13. Force Majeure and other contingencies
13.1 Neither Party shall be obliged to sell, purchase, deliver or receive Marine Lubricants under the Agreement to the extent that one or more Force Majeure Events prevent, restrict or delay the production, transportation, sale, delivery or receipt of the Marine Lubricants or any Component, whether the event affects a Party directly or affects the Seller indirectly by affecting suppliers and whether or not existing, foreseeable or reasonably in the contemplation of the Parties at the date of the Agreement.
13.2 “Force Majeure Event” means: (a) compliance, voluntary or involuntary, with any law, regulation, order rule, recommendation, direction, request or suggestion of a government or any agency, authority or representative of government, including without limitation priority, rationing or allocation orders or regulations; (b) total or partial expropriation, nationalisation, confiscation, requisitioning or abrogation or breach of a government contract or concession; (c) closing or restriction on the use of a port or pipeline; (d) Act of God, maritime peril, storm, earthquake, flood, accident, fire, explosion; (e) hostilities or war (declared or undeclared), public enemy, embargo, blockade, riot, civil unrest, sabotage, revolution, insurrection, malicious mischief, terrorism; (f) strike, lockouts, boycotts, picketing, labour disturbance or other labour difficulty (whomsoever's employees are involved), even if resolvable by acceding to the demands of a labour group; (g) total or partial failure or loss or shortage of or relating to any Marine Lubricants, Components or producing, manufacturing, delivery or transportation facilities, equipment, labour or materials from the suppliers or the Sellers’ then-contemplated suppliers or otherwise caused by circumstances beyond the reasonable control of the party affected; and (h) any event reasonably beyond the control of the party affected, whether or not similar to those listed above, including without limitation any failure of suppliers to deliver Marine Lubricants or any Components due to any of the foregoing events.
13.3 As used in this Clause 13: (a) “party affected” means the Party affected by the event in question and does not include any suppliers, agents or representatives of such Party or any person to whom such Party has delegated, sub-contracted or otherwise arranged to perform, in full or part, an obligation under the Agreement; (b) “suppliers” shall include the Physical Supplier and any supplier to the Seller, the Physical Supplier or their Affiliates; and (c) "transportation" means transportation of the Marine Lubricants to the Seller or suppliers.
13.4 Notwithstanding and without prejudice to any other provision of the Agreement, the Seller may suspend, reduce or stop deliveries of any Marine Lubricants to the Purchaser in such manner as the Seller may in its sole discretion determine, and shall have no liability whatsoever to the Purchaser in connection therewith, if: (a) clause 13.1 applies; (b) in the Seller’s sole opinion, there is a shortage of Marine Lubricants or any Components at any suppliers such that the Seller, the Physical Supplier or their Affiliates expect that they will not meet their own requirements and the requirements for sales to customers of all kinds; (c) in the Seller’s sole opinion, performance by the Seller: (i) becomes impracticable for any reason whatsoever, including without limitation due to the event listed at Clause 13.2(a) or otherwise due to any priorities, rationing or allocations of any Marine Lubricants or Components; or (ii) is made substantially more expensive as a result of the event listed at Clause 13.2(g); and/or (d) if the Seller’s cost of performance is increased and the Seller cannot recover such increased cost by an increase in the price to be paid by the Purchaser for any reason whatsoever.
13.5 Notwithstanding and without prejudice to any other provision of the Agreement: (a) if there is an increase in the cost of Marine Lubricants and/or any Components due to any unanticipated circumstances or for any reason whatsoever, the Seller may implement, at its sole discretion, a non-discountable temporary price surcharge and the price for any Marine Lubricants shall be increased accordingly; and (b) if any law, regulation or other governmental action requires the Seller to reduce any price in effect under the Agreement, or prevents the Seller from increasing any price to the extent it wishes pursuant to its rights under the Agreement, the Seller may cancel from the Agreement the quantities of Marine Lubricant so affected.
