Article 1

Definitions

In these General Terms & Conditions (“Conditions”) the following terms shall have the meaning ascribed to them unless it is clear from the context in which they are used, that a different meaning should be attributed thereto:

  1. ED&F Man:

Company that conducts the business of and undertakes to carry out one or more of the Operations and/or to cause these to be carried out.

  1. Customer:

Anyone who, whether directly or via an intermediary, has entered into a Storage Agreement under which ED&F Man shall carry out for the Customer one or more of the Operations,

  1. Force Majeure:

As defined in Article 51.

  1. Holder:

Lawful holder of a store warrant or delivery order.

  1. Jetty Conditions

The VOTOB Jetty Conditions as issued by VOTOB, the Association of Independent Tank Storage Companies in the Netherlands.

  1. Operations:

Any tasks in respect of Product carried out or to be carried out by ED&F Man on Premises on behalf of Customer, including, but not limited to: making storage space available, taking delivery of Product, storing Product, making blends of Product as applicable, transferring Product between tanks as applicable, loading of Product and/or administrative handling of Product and preparation of documents.

  1. Premises:

The premises, offices, buildings, storage facilities, tank terminals, berth, jetties, quays, piers, pipelines, pumps, land tanks, sheds, warehouses (together with all components, equipment and appliances belonging thereto) at which or in which Operations are carried out or outsourced by ED&F Man.

  1. Product:

Any Product which are or have been held in the possession of ED&F Man for Customer for the purpose of carrying out one or more Operations.

  1. Storage Agreement:

Any agreement entered into verbally, tacitly or in writing between ED&F Man and Customer for the carrying out of one or more Operations by ED&F Man.

  1. Governmental Regulations:

Any, applicable laws, regulations directives, instructions, measures and/or directions of government, European Union, or other competent authorities.

  1. Affiliated Business Enterprise:

Members of the ED&F Man Commodities Limited group of companies and entities with which such companies are engaged in a joint venture.

Article 2

Applicability of these General Terms & Conditions

  1. ED&F Man carries out all Operations exclusively on these Conditions, unless otherwise explicitly agreed in writing. Reference to any other terms and conditions by the Customer are excluded and explicitly do not govern the relationship between ED&F Man and Customer. In the event of a conflict between the terms in the Storage Agreement and these Conditions, the terms of the Storage Agreement shall prevail.

Article 3

Premises

  1. ED&F Man shall provide and have sufficient Premises that are clean and suitable for the Operations to be carried out for Customer. Customer may have an independent surveyor inspect the Premises prior to commencement of Operations. Should the Customer fail to make such an inspection or objection to the Premises before arrival of the Product, the Premises shall be deemed to have been in a clean, suitable and good condition on arrival of the Product
  2. Product shall be received, stored and loaded by ED&F Man in accordance with ED&F Man’ Standard Operating Procedures, a part of its Quality Management System in effect from time to time.
  3. When agreed by Customer and ED&F Man, for each receipt and shipment of Product ED&F Man shall generate the necessary accompanying transport documentation and shall send one (1) copy along with the weight ticket and original bill of lading to Customer. ED&F Man will complete and forward to Customer the required documents for receipt of Product as soon as practicable after receipt. Such documentation shall be the basis of the invoicing as referred to in the Storage Agreement.
  4. Customer shall give ED&F Man as much notice as possible with a minimum of one (1) week advance notice of any possible or planned vessel arrival or shipping intentions including anticipated arrival dates and volumes of Product to be delivered or loaded. Customer shall procure that vessel’s Master shall give ED&F Man at least six (6) hours advance notice of the vessel’s readiness to discharge or load Product. When the vessel is ready to discharge or load Product and ED&F Man is ready to receive or supply the Product in less than six (6) hours after notice has been given, then vessel discharge or loading shall commence without further delay.
  5. ED&F Man shall be required to only supply the discharge hose to a vessel and vessel staff shall be responsible to lift it onto vessel’s deck and make the connection to the vessel. ED&F Man Terminal staff shall not be required to perform any work on the vessel and at all times may inspect the connection between vessel and the hose supplied.
  6. Customer shall give ED&F Man at least twenty-four (24) hours advance notice of road tanker or railcar arrival or other shipping method and shall provide name of carrier, truck license plate, trailer license plate, Product and volume to be discharged or loaded, and such other information that may be applicable. Customer shall ensure the cleanliness of any road tanker or railcar sent for loading, that they are free from remains and odours of previous loads, that such road tanker or railcar is suitable for the Product to be loaded and transported and that road tankers or railcars are water-washed prior to loading as may be necessary. ED&F Man shall have no liability for any Product quality deterioration or claims due to road tankers or railcars not being in a suitable state and condition at time of loading.
  7. Determination of outturn weight of the vessel loading or discharged shall be by initial and final draft survey in combination by reading of the receiving shore tanks pneumercators in the presence of independent surveyor appointed jointly by Customer and ED&F Man. Where such pneumercators are absent or for whatever reason not functioning or found to be unreliable, then the weight shall be determined by before / after land tank ullage(s). Weight certificates stating the loaded or discharged tonnage compiled by the independent surveyor shall be binding between Customer and ED&F Man. Should there be no independent inspector the outturn weight as determined by ED&F Man shall be final and binding between Customer and ED&F Man.
  8. Tonnage of any loading or discharge from or onto road tankers or railcars shall be determined by a weigh bridge. ED&F Man shall calibrate each weigh bridge at intervals not exceeding twelve (12) months. On Premises where the weigh bridge is for whatever reason not functioning or found to be not reliable, then the weight shall be determined by before and after land tank pneumercator readings or ullage(s).
  9. Customer shall ensure that carrier hired by Customer does not overload trucks and railcars. Although ED&F Man may monitor maximum weights to a limited extent, ED&F Man shall have no liability for means of transport being over-loaded in the country of loading, unloading or in countries of transit. Where a means of transport is overloaded the accompanying documentation may be marked as such.
  10. ED&F Man shall supply the Customer with an inventory report showing daily stock(s) and all intakes and loadings of Product in a period agreed in the Storage Agreement.
  11. Customer shall ensure that all means of transport sent to ED&F Man meets health and safety regulations and are equipped with all required safety devices. ED&F Man may refuse entry of vessels, railcars and road trucks onto Premises if required safety devices are not present. ED&F Man may stop or decline to commence Product loading and immediately remove truck drivers and their vehicles if the truck drivers do not adhere to the safety procedures in effect at relevant Premises.

