11. Payment:
11.1
Unless the Confirmation otherwise provides, each of the following payment terms apply:
11.1.1
11.1.2
Payment of the Price will be made in United States dollars, or such other currency as specified in the Confirmation, in full without set off, counterclaim, discount and/or deduction for any reason whatsoever so as to ensure that the Seller receives value for the payment in cleared funds on or before the Due Date.
11.1.3
Timely payment is of the essence for the Agreement and, unless stated in the Confirmation, payment shall be due by the Buyer to the Seller on the date of delivery.
11.1.4
In respect of all sums which are overdue the Buyer shall be liable to pay to the Seller interest calculated at 2% per calendar month pro-rated and compounded on a daily basis from the Due Date until receipt by the Seller of sufficient cleared funds. Accrued interest and costs and/or expenses incurred by the Seller in requesting payment of outstanding amounts will be added at monthly intervals to and become part of the outstanding sum. In the event that this contractually agreed rate of interest is in excess of that permitted by relevant law there shall be substituted the maximum rate so permitted.
11.1.5
Payment will be made by way of telegraphic, telex, swift or rapid electronic transfer to the bank and account specified in the Seller’s invoice, or as mutually agreed in writing by the Parties to accept payment by other means including cheque. All bank and other charges if any incurred in effecting remittance will be for the account of the Buyer. Advice of remittance including identifying references should always be given to the Seller. If payment is not received as a result of the Buyer not complying with the payment instructions, then the Buyer will pay immediately, upon written request, all sums due including interest and all other charges. For the avoidance of doubt, payment shall be deemed to be made only once the funds are cleared free of any charges to the Seller’s relevant bank account.
11.1.6
Payments received by the Seller from or on behalf of the Buyer notwithstanding any specific request to the contrary will be applied in the following order in diminution or extinction of:
i
accrued interest and costs and/or expenses (including legal and enforcement costs) in respect of transactions for which the principal sum has been previously paid.
ii
accrued interest and costs and/or expenses (including legal and enforcement costs) arising from all other transactions.
any principal sum due and outstanding commencing with the oldest and proceeding chronologically thereafter to the most recent.
iii
any principal sum which the Seller knows or reasonably expects will fall due at a future date.
11.1.7
In the event that the Buyer or any subsidiary or parent thereof shall commit an act of bankruptcy or shall be the subject of proceedings judicial or otherwise commenced for debt, bankruptcy, insolvency, liquidation or winding up, or if at any time the reputation, standing, creditworthiness, liquidity or solvency of the Buyer or any subsidiary, parent, associate or affiliate thereof should give the Seller reasonable cause for concern, and/or if any amount due remains outstanding for a period of 7 days from the Due Date, without prejudice to all other rights and remedies which it may have, the Seller may:
i
terminate the Agreement;
ii
demand adequate security;
iii
suspend any pending deliveries;
iv
withdraw permission of the Buyer and/or Vessel to consume the Product;
v
give notice that all payments shall immediately stand due or otherwise vary, amend, withdraw, substitute or add to the terms relating to payment at any time in the course of a transaction in such manner as it shall in its absolute discretion consider necessary to protect its interests; and/or
vi
give notice to the Buyer that credit facilities from the Seller to the Buyer are withdrawn or suspended as the case may be and all sums outstanding and/or due for payment at a future date shall thereupon fall due for immediate payment.
11.1.8
The full legal and other costs and expenses incurred by the Seller including those of the Seller’s own legal and credit departments and other lawyers in connection with any breach by the Buyer of any term of the Agreement including but not limited to actions for debt shall be for the Buyer’s account and shall for all purposes form part of the Price due from the Buyer to the Seller for Product supplied.
11.1.9
Buyer acknowledges that failure to pay the Invoice in full, as required by the Agreement, in no way obligates the Seller to in turn make payment to the Physical Supplier (if the Seller is not the Physical Supplier), and the Seller shall not be liable to the Buyer for any losses relating to the Physical Supplier seeking to assert its security rights including that of seeking an arrest of the Vessel.