13.6 In the event of any suspension, reduction or cessation of deliveries pursuant to this Clause 13: (a) the Seller may allocate any Marine Lubricants available to it as it determines in its sole discretion and any total or partial failure to make deliveries to the Purchaser, while delivering to other customers, shall not be a breach of the Agreement; (b) the Seller shall not be obliged to acquire additional Marine Lubricants or to sell or deliver to the Purchaser any additional Marine Lubricants which the Seller may acquire; (c) neither Party shall be obliged to sell, purchase, deliver or receive, after the period of suspension or reduction, the undelivered quantity of the Marine Lubricants which would otherwise have been delivered under the Agreement; (d) the Term of the Agreement shall not be extended; and (e) the Seller shall not be liable for any costs, losses or damages (including without limitation any demurrage, detention, hire and/or bunkers) arising out of any delays or failures to perform.
13.7 Any party which relies on Clause 13.1 or 13.4 shall give the other Party: (a) prompt notice thereof, specifying the anticipated amount and duration of any suspension, reduction or cessation of deliveries; and (b) prompt notice when it no longer expects to rely thereon.
13.8 Nothing in this Clause 13 shall excuse the Purchaser from its obligations to make payments when due or provide security.
14. Health, Safety and Environment
14.1 The Purchaser warrants that it is familiar with the health effects related to the Marine Lubricants supplied under the Agreement and with appropriately protective health, safety and environmental procedures, requirements and recommendations for handling and use of such Marine Lubricants (“HSE Procedures”).
14.2 The Purchaser shall:
14.2.1 provide its employees with appropriate information and training to enable them to handle and use the Marine Lubricants delivered under the Agreement in a manner, which does not endanger their health or safety;
14.2.2 disseminate, or caused to be disseminated, the HSE Procedures to all employees, agents, contractors, users and any other persons potentially exposed to the Marine Lubricants sold under the Agreement (“Relevant Persons”);
14.2.3 adhere to, and cause all Relevant Persons to adhere to, the HSE Procedures while using or handling the Marine Lubricants; and
14.2.4 be responsible for compliance by all Relevant Persons with the HSE Procedures and shall use its best efforts to ensure that any Relevant Persons avoid frequent or prolonged contact with or exposure to the Marine Lubricant, during and after delivery.
14.3 To the extent permissible by law, neither the Seller, the Physical Supplier nor their suppliers shall be responsible in any respect whatsoever for:
14.3.1 any loss, damage or injury resulting from any hazards inherent in the nature of the Marine Lubricants delivered under the Agreement;
14.3.2 any consequence arising from any failure of the Purchaser, any Relevant Person or any other party to comply with the HSE Procedures.
14.4 The Seller and the Physical Supplier may refuse to make a delivery without recourse from the Purchaser if the Seller or the Physical Supplier (as the case may be), in their sole discretion, determines that such delivery cannot be made safely.
15.1 In the event of an escape, spillage or discharge during delivery which causes or threatens to cause pollution damage, the Purchaser shall, and shall cause the Vessel and/or Receiving Vehicle to, promptly take any and all necessary actions and measures whatsoever as may be necessary to prevent, remedy or mitigate the consequences of such escape, spillage, discharge or, actual or threatened, pollution damage.
15.2 The Seller and the Physical Supplier shall have the right, in their sole discretion, to take, or assist the Purchaser in taking, any such actions or measures specified in Clause 15.1. Any measures or actions taken by the Seller, the Physical Supplier or their designee(s) shall be deemed to be taken on the Purchaser’s authority and shall be at the Purchaser’s expense, save the extent that the escape, spillage or discharge in question was caused by the negligence of the Seller or the Physical Supplier. If the Purchaser considers that any actions or measures should be discontinued and any governmental authorities having jurisdiction concur, the Purchaser shall so notify the Seller and the Physical Supplier and thereafter neither the Seller, the Physical Supplier nor their designee(s) shall have any right to continue such actions or measures at the expense and authority of the Purchaser.