Article 4

Forwarding agent’s Operations, carriage of Product and other Operations

  1. Whenever ED&F Man undertakes to carry out forwarding agent’s Operations (excluding customs clearance) or carriage of Product and/or orders these to be carried out, the following conditions with respect to these Operations shall apply:
    1. in connection with forwarding agent’s Operations: The conditions for Dutch Forwarding Agents, as filed from time to time at the Registry of the Arrondissements Courts in Amsterdam, Arnhem, Breda and Rotterdam, of which the Customer acknowledges and agrees;
    2. in connection with carriage of Product: The conditions from time to time of the carrier who undertakes to carry out the carriage.
  2. Whenever ED&F Man undertakes ship’s agent’s or shipbroker’s Operations, these Operations shall be subject to the General Conditions and Rules for Dutch Shipbrokers and Agents, as filed from time to time at the Registry of the Arrondissements Courts in Amsterdam, Dordrecht, Groningen, Leeuwarden, Middelburg and Rotterdam, of which the Customer acknowledges and agrees.
  3. All of the above conditions are open for inspection at the office of ED&F Man.
  4. The provisions contained in the above conditions shall not be applicable in so far as arbitration clauses are concerned or conditions relating to courts of law that shall have jurisdiction as laid down in those conditions and the said provisions shall be replaced by the provisions of Article 49 of these Conditions.
  5. In the event of the applicability of the above conditions, ED&F Man, in so far as no provision has been made with relation thereto in the above conditions, may charge interest, at the maximum rate permissible under the English Late Payment of Commercial Debts (Interest) Act 1998, if any payment required to be made under the above conditions has not been made within 5 days after the date of statement of account.

Article 5

Governmental Regulations

With respect to Operations carried out or to be carried out by ED&F Man, Customer and ED&F Man shall strictly compy with all applicable Governmental Regulations.

Article 6

Carrying out of additional tasks

  1. If the Customer wants tasks carried out with relation to Product that are not already included in the Operations to be carried out under the relevant Storage Agreement, then those tasks shall be carried out by ED&F Man at the rates and charges and on the terms and conditions of the relevant Storage Agreement or, if not specified in the relevant Storage Agreement, then at the usual rates and charges of ED&F Man and in accordance with these Conditions.
  2. Additional tasks that ED&F Man does not carry out itself at relevant Premises, may be carried out by a third party under the supervision of ED&F Man and at a cost stipulated by ED&F Man but entirely at the risk of the Customer.

Article 7

Duration of a Storage Agreement

If the Storage Agreement has been entered into for a fixed period, then it shall end on the expiry of the fixed period, unless the parties should agree otherwise. If the Storage Agreement has been entered into for an indefinite period, then each of the parties shall have the right, after the Storage Agreement has continued for three months, to terminate the Storage Agreement on three month’s written notice.

Article 8

Premature termination of the Storage Agreement and intermediate termination or cessation of Operations/intermediate withdrawal of Product for urgent reasons

  1. If urgent grounds exist, ED&F Man may in its discretion:
    1. on notice to Customer, but without default, court intervention or observance of any period of notice, prematurely terminate the Storage Agreement;
    2. terminate or cease the relevant Operation, in whole or in part;
    3. require that Product or any remaining residue of Product be removed from the relevant Premises by Customer.
  2. An “urgent matter” shall be deemed to exist if, but not exclusively so:
    1. it is reasonably considered that there exists a risk of loss of, or damage to, the Product, any other product or to Premises;
    2. there is a risk of harm or injury to persons if an Operation is continued;
    3. the Product deteriorates or if changes occur therein such that in the opinion of ED&F Man there is a risk to health and safety and Customer fails to give timely instructions as to how to deal with the Product;
    4. the Premises in which Customer’s Product is stored is, in whole or in part, destroyed by fire or any other cause, or alternatively becomes unfit in any other way for continuing performance of the Storage Agreement;
    5. the Customer does not comply with or infringes any one or more of the provisions of the Storage Agreement and/or of these Conditions or if ED&F Man reasonably considers that Customer will not fulfil its obligations;
    6. the carrying out of the Operations agreed upon and/or the Product causes or may cause an environmental hazard.

