Top Fenders STS Terms and Conditions
MADE BETWEEN
(A) TOP FENDERS LIMITED, a company incorporated in England and Wales, having its registered office at Portland House, 69-71, Wembley Hill Road, Wembley, Middlesex, HA9 8BU, United Kingdom ("TFL"); and
(B) [THE COMPANY], a company organised and existing under the laws of [•] (company number [•]) having its registered office at [•] (the “Company”).
WHEREAS
The Parties have agreed that this Agreement shall govern any STS Transfer Services provided by TFL to the Company.
1. DEFINITIONS
1.1 Each of the following defined terms shall have the meaning given below:
Affiliate:any company which is directly or indirectly associated with the Company by any means whatsoever – including but not limited to, agents, contractors, sub-contractors, subsidiaries (within the meaning of s1159 of the Companies Act 2006), holding companies or any other individual or organization.
Cargo: Crude, petroleum and/or its products.
Commencement Date: the date on which the Company signs this Agreement.
Commercial Terms: the commercial terms which shall apply to each STS Transfer agreed between the Parties and in the form set out in Appendix A.
Master: the master of each Tanker involved in any STS Transfer.
Mooring Master: any employee or agent of, or a consultant engaged by, TFL to assist in the provision of STS Transfer Services on behalf of TFL in connection with this Agreement.
Nomination Response: any response to a Nomination (as defined in Clause 2.2) which is issued by TFL to the Company.
STS: Ship to ship.
STS Location: as stated in the applicable Nomination.
STS Transfer Documents: this Agreement, the Commercial Terms, any Nomination Response and TFL’s standard terms and conditions in force from time to time.
STS Transfer Guide: the latest edition at the time of the relevant STS Transfer of the official guidance published by the International Chamber of Shipping/Oil Companies International Marine Forum titled "Ship to Ship Transfer Guide for Petroleum, Chemicals and Liquefied Gases".
STS Transfer Services: the provision of the STS Transfer System together with associated planning and co- ordination provided by or on behalf of TFL to utilise the STS Transfer System supplied by TFL and made available to the Masters of, as stated in the relevant Nomination Response.
STS Transfer System: the STS transfer system which TFL proposes to operate at the STS Location for any STS Transfer and consists of the equipment described in the Commercial Terms in question (the “STS Equipment") (or any substitution therefore made in good faith) and assistance with the operation of such equipment for the STS Transfer.
Tanker(s): Cargo carrier(s) and smaller vessel(s) owned by or chartered to the Company and its Affiliates.
Transfer or STS Transfer: any Cargo shipments transferred from Tanker(s) and delivered into other Tanker(s) made fast alongside each other for the purpose of STS operations.
1.2 Any reference in the STS Transfer Documents to a day, month, quarter or year shall unless the context otherwise requires be to a calendar day, calendar month, calendar quarter or calendar year.
1.3 Any reference in the STS Transfer Documents to a day, month, quarter or year shall unless the context otherwise requires be to a calendar day, calendar month, calendar quarter or calendar year.
1.4 All terms defined in this Agreement shall have the same meaning in any Appendix to this Agreement and unless the context requires otherwise, in any STS Transfer Document.
2. SCOPE OF THIS AGREEMENT
2.1 This Agreement provides the framework containing the general terms and conditions which shall govern the provision of any STS Transfer Services by TFL to the Company. Nothing in this Agreement constitutes an obligation to provide STS Transfer Services until a contract for a particular STS Transfer is concluded by following the procedure in this Clause 2.
2.2 The Company shall request STS Transfer Services for any proposed Transfer by phoning, emailing or otherwise contacting TFL (in accordance with Clause 18 (Notices) of this Agreement), stating the intended dates and location of the proposed Transfer, together with identities (names, IMO numbers and call signs) of the intended Tankers and the intended Cargo (quantities and grade) (being a “Nomination”). If TFL is able and elects to perform the STS Transfer Services required, TFL will issue a Nomination Response to the Company confirming its acceptance. STS Transfer Services shall be provided in accordance with the terms and conditions set out in the STS Transfer Documents. If TFL is not able to perform the STS Transfer Services requested in respect of any proposed Transfer, then TFL will so inform the Company and neither Party shall be under any further obligation in respect of said proposed Transfer. In the event of any conflict between the terms and conditions set out in the STS Transfer Documents and this Agreement then the terms of this Agreement shall prevail.