11.2 Tax
11.2.1
If Buyer is entitled to purchase any Product free of any taxes, duties or charges pursuant to local law, Buyer shall promptly, but in any event not later than five (5) business days following the completion of delivery, provide the Seller with a valid exemption certificate for such purchase.
11.2.2
To the extent that the Product is sold to the Buyer on a duty or tax- exempt basis, Buyer shall comply with all local requirements and shall execute all such documents necessary to permit the sale on such basis, including any declarations of use of the Product. To the extent that any claim is made by any authorities against the Seller on the basis that the Product was liable for any duty or taxes, and such claim arose partly or wholly due to the action, omission or fault of the Buyer, including any incorrect customs or duty declaration of any sort due to Buyers fault, then the Buyer shall indemnify the Seller against any claims, losses, costs (including as between Attorney or Solicitor and Client), damages, liabilities, fines, penalties and expenses attributable to such action, omission or fault of the Buyer.
12. Termination:
12.1
Notwithstanding anything to the contrary express or implied, the Seller (without prejudice to any other rights it may have in this Agreement or at equity or in law more generally), shall in its sole discretion be entitled to immediately suspend delivery under and/or terminate the Agreement and any and all other contracts between the Seller and the Buyer by notice to the Buyer if:
12.1.1
the Buyer is in material breach of its obligations pursuant to the Agreement;
12.1.2
the Buyer or any subsidiary or parent thereof shall commit an act of bankruptcy or shall be the subject of proceedings judicial or otherwise commenced for debt, bankruptcy, insolvency, liquidation or winding up, and/or
12.1.3
at any time the reputation, standing, creditworthiness, liquidity or solvency of the Buyer or any subsidiary, parent, associate or affiliate thereof should give the Seller reasonable cause for concern.
12.2
The termination of the Agreement by the Seller under this clause shall not affect in any way any of the Seller’s rights and the Buyer’s obligations under the Agreement or any other contracts between the parties which were created, incurred or contracted prior to such termination by the Seller.
13. Claims, Disputes And Precautions:
13.1
Notification: Written Notice of Claim must be given to the Seller within the time limit specified in Clauses 13.4 (quantity claims and disputes), 13.5 (quality claims and disputes) and 13.7 (all other claims and disputes) below or as specified in the Confirmation and any claim not notified within the specified time limit shall be deemed waived and absolutely barred and the Seller shall be discharged of all liability whatsoever and howsoever arising. It is the Buyer’s responsibility to ensure that notice of claim is received by the Seller whose confirmation of receipt should always be sought. Regardless of whether a claim or dispute has arisen or is anticipated, the Buyer must give Notice of Claim forthwith to the Seller of any discrepancy, error or omission present in any form or document tendered, submitted or produced by the Physical Supplier and of any unusual occurrence relating to the delivery. Buyer’s submission of any claim does not relieve it of responsibility to make full payments as required under Clause 11 and Buyer shall not be entitled to set off any claim from payment.
13.2
Sufficiency of Information:
13.2.1
The Notice of Claim must contain sufficient information to enable the Seller to identify the relevant transaction, the nature of the complaint and the loss or damage alleged. Any Notice of Claim which does not give such sufficient information will not be valid for the purpose of compliance with the relevant time limit.
13.2.2
In addition, the Buyer must provide a full and complete response to any and all reasonable questions, enquiries and requests, including providing legible copies of supporting documentation reasonably requested by the Seller concerning the claim and matters relating thereto. Should a full and complete response not be provided by the Buyer within Fourteen (14) days of such request, then the Buyer shall bear all consequences of failing to evidence their claim in a timely fashion to include paying damages to the Seller to compensate it for any additional administrative or legal costs in dealing with a late evidenced claim together with any losses suffered by the Seller owing to its inability to advance any indemnity action because of the Buyer’s failure to provide information in accordance with this clause.