Article 9

Removal of Product on termination of Storage Agreement

The Customer is obliged to remove Product or any remains or residue of Product by the last day of the term of Storage Agreement. Howsoever the Storage Agreement shall have come to an end and on termination of the Storage Agreement the Customer shall pay to ED&F Man all monies due and payable to ED&F Man and shall return the applicable store warrant/delivery order issued in respect of Product which if not returned shall be immediately cancelled,.

Article 10

Failure to take back Product

If for whatever reason Customer fails to take back Product as required under these Conditions, ED&F Man may at any time thereafter take all such measures as may be necessary for removing Product from the relevant Premises, including removal of Product to another storage facility, all at the expense and entire risk of Customer. ED&F Man may claim for all direct and indirect damages and expenses due to Customer’s failure.

Article 11

Intermediate removal of Product

On payment of all that is due to ED&F Man and subject to observance of the relevant provisions of these Conditions, Customer may at any time remove Product from relevant Premises.

Article 12

Contents of land tanks

Unless explicitly otherwise stated in writing by ED&F Man, the maximum allowable weight in a land tank is equivalent to the weight of the volume of water at a temperature of 4 °C, with which the tank can be filled.

Article 13

Maintenance of and repairs and alterations to Premises

  1. ED&F Man may at any time carry out inspection, maintenance repairs and alterations to Premises or fit additional or special equipment to Premises (collectively “Works”), whenever ED&F Man deems it necessary or advisable to carry out any Works or if ED&F Man is obliged to do so pursuant to Governmental Regulations.
  2. In the event of any such Works, Customer shall allow ED&F Man full access to Premises. If the Works are scheduled maintenance and cleaning of tanks, any costs and charges in respect of such Works shall be for the account of Customer.
  3. ED&F Man may in connection with any Operations, remove Product from Premises to other Premises, notwithstanding any previous agreement that the Product would be subject to Operations in particular Premises. ED&F Man shall give to Customer or last known Holder as much notice as practicable of such removal.
  4. Customer shall notwithstanding removal of Product be liable for the full amount of agreed charges and costs notwithstanding that Customer may not have the full benefit of Premises because Works are being carried out to those Premises.
  5. If any Works are required under any Governmental Regulations and the Works relate to the nature of the Product in the relevant Premises then the Works and removal, if any, of the Product shall all be for the account of and at the entire risk of Customer.

Article 14

Cleaning and reinstatement of Premises

  1. Upon changing of Product stored in a tank (provided Storage Agreement allows this), or upon removing Product from a tank on termination of Storage Agreement, Customer shall strip and clean the relevant tank(s) and pipelines to a water-white condition. For this purpose, the Customer shall first consider using a contractor from ED&F Man’ list of approved tank cleaners, which will be provided on request. Where Customer wishes to use another contractor, then Customer shall procure that such other contractor shall provide to ED&F Man a detailed risk assessment with a full method statement on its proposed tank cleaning procedure which will then be subject to a quality and safety review by ED&F Man. An approval from ED&F Man must be first obtained before such other contractor commences the work. Any tank and pipeline cleaning schedules are to be coordinated with local ED&F Man’ management. The Customer, or its designated representative, may observe the tank cleaning process. If a Product requires laboratory analysis of water samples in order to determine if substances present or remaining are in accordance with a prescribed limit, then condition of tank and related pipe work will be determined by ED&F Man or its designated representative.
  2. The Customer shall on demand pay all costs incurred in connection with; (a) cleaning of tanks, related pipework and other parts of relevant Premises used for Operations in respect of its Product; and (b) upon termination of the Storage Agreement all costs incurred in connection with reinstating the Premises used for Product to the condition they were in at the commencement of Operations,
  3. If required by ED&F Man in connection with cleaning and reinstatement of Premises, Customer shall make all the know-how and technical expertise available as deemed necessary by ED&F Man without charge.
  4. The removal from the Premises of all remnants, residues and cleaning water following cleaning and reinstatement shall be carried out by or on behalf of ED&F Man for the account and risk of the Customer, or alternatively, if ED&F Man so requires, by the Customer or its agent. If such removal is done by Customer or its agent then it shall be done to the satisfaction of ED&F Man and in accordance with Governmental Regulations.

Article 15

Replacement of Premises

If Premises made available to a Customer are, in whole or in part, damaged or become otherwise unfit for Operations as a result of Force Majeure, ED&F Man shall make reasonable efforts but shall not be obliged to make other Premises available.

Article 16

Issuing of instructions

All applications, orders, instructions, notices, requests, notifications and other communications addressed to ED&F Man must be made or given in writing to the terminal office of ED&F Man. ED&F Man shall have no liability whatsoever if no such applications, orders, instructions, etc. have not been so given.

Article 17

Refusal of Product and/or Operations

  1. Notwithstanding any other provision of these Conditions, ED&F Man may refuse to accept Product or to carry out Operations that could cause danger or damage to persons, other Product, Premises or a material environment hazard, or is prohibited under Governmental Regulations, even if a Storage Agreement with respect to such Product or Operations has already been entered into between Customer and ED&F Man.
  2. Notwithstanding ED&F Man’ right to refuse the Product, if Product arrives in a damaged or defective condition that is externally visible, ED&F Man may on behalf of, for the account of, and at the entire risk of, Customer take such steps as it considers necessary to safeguard the Product.
  3. Customer shall pay ED&F Man all costs and rates for Operations that, prior to the moment a Product is refused, have been or are being carried out or in respect of which ED&F Man has entered into commitments with third parties.