15.3 Each Party shall supply the other with all necessary documents and information in its custody and control concerning any escape, spillage, discharge or pollution or any program for the prevention thereof as required by either Party, by law, or by regulations applicable at the port of delivery.
16. Permits and Licences
16.1 The Seller’s obligation to sell and deliver Marine Lubricants hereunder is conditional on the Purchaser and the Seller obtaining such permits, authorisations, consents and licences as may be necessary for the performance of the Agreement, including without limitation with respect to the sale and delivery of the Marine Lubricants.
16.2 The Purchaser shall ensure that it has obtained such permits, authorisations, consents and licences as may be necessary for the Purchaser to perform its obligations under the Agreement, including without limitation with respect to the purchase and delivery of the Marine Lubricants. Any failure to obtain such permits, authorisations, consents and licences shall not constitute a Force Majeure Event.
17.1 The Purchaser represents, warrants and undertakes that any Marine Lubricants purchased by the Purchaser pursuant to the Agreement are: (a) purchased by or on behalf of the owner or operator of a seagoing vessel which operates in international waters; (b) for consumption on such vessel outside the country where title transfers. The Purchaser shall, at the Seller’s request, provide any documents required by the Purchaser to verify compliance with this Clause 17.1.
17.2 Purchaser’s Taxes
The Purchaser is responsible (and shall not seek reimbursement from the Seller) for all claims, demands, liabilities and damages for taxes that any taxing authority (including any of its political subdivisions) may assess or levy against the Purchaser relating to the Agreement, including all of the following:
17.2.1 Income. Income, withholding, excess profit or other taxes, charges and imposts assessed or levied on account of the Purchaser’s earnings, taxable margins, receipts (including gross receipts) or franchise taxes for the privilege or actual conduct of business that are measured by the Purchaser’s net worth, capital, surplus or undivided profits;
17.2.2 Personnel. Taxes assessed or levied against or on account of compensation or other benefits paid to the Purchaser’s employees;
17.2.3 Property. Taxes assessed or levied against or on account of, or by reference to the value of, any property or equipment (including materials and consumable supplies) of the Purchaser; and
17.2.4 Services. Taxes assessed or levied against or on account of, or by reference to the value of, the Services performed by the Purchaser, except taxes payable by the Seller as noted below.
17.3 Seller’s Taxes.
The Seller is responsible for all claims, demands, liabilities and damages for taxes that any taxing authority (including any of its political subdivisions) may assess or levy against the Seller relating to the Agreement (except for erroneous assessments or levies of taxes levied against the Purchaser).
17.4 Transaction Taxes.
The Purchase is responsible for the payment of all value added tax, goods and services tax, sales tax, excise tax and/or other similar taxes and/or duties now or hereafter imposed directory or indirectly on Marine Lubricants and the sale or used of Marine Lubricants (collectively “Transaction Taxes”). The Seller (or any relevant Affiliate) may invoice the Purchaser for any Transaction Taxes and the Purchaser shall pay to the Seller the amount of such Transaction Taxes invoiced. Any Transaction Taxes shall be separately identified on the Seller’s invoices and collected and paid over by the Seller to the appropriate governmental agency, subject however to the following sentence. The Purchaser may provide to the Seller, and the Seller shall accept and honour, an exemption certificate, or a letter from the appropriate authority or a letter from the Purchaser agreeing that the Purchaser will self-assess and remit Transaction Taxes, for one or more relevant taxing jurisdictions, instead of payment to the Seller and the Seller shall not collect from the Purchaser any such identified Transaction Taxes. If the Purchaser claims a tax exemption or import/export exemption (such as an export or a ship’s stores exemption or similar), the Purchaser shall comply with all requirements of such exemption, shall disclose this exemption to Seller on a timely basis and provide the Seller with all exemption documentation requested by the Seller and the Seller shall be entitled to rely on such documentation for purposes of applying the relevant exemption. The Purchaser warrants that he is not acting as a reseller, neither that the Vessel being supplied with Marine Lubricants shall be operating in local inland waterways.
