Terms and Conditions of Sale (“Conditions”) to Business Customers
These Conditions form the basis of the Contract that will govern our dealings with you. They apply to the supply of Goods (and Services) to Business Customers (as defined). The Contract can only be amended or changed by written agreement of both the Buyer and Seller and any attempt to do otherwise shall be considered null and void.
1. Definitions and Interpretation
1.1 The following definitions, unless the context requires otherwise, apply to these Conditions: “you”, “your” or “The Buyer”: the person, company or other type of organisation that enters into a Contract to purchase Goods (and Services) from us (and who will be a Business Customer);
“we”, “us”, “our” or “The Seller”: Thames Marine Services Limited (Company No: 9701022) of 9-10 Copper Row, London SE1 2LH or any brand or trading division of, or any company which is controlled by or under common control with, Thames Marine Services Limited that is to supply the Goods (and/or Services) to you under a Contract;
“Additional Charge(s)”: means any one or more (as appropriate) of the Small Load Premium, late payment surcharge, priority charge or Failed Delivery Charges as described in Conditions 6.4 to 6.7;
“Business Customer”: any customer that is ordering or receiving Goods (and Services) whilst acting in the course of his trade, business, craft or profession;
“Charges”: has the meaning set out in Condition 6.1;
“Conditions”: means these Terms & Conditions of Sale;
“Contract”: contract under which we will supply Goods (and Services) to you pursuant to, in accordance with and subject to the Conditions and any Relevant Agreement;
“Goods”: any goods that we agree in a Contract to supply to you;
“Good Industry Practice”: the exercise of such high degree of skill and care as would reasonably be expected from an appropriately skilled and experienced person with expertise in the relevant area, including the handling of and dealing with goods the same as or similar to the Goods;
“Insolvent”: you are unable to pay your debts as they fall due or you are, or become, the subject of any insolvency procedure (for example, without limitation, receivership, liquidation, administration, voluntary arrangements (including moratorium) and bankruptcy) or any application or proposal for an insolvency procedure;
“Relevant Agreement”: additional terms, conditions and/or specifications that apply to the Contract, whether by variation under Condition 2.2 or under a separate agreement which we have entered into with you (and which incorporates these Conditions by reference);
“Services”: means: (i) the delivery of the Goods by us (or a third party on our behalf) to you; (ii) making the Goods available to you for collection; (iii) such other services as we may agree in a Contract to provide to you from time to time, as appropriate.
1.2 In these Conditions: references to the singular include the plural and vice versa; reference to one gender is to any gender; reference to a statute or statutory instrument is to as it is in force for the time being and includes any amendment, extension, application or re-enactment and any subordinate legislation made under it; headings do not affect the interpretation of these Conditions; and the term “including” shall be construed without implying limitation (and variants of “including” shall be interpreted accordingly).
2. Application of Terms and Contract Process
2.1 Subject to Conditions 2.2 and 2.3, these Conditions apply to all Contracts and set out the whole agreement between you and us to the exclusion of all other terms and conditions. Any terms or conditions which you put forward (whether endorsed on, delivered with or contained in your purchase order(s) or included in any other documents) do not form part of any Contract and any attempt by you to exclude, vary or limit any of these Conditions shall be void. You must ensure that you read and understand these Conditions because they will govern your dealings with us once a Contract is formed as set out below.
2.2 Any variation to these Conditions, and any representation about the Goods and/or Services, shall have no effect and shall not form part of the Contract unless agreed in writing by us, acting through one of our authorised employees (which do not include any of our telephone sales staff). If you have any particular requirements, then you must make them clear at the time you place your order and if (at our discretion) we agree to meet those requirements then we will provide you with confirmation in writing.
2.3 Subject to Condition 2.5, we may provide you with a quotation for the Goods (and the related Services) in person, by phone or in writing (including by email). A quotation so provided is valid only on the same day as it is communicated to you, provided that we do not withdraw it (which we are free to do at any time).
Where we quote a price for the Goods we shall provide you with both a price per litre which excludes VAT (the “Unit Price”) and an aggregate price which includes VAT for the volume of Goods that you wish to order (the “Net Price”).
The Unit Price is intended to assist you in making comparisons between different suppliers and to provide an indication as to what we may invoice you should you subsequently take more or less than the volume of Goods which you ordered. Unless we expressly state otherwise, the Unit Price includes the costs of providing the related Services (subject always to any Priority Charges which may apply, as described in Condition 6.6).
2.4 If we agree an alternative pricing formula with you in respect of the Goods then we shall apply that formula to the volumes of Goods delivered whilst that formula remains in effect so as to determine the relevant Net Price for each delivery.
2.5 If you place an order with us (pursuant to a quotation or otherwise) then that order is an offer from you to us to enter into a Contract, which we are free to either accept or reject at our discretion. A Contract is formed (and these Conditions become binding on you) when we either: (a) confirm to you (either orally or in writing) that we have accepted your order or (b) commence performance of the Services, whichever is the earlier. Each order which you place and which is accepted by us shall form a separate Contract between us.
3. Description
3.1 The description of the Goods (and Services) shall be as set out in our quotation and/or delivery documentation. If you have any general comments or queries regarding the Goods (and/or Services) then you must raise these issues when placing your order. You will order the correct product, grade and quantity required. Our sales personnel are not consultants and are not able to provide you with technical advice as to particular products or performance issues and so if you have any specific or technical queries then you should address them to us in writing (any response we might provide to such queries will be given only to the best of our knowledge and belief and without any liability on our part). All other descriptions, specifications and illustrations which we issue or which are contained in our brochures, website(s) or other materials are approximations and for information purposes only and you should not rely upon the same.
