank, samples shall be taken as a composite of each tank from which supplies are made, divided with 1/4 from each the top, mid and bottom of the tanks.
9.13 Retention of Samples
Two (2) sets of samples taken shall be retained by the Seller for sixty (60) days after delivery of the Product or, if requested by the Buyer in writing and agreed by the Seller, for as long as the Buyer reasonably required. The other two (2) sets of samples must be retained by the Vessel, one of which may also be used for the purposes of confirming the sulphur content of the marine fuel and such other matters as are specifically set out in the relevant Conventions.
9.14 Notification of Defective Product
In the event the Buyer believes that the Product supplied does not accord with the relevant description in the Agreement or is defective, the Buyer shall immediately:
  1. Take all reasonable steps to mitigate the consequences of having been supplied with possibly defective or incorrect Product.
  2. Give immediate notice with full details of the possibly defective or incorrect product to the Seller together with the Vessel’s position, destination and ETA; the quantities and locations of all Products on board the Vessel/stored in the Vessel, the rate and quantity of consumption since delivery and the location immediately prior to consumption of Products consumed; for each of the three preceding deliveries to the Vessel, the quantity, quality and specification of Product supplied, the place and date of supply, and the name of the Physical Supplier.
  3. Inform the Seller of the whereabouts of the Buyer’s Set of Samples.
9.015 Dispute Resolution regarding Quality
In the event of a dispute in regard to the quality of the Product delivered, the samples shall be deemed to be conclusive and final evidence of the quality of the product delivered. One of the samples retained by Physical Supplier shall be forwarded to an independent laboratory to perform a set of tests, the result of which are to be made available to both parties. Those test results shall be final and binding upon both Buyer and Seller as to the parameters tested. The parties are to use best endeavours to agree as to the independent laboratory to perform the tests. If no agreement can be reached on the choice of laboratory within three (3) days of the Buyer being advised of the Seller opting to have the sample tested, the Seller is at liberty to send the sample to a reputable and independent laboratory of its choice for the tests to be conducted, and those test result will be final and binding upon Buyer and Seller as set out above.
9.016 Procedure for Seal Breaking
The seal must be breached only in presence of both parties unless one/both in writing have declared that they will not be present. Both parties shall have the right to appoint independent person(s) or institute(s) to witness seal breaking. No samples subsequently taken shall be allowed as (additional) evidence. If any of the seals have been removed or tampered with by an unauthorized person, such sample(s) shall be deemed to have no value as evidence. Any eventual samples drawn by the Buyer’s personnel either during delivery or at any later date after delivery shall not be valid as indicator of the quality supplied. The fact that such samples may eventually bear the signature of personnel on board the barge or tank truck or other delivery conveyance shall have no legal significance. The Seller shall have no liability for claims arising in circumstances where the Buyer may have commingled the products on board the Vessel with other Products.
9.017 Reporting Damages
If it is alleged that any equipment or machinery has been damaged by defective Product, full details must be given to the Seller at the earliest opportunity and the item must be preserved and made available for inspection on demand, at any reasonable time or times, to the Seller or its representative.
9.018 Time Limit for Quality Claim
The time limit for receipt by the Seller of notice of a quality claim is 7 (seven) days from the date of Delivery unless the Agreement provides otherwise.
9.019 Summary of Time Limits for Submission of Notice of Claim
Quantity claims and disputes – Seven (7) days Quality claims and disputes – Seven (7) days Other claims and disputes – Seven (7) days
9.20 Submission of Claim Supporting Documentation and Evidence
After serving a notice of a claim relating to quantity or quality of the Product, the Buyer shall furnish to the Seller a sample of the Product delivered to the Buyer’s Vessel, and all documentation supporting the Buyer’s claim, including, but not limited to, all analyses performed on the Product. The Buyer shall immediately give to the Seller all reasonable opportunity to inspect the Vessel, including, without limitation, its engines, fuel tanks, equipment, logs, records and copies of communications, including communications between Vessel and Buyer (and/or between Vessel and owner or operator), as well as communications to and from fuel testing organizations consulted by the Buyer or the Vessel’s interests. If the Notice of a Claim and the supportive documentation and evidence is not provided within thirty (30) days of the date the Product was delivered to the Vessel, the Buyer shall be time-barred from making a claim.
9.21 Obligation for Timely Payment
A Claim of any nature by the Buyer does not relieve the Buyer of the responsibility and obligation to make full and timely payment of all amounts invoices by the Seller.
 