Article 18

Description of Product & Inspection

  1. The Customer shall upon entering into an Storage Agreement furnish a correct and full written description of the Product to ED&F Man stating its nature, type, quality, composition, temperature, weight, volume, value, source, origin and any hazard classification and all physical/chemical properties inclusive of but not restricted to: boiling point, flashpoint, vapour pressure, toxicity, melting point, coagulation point, viscosity, degradability in water, stability, corrosiveness, acidity, static loading, smell level, MAC value and all other particulars which may be reasonably required by a provider of Premises and/or Operations or which are of such a nature that the Storage Agreement would not have been entered into or not on the same conditions if ED&F Man had been provided with such particulars. All such information and particulars shall be in the form of a “Product Description” and a “Material Safety Data Sheet”.
  2. The Customer shall immediately notify ED&F Man in writing of new data with regard to Product in respect of which Operations have commenced that become known to Customer at any time after commencement of Operations.
  3. ED&F Man is not obliged to survey, count, weigh or measure Product delivered to Premises or to examine Product except that ED&F Man may survey, count, weigh or measure the Product so as to verify the supplied particulars and description of Product (“Verification”) and may open parcels or containers and draw samples and analyse them in the course of Verification
  4. If following Verification the quantity, weight, measurement or nature of Product has in whole or in part been incorrectly stated, then all costs and charges incurred by ED&F Man in connection with Verification shall be for the account of Customer.
  5. Whenever ED&F Man admits Product to Premises, ED&F Man shall not be deemed to be aware of the nature of the Product, if the Product does not in any way conform to the Product Description and/or Material Safety Data Sheet.
  6. If ED&F Man does admit Product to Premises that is not in conformity with the Product Description and/or the Material Safety Data Sheet, all the necessary extra Operations, of any nature whatsoever, that are carried out in relation to Product and all liabilities in relation thereto shall be for the account of and at the entire risk of Customer.
  7. Customer shall provide ED&F Man with any and all information, documents and other equipment required for proper handling of the Product. This includes, but is not necessarily limited to: labels, placards, sample bottles, sample labels, instructions, relevant statutes, ordinances, rules or regulations (collectively “Data”). Customer shall indemnify and hold harmless ED&F Man including its agents, employees, officers, managers and directors from and against any fines, penalties, loss, damage or expenses, including without limitation, reasonable legal fees, resulting from Customer’s failure to provide or to make available to ED&F Man any Data.

Article 19

Special handling of Product

  1. If special engineering controls or special method of storage or treatment of Product is required (collectively “Special Handling”), the Customer shall notify ED&F Man in good time.
  2. The extra costs incurred by ED&F Man by any Special Holding shall be for the account of Customer.

Article 20

Place of delivery of Product

  1. The Customer shall ensure that the Product is delivered by him or on his behalf at relevant Premises.
  2. If it has been agreed that the Product is delivered at a place other than at relevant Premises and is transported by or on behalf of ED&F Man to relevant Premises, the rates and charges that are usually charged by ED&F Man for such transportation shall be for the account of Customer.

Article 21

Means of transport and packing materials

  1. The Customer shall ensure that the means of transport, packing materials and containers and all other related items (“Carriage Items”), made available for the delivery or dispatch, as the case may be, of Product shall be in a sound, clean, closed, tight and staunch condition, be equipped with all required safety devices and be fit for Product in question, and in compliance with Governmental Regulations.
  2. If in the opinion of ED&F Man, Customer has not in any way observed the requirement of paragraph 1 of this Article, ED&F Man may refuse to handle any of the Carriage Items or Products or to admit these to the Premises. If any Carriage Items or Products on Premises do not satisfy any one or more of the aforesaid requirements, then Customer shall remove them from Premises on ED&F Man’ demand.
  3. The mere admittance onto Premises of means of transport, packing materials and containers by ED&F Man shall not constitute any admission that the aforesaid requirements have been met.

Article 22

Product that is encumbered with charges

  1. Customer warrants and undertakes not to deliver any Product to any Premises that is subject to any security interest or any third party right whatsoever (“Encumbrances”) and ED&F Man may decline to accept any Product to Premises that is burdened by any Encumbrances.
  2. All freight, amounts to be collected on delivery, taxes, duties, contributions, levies, fines and all other charges or costs with respect to Product (“Costs”) that are payable (including without limitation costs of legal proceedings and measures deemed necessary by ED&F Man with respect to such Costs) are for the account of the Customer and have to be paid or reimbursed by Customer on demand by ED&F Man
  3. If ED&F Man acts or has acted as customs clearance forwarding agent, all Encumbrances and all Costs shall be for the account of Customer.

Article 23

Duties and taxes

If Product is subject to any customs duties or any taxes, Customer shall in good time supply all information and documents in order to enable ED&F Man to make all necessary declarations.

