- ACCEPTANCE
By this Deed (“the agreement”) Graham Bailey Pty Ltd trading as Baileys Marine Fuels Australia (BMFA) may accept this application by notice to the Applicant in writing or by extending credit. Upon acceptance, the terms and conditions contained, or incorporated by reference, in this agreement will apply and be binding on the parties and the parties agree that this agreement shall operate as a Deed between the Applicant and Graham Bailey Pty Ltd.
- USE OF THE ACCOUNT
- The Applicant or anyone authorized by the Applicant to use the account may obtain goods or services on credit from BMFA.
- The Applicant is wholly responsible and liable for any account opened in the Applicant’s name. No account may be assigned to any other party under any circumstances whatsoever.
- PAYMENT and SECURITY
- The Applicant agrees to pay the amount included on any invoice or statement for goods or services provided by BMFA, plus any additional fees and charges applicable.
- Where more than one person or entity is the ‘Applicant’ then such persons and/ or entities shall be jointly and severally liable to pay all amounts, and comply with all obligations, owed to BMFA.
- The total amount owed to BMFA in respect of goods and services supplied will be debited to the Applicants nominated bank or credit card account on a weekly basis. Purchases undertaken for the week beginning Monday and ending Sunday will be debited on the proceeding Wednesday. The Applicant is in default if the payment in full is not received by the due date.
- Account payments made by credit / debit cards will incur a fee not more than the average annual cost of accepting the card type as provided to BMFA by American Express, VISA or Mastercard.
- Time shall be of the essence with regard to the payment of all monies due and payable under the terms of this agreement.
- BMFA can for any reason whatsoever (in its sole discretion) and without incurring any liability to the Applicant (including where the Applicant is in default of any obligation under this agreement) cancel this agreement or withhold supply of any goods or services to the Applicant.
- If requested at any time by BMFA to do so, the Applicant agrees to provide security to BMFA for the payment of any amount outstanding under this agreement. Such security is to be provided for an amount and in a form acceptable to BMFA in its sole discretion. BMFA can require the Applicant to provide security for payment prior to supply of any fuel by way of a credit card voucher duly executed by the Applicant but with the amount being left blank. The Applicant by execution of this application authorizes BMFA to insert the relevant amount and negotiate the voucher and complete the payment transaction in the event of non payment of any sum due to BMFA under this agreement.
- Payment to BMFA of any sums due shall be made to its address shown on the invoice or statement or to such other address as may be nominated by BMFA from time to time.
- PRICES
- 4.1 These provisions apply to supply from BMFA owned and operated fixed fuelling facilities.
Prices are for bulk supply and shall unless otherwise stated be;
- either as shown in the latest Customer Price Advice, as Quoted or as displayed on the Dispensing Equipment.
- in AUD per litre.
- inclusive of any port differentials including third party costs.
- subject to additional fees for deliveries in drums, pails or any other specially requested packages
- subject to an increase or reduction by reason of any change in Supplier Price Movements, Supplier Contract Prices and Customer Price Advices applicable at the date of delivery;
- exclusive of Goods and Services tax (GST) unless displayed on the Dispensing Equipment where the price displayed will be inclusive of all charges including GST
- inclusive of all duties and taxes unless accompanied by an endorsed Customs Declaration Form authorising supply of duty free goods to the vessel.
- 4.2 These provisions apply to bulk supply from non BMFA owned fixed fuel facilities
Prices quoted are for bulk supply and shall unless otherwise stated be;
- either as shown in the latest Customer Price Advice or as Quoted.
- quoted in AUD per litre (equivalent prices per metric tonne also be provided)
- subject to any port differentials including third party costs.
- subject to additional fees for deliveries in drums, pails or any other specially requested packages
- subject to an increase or reduction by reason of any change in the Supplier Price Movements, Supplier Contract Prices, and Customer Price Advice applicable at the date of delivery;
- exclusive of Goods and Services tax (GST);
- inclusive of all duties and taxes unless accompanied by an endorsed Customs Declaration Form authorising supply of duty free goods to the vessel.