2.3 If, at the Company's request, TFL mobilises any STS Equipment or incurs any costs in anticipation of an STS Transfer which is subsequently cancelled, then Company shall pay TFL for all such costs incurred by TFL pursuant to the Company's request within ten days of the relevant invoice date.
2.4 For the avoidance of doubt neither TFL, the Mooring Master, nor their respective employees, agents or representatives ("TFL Personnel") shall be under any obligation to sign or otherwise accept any indemnity or other terms and conditions presented by any Master, owner, charterer or other third party prior to or during the course of the STS Transfer, nor shall any TFL Personnel be liable for any loss or expense arising as a result of any refusal on their part to sign or otherwise accept the same. The Company undertakes to ensure that third parties involved or otherwise interested in the STS Transfer do not require any such indemnity or terms and conditions to be accepted by any TFL Personnel.
2.5 TFL will operate the STS Transfer System for the purpose of transferring Cargo (whether or not owned by the Company) from (a) tanker(s) for subsequent on-shipment in (an) other tanker(s).
2.6 If the STS Transfer operation is cancelled after TFL commence fendering of the STS Equipment or the STS Transfer is completed in less than twenty-four (24) hours, a minimum twenty-four (24) hour charge shall apply.
2.7 TFL shall be entitled to rely on the information provided by the Company (whether pursuant to the Nomination, the TFL Checklist (Appendix B) or during any other communication between the Company, its agent, master and representatives and TFL in respect of each STS for the purpose of providing its advice for each STS. TFL shall have no liability for any loss, damage, or incident arising from any inaccuracies or misrepresentations in the information provided to TFL.
3. DURATION AND TERMINATION
3.1 Duration: This Agreement shall come into force on the Commencement Date and, unless terminated pursuant to any other provision of this Agreement, shall continue in force until either Party terminates it by not less than 30 days written notice to the other.
3.2 Effect of Termination: Termination of this Agreement shall have no effect on the Parties’ rights and obligations in respect of the period up to the date of termination. The giving of a notice of termination under Clause 3.1 shall have no effect on any Transfers already agreed by the issue of Nomination and respective Nomination Response, but once such notice is given no transfers shall be proposed for the period after the date of termination.
3.3 Termination for Non-Payment: If at any time any sum due to TFL under any STS Transfer Document has not been paid within thirty days of the date on which it was due, then, without prejudice to any other remedies open to TFL, TFL may by written notice elect to discontinue and terminate any Transfers that have been agreed upon and / or may terminate this Agreement or may do both.
4. FEES AND FREETIME
4.1 Fee: The fee for any given STS Transfer shall be calculated in accordance with the Commercial Terms. If TFL pays any costs (whether obliged to do so or not) which are for the Company's account, then the Company shall reimburse TFL accordingly within two days of first written demand.
4.2 Government Fees and Taxes: The sums stated in the Commercial Terms are the net sums due to TFL in respect of a Transfer and they do not include any government fees, levies or taxes. If there are any government fees, taxes, or levies or other charges (other than taxes on TFL income), which relate directly or indirectly, to the STS Transfer System or to payments due to TFL under the Agreement, the Company shall be notified by TFL and shall pay the amount of such sums to TFL. All payments made to TFL under any STS Transfer Document shall be made in full without deduction or set off. If any withholding tax is applicable then the sums in the Commercial Terms shall be increased to such amount as will yield TFL the net sums in the Commercial Terms after taking account of and providing for the withholding tax in question.
4.3 Free Time: Unless otherwise stated in the Commercial Terms, the time allowed for any Transfer shall start to run from the time when TFL’s support craft commences fendering of the STS Equipment and will continue until all de-fendering is complete. Time shall run continuously and shall not be affected by any weather delays or any other event of any nature whatsoever, including one within Clause 12, save for in the event of a breakdown of the STS Transfer System.