3.2 We may, at any time and without notice to you: (i) change any of the advertising or product information materials referred to in Condition 3.1; (ii) make changes to the specification of the Goods that we believe are necessary to ensure that they conform to any applicable safety or statutory requirements; and/or (iii) make minor modifications to the specification of the Goods that we consider necessary or desirable (and which should not have any material adverse effect on the performance of the Goods).
4. Delivery
4.1 Unless otherwise agreed in writing, we will deliver the Goods to you at your premises or (if different) the address which you have specified for delivery at the time of quotation. Your order or nomination should include full details of the receiving vessel, including the IMO Number, supply port, ETA and ETD of the vessel at the supply port, plus the name and contact details of any agents as well as product details, including the grade and quantity required. In such notice, you shall also advise us of any special conditions, difficulties, peculiarities, deficiencies or defects in respect of and in particular to, the vessel, which might adversely affect the delivery of marine fuels. Notwithstanding anything to the contrary express or implied elsewhere in the Contract, we shall have the right at our discretion to decline the nomination of any vessel notified by you. No vessel shall be deemed to have been nominated unless and until we have confirmed the nomination by sending a notice in writing to you, within 48 hours of your notice.
4.2 Delivery of the Goods (and performance of the Services (other than the Maintenance Services)) will be deemed to have taken place as follows:
(a) for Goods delivered in bulk by river barge, when on discharge it passes the hose connection of the storage tank, container, receptacle, vessel or fill line (as the case may be) which you have provided for receiving delivery;
(b) for Goods delivered in barrels, packages or some other form, when the Goods are off-loaded from the delivery vehicle (or at such point as the Goods are collected by you); or
(c) for Goods collected by you from us, when the relevant Goods pass through the meter of the loading arm of our loading gantry.
4.3 We will take reasonable steps to deliver the Goods by the date specified at the time of quotation or, if none is specified, within a reasonable period of time. However, any delivery dates are estimates only and we cannot guarantee that the Goods will be delivered on or by any particular date or time.
Please be aware that our business is subject to marked seasonal fluctuations in demand and that during the winter months in particular we can be subject to the twin pressures of markedly increased demand and poor river conditions so that you must allow extra time for deliveries and factor this into the orders which you place.
4.4 We may deliver the Goods (and perform the Services) in one or more separate instalments. If we choose to deliver in instalments for operational reasons, then we will not charge you extra delivery costs for this (if applicable). Each instalment will be invoiced and must be paid for separately and in accordance with the provisions of the Contract. Each separate instalment shall be a separate Contract. If there is an issue with one instalment and you are entitled to cancel the same then that will not entitle you to cancel any other Contract or instalment.
4.5 You must in respect of each delivery of the Goods:
(a) ensure that all necessary arrangements are put in place for the safe acceptance of each delivery including (without limitation) providing adequate and appropriate certification and fully working equipment for accepting delivery, ensuring delivery and storage access is clear and available, render all necessary assistance reasonably required to moor or unmoor the bunker barge and ensure that sufficient storage capacity is available, is safe and suitable for the Goods, is clearly marked with product name (grade), safe working capacity and identification number is provided with a safe means to check volume in tank before and during delivery and complies with any and all applicable laws and regulations;
(b) not board any vehicle used by us (or on our behalf) for the delivery of the Goods and we may stop the relevant delivery if you attempt to do so;
(c) indicate to us the correct fill point in respect of your tanks (and note that we are not responsible for dipping, checking or testing your tank(s)), inform the maximum allowable pumping rate and pressure that the vessel requires and agree on communication and emergency shutdown procedures;
(d) ensure that you are properly licensed by the appropriate local authority to store marine fuel; (ii) ensure that the connecting hose is properly and securely connected to the filling point; and (iii) observe all the conditions of your Marine Fuel Storage Licence (if any) and not allow any smoking, naked lights, fires, stoves, or heating appliances of any description in the vicinity of the storage and the fill dip and vent pipes connected to it;
(e) inspect and check (to the extent reasonably practicable) the Goods to ensure that they conform to the Contract and ensure that your authorised representative signs a delivery note (or equivalent documentation provided by our delivery agent) to confirm the Goods are as ordered and undamaged;
(f) raise any issues regarding the safety or suitability of your storage facilities and/or tank before we commence delivery (ensuring that any out of service equipment is clearly marked and isolated);
(g) in any event, act sensibly and with all due care and caution in relation to the Goods (and receipt of the Services), acknowledging that there are health and safety issues inherent in receiving and storing the Goods, which if handled incorrectly can be dangerous. If you are collecting the Goods from us then you must ensure that you comply with our policies and procedures regarding access to, and conduct at, our premises; and
(h) where the Carriage of Dangerous Goods and Use of Transportable Equipment Regulations 2009/1348 and/or any regulations amending or replacing the same apply, ensure that such regulations are complied with before and during delivery.