- be exclusive of any imposts, dues and charges of any description levied or imposed directly or indirectly on the supplied product or on BMFA in respect thereof in the country in which delivery takes place, and if one of these charges is applied, it shall be paid by the Applicant to BMFA at the rate applicable on the actual date of delivery, over and above the said price.
- CHARGES
- An Account Opening and Induction fee of $35.00 will be charged for each new BMFA Individual account.
- Overdue accounts and direct debit authorities which are dishonoured will incur an administration fee.
- Replacement fuel cards will incur a replacement card fee.
- The Applicant agrees to pay any recovery and or enforcement expenses incurred by BMFA in enforcing its rights under this agreement or recovering amounts owed, including without limitation, any fees paid to BMFA’s solicitors (on an indemnity basis), as well as any charges relating to dishonoured cheques.
- This agreement is governed by and construed in accordance with the laws of Western Australia, and the Applicant agrees to submit to the exclusive jurisdiction of the Courts in that State. The Applicant hereby irrevocably waives any objection to the venue of any legal process selected by BMFA.
- The Applicant agrees that any claim or dispute under or arising out of this agreement shall be dealt with as a case under the general procedure as envisaged by the Magistrates Court (Civil Proceedings) Act 2004 (“the Act”) (WA) and that if BMFA is a successful party in the case then the Applicant agrees to pay interest at the court rate and all of the costs incurred by BMFA regardless of the value of the claim or the relief claimed, and the Applicant agrees, as envisaged by s25(7) of the Act, to pay BMFA’s costs on an indemnity basis or under the applicable costs determination whichever is the greater.
- The Applicant agrees to pay all government charges and duties of any kind incurred or in connection with the operation of the account, including without limitation, all stamp duties, financial institution duties and any other charges or duties of any kind.
- Payment received by BMFA shall be applied firstly in payment of any enforcement charges, secondly, in payment of any government charges and duties and thirdly in payment for goods and services supplied.
- MAGNETIC CARD SALES, EQUIPMENT DAMAGE AND CLEANUP
- The Applicant accepts responsibility for and indemnifies BMFA against all and any costs, loss, expense or damages caused or incurred in connection with any fuel spillages caused or contributed to by the Applicant. The Applicant acknowledges that he/she has been notified of the after hours emergency phone number and the whereabouts of the emergency stop buttons in case of spillage or mishap.
- The Applicant must notify BMFA at the earliest available opportunity of any damage to the refuelling equipment whether the damage has been caused by or contributed to the Applicant or not.
- TRANSFER OF RISK IN THE GOODS
Except as may be otherwise agreed, deliveries of any goods or product (including marine lubricants) at a delivery port shall be deemed to be complete and title and risk shall pass to the Applicant either:
- for bulk deliveries as the product pass the flange connecting the delivery facilities with the receiving facilities provided by the Applicant; or
- for delivery in containers upon delivery of the product alongside the ship according to the ICC Inco terms which are current as the date of delivery, or when they have been delivered to the point closest to the vessel that BMFA considers practicable.
- RETENTION OF SECURITY INTEREST IN THE GOODS
- To secure the payment of the purchase price of all goods and products supplied by BMFA under this agreement and all other amounts payable by the Applicant to BMFA, the Applicant grants a security interest to BMFA in all its present and after-aquired rights and interests in any goods or products (including marine lubricants) supplied at any time to the Applicant by BMFA under this agreement and all proceeds of those things (even where there is commingling with other goods or loss of identity).
- The Applicant will, at its cost, promptly do all things requested by BMFA that BMFA thinks necessary to ensure that such security interest is fully effective, enforceable and perfected with first priority or to enable BMFA to exercise its security.