J. WAIVER

10.00 Failure by any party to the Agreement to enforce any right against the other shall not be construed as a waiver of that right or in any way affect the validity of the Agreement. In particular, the granting by the Seller of any additional time to make payment or the without prejudice waiving or reducing of any financial or other charge shall not prevent the Seller at any time thereafter from relying upon its strict contractual rights.  

K. INDEMNITY

11.00 Indemnification for Damages
The Buyer shall indemnify the Seller in respect of all damage or injury incurred to any person or to any property and against all actions, suits, claims, demands, costs, charges, or expenses arising in connection to the Supply, to the extent that the same shall have been occasioned by the negligence or default of the Buyer, his servants or agents or any third party in the course of performance of or arising out the Agreement.
11.01 Indemnification for Pollution Claims
The Buyer shall also indemnify and hold harmless the Seller, the fuel barge contractor and their agents and employees from all claims, damages, losses and expenses, including attorney’s fees, arising out of or resulting from the performance of the Agreement, including claims for damages, losses, penalties or expenses arising under any air, water quality or hazardous waste statute, regulation or ordinance, hereinafter referred to as “pollution claims”, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Buyer’s Vessel and its appurtenances) including the loss of use resulting therefrom, or to pollution claims, and (b) is caused in whole or in part by any negligent act or omission of Buyer, the Vessel or the Vessel’s interests, their agents or employees or any one directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not such claim, damage, loss, or expense is also caused in part by the Seller, the fuel barge contractor, their agents or employees.  

L. LIABILITY

12.00 Liability The Seller shall not be liable to the Buyer for any loss or damage of whatsoever nature including physical injury, loss of hire, loss of profit or any other consequential damages or loss whatsoever arising from any cause whatsoever whether in contract, tort or otherwise including the negligence of the Seller, its servants, agents or subcontractors. Consequential damages or losses include any and all damage claims involving supply chain interruptions, and contracts and/or prospective contracts about which Seller has received no written information at the inception of the Agreement, detention, demurrage, charter hire, crew wages, towage, pilotage, lost profits, barge delivery charges and increased and increased costs or expenses in obtaining replacement Product.
 

M. LIMITATION OF LIABILITY

13.00 General Limitation of Liability
Notwithstanding any provisions in this Agreement or any confirmation to the contrary, the Seller’s liability for any breach of contract or warranty, or commission of any tort is limited in the aggregate to the Agreement’s Price, or USD 50,000, whichever is less. Under no circumstances is the Seller liable should the Buyer suffer physical damage to property in which the Buyer holds a proprietary interest.
13.01 Specific Limitations of Liability
Seller shall not be liable for demurrage or for loss, damage or expense of any nature whatsoever incurred by the Buyer due to any delay in delivery, or failure to make delivery, of Product occasioned by the barge contractor. Seller shall not be liable for such demurrage, loss, damage or expense incurred by the Buyer due to delays in furnishing a berth. In any situation not included above, the Seller shall not be liable for delay in the delivery, or failure to make the delivery of the Product unless the Buyer proves that the delay or failure was solely caused by gross negligence on the part of the Seller. The Seller is not liable for supplying defective or improper Product or Product other than as ordered by Buyer, unless the same is directly and solely caused by the negligence of the Seller’s own employees. In such event, the Seller’s liability, if any, is strictly limited to the cost of replacement of the defective or wrong kind of Product at the date and Place of the Supply. The Buyer acknowledges and warrants that it is the Buyer’s responsibility to test the Product provided and to ensure that it is proper in all respects prior to the use of such fuel on the Buyer’s Vessel. The Seller shall not be responsible for any damage to the Buyer’s Vessel, including, without limitation thereto, its machinery or tanks or their contents, caused by use of defective, improper, or the wrong kind of Product.
13.02 DISCLAIMER OF WARRANTIES
Any implied warranties or conditions, whether by Statute or otherwise, including those of quality, merchantability and fitness for purpose of the UK Sale of Goods Act are excluded.  