Article 24

Period during which Product is at Premises

  1. The Product shall be deemed to have entered relevant Premises:
    1. if it is pumped from a ship through a hose provided by ED&F Man connected to the ship’s manifold then upon the Product having passed the connecting flange;
    2. if it is pumped from a ship through a hose provided by any other entity then upon the Product having passed the valve placed in between that other entity’s hose and ED&F Man’ pipeline into the Premises;
    3. if discharged from a ship other than by a hose then upon the Product having been unhooked at the Premises and under the control of ED&F Man;
    4. if it is discharged from a railcar or road tanker or truck then upon unloading and under the control of ED&F Man.
  2. The Product shall be deemed to have left relevant Premises:
    1. if it is pumped into a ship through a discharge hose provided by ED&F Man connected to the ship’s manifold then upon the Product having passed the connecting flange;
    2. if it is pumped into a ship through a hose provided by any other entity then upon the Product having passed the valve placed in between that other entity’s discharge hose and ED&F Man’ pipeline from the Premises;
    3. if loaded onto a ship other than by a hose then upon the Product have been hooked at the Premises and/or no longer under the control of ED&F Man;
    4. if it is loaded onto a railcar or road tanker or truck then upon loading and/or no longer at the control of ED&F Man.

Article 25

  1. The arrival of vessels and vehicles shall be announced in a timely manner in accordance with the relevant provisions of the Agreement. If the Agreement does not mention any time limit for such nominations, a minimum nomination term of two working days shall apply. Unless further specified in the Agreement, nominations shall at least contain the following information:
    • name or registration number of the means of transport,
    • ETA (estimated time of arrival) of the means of transport,
    • the type of Product to be loaded or unloaded and the volume thereof,
    • the temperature of the Product upon arrival,
    • any other necessary information or Instructions.
  1. If the delivery or dispatch is carried out by vessel, the captain shall be permitted to (arrange to) issue a notice of readiness only if the vessel is able to moor alongside the Premises within three hours and to commence (un)loading immediately after arrival.
  2. Vessels for which the ISPS Code is applicable must have a valid (international) Ship Security Certificate. If the said vessels do not comply with such requirements, ED&F Man shall have the right to deny the vessel access to the Premises.
  3. ED&F Man shall only be obliged to permit the mooring of vessels alongside the premises and admit vehicles to the premises if a prior arrangement has been made with ED&F Man in writing for this purpose, as well as for the delivery respectively dispatch of the Product and, in case of vessels, if the applicability of the Jetty Conditions has been accepted in writing by or on behalf of the captain of the vessel, and if and insofar as the Government Regulations do not oppose such mooring, admittance, delivery and/or dispatch.

Article 26

Order of sequence in which vessels, vehicles and rail cars are dealt with

  1. In principle vessels, road vehicles and railcars are dealt with in the order of their arrival at or alongside relevant Premises (”FIFO Principle”).
  2. ED&F Man may depart from the FIFO Principle as it deems necessary to comply with Government regulations or to ensure smooth Operations at the Premises.

Article 27

Late or irregular delivery or dispatch

  1. If the Customer has notified ED&F Man or alternatively if it has been agreed between them that Product shall be delivered to or dispatched from relevant Premises at a specified time or at specified intervals, and if in that event the Product is delivered or dispatched otherwise than was agreed, then Customer shall indemnify ED&F Man for direct and forseeable third party claims against ED&F Man in connection therewith.
  2. If the Product is not dispatched from relevant Premises at the agreed time, the Customer shall be in default without further notice and ED&F Man may at any time thereafter take all measures necessary to remove Product, including dispatching Product for the account of and at the entire risk of Customer.

Article 28

Consequences of delay

  1. If as a result of any act or omission of Customer delivery to or despatch from relevant Premises of Product is delayed or is not available all costs resulting therefrom shall be for the account of Customer.
  2. In the event of vessels, railcars or road vehicles not arriving or not being able to be dealt with at the time for which they have been scheduled, Customer shall indemnify ED&F Man for losses thereby incurred by ED&F Man.

Article 29

Shifting and removal of vessels, railcars or road vehicles

Customer shall be ensure that all ships, railcars or road vehicles leave relevant Premises on completion of discharge or loading or if required by ED&F Man in the interests of operational efficiency, health and safety or so as to comply with Governmental Regulations, If Customer for whatever reasons fails to effect such removal then ED&F Man may itself effect such removal at the cost of and at the entire risk of Customer.

Article 30

Directions regarding loading and unloading

If the loading or unloading of ships, railcars or road vehicles is carried out by ED&F Man, Customer shall provide to ED&F Man all necessary directions in writing in good time as to the manner of loading and unloading, and – if a delivery of Product consists of various consignments – regarding which Product is in which consignments.

Article 31

Temperature of the cargo

Customer shall ensure and warrants that any Product that has to be unloaded by pumping, is at such a temperature and in such condition that it can be pumped immediately on connection of hoses and continue to be pumped without interruption.

Article 32

Pump rate when loading and unloading vessels

  1. Customer shall ensure that, as soon as a vessel has moored alongside relevant Premises and ED&F Man has declared itself to be ready to deliver or receive Product, loading or unloading, including connecting and disconnecting of hoses, taking of samples and analysis thereof,is commenced forthwith and continues without interruption 24 hours a day, including Sundays and public holidays (provided that such working is in compliance with Governmental Regulations) until loading or unloading is complete.
  2. Customer shall ensure that a vessel shall unload at the maximum capacity available taking into account the receiving capacity and the pipeline capacity of ED&F Man and in compliance with Governmental Regulations.
  3. If unloading from a vessel is not at the rate required under paragraph 2 of this Article, then ED&F Man may make a charge to the Customer for the extra time required to complete loading or unloading or – in order to prevent or relieve a congestion of Operations or for other reasons – to suspend loading or unloading for such time as may be determined by ED&F Man.