13.3
Categories Claims fall into 3 categories:
13.3.1 Quantity claims and disputes (clause 13.4)
13.3.2 Quality claims and disputes (clause 13.5)
13.3.3 Other claims and disputes (clause 13.7)
13.4
Quantity Claims and Disputes
13.4.1
The Quantity of the Products delivered shall be conclusively determined from the official gauge or meter of the barge or truck effecting delivery for bulk deliveries or, for deliveries of products in containers or other receptacles, as stated on the Physical Supplier’s delivery receipt (“Supplier’s Receipt”). However, in those ports where legal or operational requirements or industry practice dictate that quantities are measured by referencing either shore tank figures or barge loading figures or Mass Flow Meter (MFM) figures, such measurements shall instead be conclusive. In cases of delivery ex-wharf for bulk deliveries, shore tank figures shall be conclusive. Quantities calculated from the Receiving Vessel’s soundings shall not be considered.
13.4.2
For truck deliveries quantity shall be determined by the weighbridge figures at the port of loading and the Physical Supplier shall check truck seals prior to dispatch. All of these checks must be carried out before and after delivery of each consignment on each barge and/or wagon and/or vehicle and/or storage tank load and/or truck.
13.4.2
Save for safe access to the Physical Supplier’s facilities not being available, the Buyer or Buyers representative must attend all measurements performed by the Physical Supplier both prior to and after supply.
13.4.3
For truck deliveries the Buyer or Buyer’s representative must attend and witness breaking of truck seal prior to delivery to the Vessel commencing and post-delivery to verify that the truck supplied it content and carries no further ROB.
13.4.4
For MFM measurements, the Density/Mass calculation of the product delivered is by mechanical function of the MFM is conclusive. Therefore, the Density stated on the BDN is for reference use only and not be used by the Buyer for quantity determination.
13.4.5
In the absence of full attendance, the Buyer shall not be entitled to complain of an incorrect measurement of the volume of marine Products delivered.
13.4.6
Any discrepancies must be presented by the Buyer or Buyer’s representative to the Physical Supplier immediately upon identification at the time of delivery by issuing a Letter of Protest and if possible endorsing the Bunker Delivery Receipt or delivery documents (non-marine Products), and the Seller must immediately be contacted both verbally and in writing to allow it to take all action necessary (including arranging for a surveyor to attend the Vessel if deemed necessary), time being of the utmost essence in this regard. The Buyer shall ensure that the Vessel’s crew including the master shall assist the Seller in this regard, including providing necessary access and assistance to the surveyor if appointed, as well as responding timely to any requests for information including Vessel data logs. In the absence of a Letter of Protest or endorsed Bunker Delivery Receipt in accordance with this clause the Seller shall not be liable for any claims for discrepancies, including but not limited to claims for short delivery.
13.4.8
The Seller shall not be liable for claims for short delivery based upon figures obtained by measuring Product in the Vessel’s tanks.
13.4.9
The time limit for receipt by the Seller of Notice of Claim in a quantity dispute is 14 (fourteen) days from the date of delivery or such shorter period as may be specified in the Confirmation.
13.5
Quality Claims and Disputes.
For deliveries in bulk, it is the Buyer’s sole responsibility to ensure that Product tendered for delivery is fit for use by the Vessel and is delivered into the correct tanks.
13.5.1
It is the duty of the Buyer to instruct the Physical Supplier to obtain four (4) representative samples if delivery is by truck and otherwise at least three (3) representative samples obtained of every consignment and load of the Product on commencement of delivery including change of delivering facility.
13.5.2
All such samples shall be drawn from the Barge,- Truck, Shore tank(s) or other delivery facility manifold unless the Physical Supplier elects otherwise and if such exist in accordance with the governing local regulation. Each such sample shall be:
(a) securely sealed;
(b) labelled with the Vessel’s name, product type, delivery date, delivery location and seal number;
(c) authenticated with the Vessel’s stamp;
(d) signed by the Physical Supplier and the Master of the Vessel (or any of their authorised representatives); and
(e) recorded on the BDN.