4.6 Please note that where we are delivering highly flammable Goods or other similar Goods to you it is important (for your safety and for the safety of our staff making the deliveries) that you are aware of and are complying with any and all applicable laws and regulations in relation to the health and safety risks associated with such goods. If you are unsure as to the obligations referred to above regarding the safe storage and receipt of the Goods, then it is your responsibility to raise these concerns with the health and safety department at your local council who should provide you with the information you require. If we believe that it would be unsafe to make a delivery of Goods to you then we may suspend the delivery unless or until we are satisfied (acting reasonably) that it would be safe for us to proceed. If a spill occurs during supply, you shall promptly take all action necessary to remove the spillage and mitigate its effect. We also have procedures in place and be ready to take such measures as we consider to be necessary or desirable in connection with the removal of the spillage and the mitigation of its effects by employing our own resources or contracting with others, in accordance with our policies and procedures for such events. We shall be indemnified against all liability, costs and expenses arising from any spillage, except to the extent that such spillage has been caused or contributed to by our own negligence or by fault in our own equipment. You should then immediately provide us with any requested documents and information, including copies of the vessels spill contingency plan or any other applicable programme for the prevention or mitigation of pollution as required by any applicable laws or regulations.
4.7 We shall record the delivery date, quantity and description of the Goods delivered (and Services provided) to you, and such records shall, in the absence of evidence to the contrary, be deemed to be conclusive proof as to the date of delivery and the volume and type of Goods delivered (and Services performed). If you believe that the information which we have recorded, and which is set out on your delivery notice or invoice, is incorrect then you must notify us in writing providing full details of any disputed element(s) as soon as is reasonably practicable and, in any event within 7 days of the date of receipt of the relevant delivery note or invoice.
4.8 We will invoice you for the volume of Goods actually delivered (as determined in accordance with Condition 4.7), provided that we will not (without your prior consent) deliver more Goods than the ordered volume. We will always try to deliver the agreed volume of Goods, but if we are unable to do so (for example, if we find on delivery that: we are unable to safely access the tank; we deem the tank to be unsafe; or there is less space available in your tank than the ordered volume of Goods) and you have paid for the ordered Goods in advance then we will refund (on a pro rata basis utilising the Unit Price) a sum to you to reflect the lower volume of Goods actually delivered (though, unless the failure to deliver the ordered volume was caused by our default, any Priority Charge or other specified call-out charge(s) shall apply as quoted as these are charged on a ‘per delivery’ basis).
For the avoidance of doubt, where a second delivery is required to fulfil the original order, a Priority Charge may be payable (where urgent delivery is requested in accordance with Condition 6.6) unless the failure to deliver the ordered volume at the initial delivery was caused by our default.
4.9 If for any reason (other than our failure to comply with these Conditions): (i) you fail to accept delivery of any of the Goods when they are ready to be delivered; (ii) you fail to collect the Goods when they are ready for collection; (iii) you wish to delay delivery, or (iv) we are unable to deliver the Goods because of some act or omission on your part then:
(a) we shall have no liability to you for late delivery;
(b) we may store the Goods until actual delivery, and you will be liable to pay a reasonable sum for all related costs and expenses (including, storage, insurance and re-delivery costs) that we may incur; and/or
(c) we may deliver the relevant Goods to another customer which may mean that our ability to subsequently deliver replacement Goods to you may be delayed.
4.10 If you become aware that the wrong or defective Goods have been delivered then you must stop using those Goods with immediate effect and notify us as soon as practicable regarding the same. We will contact you to arrange collection of the goods or to reach an alternative agreed solution appropriate to the circumstances.
4.11 Following receipt of a notice from you in accordance with Condition 4.10, we shall, either (i) remove the relevant Goods and replace them with the correct Goods, or (ii) issue a credit note or refund to you in respect of the relevant Goods applying the Unit Price. We shall determine which option is to be taken, and our liability to you in respect of that Contract shall be limited to our undertaking our chosen option.
4.12 Subject to Condition 4.9, if we fail to deliver the Goods by any agreed delivery date, or if no date has been agreed, within a reasonable time frame, then you may call us and cancel your Contract provided that if you do cancel the Contract in this manner then (in the absence of any default on our part) you shall have no claim against us under that Contract in respect of any failure to deliver.
4.13 If in our opinion the vessel cannot safely receive marine fuels, then we will have no option but to suspend delivery until, in our opinion, the vessel can safely do so or else terminate the delivery contract.
4.14 We reserve the right to have the delivery made by a third party supplier if for any reason delivery cannot be made from our own supply; however, we shall remain responsible for the performance of the Contract.
4.15 We attain samples throughout the marine fuels delivery process, of each grade of marine fuels delivered. You have the right (and are encouraged) to have a representative witness the drawing of the samples (at your own cost). The aforementioned samples shall be securely sealed and labelled by us and we retain our sample for twenty-one (21) days following the date of delivery, in a safe place for subsequent verification of the quality thereof, if required. If you issue a claim regarding the quality of the marine fuels, provided the claim is legitimate in accordance with ISO 8217, the sample retained by us shall be submitted by us for relevant analysis to a mutually agreed local independent laboratory. The independent laboratory’s analysis shall, absent manifest error or fraud, be conclusive and final and binding by both parties as to the quality of the marine fuels delivered. The analysis shall be established by tests in accordance with ISO 8217 and/or any other tests agreed to between each party in writing. Any cost associated with you having a representative witness of the breaking of the sample seal at the independent laboratory, shall be at your own cost. In making such arrangements, no liability for delaying the vessel will be accepted by us.
5. Risk and Title
5.1 You shall be responsible for the Goods from the time of delivery. Ownership of the Goods shall pass to you when we receive (in cash or cleared funds) payment in full of all sums due for the Goods.
5.2 Until ownership of the Goods passes, you shall:
(a) store the Goods (at your own cost) in accordance with these Conditions, Good Industry Practice and any applicable laws and regulations;
(b) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition, keep them insured on our behalf for their full price against all risks for which a prudent owner would insure them and provide us with a copy of the insurance policy on request; and
(d) deliver up the Goods to us promptly on demand.