Article 33

Working hours

  1. All Operations shall be carried out during the normal working hours in effect at relevant Premises as stipulated in Storage Agreement. When Customer requires Operations to be carried out outside such normal these working hours then ED&F Man may at its sole discretion undertake operations at such times and if it does so the costs and charges shall include overtime at a minimum “call-in” time of thirty (30) minutes and a minimum two (2) man crew.
  1. If on account of Governmental Regulations, or on account of unforeseen circumstances, or in the interest of Product or of Customer, Operations must be carried outside of normal working hours at relevant Premises then ED&F Man may carry out Operations at the entire cost and expense of Customer.
  2. Normal working hours at Premises are subject to change upon thirty (30) days’ notice by ED&F Man to Customer.

Article 34

Storage and transfer of Product

  1. Unless agreed otherwise in writing, ED&F Man shall be at liberty to choose the space where the Product shall be stored and where the Operations shall be carried out.
  2. ED&F Man may transfer Product from Premises to other Premises, provided that the other Premises are suitable for the type of Product concerned and provided the Customer consents, such consent not to be unreasonably withheld.
  3. ED&F Man may notify Customer or Holder of such transfer.
  4. The Customer shall not make the Premises available to third parties or allow third parties to use the Premises in any other way in whole or in part, regardless of the grounds, without the prior written permission of ED&F Man

Article 35

Operations in in common

  1. Unless the Storage Agreement with Customer requires Product to be subject to Operations separately from other Product, ED&F Man may perform Operations as if Product is fungible and perform Operation in common with Operations on other like Product (“Common Operations”).
  2. The costs and charges of Common Operations shall be borne equally by Customers of the Product.
  3. ED&F Man has the right to carry out deliveries from or out of the volume thus jointly stored, handled or processed, and the Customer shall not have the right to claim that it has not received the Products that were originally received on behalf of the Customer.

Article 36

Distribution of losses, remains and costs during common storage

If Products belonging to the Customer and other customers have been or are stored, handled or processed in a common storage space, all losses caused by manipulation, evaporation, drying-up, and/or settlement, or respectively all sweepings, sediments, residual gases, condensed water, deposits et cetera caused by storage of the Products, as well as the costs to remove and to destroy these or parts thereof, shall be shared between the Customer and such other customers and respectively distributed between them according to a ratio to be determined by ED&F Man. To determine such ratio, the volumes of the Products as well as the term of the Operations for the various customers shall be taken into account. The costs related to distribution shall be apportioned between the relevant customers in accordance with the same principles. The decision of ED&F Man with respect to the distribution and apportionment applied by the ED&F Man shall be binding upon the relevant customers, unless proven otherwise.

Article 37

Use of Premises for different types of Products

The Customer is not authorized to use Premises or to allow others to use it for Products of any type other than agreed with ED&F Man, unless ED&F Man has given its prior permission in writing, and with due observance of any further conditions to be imposed by ED&F Man.

Article 38

Delivery of Product by ED&F Man

  1. Delivery of Product by ED&F Man shall be only after ED&F Man has received an instruction in writing from the Customer or its agent and presentation of any store warrant or delivery order issued in respect of Product.
  2. Any instruction to ED&F Man to deliver Product and a presentation of a store warrant or delivery order shall be deemed as an instruction from and a presentation by the person lawfully entitled to to take delivery of Product.
  3. ED&F Man may require any person taking delivery of Product to prove identity and delivery may be suspended pending verification of identity.
  4. ED&F Man may demand payment of all amounts payable by Customer before proceeding to carry out partial or full delivery of the Product.
  5. In the event of an instruction to deliver a portion of the Product the remaining portion shall only be delivered on payment of all costs and charges due from Customer but unpaid.

Article 39

Transfer of ownership or right to take delivery

  1. A transfer or passing of ownership of Product in Premises or a transfer or passing of the right to take delivery thereof by Customer to a third party shall be null and void as regards ED&F Man unless all claims that ED&F Man may have against the original and/or transferring Customer on any ground whatsoever, have been fully settled and the transferee has become bound by a Storage Agreement and these Conditions.
  2. Customer shall as soon as practicable notify ED&F Man in writing of any transfer or passing of ownership or right of delivery.

Article 40

Ownership dispute and attachments

  1. If the ownership or the right of delivery of the Product, as the case may be, is disputed, or if a third party claims to be entitled to the Product, or alternatively if Products of ED&F Man have been attached, ED&F Man shall have the right to retain the relevant Product in its possession until it has been decided by an irrevocable and final court order between all parties concerned – or alternatively if it has sufficiently been established between all parties concerned and this has been confirmed in writing by such parties towards ED&F Man – who is entitled to delivery of the Product.
  2. ED&F Man has the right to protect its best interest in connection with a dispute or attachment as referred to in this Article, by seeking legal assistance and/or by taking legal measures, or alternatively by instituting legal proceedings or conducting a defence in legal proceedings, in which case the costs thereof shall be borne by the Customer.