17.5 Indemnity for Taxes.
The Purchaser indemnifies the Seller against any and all liabilities or claims for taxes, including interest and penalties, that may be assessed or levied against the Seller in connection with the Purchaser’s tax obligations arising out of the Agreement, including any taxes, interest, damages, losses, costs, duties, charges, fines or penalties arising out of the Purchaser’s actions or failure to comply with, or act diligently under, this Clause 17, as well as any taxes imposed on the Seller as a consequence of receiving payment under this sentence.
18.1 Each Party undertakes to each other Party to: (a) keep confidential all Confidential Information and not to disclose any Confidential Information to any third party; (b) exercise the same degree of care and discretion to avoid unauthorized disclosure, publication or dissemination of all Confidential Information as the receiving Party exercises to protect its own confidential information that it does not wish to disclose, publish or disseminate being no less than a reasonable degree of care; and (c) use Confidential Information solely in connection with the implementation and performance of the Agreement.
18.2 Notwithstanding the provisions of Clause 18.1, a Party (the “Disclosing Party”) may disclose Confidential Information: (a) if the other Party consents in writing to the disclosure; (b) if required by law, order of a tribunal or court of competent jurisdiction or any securities exchange or regulatory or governmental body or fiscal authority having jurisdiction over it, wherever situated, and whether or not the requirement has the force of law, provided that the Disclosing Party shall (to the extent permitted by law) give to the other Party prior written notice setting out the reasons for such disclosure; (c) the Confidential Information is or was already in the public domain other than through the fault or action of the Disclosing Party; (d) to an Affiliate or legal, financial or other professional advisor, provided that such person is bound by the same obligations of confidentiality as contained in the Agreement; or (e) in connection with any dispute, legal or arbitration proceedings arising out of or in connection with the Agreement.
18.3 The provisions of this Clause shall survive for a period of five (5) years after the Term or termination of the Agreement.
19. Data Privacy
19.1 The Purchaser will process all Personal Data it processes on behalf of the Seller in accordance with all applicable laws and the Seller’s reasonable requests with respect to protecting Personal Data, including but not limited to: restricting employee and agent/subcontractor access to Personal Data, following the Seller’s instructions in connection with processing Personal Data, not disclosing Personal Data to any third party without the Seller’s written permission, applying appropriate security measures to protect Personal Data, and deleting any Personal Data in its possession or control at the expiry or termination of the Agreement unless otherwise agreed between the Parties. In the event of any unauthorized, unlawful, and/or unintended processing, access, disclosure, exposure, alteration, loss, or destruction of Personal Data, the Purchaser will immediately notify the Seller and cooperate with the Seller’s reasonable requests to investigate and remediate such incident and provide appropriate response and redress. "Personal Data" means any information that can be used directly or indirectly, alone or in combination with other information, to identify an individual.
20.1 Unless otherwise provided elsewhere in the Agreement, any communication by a Party to another Party shall be sufficiently made if sent by registered post, by facsimile transmission or by courier to the address of the other Party specified for this purpose in the MLSA or the Order Confirmation or as otherwise designated by the receiving Party and shall, unless otherwise provided herein, be deemed to have been received as follows:
20.1.1 in the case of a communication sent by registered post or by courier, if received: (a) on a Business Day before 17:00 hours local time in the recipient’s location, then on that day; and (b) if received outside the hours stated (a), it will be treated as being received on the next Business Day in the recipient’s location.
20.1.2 in the case of a communication by facsimile transmission where a verifiable answerback is provided and: (a) if the recipient’s answerback is received on a Business Day before 17:00 hours, then on that day; and (b) in any other case, on the Business Day after the day on which the recipient’s answerback is received.