N. INSURANCE

14.00
The Buyer is responsible for effecting and maintaining insurance which will fully protect the Buyer, the Seller and all third parties from all risks, hazards, and perils associated with or arising from the Agreement and Delivery.  

O. GOOD PRACTICE

15.00
The Buyer shall, in addition to observing and complying with the terms of the Agreement, abide by generally accepted good operating practices.
 

P. JURISDICTION

16.00
All disputes arising in connection with this agreement or any agreement relating hereto, save where the Seller decides otherwise in its sole discretion. For the sole benefit of the Seller it is further agreed that the Seller without prejudice to any rights hereunder of the Seller or any claim raised pursuant to have the right to proceed against the Buyer, any third party or the Vessel in such jurisdiction as the Seller in its sole discretion sees fit inter alia for the purpose of securing payment of any amount due to the Seller from the Buyer or the Owner (pursuant to a payment guarantee). In such circumstances the proceedings shall be governed by the law (substantive and procedural) of such jurisdiction.
16.01
Any and all disputes and claims arising out of or in connection with the Agreement, including any question regarding its existence, scope, validity of the arbitration, the arbitration agreement or the arbitrability of any claim, termination, shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof for the time being in force except that United States Federal Maritime Lien Act will apply to any determination of the existence of a maritime lien, attachment or any other maritime claim regardless where the Seller commences any legal action and arbitration against the Buyer. The seat of the arbitration shall be England, even where any hearing takes place outside England. The arbitration proceedings shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced. The language to be used in the arbitration shall be English. Unless the Parties agree upon a sole arbitrator is appointed the arbitration reference shall be to three arbitrators. A Party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other Party requiring the other Party to appoint its own arbitrator within fourteen (14) days of that notice, and stating that it will appoint its arbitrator as sole arbitrator if the other Party fails to appoint its own arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the other Party fails to appoint its arbitrator or give notice that it has done so within the fourteen (14) days specified the party referring the dispute to arbitration may, without any further prior notice to the other Party, appoint its arbitrator as sole arbitrator and shall advise the other Party accordingly. The award of the sole arbitrator shall be binding on both Parties as if the sole arbitrator had been appointed. The arbitrators will be commercial shipping men in England and member of LMAA.
16.01.01
The Seller has the right to choose for starting arbitration or legal action in New York, and the Buyer and Buyer/owner agree to the jurisdiction of the Arbitral Panel and court in New York. Any dispute arising under, in connection with, or incidental to this Agreement shall be heard and decided in New York City, New York State, by three persons, one to be appointed by each of the parties hereto, and the third by the two so chosen; their decision or that of any two of them shall be final and, for the purpose of enforcing any award, this Contract may be made a rule of the court. Should a party fail to appoint an arbitrator within ten days of notice of demand for arbitration, the demanding party may appoint the second arbitrator with the same force and effect as if appointed by the second party. Should the two arbitrators be unable to agree on the appointment of a third arbitrator within ten (10) days after the appointment of the second arbitrator, the President of the Society of Maritime Arbitrators, Inc. shall make the appointment upon the request of either party without further notice. The proceedings shall be conducted in accordance with the Rules of the Society of Maritime Arbitrators, Inc., including paragraph 2 “Consolidation”. This Contract shall be deemed to have been executed and fully performed in the State of New York, and shall be interpreted and construed in accordance with and subject to the federal maritime law of the United States or, should no such law exist on any particular issue, the laws of the State of New York. With regard to petitions to compel arbitration or to confirm an arbitration award, the parties consent to service of process by e-mail, certified mail, courier service, and irrevocably waive their right to personal service of these documents. The clause 16.01 and 16.01.01 are for the benefit of the Seller only. As a result, the Seller shall not be prevented from taking proceedings relating to a dispute under these GTC in any other courts with jurisdiction.