5. INVOICES AND PAYMENTS
5.1 Promptly after each Transfer TFL shall submit to the Company an invoice showing all the sums due to TFL both for the Transfer and, if applicable, for any sums due pursuant to this Agreement (including, without limitation, under Clause 11 (Oil Pollution)).
5.2 All payments due to TFL hereunder shall be paid in dollars US ($) to the account stated on the invoice, or to such other account as may be designated by in writing by TFL. Payments shall be made in full by the Company within 15 days of the date of receipt of the invoice.
5.3 Should the Company fail to pay any sum when the same is due hereunder, then interest shall accrue on such sums due from the due date up to the actual date of payment (both before and after judgement) at a rate which is two per cent (2%) above the base rate of the Bank of England.
5.4 If a pollution incident arises as a result of any STS Transfer, any sums due in respect of steps taken for prevention or mitigation of oil pollution damage or in respect of pollution damage which are paid by TFL on behalf of or for the account of the Company or its employee, agent or sub-contractor or to their order as per Clause 11 of this Agreement and any other sums expended or incurred by or otherwise due to TFL may be separately invoiced and payment shall be made by the Company to TFL within 30 days of receipt of an invoice for such sums.
6. RE-CONFIRMATION OF NOMINATION, ETA'S AND RELEASE OF TANKERS
6.1
(a) Nomination of each Tanker which shall deliver or receive Cargo pursuant to the STS Transfer shall be re-confirmed by the Company to TFL, at the address in Clause 18, where practical, at least 4 days (or such other period agreed in writing for a particular Transfer) prior to the expected date of arrival at the STS Location. Such notice shall specify: the names of the tankers; the grade or grades of Cargo and the respective quantities to be transferred; the expected date of arrival of each of the Tankers at the STS Location; and that the tankers comply with the STS Transfer Guide Checklist No 1. The completed TFL Checklist (Appendix B), along with all required supporting documents, shall be submitted to TFL no later than 24 hours prior to each STS operation.
(b) The Company shall arrange for the Master of each Tanker to notify their local agents (as stated in Appendix A) for the transfer in question by telex, fax or email her estimated time of arrival (“ETA”) at the STS Location. The notification should be 7 days, 72 hours and 36 hours before arrival stating the expected date and hour of arrival or to advise any variation of more than six hours until the final day when changes of more than 2 hours must be advised. When a 7-day advance period is not available the ETA should be advised at the earliest opportunity. All ETA messages should also be copied to TFL, at the address in Clause 18.
6.2 The completion of an STS Transfer shall be determined by each Master in consultation with the Mooring Master. The Master of the Tanker(s) shall be responsible for measuring the quantity of Cargo to be transferred, which figure will be inserted in the bills of lading. The Mooring Master shall have no responsibility for, and shall not be asked to undertake, any measurement of Cargo to be transferred or remaining or the completion of any Cargo or ship's documentation relating to a Transfer or relating to Cargo on board a Tanker.
7. TANKER REQUIREMENTS AND PERFORMANCE CRITERIA
7.1 Requirements: The Company shall nominate seaworthy tanker(s), fully classed and entered with a member of the International Group of P&I Clubs, in every way outfitted and capable of safely carrying out all procedures as set out in the STS Transfer Guide.
7.2 In respect of any proposed Transfer, TFL may, in its absolute discretion determine that a Tanker is unsuitable for any reason, including but not limited to:
(a) the Tanker cannot comply with the requirements of MARPOL Annex 1 Chapter 8; or
(b) the Master of such Tanker fails to complete or to comply with any documentation provided by TFL; or
(c) TFL has concerns relating to the safety and/or environmental awareness of the Tanker, the Master or any member of the crew, agents or affiliated parties,
and in such event, without prejudice to any other right or remedy which TFL may have under this Agreement, TFL shall have the right to reject such nominated Tanker(s), refuse to provide the STS Transfer Services and terminate any ongoing STS Transfer Services currently underway (at any given point during the STS Transfer operations).