5.3 You may resell the Goods before ownership has passed to you if such sale is a sale of the relevant Goods on your own behalf dealing as principal in the ordinary course of your business at full market value.
5.4 Your right to possession of the Goods shall terminate immediately if you:
(a) become Insolvent;
(b) suffer or allow any execution (legal or equitable) to be levied on your property or to be obtained against it;
(c) suspend, cease or threaten to cease to carry on all or substantially the whole of your business; or
(d) any event or procedure is taken, with respect to you, in any jurisdiction to which you are subject that has a similar or equivalent effect to any of the events listed above, and you shall immediately notify us if any of the events set out in this Condition 5.4 occur (or are likely to occur).
5.5 We are entitled to recover payment for the Goods in accordance with these Conditions notwithstanding the fact that ownership of the Goods may not have passed to you at that time.
5.6 You hereby grant us, our agents and employees an irrevocable licence to access and enter any premises to which the Goods are to be delivered and to where the Goods may be stored at any time to inspect them or (where your right to possession has ended) to recover them.
5.7 If any of the events listed in Condition 5.4 occur before title to the Goods passes to you or if we reasonably believe any such event is about to occur and we notify you accordingly then, in respect of the Goods which remain in your possession, you will deliver up the Goods to us upon request and/or we may exercise our rights under Condition 5.6.
5.8 If we repossess any Goods or you deliver up any Goods, in accordance with these Conditions, the Contract(s) in respect of those Goods shall be cancelled.
6. Charges
6.1 Unless otherwise agreed in writing (including pursuant to any Relevant Agreement) and subject to the remaining terms of this Condition 6, the amount we will charge you for the Goods (and Services) we provide (the “Charges”) shall be the Net Price stated in our quotation or otherwise provided by us to you in accordance with Condition 2. Unless otherwise agreed, the Unit Price and Net Price will include the costs of delivery (subject to Condition 6.6 where appropriate). The Unit Price given will be exclusive of VAT and the Net Price will be inclusive of VAT. The Charges are exclusive of any Additional Charges which may apply.
6.2 The Unit Price, and resulting Net Price, are each based on the cost of materials, labour (including any overtime for out of regular hours deliveries requested), sub-contracts, transport, exchange rates, the volume of Goods ordered, taxes and duties, levies, freights and all other relevant costs, together with our margin as at the date the prices are communicated to you.
6.3 You acknowledge that the Goods are a commodity product and as such the price at which we are able to source the Goods and certain associated costs (such as transport) are subject to a considerable degree of fluctuation, often over very short timescales. We therefore reserve the right to vary the Unit Price (and the resulting Net Price), by giving notice to you (which may be given in writing, by email, telephone or SMS) at any time prior to delivery, to take account of any variation (howsoever arising) in these costs or the imposition or revision of any applicable rates, taxes, duties or levies between the date the prices were provided and the delivery date.
If we revise the Unit Price (and resulting Net Price) pursuant to this Condition 6.3 and as a result of the new Charges which will apply you no longer wish to receive the relevant delivery then you must inform the person undertaking the delivery (or if you are not present when the delivery takes place, promptly within 2 business days of your receipt of the delivery note) that you wish to cancel the Contract. Provided that you give such notice (which may be given in writing, by email, telephone or SMS), and you make available to us any Goods which have been delivered, then we will have an option to either: (i) confirm the Contract at the original Unit Price and invoice you accordingly or (ii) confirm that the Contract is cancelled and remove our Goods at no charge to you (and you must provide us with the necessary access to the relevant Goods to enable us to remove the same). We will invoice you (using the original Unit Price) in respect of any Goods used in the period between your giving a cancellation notice and our collecting the Goods.
6.4 Small Load Premium: one factor we use in calculating the Unit Price is the volume of the Goods which you have ordered. There is a cost to us in fulfilling each order and providing the Services and so if we are unable to deliver the volume which you ordered due to some act or omission on your part (for example, we find there is insufficient capacity in your storage facilities to take the ordered volume) then we may (at our option) include an additional charge set at a reasonable level to cover our costs, this charge being referred to on your invoice as the “Small Load Premium”.
6.5 Late Payment Surcharge: if you fail to pay any Charges in accordance within the timescales set out in Condition 7.1 then by way of compensation to us for the costs we reasonably incur due to your failure to comply with the payment terms we may require you to pay a late payment surcharge. The late payment surcharge will be a reasonable amount to reflect our costs and we may apply this charge automatically if you are late in paying the relevant Charges.
6.6 Priority Charge: if you should require an urgent delivery of Goods then you may request that we undertake a priority delivery of the required Goods. If we are willing and able to make a priority delivery, then we will use our best efforts to undertake a delivery to you by the agreed delivery date. This Service is subject to your paying (in addition to the Charges) the relevant Priority Charge quoted to (and accepted by) you at the time you place an order for an urgent delivery. If we are unable to make a delivery by the agreed delivery date then you will not be charged the Priority Charge (or it will be refunded to you if charged in advance).
6.7 Failed Delivery Charge: if we are unable to complete a delivery of the ordered Goods due to some default on your part (including, in circumstances where you fail to cancel an order following the delivery of goods from an alternative supplier) then we may, at our option, charge you a “Failed Delivery Charge” which will be a reasonable reflection of the cost to us in seeking to fulfil your order.