Article 41

Insurance of Product

  1. Customer shall insure or self-insure the Product whilst Product is in relevant Premises against loss or damage by fire or other casualty, death or injury of its personnel whilst on relevant Premises, loss or damage to any of its equipment on relevant Premises and third party liability insurance.
  2. Unless it has explicitly been agreed in writing with Customer, ED&F Man is not obliged to take out any insurance.
  3. If in the event Product is insured by ED&F Man, ED&F Man may insure on such terms and conditions in its sole discretion and may deduct from any insurance proceeds it receives any amounts due and payable to it by Customer and any remaining proceeds shall be paid to Customer.
  4. If, in the event of damage to or loss of Product by fire or by any other insured risk, the assistance of ED&F Man for ascertaining that damage or that loss is advisable or necessary, then such assistance shall be given against payment of the costs and charges incurred by ED&F Man in connection therewith and may require a deposit on account of its costs and charges as a condition of its assistance.

Article 42

Access to Premises

  1. During the working hours applicable to ED&F Man, ED&F Man shall give the Customer and the persons authorized by the Customer to carry out operational activities access to the space where the Operations are carried out, it being understood that all persons who are found on the Premises, including but not limited to the staff of the vessels and/or vehicles arrived at the Premises, are obliged to carefully observe and comply with the rules, regulations, policies and instructions given by or on behalf of ED&F Man or stated in Government Regulations. If anyone does not comply with such regulations, ED&F Man shall be entitled to remove the relevant person – or to have the relevant person removed – from the Premises.
  2. The Customer shall ensure that the captain of a vessel that has been contracted by or on behalf of the Customer to which the ISPS Code applies shall at all times be available for communications and coordination regarding the safety or security of the vessel during the (un)loading of Product or during stocking of the vessel, and shall ensure unhindered communications and coordination between the vessel safety official and the relevant officials of the port facility, and the Customer shall indemnify ED&F Man against all and any claims in this respect.
  3. All persons who enter the premises and/or go on board the vessels moored alongside the Premises do so entirely at their own risk, even if this occurs with the permission of ED&F Man or under escort of ED&F Man. The provisions in this paragraph shall be equally applicable to vehicles used by persons to enter the Premises.
  4. ED&F Man shall at all times be entitled to deny access to the Premises to persons who are regarded as undesirable by ED&F Man, and to remove such persons – or to have them removed – from the Premises.
  5. The previous paragraphs also apply to persons authorised by the Customer to obtain access to the Premises for other than operational reasons, e.g. to carry out audits. Such persons shall only be granted access to the Premises after specific agreement between the Customer and ED&F Man.

Article 43

Rates and charges

  1. The Customer shall pay the rates and charges for Operations as agreed in Storage Agreement and those that are usually charged or applied by ED&F Man.
  2. The agreed rates and charges refer only to the Operations expressed in the Storage Agreement and, if nothing has so been expressed, only to those Operations that in the opinion of ED&F Man are necessary for health and safety.
  3. Unless otherwise agreed in writing, rentals, storage charges and ancillary costs shall be paid to ED&F Man in respect of the full capacity of relevant Premises and for the full period of occupation or use by Customer of relevant Premises.
  4. Rentals, storage charges, heating costs and refrigeration costs, premiums and costs of insurance, as well as charges for a failure to attain a guaranteed throughput shall be charged for whole months and part of a month shall count as a full month.
  1. If the cost of Operations to ED&F Man is affected by changes in the costs of labour or in the value of money, by Governmental Regulations or by any other factor that is beyond the control of ED&F Man, inclusive of measures in the interest of safety or environment, or if ED&F Man has to alter its rates and charges as a result of local usage or local circumstances, then ED&F Man may unilaterally adjust the rates and charges agreed with the Customer, provided that a period of three months has elapsed after the date of the Storage Agreement. Such adjustment in rates or charges shall take effect immediately and shall be deemed part of the Storage Agreement.
  2. All rates and charges in relation to the Operations carried out or to be carried out are exclusive of taxes which, if due, are for the account of Customer and shall be paid to ED&F Man on demand.

Article 44

Payment terms

  1. All amounts payable by Customer to ED&F Man on any ground whatsoever shall be payable on demand and recoverable against the retention and sale of all Products and other assets belonging to the Customer.
  2. Customer shall pay rates and charges within 30 days of receipt of invoice, unless otherwise agreed.
  3. Invoiced amounts not paid in due time shall bear interest at the rate of one and a half (1.5) per cent (%) per month (effective annual rate of eighteen (18) per cent (%) or the maximum legal rate permitted by law of the jurisdiction in which the Premises are located,(whichever is less), from due date until paid and all costs of collection, including reasonable attorney fees, shall be for the account of Customer.
  4. Customer shall have no right of set-off.
  5. If the Customer is declared insolvent, makes application for an order granting leave temporarily to suspend the payment of his debts, offers a composition to his creditors, is in default under Storage Agreement and/or these Conditions, or if an attachment is made against Product or a distress is levied upon any other assets in the custody of ED&F Man, or Customer ceases for any reason to carry on his business then all rates and charges outstanding shall be immediately due and payable.
  6. ED&F Man is at all times entitled to set-off amounts due and payable by Customer against amounts due and payable by ED&F Man.
  7. ED&F Man may before commencement of Operations require payment of a deposit or other security on account of rates and charges that may be due from Customer.