7.3 In respect of 7.1 above the Company shall on written request by TFL provide full proof of insurance and proof that TFL, including the STS Superintendent, are endorsed as co-assured on the owner P&I policy.
8. TERMINATION OF A TRANSFER
8.1 In addition to the provisions of Clause 7.2, TFL reserves the right to reject any Transfer on the grounds of the Company’s and/or any Tanker's (a) non-compliance with any applicable law, rule or regulation made by any governmental or other authorities regulating handling or transfer of Cargo, STS Transfer Services or vessel safety, or (b) non-compliance with any provision of this Agreement where in the opinion of TFL such non-compliance affects the ability of TFL to perform STS Transfer Services; or (c) any material breach of safety by the Company, which, in the opinion of TFL, poses a risk to the safe execution of the STS Transfer Services
8.2 If TFL terminates or discontinues a Transfer pursuant to either Clause 7.2 or Clause 8.1 after the Mooring Master arrives at the Transfer location, the full fee stated in the Commercial Terms shall be payable to TFL by way of compensation for losses and expenses of TFL together with any sum that may be due for exceeding the free time allowance for the Transfer in question.
8.3 TFL is not required to perform any obligations under this Agreement or any STS Transfer Services which it has agreed to provide if to do would (i) cause TFL to breach any laws or regulations relating to Sanctions applicable to it or (ii) require TFL to engage directly or indirectly with any person or entity or perform any service or activity which TFL determines may cause it to breach Sanctions applicable to it or be subject to investigation or action by any Sanctions Authority. TFL and the Company each warrant and represent to each other that it is not (and the Company also warrants and represents on behalf of its Affiliates) subject to any Sanctions applicable to it nor will they act in any manner or take any action which would cause any Sanctions applicable to them to be breached.
For the purposes of this Clause 8.3:
“Sanctions” means all laws, regulations and orders concerning any trade, economic or financial sanctions or embargoes or restrictive measures which are administered, enacted or enforced at any time by any Sanctions Authority which are applicable and/or binding on a Party.
“Sanctions Authority” means the United Kingdom, the US, the European Union, the member states of the European Union, the United Nations and any authority acting on behalf of any of them in connection with Sanctions.
9. SAFETY REGULATIONS
TFL and the Company and each of their respective officers, representatives, employees and agents shall follow, and the Company shall cause the Masters, officers and crews of the Tankers to follow, best industry standard safety practices in relation to all aspects of the STS Transfer, including in particular, but not limited to, those described in the STS Transfer Guide. The Company undertakes to use all reasonable endeavours to ensure that a copy of the STS Transfer Guide is onboard each Tanker involved in the STS Transfer at all times during the STS Transfer.
10. OPERATIONS
10.1 All STS Transfers under this Agreement shall be conducted in compliance with MARPOL Annex I Chapter 8. Furthermore, the Company undertakes to use all reasonable endeavours to ensure that all Masters are provided and familiar with the contents of the latest copies of the following publications as required by MARPOL Annex 1 Chapter 8 Regulation 41.2, including but not limited to:.
1. IMO Manual on Oil Pollution Section 1 – Prevention; and
2. the STS Transfer Guide (as defined in this Agreement).
The Company must procure that Masters and their crews are familiar with the aforesaid requirements and guidance to safely execute the complete STS Transfer. Such advance information will allow sufficient time for the Master and crew to prepare all necessary lines, equipment and appurtenances for the STS Transfer and also to prepare to follow the operational/safety check lists outlined in the STS Transfer Guide.
10.2 The Mooring Master shall board one of the Tankers for each STS Transfer to assist the Masters, officers and crew of the Tankers in rigging, installing the STS equipment, establishing satisfactory communications for use during the complete STS Transfer and assisting with the operation of the STS equipment. For each STS Transfer, the Mooring Master shall be the POAC (as such term is defined in MARPOL Annex I).