6.8 Delays Charge: in the event of delay in the use of delivery or barging facilities on yours or the vessels part, for any reason whatsoever, we may charge for any expenses, including demurrage, incurred due to such delay. We shall not be liable for delays due to congestion in ports, at terminal installations or bunkering pier or delays caused by prior commitments of bunker barges.
7. Payment
7.1 Unless otherwise notified to you, you will pay each of our invoices (in respect of the relevant Charges and any Additional Charges) within 25 days of the date of the invoice. However, we may require you to pay the Charges in advance at the time you place the relevant order (and any Additional Charges in accordance with the payment terms set out in this Condition).
7.2 If we require (further) security from you in connection with the performance and discharge of your obligations under any Contract or for any other reason we consider reasonable then you will use your best endeavours to ensure that any additional security we require (including a third party guarantee) is promptly provided.
7.3 We shall be deemed to have received payment under the Contract only on receipt of cash or cleared funds from you. All sums properly due and payable to us under a Contract shall become due immediately upon its termination.
7.4 You shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise (except as may be required by court order).
7.5 Without limiting any other rights or remedies we may have, if you do not pay us on time (and/or if any of the events in Condition 5.4 occur), we may do all or any of the following:
(a) cancel or suspend the Contract (and any other Contracts we have with you) and/or any outstanding quotations;
(b) cancel any discount we previously offered to you under the Contract;
(c) without notice suspend or cancel delivery of the Goods (and/ or performance of the Services) under the Contract, and any other Contract, until you pay the outstanding amounts in full; and/or
(d) charge interest on the outstanding amount, calculated on a daily basis from the due date for payment up to the date of actual payment. You must pay us this interest together with the overdue amount. The rate of interest shall be determined in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
8. Claims and Liability
8.1 Any dispute as to the quantity of the Marine Fuels based or the density of the Marine Fuels delivered, shall be submitted by you to us in writing within twenty-one (21) days of the date of delivery, failing which, such claim shall be deemed waived and forever barred.
8.2 Any dispute as to short delivery which does not fall under condition 8.1 shall be presented by yourself to us at the time of delivery and your representative shall have witnessed such measurement in accordance with condition 4.15 failing which any such claim shall be deemed to be waived and forever barred. Any dispute as to the quantity of the marine fuels delivered under this condition 8.2 shall be recorded at the time of delivery on a Note of Protest.
8.3 Any claim as to the quality of the Marine Fuels delivered must be submitted by you to us in writing within twenty-one (21) days of the date of delivery, failing which any such claim shall be deemed to be waived and forever barred. You shall promptly furnish us with the results of the testing of the retained sample provided to the vessel on delivery and shall provide full supporting evidence of its claim within ninety (90) days of the delivery to enable us to properly evaluate the claim failing which such claim shall be deemed waived and forever barred.
8.4 You shall take all reasonable measures, including retention and/or burning of Marine Fuels in accordance with our instructions, to eliminate or minimize any costs associated with an off-specification or suspected off-specification supply.
8.5 Tthe liability to us for any loss, damage, claim or other expenditure arising out of or in connection with the failure by us to perform our obligations under this Contract, shall not exceed and shall be limited to:
(i) the removal at a reasonable location to be agreed between both parties and any Marine Fuels delivered which is not in accordance with the Contract and is unsuitable for use on board the vessel, and either (aa) the replacement by us of such Marine Fuels, or (bb) reimbursement of the cost of such Marine Fuels; and
(ii) the reasonable repair costs of any components that are physically damaged as a direct result of using any Marine Fuels supplied by us which is not in accordance with the Contract; and
(iii) those losses, damages, claims or expenses arising from the death or personal injury to any person caused by our sole negligence.
We shall have no obligation to make any payment to you under conditions 8.5 unless and until we have received full payment from you of all sums due in accordance with condition 7.
8.6 We shall not be liable for any of the following:
(i) indirect, special, punitive, exemplary, incidental or consequential losses, damages or expenses; or
(ii) loss of actual, projected and/or prospective profits, anticipated cost savings, contracts or financial or economic loss; or
(iii) any demurrage or deviation costs.
8.7 We shall not be responsible for any claim arising from commingling or Marine Fuels delivered by us with other fuels onboard the vessel.
8.8 If you remove Marine Fuels without our prior consent, all removal and related costs shall be for your account. Nothing in the contract shall in any way limit your obligations to mitigate any losses in accordance with condition 8.4
8.9 You shall indemnify and hold us, our affiliates, directors, employees and agents and their affiliates harmless against all claims, liabilities, loss, damage, costs, fines, penalties and expenses whatsoever and whomsoever brought arising in connection with any delivery of Marine Fuels except to the extent that such claims, liabilities, loss, damage, costs, fines, penalties and expenses are caused by the negligence of us or our affiliates, or any breach of our obligations under this Contract.
8.10 The provisions of this clause 8 shall continue to apply notwithstanding the termination or expiry of the Contract for any reason whatsoever.
9. Warranties
9.1 We warrant that the Services will be performed with reasonable skill and care and that the Goods are free from material defect at the time of delivery and unless otherwise agreed in writing we give no other warranty in respect of the Goods or Services and all warranties, conditions and other terms implied by statute or common law (save for the condition implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
9.2 Without limiting Conditions 9.3 and 9.4, if the relevant Goods do not conform with the warranty in Condition 9.1 we shall at our option replace such Goods or issue a credit note or refund to you at the Unit Price (plus VAT), provided that you must give us: (i) written notice of any alleged breach of warranty within one week of the time when you discover or ought to have discovered such breach; and (ii) a reasonable opportunity, after receiving the notice, to examine the relevant Goods.