20.2 Except for notices for assignment, termination and legal or arbitration proceedings, the Parties may exchange messages with respect to the performance of the Agreement by e-mail. Any message sent by e-mail shall be sent to the address of the other Party specified for this purpose in the MLSA or the Order Confirmation or as otherwise designated by the receiving Party and shall be deemed to have been received: (a) if sent on a Business Day before 17:00 hours, then on that day; and (b) in any other case, on the Business Day after the date it was sent. Notwithstanding the foregoing, e-mail messages are only valid if actually received and the sender bears the risk of a failure in transmission.
20.3 Any alterations to the contacts or addresses specified in the MLSA or Order Confirmation shall be notified immediately by letter or facsimile to the other Party.
20.4 Notices may not be given by instant messaging.
21.1 The Agreement shall not be assigned by the Purchaser without the written consent of the Seller, which consent shall not be unreasonably withheld.
21.2 Notwithstanding the provisions of Clause 21.1, the Seller may:
21.2.1 assign (without prior notice to or consent of the Purchaser) or require the novation of the Agreement and any other marine lubricant sales agreement entered into by the Purchaser with the Seller or any Affiliate of the Seller concurrently; and
21.2.2 cause deliveries under the Agreement at one, more or all Ports (including Ports listed in the Directory) to be made to the Purchaser by a Physical Supplier and may assign (without prior notice to or consent of the Purchaser) or require the novation of the Agreement, in whole or in part.
22. Conflict of Interest and Right to Audit
22.1 Conflicts of interest relating to the Agreement are strictly prohibited. Except as otherwise expressly provided herein, neither the Purchaser, nor any director, employee, Affiliate or agent of the Purchaser shall give to or receive from any director, employee, Affiliate or agent of the Seller any gift, entertainment or other favor of significant value, or any commission, fee or rebate. Likewise, neither the Purchaser, nor any director, employee, Affiliate or agent of the Purchaser shall, without prior written notification thereof to the Seller, enter into any business relationship with any director, employee, Affiliate or agent of the Seller unless such person is acting for and on behalf of the Seller. The Purchaser shall promptly notify the Seller of any violation of this Clause. Additionally, in the event of any violation of this Clause, including any violation occurring prior to the date of the Agreement resulting directly or indirectly in the Seller’s consent to enter into the Agreement, the Seller may, at the Seller’s sole option, terminate the Agreement at any time. Such termination will take immediate effect. Any representatives authorized by the Seller may audit any and all records of the Purchaser for the sole purpose of determining whether there has been compliance with this Clause.
22.2 Neither the Purchaser nor the Purchaser’s directors, employees, Affiliates or agents shall make any payment or give anything of value to any official of any government or public international organization (including any officer or employee of any government department, agency or instrumentality) to influence his or its decision, or to gain any other advantage for the Seller or the Purchaser in connection with the Agreement. The Purchaser shall immediately notify the Seller of any violation of this clause. The Purchaser shall defend and indemnify the Seller from and against all losses and expenses arising out of such violation. In the event of any violation of this Clause, the Seller may, at its sole option, terminate the Agreement at any time. Such termination will take immediate effect. Any representatives authorized by the Seller may audit any and all records of the Purchaser for the sole purpose of determining whether there has been compliance with this Clause.
22.3 The Purchaser shall maintain complete and accurate records in connection with the performance of the Agreement, the supply of Marine Lubricants and all transactions related thereto and shall retain all such records for at least twenty-four (24) months after termination of the Agreement.
22.4 The Purchaser shall assist the Seller in making any audit under Clauses 24.1 and 24.2 above.
23. Prohibited Payments
23.1 Each Party shall:
23.1.1 comply with all applicable laws and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
23.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
23.1.3 have and shall maintain in place throughout the term of the Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
23.1.4 ensure that all persons associated with it or other persons who are performing services or providing goods in connection with the Agreement comply with this Clause 29.