10.3 The Mooring Master shall assist the Masters, officers and crews in the procedures for a safe and efficient STS Transfer. If at any time the Mooring Master decides that the operations taking place are not safe, he will suspend operations and advise the Masters of the Tankers. The Masters shall take appropriate actions to remedy the reported issues to the satisfaction of the Mooring Master prior to any attempt to safely resume the Transfer. Such advice provided by the Mooring Master shall in no way relieve or preclude the responsibility of the Masters to ensure the safety of their respective vessels, crews and Cargo. The Company hereby warrants and represents to TFL that the respective Masters shall remain responsible and in control of their Tanker at all times during any STS Transfer.
10.4 TFL shall supply the STS Equipment or reasonable substitute for any given STS Transfer as is specified in the Commercial Terms.
10.5 All operations including embarkation and debarkation, delivery and collection of STS Equipment, mooring and Transfer, shall take place in areas designated by TFL, approved by local authorities if necessary, which the Company, for itself and on behalf of the Masters of both Tankers agree is safe for the purpose of the intended STS Transfer and/or related STS operations.
10.6 The Company shall procure that the Master of the receiving tanker shall arrive with segregated ballast in full accordance with current MARPOL regulations.
10.7 Making fast shall be carried out in accordance with the STS Transfer Guide and in accordance with the advice of the Mooring Master. The mooring arrangement to be supplied by the Company / the Masters of the nominated Tankers shall consist of a minimum of four head ropes, four stern ropes, two forward and two back springs. Wire moorings may be used but these must be equipped with nylon pennants.
10.8 TFL shall not provide transport for Company personnel, stores, spares etc.
10.9 Hose Connection: The Master and the crew of each Tanker involved in the STS Transfer shall be responsible for the safe connection and disconnection, monitoring and subsequent handling of the hose during Cargo Transfer, in accordance with the STS Transfer Guide and with the Mooring Master’s advice. The Master of each Tanker shall be responsible for the quality of the Cargo transferred and the measurement of the quantity of the Cargo transferred (for the avoidance of doubt, the Mooring Master shall not have any responsibility in this respect).
11. OIL POLLUTION
11.1 The Company shall ascertain and ensure:
(a) the owners of any oil tanker(s) nominated by the Company for an STS Transfer under this Agreement are members of the International Tanker Pollution Federation ("ITOPF");
(b) all such vessel(s) have been entered with a member of the International Group of P&I Clubs, and additionally that such vessel(s) have full hull marine insurance cover, for any and all claims, arising directly and/or indirectly, in connection with oil pollution and/or the risk or the threat thereof;
(c) the charterers of all tanker(s) nominated by the Company for an STS Transfer are entered with a member of the International Group of P&I Clubs or have other equivalent insurance cover for any and all claims, arising directly and/or indirectly, in connection with oil pollution and/or the risk or the threat thereof;
(d) that all vessels are fully classed and certified by an IACS classification society member and that the vessel(s) are presented for STS Transfer operations in a good operational state with no known defects that may interfere, hinder or disrupt the STS Transfer operation; and
(e) that all vessels comply with the International Safety Management Code (ISM) and associated International and flag state regulations and requirements as applicable to the vessel(s).
11.2 TFL is not obliged under the terms of this Agreement, and undertakes no liability with regard thereto, to provide any service(s) or take any measures in connection with prevention, mitigation or removal of any oil pollution or any other pollution arising in, out of, or in connection with an STS Transfer operation. Subject to the foregoing:
(a) When an escape or discharge of oil occurs from any Tanker, at or in the vicinity of any STS Transfer and causes or threatens to cause pollution damage, or when there is a threat of an escape or discharge of oil from such Tanker in such vicinity (i.e. a grave and imminent danger of the escape or discharge of oil which, if it occurred, would create a serious danger of pollution damage, whether or not an escape or discharge in fact subsequently occurs), TFL or such party as TFL designates may, entirely at its discretion and option, with or without notice by TFL to the Company, its agent or the Master of the Tanker, undertake measures to prevent or mitigate such pollution damage or to remove the threat, unless the Company, its agent or the Master of the Tanker promptly undertakes the same. TFL shall keep the Company, its agent and the Master of the tanker advised of the nature and results of any such measures taken by it or its designee and, if time permits, the nature of measures intended to be taken. All of the measures actually taken by TFL or its servant, agent or sub-contractor (including without limitation paying third parties to take such measures) shall be deemed taken on the authority of the Company, and for the account of the Company, its agent or the Master. If the Company, its agent or the Master of the Tanker considers that such measures should be discontinued the Company, its agent or the Master shall so notify TFL.