9.3 The warranties in Condition 9.1 shall not apply to any defect which arises as a result of your (or any third party’s) negligence, failure to follow our instructions as to the storage, use or maintenance of the Goods (or (for Business Customers only) to comply with Good Industry Practice) or if you make any further use of the Goods after identifying that there is any issue with them, if you alter, modify, mishandle or try to remedy such Goods without our prior consent or fail to adopt Good Industry Practice in handling and using the Goods.
9.4 If we comply with our obligations under Condition 9.2 we shall have no further liability to you in respect of such Goods.
9.5 These Conditions shall apply equally to any replacement Goods we supply to you pursuant to Condition 9.2.
10. Grades and quality
10.1 The Marine Fuels supplied hereunder shall be the Seller’s commercial grades as determined in accordance with ISO 8217 and set out in the Fuels Agreement. The quality of the Marine Fuels shall be determined in accordance with Clause 8(a) below.
10.2 There are no conditions, guarantees or warranties, express or implied, by common law, statue, or otherwise as to the satisfactory quality, merchantability, fitness, durability or suitability of the Marine Fuel for any particular purpose or otherwise, which extend beyond the description as set out in the Contract.
10.3 You hereby warrant that you have not relied upon any representations made by or on behalf of us but have relied exclusively on your own knowledge and judgement as to the fitness for its purpose of the Marine Fuels nominated.
11. Limitation of Liability
11.1 Subject to Conditions 11.2 and 11.4, if there is any breach of the Contract, neither you nor we shall be responsible for any losses that the other suffers as a result, except for those losses which are direct losses.
11.2 Subject to Condition 10.4, neither you nor we shall be responsible for losses that result from a failure to comply with the Contract which fall into the following categories:
(a) loss of income or revenue;
(b) loss of profit;
(c) loss of business;
(d) loss of anticipated savings; or
(e) any waste of time. However, this Condition 11.2 shall not prevent claims for loss of, or damage to, your physical property, where such losses or damage could reasonably have been expected to result from the relevant breach.
11.3 Subject to Condition 11.4, our total liability to you in contract, tort (including breach of statutory duty or negligence), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to: (a) in relation to any damage to your physical property, a sum equal to 150% (one hundred and fifty percent) of the Charges or £10,000 (whichever is the greater); or (b) in relation to any other claim, a sum equal to 125% (one hundred and twenty five percent) of the Charges or £5,000 (whichever is the greater).
11.4 Nothing in the Contract (including anything in these Conditions) excludes or limits in any way our liability for: (a) death or personal injury caused by our negligence; (b) fraud or fraudulent misrepresentation; (c) any breach of the obligations implied by law that we own the Goods and that we are able to pass ownership of those goods to you (under section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982); or (d) any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
12. Force Majeure
12.1 Subject to Condition 10.4, we will not be liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (these are referred to as “Events”).
12.2 An Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), the following: acts of God, governmental action, war or national emergency, acts of terrorism, protest, riot, civil commotion, fire, explosion, flood, epidemic, labour disputes (other than in relation to our own workforce) or restraint or delay affecting our delivering agents or inability or delay in obtaining the Goods.
12.3 Our obligations under the Contract are suspended for the period that the Event continues, and we will have an extension of time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Event to a close or to find a solution by which our obligations under these Conditions can be performed despite the Event.
12.4 If we suffer any temporary interruptions or shortages in supply (whether or not due to an Event) then both you and we will use our reasonable efforts to minimise any adverse impact. If we need to ration or allocate our available supplies of the Goods, then we will do so fairly having regard to the circumstances. You acknowledge that in such circumstances we may allocate supplies to public utilities and emergency services before Goods are rationed and allocated to other customers.
13. Cancellation and Returns
13.1 You have the right to cancel a Contract by serving written notice on us at any time prior to our carrier leaving our premises to fulfil your order (or in the case of collections, prior to delivery) provided that we reserve the right to charge you a reasonable sum in respect of any Goods held specifically to meet the Contract, or which we are committed to acquire or hold ready to supply under the Contract, and/or for any costs associated with the cancellation, subject to us using our reasonable efforts to allocate such Goods elsewhere and otherwise to mitigate our losses.
13.2 We will accept the return of Goods from you provided that you pay our reasonable costs incurred in receiving and checking the Goods (save where the Goods are defective and subject to Condition 9) and the Goods are as fit for sale on their return as they were on delivery.
14. General
14.1 The provisions of Conditions 7, 8, 9 and 10 shall continue after the Contract has terminated.
14.2 Each right or remedy that we have under the Contract is without limit to any other right or remedy we may have whether under the Contract or otherwise.
14.3 If any Condition is found by any court of competent jurisdiction to be unlawful, invalid or unenforceable to any extent then it shall, to that extent only, be removed from the remaining Conditions, and the remainder of such Condition, which shall continue in full force and effect.
14.4 If a court of competent jurisdiction decides that a Condition cannot be removed (in whole or in part) then it is agreed that the relevant Condition shall be replaced with a legal, valid, enforceable and reasonable provision which achieves, to the greatest extent possible, the same effect as the original Condition.
14.5 If we fail or delay in enforcing any provision of the Contract, or fail to insist that you comply with any of your obligations, this shall not mean that we have waived any of our rights under the Contract and that you do not have to comply with your obligations. Any waiver by us of any breach of, or any default under, any provision of the Contract by you shall be effective only if given in writing and it shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other provisions of the Contract.