- HEALTH SAFETY AND THE ENVIRONMENT
- The Applicant must ensure that its personnel (and customers) have and are familiar with Material Safety Data Sheets (“MSDS”) and any other information on health, safety and the environment (the “other information”) provided from time to time by BMFA.
- The Applicant must ensure that the provisions of any MSDS or recommendations in other information, relating to the handling and utilization of the marine products are observed and BMFA shall not be liable for any failure on the part of the Applicant to do so.
- The Applicant indemnifies BMFA against any action, claims or proceedings whatsoever arising from any default in the observance by the Applicant of the provisions of this clause.
- BMFA shall not be liable for losses or damage suffered by the Applicant its servants or agents, arising from risks inherent in the nature of the marine products delivered under the provisions of this agreement.
- The Applicant must ensure all refuelling personnel (and customers) have successfully completed the BMFA Induction Program prior to accepting delivery of marine products.
- LIABILITY AND INDEMNITIES
- Without limitation of any other indemnity in this agreement, the Applicant indemnifies BMFA and holds it harmless against any costs, loss, expense or damage of BMFA arising or contributed to, whether directly or indirectly, from any breach of the terms and conditions by the customer arising from any act or omission of the Applicant, in connection with the supply of any goods, products (including marine lubricants) or which otherwise arises in connection with this agreement.
- Further and without limitation of the generality of the foregoing the Applicant is liable for and releases and indemnifies BMFA against any loss, liability or cost arising in connection with any:
(i) investigations, remediation, or other action carried out by BMFA in respect of any contamination, pollution, spill or leakage caused by or contributed to the Applicant;
(ii) notice issued or action taken by the Minister pursuant to the Marine Pollution Act 1987 (NSW) in respect of the premises arising out of any discharge of oil caused by or contributed to the Applicant;
(iii) environment protection notice issued pursuant to the Protection of the Environment Operations Act 1997 (NSW) in respect of the premises arising out of any pollution, spill or leakage caused by or contributed to the Applicant;
(iv) preliminary investigation, management, or ongoing maintenance orders issued pursuant to the Contaminated Land Management Act 1997 (NSW) in respect of the premises arising out of any contamination caused by or contributed to the Applicant;
(v) breach of any environment law by the Applicant relating to the supply of any goods or products (including marine lubricants) at the premises;
(vi) any claim for damages, compensation, loss, injury or death caused by or contributed to or arising out of or otherwise in respect of any contamination or pollution present in, over or under, emanating from or migrating to or from the premises caused by or contributed to the Applicant.
(vii) breach of BMFA’s contractual obligations to third parties caused by or contributed to the Applicant.
For purposes of this agreement the word ‘premises’ means and includes any premises, facility, installation, structure, barge, jetty or other object (located anywhere including off shore) which is owned, occupied, or operated by BMFA
- BMFA shall not (unless required by any statute or provision of the common law) be liable to the Applicant for any loss or damage whatsoever suffered by the Applicant whatsoever which arises in connection with the supply of any goods, products (including marine lubricants) or which otherwise arises in connection with this agreement including any breach thereof by BMFA and including any act or omission by BMFA or its officers, servants or agents.
- In any event and without limitation of the foregoing, the period of limitation for any action against BMFA arising out of this agreement is one year after the date of delivery of the product in connection with which such action is brought and BMFA shall be discharged from all liability whatsoever unless an action is brought within this period.
- ENTIRE CONTRACT
This contract contains all the terms and conditions with respect to the sale of and purchase of the goods and supersedes all enquiries, proposals, agreements and negotiations, whether written or oral prior to the date of execution of this agreement. No modifications of these terms and conditions shall be of any force unless the modification is reduced to writing and authorized by BMFA and signed by the applicant and no modification shall be affected by the acknowledgement or acceptance of purchase order forms containing different conditions.
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Bailey’s Marine Fuels has recently achieved the ISO14001 Environmental Management Accreditation, the first fuel company in Australia to do so.