(b) The provisions of this Clause are not in derogation of any other rights which TFL or the Company may have under any agreement between the Parties or may otherwise have or acquire by law or any international convention.
12. FORCE MAJEURE AND CAPABILITY RESTRICTIONS
12.1 Neither Party shall be liable to the other for non-performance of its obligations under this Agreement (other than an obligation to pay money), if and to the extent that such performance is or has been delayed, hindered, interfered with, curtailed or prevented by any circumstance beyond its control, or by fire, explosion, strikes or other labour disputes, riots, or other civil disturbances, or compliance with any law, regulations, order or request of any governmental authority or person purporting to be or to act for any such authority. No other event shall be considered to be force majeure, save as further provided for in Clause 12.2.
12.2 If for any reason stated in Clause 12.1 above, there is a loss of capability in the STS Transfer System for any Transfer and it is not possible to perform any Transfer nominated and agreed, TFL shall use all reasonable endeavours to renew the capability as soon as reasonably practicable.
13. LIABILITY AND INDEMNITY
13.1 Exclusion of Liability
I. Subject to Clause 13.4 below, neither TFL nor any affiliate of TFL nor the Mooring Master shall under any circumstances be liable in respect of any delay, loss or damage of whatsoever nature, including but not limited to loss of income/earnings, loss of production, loss of profit or loss of Cargo or other property including but not limited to loss of or damage to temporary or permanent third party oil and gas production facilities and/or any other direct or indirect or consequential loss or damage sustained by the Company (whether directly or by way of compensating others) howsoever such delay, loss or damage may be caused, including but not limited to where it is caused by or attributable to the negligence (other than recklessness or wilful default) of TFL, any affiliate of TFL or the Mooring Master or of any of their respective employees, agents or sub-contractors;
II. If, notwithstanding the foregoing, any liability to Company arises under this Agreement then the liability of TFL shall be limited to an amount equivalent to a multiple of two (2) times the fee attributable (on a per day pro rata basis) to the relevant STS Transfer in respect of which the relevant liability arose.
13.2 No Individuals to be Sued: Neither the Mooring Master nor any employee or agent of TFL or of any affiliate of TFL shall be liable to the Company for loss or damage of any nature whatsoever and howsoever the same may arise (including without limitation to the generality of the foregoing loss or damage arising from the recklessness or wilful default of such person), and the Company undertakes not to institute or maintain any proceedings against any such person in respect of the same.
13.3 General Indemnity: The Company undertakes to defend, indemnify and hold harmless TFL, any affiliate of TFL, the Mooring Master and each of their respective employees, officers and agents against all claims, demands, losses, costs (including without limitation any costs as between attorney or solicitor and own client), damages, liabilities and expenses of whatsoever nature which they or any of them may suffer, incur or be put to arising out of or in connection with this Agreement (excluding circumstance where such loss is attributable to the recklessness or wilful default of TFL, its affiliates, the Mooring Master and each of their respective employees, officers and agents) and regardless of whether or not liability may be imposed on them without fault.
Further to the extent that TFL, any affiliate of TFL, or the Mooring Master, after consultation with the Company may in their discretion have indemnified any person whatsoever in respect of any claim or demand made by such person arising out of or in connection with this Agreement for which the Company is responsible by the terms of this Clause 13, then the Company shall thereupon be liable to indemnify TFL, any affiliate of TFL or the Mooring Master, against the amount paid by them to such person in respect of such claim or demand and against all other loss, costs (including costs as between attorney or solicitor and own client) liabilities, damages and expenses which TFL, any affiliate of TFL or the Mooring Master and each of their respective employees, officers and agents may suffer, incur or are put to in connection there with.