14.6 A person who is not party to the Contract shall have no rights under or in connection with the Contract (and this includes pursuant to the Contracts (Rights of Third Parties) Act 1999).
14.7 Unless a Condition expressly provides otherwise, all communications between the parties about the Contract, including any notices to be sent or received under the Contract, must be in writing, sent to the other party’s registered office and signed by an authorised representative. Notices shall be deemed served on delivery if delivered by hand, 48 hours after posting if sent by post and on completion of transmission if sent by email or facsimile.
15. Data Protection & Credit Checks
15.1 In assessing your application for credit, to prevent fraud, to check your identity and to prevent money laundering, we may ask our credit intelligence partners (as we may engage from time to time) and our credit insurers to run a credit check on your business.
We may also disclose details of how you conduct your account to such companies. This information may be used by other credit intelligence companies for making credit decisions about your business, you, and the people with whom you are financially associated, for fraud prevention, money laundering prevention and occasionally for tracing debtors. Information used for these purposes will include publicly available information such as corporate accounts and county court judgments.
15.2 We may perform a check on you if you are an individual associated with a Business Customer, such as company director. We do this in order to prevent fraud, to check your identity, to prevent money laundering and for account management purposes. Information used for these purposes will include publicly available information such as the electoral roll, county court judgments, assets registered in your name on public registers, such as the Land Registry, bankruptcy orders and repossessions. We shall not carry out these checks without obtaining your prior consent.
15.3. Marketing: We may use the personal information you provide to us to provide you with our Goods and Services, and may also use it to inform you, by letter, fax, phone, SMS and email about promotions, news and new products and services that we think may be of interest to you. We will only use your information for this purpose in accordance with applicable law. More information on our approach is available in the Privacy Policy section of our websites.
16. Health, Safety & the Environment
16.1 [The Seller shall provide the receiving vessel with Safety Data Sheets (“SDS”) appropriate to the grade of Marine Fuels delivered.] The Buyer shall provide its employees, users and customers with health, safety and environmental information, such information together with the SDS shall hereinafter be referred to as the “HSE Data”. The Buyer shall ensure that its employees comply fully with all requirements, obligations and recommendations relating to the handling and use of the Marine Fuels delivered hereunder and shall impose upon all of its customers to whom the Marine Fuels are to be supplied the same obligation to comply fully with the requirements, obligations and recommendations of HSE Data.
16.2 Except for death or personal injury caused by our negligence, the we shall not be responsible in any respect whatsoever for any loss, damage or injury resulting from any hazards inherent in the nature of any Marine Fuels.
16.3 Both parties shall each, at all times, comply with any obligations, requirements or recommendations contained in any applicable law, statute, directive or regulation of any territory, state or jurisdiction in or through which the Marine Fuels may be delivered, sold, transported or used and all Government, state or local regulations at the port such as, but not limited to, those related to fire, transportation, handling and storage or spillage or loss of Marine Fuels. Your compliance with the recommendations in HSE Data shall not excuse you from its obligations under this Clause 14.3.
16.4 You shall indemnify and keep us indemnified against any liability, claim or proceedings whatsoever arising out of or in connection with any failure by the Buyer to comply with its obligations under this Clause 14.
17. Arbitration and Governing Law
17.1 The Contract shall be governed by and construed in accordance with English law. The United Nations Convention on Contracts for the International Sale of Goods of Vienna, 11th April 1980 shall not apply to the Contract.
17.2 Any dispute arising out of or in connection with this Contract, which cannot be resolved between the Parties, shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced and the proceedings shall take place in English.
17.3 The reference shall be to three (3) 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) calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other Party appoints its own arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the other Party does not appoint its own arbitrator and give notice that it has done so within the fourteen (14) days specified, the Party referring the dispute to arbitration may, without the requirement of any further prior notice to the other Party, appoint its arbitrator as sole arbitrator and shall advise the other Party accordingly. The award of a sole arbitrator shall be binding upon both Parties as if he has been appointed by agreement.
Nothing herein shall prevent the Parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
In cases where neither the claim nor any counterclaim exceeds the sum of £100,000 the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
All arbitration awards shall be final and binding on the Parties. By agreeing to arbitration under the LMAA Terms, the Parties undertake to carry out any award immediately and without delay; and the Parties also waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority, insofar as such waiver may be validly made.
18. Anti-Corruption
18.1 Both parties each agree and undertake to the other that in connection with the Contract, they will each respectively comply with all applicable Law(s), rules, regulations, decrees and/or official government orders of the United Kingdom relating to anti-bribery and anti-money laundering and that they shall each respectively take no action which would subject the other, to fines or penalties under such laws, regulations, rules or requirements.
18.2 Both parties each represent, warrant and undertake to the other that they shall not, directly or indirectly pay, offer, give or promise to pay or authorise the payment of any monies or the transfer of any financial or other advantage or other things of value to:
(i) a government official or an officer or employee of a government or any department, agency or instrumentality of any government;
(ii) an officer or employee of a public international organization;
(iii) any person acting in an official capacity for or on behalf of any government or department, agency, or instrumentality of such government or of any public international organization;
(iv) any political party or official thereof, or any candidate for political office;
(v) any director, officer, employee or agent/representative of an actual or prospective counterparty, supplier or customer of Buyer or Seller; or
(vi) any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities; or
(vii) engage in other acts or transactions;
18.3 In particular, the we represent and warrant to you, the Buyer that we have not made any payments or given anything of value to officials, officers or employees of the government of the country in which the Marine Fuels originated or any agency, department or instrumentality of such government in connection with the Marine Fuels which is the subject of the Contract which would be inconsistent with or contravene any of the above-referenced legislation.