13.5.3
Buyer or its representatives may witness the sampling but the absence of Buyer or its representatives at the time of sampling shall not prejudice the validity of the samples taken hence these samples shall conclusively represent the quality of the Product(s) supplied to the Receiving Vessel.
13.5.4
The representative samples must be sealed and labelled, and the label signed by a representative of the Physical Supplier and by an officer of the receiving Vessel and/or other senior representative of the Buyer. One set of the Physical Supplier’s samples shall be retained by the Buyer, and two sets, if delivery by truck otherwise at least one set shall be retained by the Physical Supplier, each to be retained for a minimum of sixty (60) days after delivery to the Vessel. The third sample shall be retained by the Vessel in accordance with the provisions of MARPOL 73/78, Annex VI. The third sample may only be used for the sole purposes of confirming the sulphur content of the marine fuel as specifically set out in Regulation 18 of MARPOL Annex VI.
13.5.5
If the product is delivered by truck, then one of the two samples retained by the Physical Supplier may be tested in a reputable laboratory (as per Clause 13.5.8) for Density, Flash Point, Pour Point, Kinematic Viscosity at 50°C, Water content, Sulphur content, Total Sediment, Ash content and Calorific value at Buyer’s cost. If the Buyer wishes any specification parameter other than that listed beforehand to be tested, then Buyer must advise of such at least 24 hours prior to delivery commencing failing which such request shall be null and void.
13.5.6
All documentation must be checked by the Buyer or the Buyer’s representative and be in order and any discrepancies noted on the Physical Supplier’s delivery receipt before signing and stamping.
13.5.7
In the event of the Buyer having grounds to believe that the Product supplied does not accord with the description in the Confirmation or is defective the Buyer shall immediately:
i
take all reasonable steps to mitigate the consequences of having been supplied with possibly defective or incorrect Product.
ii
give immediate notice with full details of the possibly defective or incorrect Product to the Seller together with the Vessel’s position, destination and ETA, the quantities and locations of all bunkers on board the Vessel/stored in the Vessel, the rate and quantity of consumption since delivery and the location of the Vessel immediately prior to delivery of the Product, and for each of the three preceding deliveries to the Vessel, the quantity, quality and specification of Product supplied, the place and date of supply and the name of the supplier;
iii
inform the Seller of the whereabouts of the Buyer’s set of samples.
13.5.8
In the event of a claim by Buyer basis an analysis result obtained from the vessel sample of which the seal number is listed on the BDN, showing that any agreed specification parameter(s) has exceeded the 95% confidence level(s) according to the relevant sections on precision and interpretation of test results in the ISO 4259 standard, It is a pre-condition to the Seller’s liability that at the time Notice of Claim is given the set of samples retained by the Physical Supplier are available for analysis of the allegedly off-specification parameter(s) only. It is at the Physical Suppliers discretion to allow any additional parameter(s) to be analysed on request of the Buyer. The Seller will provide the Buyer with a selection of multiple reputable laboratory options, approved by the Seller and if available in the country/port of supply, to select from. If the buyer fails to select a reputable laboratory within seven (7) days after receipt of the laboratory options, the Seller is entitled to select a laboratory instead. The analysis shall be conducted by a laboratory technician at the reputable independent laboratory that has been selected and is in the country (and where available, port) of supply, approved by the Seller, in accordance with established procedures and the analysis is carried out in the presence of a representative of the Seller. The Buyer hereby acknowledges that the sealed samples retained by the Physical Supplier are representative of the Product delivered and that the Seller has no duty to consider any other independently produced samples. The results of the analysis shall be final, binding and conclusive on all parties. If the result(s) obtained from the analysis conducted by the independent laboratory does not show any deviations from the agreed product specification, their costs shall be for the account of the Buyer.
13.5.9
If it is alleged that any equipment or machinery has been damaged byincorrect or defective Product full details must be disclosed to the Seller at the earliest opportunity and the item allegedly damaged must be preserved and made available for inspection on demand at any reasonable time or times by the Seller and/or its representative.