The indemnity given by the Company hereunder shall apply without exception in all cases, including but not limited to those in which TFL are entitled to indemnification by their insurers.
In entering into the Agreement contained in this Clause 13.3 TFL contracts both on its own behalf and as agent on behalf of those other persons, including but not limited to affiliates of TFL and the Mooring Master referred to in Clause 13.3 and also as trustee for the benefit of such persons.
13.4 Knock for knock on Property and Personnel: Notwithstanding Clauses 13.1 to 13.3 inclusive and any other provisions in this Agreement to the contrary, each Party shall defend , indemnify and hold harmless the other Party against all claims, demands, loss, costs (including costs as between attorney or solicitor and own client), damages, liabilities and expenses which the other party may suffer, incur or be put to in respect of:
(a) loss or damage to the property of other Party and to the property of that Party's affiliated companies; and
(b) personal injury, disease or death to any employee or agent of the other Party or of any of its affiliated companies that directly or indirectly arises out of or in connection with performance of this Agreement regardless of whether the other Party or its employees or agent is claimed to be passively, concurrently or actively negligent or at fault, and regardless of whether or not liability may be imposed on them without fault.
13.5 Pollution Indemnity and Wreck removal. The Company shall defend, indemnify and hold harmless TFL, affiliates of TFL, the Mooring Master and all of their respective employees, officers and agents against all claims, demands, loss, costs (including costs as between attorney or solicitor and own client), damages, liabilities and expenses which they or any of them may suffer, incur or be put to claims, suits, liabilities, costs and expenses in respect of:
- personal injury or disease to or death of persons;
- damage to or destruction of property; or
- loss of income or amenity; or
- natural resource damage; or
- wreck removal,
arising from or connected with a threatened or actual discharge of oil or cargo from any Tanker and /or any related wreck or wreckage involved in or arising from a Transfer irrespective if it is alleged that TFL, affiliates of TFL, the Mooring Master and/or any of their respective employees, officers and agents are passively, concurrently or actively negligent or at fault (other than where TFL’s wilful or malicious default is proven) and regardless of whether or not liability may be imposed on them without fault.
13.6 No Waiver of Liability: The Company hereby waives any rights to limit their liability that may exist in respect of any indemnities granted in Clause 13.
13.7 Mooring Master: For the purpose of this Clause 13 only, the Mooring Master shall be deemed to be an agent of TFL who shall be entitled to rely upon the provisions of this Clause 13 as if a Party to it. For all other purposes in relation to the provision of STS Transfer Services the Mooring Master shall be deemed to act in the capacity of employee or agent of the owners of the Tankers, operators, ship managers and demise charterers (if any) as applicable under the control of the Master or other person in charge of the vessel.
14. ASSIGNMENT
14.1 This Agreement or any right hereunder may not be assigned or transferred by the Company without the prior written consent of TFL.
15. BUSINESS ETHICS
15.1 Anti-Bribery: In the performance of their obligations under or in connection with this Agreement the Company and its respective, agents and employees shall comply with all applicable laws, rules and regulations including but not limited to the UK Bribery Act 2010, the US Foreign Corrupt Practices Act and where appropriate the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
15.2 Forced Labour: Each party shall: (a) comply, and shall procure that it shall comply, with all applicable laws, statutes regulations and codes relating to slavery, servitude, forced or compulsory labour and human trafficking including the Modern Slavery Act 2015; (b) undertake not to purchase any resource, materials or products from producers, suppliers or manufacturers using forced or compulsory labour in its operations or practices; (c) have and shall maintain in place throughout the term of the Agreement their own policies and procedures to ensure its compliance with clauses 15.2 (a) and (b) and will enforce them where appropriate; (d) immediately notify the other party in writing if it becomes aware of any breach or alleged breach of this clause within its supply chain (and the parties warrant that they have not been convicted of any offence involving slavery and human trafficking and, having made reasonable enquiries, to the best of its knowledge none of the members of their Group or their direct or indirect owners at the date of the Agreement have been or are the subject or any investigation, enquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding an offence or alleged offence of or in connection with slavery and human trafficking.