19. Termination or Suspension in The Event of Liquidation Etc.
19.1 Notwithstanding anything to the contrary, express or implied herein, the Seller, without prejudice to its other rights, may at its sole discretion either terminate the Contract immediately or immediately suspend delivery under the Contract until further notice, on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing, if one of the below Default Events occurs. The following events and circumstances shall constitute “Default Events” with respect to the Buyer:
(i) The Buyer or its immediate or ultimate parent or the party which has issued any credit support in favour of the Buyer:
(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(2) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
(3) makes a general assignment, arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation and is not withdrawn, dismissed, discharged, stayed or restrained within fifteen (15) days of the institution or presentation thereof;
(5) has a resolution passed for its winding up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within fifteen (15) days thereafter;
(8) causes or is subject to any event with respect to it, which, under the applicable law(s) of any jurisdiction, has an analogous effect to any of the events specified in sections (1) to (7) above; or
(9) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;
(ii) The Buyer commits a repudiatory or renunciatory breach of the Contract;
(iii) The Buyer fails to deliver to the Seller any credit support complying with the requirements of the Contract within the time set out in Contract;
(iv) The Buyer fails to take delivery in accordance with the quantity or delivery provisions of the Agreement; or
(v) A change of Control of the Buyer occurs, save where it is a transfer of Control to an entity which is itself subject to the direct or indirect Control of an entity that currently has direct or indirect Control of the Buyer.
“Control” for the purposes of this Section means the ability to direct the activity of a corporation or an entity, excluding an ability deriving merely from holding an office of director or another office in the corporate or entity, and a person shall be presumed to control a corporation or entity if that person holds half or more of a certain type of means of control of that corporation or entity.
19.2 In the case of multiple deliveries under the Contract, notwithstanding anything else to the contrary express or implied elsewhere herein, (but always without prejudice to Seller’s other rights at law and under the Contract including, without limitation, Seller’s rights under clauses 13(c), (f), (g) and (h) the Seller may at its sole discretion either terminate the Contract immediately or immediately suspend delivery under the Contract until further notice, on notifying the Buyer either orally (confirming such notification in writing) or by notice in writing, if the Buyer fails to make any payment due to the Seller under the Contract in full and punctually by the due date.
20. Notices
20.1 Any notice or other communication (including, without limitation, invoices) by either Party to the other shall, unless otherwise provided in the Contract, be sufficiently made if sent by post (by airmail where airmail is possible), postage paid, by facsimile transmission or by courier to the address of the other Party.
20.2 Any notice or communication given in accordance with Condition 20.1 shall, unless otherwise provided herein, be deemed to have been given on the day on which such communications ought to have been delivered in due course of postal communication and in the case of communication by facsimile transmission or by courier on the day of transmission or delivery. Any notice delivered after 16:00 hours on any business day in the place of delivery shall be deemed to be given on the next business day.
20.3 Parties may exchange messages with respect to the performance of the Contract by email. Any message sent by email shall be sent to the address of the other Party specified for this purpose. Email messages are only valid if and when actually received and the sender bears the risk of a failure in transmission.
21. Additional Provisions
21.1 If any provision of the Contract is declared illegal, invalid or otherwise unenforceable by a court of competent jurisdiction the remainder of such provision and the Contract shall remain in effect to the fullest extent permitted at law.
21.2 A waiver by either Party of any right or remedy or of any breach of the Contract shall be effective only if given in writing and shall in no way preclude or restrict the further exercise of that or any other right or remedy, nor constitute a waiver of any subsequent breach.
21.3 Assignment of any right or delegation of any obligation hereunder by the Buyer without the Seller’s prior written consent shall be void.
20.4 The Contract contains the entire Agreement of the Parties and supersedes all prior Agreements whether oral or written with respect to the delivery of Marine Fuels under this Contract and there are no other promises, representations or warranties affecting it. This Contract shall not be modified or amended in any way unless mutually agreed between the Buyer and Seller and evidenced in writing. Each Party warrants that it has not entered into the Contract in reliance on any representation, whether oral or in writing, which is not set out in the Contract.
20.5 In the event of conflict or inconsistency between these Terms of Sale and the Marine Term Fuel Agreement, the Marine Term Fuel Agreement shall prevail over these Terms of Sale.
20.6 If any order shall be placed by an agent for a principal as the Buyer, then such agent shall be liable not only as agent but also for the performance of all obligations of the principal.
20.7 Except for the provisions of Condition 8.5 (i) of these Terms of Sale which may be enforced by the Seller, Seller’s Affiliates and assignees of Seller or Seller’s Affiliates and the directors, employees and agents of the Seller, Seller’s Affiliates and assignees of Seller or Seller’s Affiliates, the Parties do not intend any term of the Contract to be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person (a “third party”) who is not a Party to the Contract. The Parties may rescind or vary the Contract, in whole or in part, without the consent of any third party including, without limitation, those listed above.
For further information please contact your local depot or email office@tmsl.london
If you require a paper copy of your Terms and Conditions, please contact us using one of the methods below stating clearly your name, address and customer reference number.
Post: Thames Marine Services Ltd, 9-10 Copper Row, London SE1 2LH
Phone: 0203 935 4814
Email: office@tmsl.london
Updated: August 2021