13.5.10
The Buyer to immediately on making a claim give the Seller’s representative a reasonable opportunity to inspect the Vessel, including, without limitation, its engines, fuel tanks, equipment, logs, records and copies of communications including communications between the Buyer and the Vessel. Buyer shall ensure that Vessel’s crew assist the Seller’s representative in his enquiries and shall respond to requests promptly in time.
13.5.11
The time limit for receipt by the Seller of Notice of Claim in respect of quality and/or claims arising out of quality is Fourteen (14) days from the date of delivery or such shorter period as may be specified in the Confirmation, failing which any claim shall be time barred.
13.5.12
Within Thirty (30) days of delivery a detailed written claim together with all available supporting documentation substantiating each and every constituent part of the claim (including but not limited to an analysis report prepared by independent inspectors/laboratory of the Buyer’s retained quality sample and all correspondence to/from the fuel testing organization used by Buyers) to be submitted to the Seller.
13.5.13
The Buyer shall, in addition to observing and complying with the terms herein, abide by generally accepted good operating practices and procedures, all in compliance with local rules and regulations. In particular, a comprehensive fuel and lubricant management program and procedures, in compliance with OEM guidelines, industry standards and in line with the requirements and recommendations of ISO/ PAS 23263.In the event the Product supplied is off-specification and cannot be consumed by the Vessel, Buyer’s remedies shall be limited exclusively and solely to the replacement of the nonconforming Product. If the Buyer removes the Product without the express written consent of Company, then all such removal and related costs shall be solely borne by the Buyer.
13.6
Other Claims and Disputes: in all other cases Notice of Claim must be given to the Seller as soon as reasonably possible and in any event no later than Fourteen (14) days after delivery. If the Confirmation provides for a shorter period such shorter period shall apply. The quality of the Product shall conform with any specification or description a set out in the Confirmation. For non-bulk deliveries no claim for any defects in quality may be made in respect of Product that has been transported or stored in containers provided by the Buyer.
13.7
Proceedings: Without prejudice to the provisions of Sub-Clauses 13.1, 13.4, 13.5 and 13.7 above the Seller shall in any event be discharged of all liability whatsoever howsoever arising in respect of any Product and/or supplies and/or services provided to the Buyer or which the Seller has undertaken to supply and/or provide unless suit be brought and written notice thereof given to the Seller within 6 (six) months from the date of delivery and/or date of the Seller’s undertaking.
14. Indemnity:
14.1
The Buyer hereby indemnifies the Seller against any claim for injury and/or death occurring to any person and/or all damage and/or damage to any property and against all actions, suits, claims, demands, costs, charges or expenses arising in connection therewith to the extent that the same shall have been occasioned by the negligence or default of the Buyer, his servants, representative, or agents or any third party in the course of performance of or arising out of or in connection with the Agreement.
14.2
Buyer shall also indemnify and hold harmless the Seller, the Physical Supplier, from and against all claims, damages, losses and expenses, including attorney’s fees, arising out of or resulting from the performance of services or the providing of Product under this Agreement, including claims, damages, losses, penalties or expenses arising under any air, water quality or hazardous waste statute, regulation or ordinance, hereinafter referred to as “pollution claims”, to the extent that such claim(s) has been caused or contributed to by the Buyer or failure of or defect in the Buyer’s equipment, their agents or employees.
14.3
The Buyer shall pay and indemnify the Seller against all claims, costs, losses and expenses in respect of any loss, damage or delay caused by the Vessel, the Vessel’s charterer, the Vessel Interests and/or the Vessel’s personnel to any barge and/or its equipment, and injury and/or death caused by the Vessel, the Vessel’s charterer, the Vessel Interests and/or the Vessel’s personnel to any of the personnel effecting delivery in the course of or in connection with delivery of Product. In particular, any damage caused by contact, collision, swell or any other weather or sea related condition shall be dealt with by the Buyer directly with the owners of the barge. The Seller shall not be held liable for any such damages and the Buyer shall indemnify the Seller against any claims arising out of such incident.