23.2 A breach of this Clause 23 shall be deemed a material breach of the Agreement.
23.3 For the purpose of this Clause 23, the meaning of adequate procedures and whether a person is associated with another person shall be determined in accordance with the Bribery Act 2010 (and any guidance issued under section 9 of that Act.)
24. Compliance with applicable laws
24.1 Nothing in the Agreement shall be construed to require any Party, or its subcontractors, to violate any laws, ordinances or regulations applicable to such Party, or its subcontractors, including any U.S. anti-boycott laws.
24.2 The Seller shall be entitled at any time and from time to time to refuse to supply Marine Lubricants to the Purchaser, any Vessel(s) or Receiving Vehicles nominated by the Purchaser, or any other entity nominated by the Purchaser where to do so would be contrary to any applicable law or regulation including those of the United States or the EU.
24.3 The Purchaser is placed on notice that the Marine Lubricants may be subject to U.S. or EU export and trade sanctions regulations. Diversion contrary to these laws is prohibited.
25. Termination or Suspension
25.1 Notwithstanding anything to the contrary express or implied elsewhere in the Agreement and without prejudice to its other rights, upon the occurrence of a Default Event, a Party (“Non-Defaulting Party”) may at its sole discretion exercise any one or more of the following remedies upon giving notice to the other Party (“Defaulting Party”) either orally (confirming such notification in writing) or in writing:
25.1.1 immediately suspend: (a) any delivery or deliveries; and/or (b) performance of any one or more of its obligations under the Agreement; and/or
25.1.2 notwithstanding any prior suspension, immediately terminate: (a) the Agreement; or (b) any delivery or deliveries under the Agreement.
25.2 The following events are “Default Events”:
25.2.1 if a liquidator (other than for the purpose of amalgamation or reconstruction), administrator, trustee in bankruptcy, receiver or receiver and manager is appointed in respect of the assets and/or undertaking of the Defaulting Party, or the Defaulting Party enters into an arrangement or composition with its creditors, or any similar appointment, arrangement or composition is made under any applicable law, or if the Non-Defaulting Party has reason to anticipate any such occurrence, appointment, arrangement or composition;
25.2.2 upon a material breach of the Agreement by the Defaulting Party which is not cured by the Defaulting Party within thirty (30) days from the date of written notice from the Non-Defaulting Party to cure such breach;
25.2.3 if the Defaulting Party, being the Purchaser, fails to pay any sum or sums when due under the Agreement or otherwise fails to comply with any provision of Clause 10 or Clause 11 or any credit terms under the Agreement; and
25.2.4 if any agreement between the Purchaser and any of the Seller’s Affiliates for the supply of Marine Lubricants or any other agreement between the Purchase and the Seller for the supply of Marine Lubricants is terminated for any reason by any party thereto.
25.3 If the Non-Defaulting Party is the Seller, upon the occurrence of a Default Event, the Seller may at its sole discretion, in addition to and without prejudice to its other rights: (a) apply any advance cash payment to any amounts payable by the Purchaser to the Seller as the Seller sees fit; (b) call upon any security issued to the Seller by or on behalf of the Purchaser in respect of any amounts payable by the Purchase to the Seller as the Seller sees fit; and/or (c) set-off against any amounts payable by the Purchaser to the Seller any amounts payable by the Seller to the Purchaser as the Seller sees fit. In each case, the application of an advance cash payment, call on security or set-off may be made irrespective of whether the payment, security or set-off was intended to relate to the Purchaser’s debt, and whether or not the amounts in question are liquidated, unliquidated or ascertainable at the time of the application, call or set-off. In the event that the amounts are not liquidated or ascertainable at the date of the application, call or set-off, the “amounts payable” for the purposes of this Clause may be estimated by the Seller acting reasonably and in good faith.
25.4 For the avoidance of doubt, termination of the Agreement for any reason shall also give the Seller and/or its Affiliates the right in its sole discretion to terminate any other marine lubricants sales agreement between the Purchaser and the Seller or any of the Seller’s Affiliates on, or about, the date the Agreement entered into force.