16. ENTIRE AGREEMENT, CONFIDENTIALITY, AMENDMENTS AND MISCELLANEOUS
16.1 This Agreement together with each applicable STS Transfer Document comprises the entire agreement between the Parties and supersedes all prior representations, agreements and understandings between the Company and TFL concerning the subject matter.
16.2 This Agreement shall be treated as and remain confidential and shall not be disclosed by the Parties to any other person for any reason without the other Party’s prior consent save to the extent it is necessary to disclose the terms to the Parties’ respective representatives, agents or sub- contractors for the purposes of this Agreement or as may be required by any law, regulatory authorities or a court order.
16.3 This Agreement may only be amended or varied by written instrument which is signed by both Parties.
16.4 No third party (other than the Mooring Master) shall be entitled to any benefit under this Agreement.
16.5 Except as otherwise stated herein, no waiver of any right under the Agreement will serve as a waiver of the same right at any future date.
16.6 If a provision of the Agreement is unenforceable under applicable law, that provision will be enforced to the maximum extent permitted by applicable law or deemed severed from the Agreement if unenforceable. The remaining provisions of the Agreement will continue in full force and effect.
16.7 The remedies provided for in this Agreement are the sole and exclusive remedies provided to Company by TFL and Company hereby waives all other rights and remedies available at law.
17. ARBITRATION
17.1 This Agreement shall be governed by and construed in accordance with English law. Any disputes arising out of or in connection with this Agreement including the interpretation thereof shall be resolved by arbitration before three arbitrators in London in accordance with the Arbitration Act 1996. 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. Each Party shall appoint an arbitrator and the arbitrators so appointed shall appoint a third arbitrator. On receipt by one Party of the nomination in writing of the other Party's arbitrator, that Party shall appoint their arbitrator within 14 days, failing which the arbitrator appointed may be appointed as sole arbitrator.
17.2 In cases where neither the claim nor any counterclaim exceeds the sum of US$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.
18. NOTICES
18.1 Any request by the Company for STS Transfer Services and any other notice to be delivered to TFL under this Agreement or any other STS Transfer Document shall be sent to the address shown below, or to such replacement address as TFL may from time to time provide by written notice.
Top Fenders Limited
Portland House 69-71 Wembley Hill Road
Wembley, Middlesex
England, HA9 8BU
Tel: +44 (0) 203 219 5780
Email: sts@topfenders.com
18.2 Any notice to be delivered to the Company under this Agreement shall be sent to the address noted on the first page of this Agreement.
18.3 Every notice to be given under this Agreement shall be given in writing by email or registered mail.
APPENDIX A - COMMERCIAL TERMS
FEES
TFL’s fees for any STS Transfer shall be $[X] per day pro rata during the Chargeable Period.
The time allowed for any Transfer shall start to run once TFL’s support craft commences fendering of the STS Equipment and will continue until all de-fendering is complete (the “Chargeable Period”).
If the STS Transfer operation is cancelled after TFL commence fendering of the STS Equipment or the STS Transfer is completed in less than twenty-four (24) hours, a minimum twenty-four (24) hour charge shall apply.
All payments due to TFL under the STS Transfer Documents shall be paid in US dollars and shall be invoiced by Top Fenders UK Limited to the Company. Payments shall be made in full by the Company within 15 days of the date on which the invoice is issued by email to the Company.
EQUIPMENT
STS Equipment shall be inclusive of fenders, all fender mooring equipment, Cargo hoses and support craft to rig/unrig the fenders required for an STS Transfer along with a Mooring Master who will advise during the berthing and unberthing of the vessels and supervise the STS Transfer..
TERMS AND CONDITIONS
The provision of STS Transfer Services by TFL shall be governed by the STS Transfer Documents. For completeness, our standard terms and conditions are available to view here: https://www.topfenders.com/sts-agreement.