15. Liability:
15.1
The Seller shall not be liable to the Buyer for:
15.1.1
any loss of profit, loss of time (including without limitation hire, demurrage, deviation or detention), crew wages, pilotage, towage, port or wharf charges, barge delivery charges, costs of replacement fuel, costs relating to the removal of fuel and obtaining replacement fuel, cost of replacement vessel(s), damage to cargo, cost of tank or equipment cleaning, whether arising directly or indirectly, from any cause whatsoever and howsoever arising, whether in contract, tort or statute or otherwise including but not limited to, the exercise of Company’s right to suspend and/or terminate delivery of Product, the negligence of the Seller, its servants, agents or sub-contractors; and/or
15.1.2
any indirect or consequential loss, from any cause whatsoever and howsoever arising, whether in contract, tort or statute or otherwise including but not limited to, the exercise of Company’s right to suspend and/or terminate delivery of Product, the negligence of the Seller, its servants, agents or sub- contractors; and/or
15.1.3
damage to Vessel or the Buyer’s property, or for any other loss sustained by the Vessel, its owners, charterers, underwriters, or other parties in interest, in contract, tort or otherwise, other than the circumstances and remedies permitted under this Agreement; and/or
15.1.4
any loss or liability whatsoever caused by the negligence, or dishonest or fraudulent or deliberate acts or omissions of the Physical Supplier or of any other person including the Seller’s servants, agents orsub-contractors
15.2
Subject to the terms of this Agreement, the Buyers’ remedies shall be limited to:
15.2.1
replacement of the Product where the Product supplied is off-specification and cannot be consumed by the Vessel; or
15.2.2
claims for damage to the Vessel or any components of the Vessel caused by the Product where the Product supplied is off-specification and the loss was directly caused by the sole negligence of Company’s employees, which negligence must be affirmatively proved.
15.3
In the event that the Seller’s aggregate liability to the Buyer and any other party for any claims arising from quality, quantity, accident, delay, spill or any other cause, whether caused by negligence, dishonest or deliberate acts or omissions of the Physical Supplier or by any other person including the Seller’s servants, agents or sub-contractors whether based in tort or contract or statute, the total amount payable by way of compensation shall not exceed the Price of that portion of the product sold on which the liability is asserted and in any event, other than in respect of personal injury or death, shall never exceed the Price (excluding Further Costs, interest and other charges payable by the Buyer) of the Product supplied under the Agreement. It is a pre-condition to the payment of any compensation by the Seller that all sums due to the Seller from the Buyer are first paid and settled.
16. Force Majeure:
The Seller shall not be liable for any loss, damage, costs or expenses arising from the Seller’s failure to fulfil or comply with any term or condition of the Agreement if fulfilment or compliance has been delayed, hindered or prevented in whole or in part by any circumstance whatsoever which is not within the immediate and reasonable control of the Seller including, but without limiting the generality of the foregoing, any acts of God, fires, floods, perils of sea, war (declared or undeclared), hostilities, embargoes, Sanctions accidents, strikes, lockouts or labour disputes or reasonable apprehension thereof, any government order, request or restriction, quarantine or risk of quarantine or acts in compliance with requests of persons purporting to act on behalf of a government authority, or any other similar causes, any limitation restriction or interruption to existing or contemplated sources of supply of Product and/or the means of supply and/or the means of delivery.
17. Insurance:
The Buyer is responsible for effecting and maintaining in force adequate insurance which will fully protect the Buyer, the Seller and all third parties from all risks, hazards and perils associated with or arising out of or in connection with the Agreement and delivery.
18. Licences permits and approvals :
The Buyer is responsible for obtaining all necessary permits, licenses and approvals required to enable both parties to execute all of their obligations under the Agreement.
19. Assignment :
The Buyer shall not assign its interest in the Agreement without the prior written approval of the Seller. The Seller may assign or novate the Agreement and any rights arising thereunder and shall thereafter give notice to the Buyer. By entering into the Agreement, the Buyer hereby consents to any subsequent novation.