25.5 The expiry of the Agreement or its termination shall not affect and shall be without prejudice to any accrued rights or obligations or any rights of action or claim accrued on or before the date of termination and shall not affect any continuing obligations which the Agreement provides, either expressly or by implication, are to survive its expiry or termination.
26.1 Any claims by the Purchaser shall be deemed to be waived and absolutely barred and any liability or alleged liability of the Seller shall be extinguished unless:
26.1.1 in respect of claims relating to packaging or quantity: (a) any defect or variance in packaging or shortage in quantity is noted at the time of delivery on the Marine Lubricants Delivery Receipt or in a letter of protest; and (b) the Purchaser presents such claim to the Seller in writing, with supporting documentation, within fifteen (15) days of the date of delivery;
26.1.2 in respect of claims relating to quality, condition or description: (a) the Purchase presents such claim to the Seller in writing, with supporting documentation, within thirty (30) days of delivery; (b) the Seller has been afforded an opportunity to inspect and test the Marine Lubricants delivered as soon as practicable after delivery; and (c) where the delivery was in bulk by barge, the procedure set out in Clause 7.2 has been followed.
26.2 Without derogating from the specific time limits set out in Clause 26.1 and any other provisions requiring compliance within a given period, all of which shall remain in full force and effect, any claim arising under the Agreement shall be deemed to be waived and absolutely barred and any liability or alleged liability of the other Party shall be extinguished unless proceedings are commenced with respect to any claim and any Dispute under Clause 30 within 1 year of the date on which the Marine Lubricants were delivered or, in the case of a non-delivery, of the date upon which the Marine Lubricants should have been delivered.
26.3 Claims of any nature do not relieve the Purchaser of responsibility to make full payment of amounts due to the Seller under the Agreement.
27.1 The Purchaser agrees to and does hereby indemnify, hold harmless and defend the Seller, the Physical Supplier and their suppliers, and their respective officers, directors and employees, from any and all judgments, orders, decrees, claims, liabilities, damages, losses, costs or expenses, including attorney fees, arising out of the performance by the Purchaser, its principals, agents, employees and servants (including without limitation any Purchaser’s Principals and Purchaser’s Customers) of the Agreement except to the extent directly and solely caused by the negligence, gross negligence or wilful misconduct of the Seller. For the purposes of the Agreement, the term “wilful misconduct” shall mean in respect of a Party, a wilful and intentional or reckless act or omission by that Party.
28. Limitation of liabilities
28.1 Except as specifically provided for in the Agreement, neither Party shall in any event, including any negligent act or omission on its part, be liable to the other, whether under the Agreement or otherwise in connection with it, in contract, tort, breach of statutory duty or otherwise, for any consequential, indirect or special losses, expenses or damages of any kind including (without limitation) loss of anticipated profits, plant shut-down or reduced production, loss of power generation, blackouts or electrical shut-down or reduction, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable.
28.2 The provisions of this Clause 28 shall continue to apply notwithstanding the termination or expiry of the Agreement for any reason whatsoever.
If any provision (or part thereof) of the Agreement is declared to be illegal, invalid or otherwise unenforceable by a court of competent jurisdiction or either Party’s compliance with any ruling or resolution of the United Nations or the EU has a like or similar effect, the remainder of the Agreement (and of such provision) shall not be affected except to the extent necessary to delete such illegal, invalid or unenforceable provision (or part thereof).
If for any reason the Agreement shall be terminated then such termination shall be without prejudice to any rights, obligations or liabilities of either Party which have accrued at the date of termination but have not been performed or discharged, and any parts of the Agreement having any relevance thereto or any bearing thereon shall, notwithstanding the termination of the Agreement for any reason, continue in force and effect.
The Agreement shall not be modified unless mutually agreed by the Parties, which agreement must be evidenced in writing, except where the Parties agree or can show that an oral agreement was reached but has not yet been confirmed in writing.