16.02
If the flag law also provides maritime lien for the Marine Bunker supply, the Seller will have the right to ask to apply the flag law separately, and this will be the Seller’s choice. When the maritime lien is enforced against the vessel in a convenient jurisdiction, The buyer and owner agree that 3% monthly interest will be applied for late payment of bunker invoices. The buyer and owner agree that the Commercial Instruments and Maritime Lien Act will apply as foreign maritime lien in any jurisdiction without any challenge.
16.03
The General Maritime Law of the United States of America and the Commercial Instruments and Maritime Lien Act (“CIMLA”), 46 U.S.C. 31301 et seq. (referred to collectively as the “General Maritime Law of the United States”) shall always apply to any determination of the existence of a maritime lien, attachment regardless of the country in which the Agreement is made, where the Marine Bunker is delivered, or where the Seller commences any legal action against the Buyer.
16.04
No term of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) will apply to the Agreement.
16.05 Counter Security
The Buyer(s) hereby expressly and irrevocably waives any and all rights to demand counter security/security for cost from the Seller in response to any claim, counterclaim or otherwise, in any court or arbitration proceeding.
16.06 Agent for service of process
Buyer agrees and acknowledges that Buyer has no agent appointed for service of process in the State of New York or in any State adjacent to the State of New York, including New Jersey, Connecticut, and Vermont and for the purposes this GTC the Buyer hereby revokes all such prior appointments. In the event that the Seller commences legal proceedings or arbitration against the Buyer pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, the Buyer hereby expressly waives any defense that the Buyer is present in a convenient adjacent jurisdiction to any jurisdiction where the Seller has commenced legal proceedings or arbitration proceeding against the Buyer.
16.07 Arbitrator’s Jurisdiction
(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim or party issue or scope of arbitration clause without any need to refer such matters first to a court. (b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause. (c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter or as part of the final award.
16.08 Non-Physical Supply
In circumstances where the Seller is not the Physical Supplier, and where the Seller (or any Seller Affiliate) is purchasing the Marine Bunker from the Physical Supplier, the seller has choice to use the terms and conditions of the sale and purchase contract against the owner and vessel. The seller will have the same rights of the physical supplier against the owner/charterer/buyer and vessel in rem.
16.09 Associated ship liability
South Africa Admiralty Jurisdiction Regulation Act will apply for associated ship arrest. A ship can be arrested as an associated ship in terms of s 3(7)(a) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (‘the AJRA’). In terms of s 3(7)(a)(iii) of the AJRA a ship is an associated ship where it is owned by a company which is controlled by a person who owned the ship concerned or controlled the company owning the ship concerned when the maritime claim arose. Associated ship owner agrees that they are party to arbitration clause and other terms of this GTC and they will liable for payment of outstanding bunker invoice, contractual interest and legal cost.
16.10 Interim Measures
The Tribunal will have power to order for interim measures on preventing sale of vessel and that the claim amount has to be paid from the fund of ship sale as security covering the seller’s outstanding bunker invoices, interest and legal costs.
 

Q. SANCTIONS

17.00
The Buyer represents, warrants and undertakes that:
  1. it shall at all times comply with Sanctions applicable to the Seller and/or the Buyer that affect the performance of either party’s obligations under this Agreement;
  2. it is not, whether directly or indirectly, the subject of any Sanctions and that it will promptly notify the Seller should it become, or have reasonable cause to suspect it will become, subject to Sanctions during the term of this Agreement; and
  3. it will not nominate any Vessel to receive the Product or perform any of its obligations under this Agreement in violation of any Sanctions or which would put the Seller in breach of any Sanctions.
17.01
If the Buyer is or becomes subject to Sanctions which affect the ability of either party to perform any obligations under this Agreement or the performance of any aspect of this Agreement becomes prohibited by Sanctions, the Seller may, at its sole discretion, terminate this Agreement and treat the Agreement as being repudiated on the part of the Buyer.