20. Written, in Writing and Notice:
Any requirement for written communication including the giving of any notice may be fulfilled by the use of letter-post, courier, telex, facsimile transmission, email or any other medium which produces a tangible result for the intended recipient. The communication shall be deemed to have been given and received upon completion of transmission of any electrical or electronic medium, within two working days of dispatch for first class inland letter-post, within five working days of dispatch for second class inland letter post and air mail and on the expiry of the declared or guaranteed time for delivery of any courier or monitored service.
21. Governing law & dispute resolution :
21.1 Governing Law
21.1.1
The Agreement and all claims and disputes arising under or in connection with the Agreement shall be governed by English law except that the General Maritime Law of the United States of America and the Commercial Instruments and Maritime Lien Act (“CIMLA”), 46 U.S.C. 31301 et seq. (referred to collectively as the “General Maritime Law of the United States”) shall always apply to any determination of the existence of a maritime lien, attachment or any other maritime claim, regardless of the country in which the Agreement is made, where the Product is delivered or where the Seller commences any legal action against the Buyer.
21.1.2
No term of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) shall apply to this Agreement.
21.1.3
If the Seller is a member of the HMS Group domiciled in the United States of America, these General Terms and Conditions and each transaction shall be governed by the general maritime law of the United States of America, the applicable federal laws of the United States of America, and, in the event that such laws are silent on the disputed issue, the laws of the State of Florida, without reference to any conflict of laws rules which may result in the application of the laws of another jurisdiction. The General Maritime Law and the applicable federal laws of the United States of America shall apply with respect to the existence of a maritime lien, regardless of the country in which Seller takes legal action. Any disputes concerning quality or quantity shall only be resolved in a court of competent jurisdiction in Miami- Dade County, Florida. Disputes over payment and collection may be resolved, at Seller’s option, in the Miami-Dade, Florida state or federal courts or in the courts of any jurisdiction where either the Receiving Vessel or an asset of Buyer may be found. Each of the parties hereby irrevocably submits to the jurisdiction of any such court, and irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum or its foreign equivalent to the maintenance of any action in any such court.
Arbitration
21.1.4
Subject to Clause 21.3 the parties irrevocably and exclusively agree that:
21.1.5
any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re- enactment thereof for the time being in force. The seat of the arbitration shall be England, even where any hearing takes place outside England. The arbitration proceedings shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced. The language to be used in the arbitration shall be English. The reference shall be to three arbitrators.
21.2
Nothing in this Clause or this Agreement shall (or shall be construed so as to) limit the right of the Seller:
21.2.1
to take any action and/or commence proceedings in any jurisdiction against the Buyer, the Vessel or the Vessel’s owner to obtain, maintain and/or enforce security for any claim arising out of or in connection with this Agreement; and/or
21.2.2
to take any action and/or commence proceedings and/or continue proceedings against the Buyer, the Vessel or the Vessel’s owner in any jurisdiction in order to determine the substantive merits of any claim and/or any dispute arising out of or in connection with this Agreement, and nor shall the taking of any action or proceedings in any one or more jurisdictions preclude the taking of any action or proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.
21.3
If any procedure of any nature whatsoever is instituted under sub-clause 21.3 above, in connection with any controversy arising out of this Agreement or to interpret or enforce any rights under this Agreement, the prevailing party shall have the right to recover from the losing party its reasonable costs and attorney’s fee incurred in such proceeding.
21.4
Counter security The Buyer hereby expressly and irrevocably waives any and all right to demand counter- security from the Seller in response to any claim, counterclaim or otherwise, whether brought in court or by way of a demand for arbitration.
21.5
Agent for service of process Buyer agrees and acknowledges that Buyer has no agent appointed for service of process in the State of New York or in any State adjacent to the State of New York, including New Jersey, Connecticut and Vermont and for the purposes this Agreement the Buyer hereby revokes all such prior appointments. In the event that the Seller commences legal proceedings against the Buyer pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, the Buyer hereby expressly waives any defense that the Buyer is present in a convenient adjacent jurisdiction to any jurisdiction where the Seller has commenced legal proceedings against the Buyer or where the Seller is located.