Any waiver shall relate only to the matter, non-compliance or breach it expressly relates to and shall not apply to any subsequent or other matter, non-compliance or breach.
29.5 Recording, Retention and Monitoring of Communications
Each Party hereby acknowledges to the other Party and consents that such other Party may from time to time and without further notice and to the extent permitted by law:
29.5.1 record and retain electronic transmissions (including telephone conversations, e-mail and instant messaging between the Parties’ respective representatives in connection with the Agreement or other commercial matters between the Parties) on central and local databases for their respective legitimate purposes; and
29.5.2 monitor electronic transmissions through their internal and external networks for purposes of security and compliance with applicable laws, regulations and internal policies for their other legitimate business purposes.
Where it is specified in the MLSA or Order Confirmation that any Marine Lubricants Delivery Receipt, bill of lading, waybill, delivery order, certificate, receipt or other document issued pursuant to, or in connection with, the Agreement may be issued, signed and transmitted electronically (each, an “eDoc”) then it is hereby expressly agreed that any applicable requirement of law, contract, custom or practice that any transaction, document or communication shall be made or evidenced in writing, signed or sealed shall be satisfied by an eDoc and the Parties hereto agree not to contend in any dispute arising out of or in connection with any eDoc or any eDoc which is converted to paper that it is not in writing or that it is not equivalent to an original paper document signed by hand, or, as the case may be, sealed.
29.7 Entire Agreement
The Agreement contains the entire agreement between the Parties with respect to the matters set forth in the MLSA and/or Order Confirmation and supersedes all prior agreements, whether oral or written, in connection therewith.
The Purchaser and the Seller each warrant that it has not in connection with the Agreement relied upon any representations, whether written or oral, made by or on behalf of the other Party, but has relied exclusively on its own knowledge, judgment and expertise.
29.9 Warranty of Title
The Seller hereby warrants to the Purchaser that at the time title in the Marine Lubricants passed to the Purchaser as provided in the Agreement, the Seller had unencumbered title to the Marine Lubricants and had the right to sell the Marine Lubricants to the Purchaser.
29.10 Third party rights
If the MLSA or Order Confirmation provides for the application of Singapore law, then the following provision shall apply: A person, company or other legal entity who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B) or any equivalent legislation in any other jurisdiction to enforce any term or condition of the Agreement.
29.11 Trade marks
Nothing in the Agreement whether express or implied shall be deemed to confer any right upon either Party to apply any trade mark owned by the other Party or any of its Affiliates to any Marine Lubricants supplied under the Agreement nor to use such trade marks in relation to such Marine Lubricants.
The Agreement may be executed in any number of counterparts, each of which when executed, shall constitute an original of the Agreement, but all the counterparts shall together constitute the same Agreement. Moreover, electronic, scanned or facsimile copies of signatures shall be accepted as valid and binding.
30. Dispute Resolution
Any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally settled by arbitration in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference into this Clause 30. The Tribunal shall consist of one (1) arbitrator to be appointed by the Chairman of the SIAC and the language of the arbitration shall be English. The Parties agree that all arbitration proceedings shall be confidential.
31. Applicable law
31.1 Governing law
The Agreement shall be governed by and interpreted in accordance with the laws of the Republic of Singapore without regard to the conflicts of laws principles thereof.
31.2 The UN Convention
The United Nations Convention on Contracts for the International Sale of Goods of Vienna, 11th April 1980, shall not apply to the Agreement.
31.3 Sovereign immunity
Each Party warrants that it has entered into the Agreement in a commercial capacity and that with respect to the Agreement it is in all respects subject to civil and commercial law. Each Party hereby irrevocably and unconditionally and to the fullest extent permitted by law waives any rights of sovereign immunity which it may have now or which it may subsequently acquire in respect of its position or any title and/or assets (present or subsequently acquired and wherever located) belonging to it.