Article 45

Security interest

As security for any monies that may be due from Customer, Customer acknowledges and agrees that on commencement of Operations ED&F Man has a right of pledge and right of lien (“Pledge”) over all Product, monies, documents and any other assets of Customer that are from time to time in the possession of ED&F Man (“Pledged Assets”).

Article 46

Sale of Pledged Assets

  1. ED&F Man may invoke the Pledge and, in satisfaction of any amounts due (including contingent liabilities) with respect to the Storage Agreement or otherwise, may sell any Pledged Assets without observing any formality that may otherwise be required except as may be required by the law of the jurisdiction in which the sale shall take place and Customer hereby warrants that on such sale a good and marketable title to the Pledged Asset sold shall be conferred on the purchaser.
  2. ED&F Man may deduct from the proceeds of sale the monies due and payable to it but unpaid plus costs and charges incurred by ED&F Man in connection with such sale.
  3. Any surplus proceeds of sale following any sale of Pledged Assets shall be remitted to Customer.

Article 47

Title and risk

Unless otherwise provided in these Conditions and/or in Storage Agreement, title to Product shall remain with the Customer at all times and all Operations are carried out at the entire risk of Customer.

Article 48

Customer liability and risk

  1. All Operations shall be carried out at the expense and risk of the Customer.
  2. The Customer is liable for all damage, costs and/or losses to the detriment of ED&F Man, its staff and/or Affiliated companies and/or their staff, which were caused by the Customer or by any third parties engaged by the Customer, by persons – whether or not employed by the Customer or by third parties engaged by the Customer – by order or with the permission of the Customer, or who are present on the Premises on behalf of the Customer or on board of vessels moored alongside the Premises, or caused by Product belonging to the Customer or to any third parties engaged by the Customer.
  3. Without prejudice to its liability and without providing an exhaustive account of circumstances, all damage, costs, losses and/or other consequences arising from or in relation to the circumstances stated hereinafter shall be at the expense of the Customer:
    • the nature, type, quality and/or qualities of the Product;
    • any incorrect, deceptive and/or incomplete statements, indications, information, notifications and/or instructions as well as defects to the Product, the means of transport, the packaging materials and/or containers;
    • non-compliance with the applicable Government Regulations by the Customer and/or third parties engaged by the Customer, by persons – whether or not employed by the Customer or third parties engaged by the Customer – by order or with the permission of the Customer, or who are present on its behalf on the Premises or on board of vessels moored alongside the Premises; and/or;
    • non-compliance with Government Regulations or with any other prescribed requirements for vessels or vehicles or other means of transport, packaging materials or containers.

Article 49

Limitation of Liability

  1. ED&F Man shall have no liability whatsoever for any damage to or loss of Product before the Product has been taken into relevant Premises or after Product has left relevant Premises, as determined in accordance with Article 25, and ED&F Man shall have no liability whatsoever for loss of or damage to Product whilst it is in possession of Product if the loss or damage is less than two (2) per cent (%) of the total quantity of Product.
  2. ED&F Man shall never accept any liability for:
    • delay, loss of time, demurrage, parking fees or other damage or costs arising in connection with a deviation from the sequence in which vessels or vehicles are handled, caused by the inability to reach the Premises or the inability to use the Premises, or caused by the fact that the Premises are already occupied, or by any cause whatsoever, even if prior reservations have been made, or if vessels and vehicles or other means of transport have been booked beforehand;
    • the method of allocation and apportionment of losses, remains and costs in the event of use of a common storage space;
    • the accuracy and/or completeness of the specifications in a Store Warrant or in any other document issued by ED&F Man, or of statements with respect to the nature and quality of the Product, and in general the accuracy and completeness of and/or the consequences arising from the description and/or specification of the Product;
    • any obligation, liability or risk arising from Regulation (EC) No 1907/2006 (REACH);
    • any losses, damage, costs and/or other consequences which may arise howsoever from or relate to issuing a (Duplicate) Store Warrant;
    • any damage, loss, third-party claims, fines and/or costs howsoever arising and resulting from force majeure within the meaning of Article 50.
  1. Subject to paragraph 4 below, losses for which ED&F Man assumes responsibility and which shall be recoverable by Customer shall be limited as follows.
    • Breach by ED&F Man of an express warranty or representation in the Storage Agreement and/or these Conditions.
    • Monies due and payable by ED&F Man to Customer under Storage Agreement and/or these Conditions.
    • Costs and expenses reasonably incurred by Customer in acquiring alternative Product (“Alternative Product”) but only if:
      • such costs and expenses were caused by gross negligence on the part of ED&F Man
      • Customer has mitigated its loss; and
      • price per metric ton of Alternative Product is higher than value per metric ton of Product that has been lost or damaged.
  1. If ED&F Man is liable, such liability shall be limited to a maximum amount equal to the current value of the damaged, lost or destroyed Product as at the date of damage, loss or destruction, but limited to a maximum of EUR 500 (or local currency equivalent) per 1,000 kilogrammes of the damaged, lost or destroyed Product, and furthermore capped to a maximum of EUR 500,000 (or local currency equivalent) per event or series of events caused by one and the same event.
  2. Other than as provided in this Article 49 paragraph 3 above ED&F Man shall have no liability whatsoever for any losses incurred by Customer arising as a result of ED&F Man’ acts or omissions.

Article 50

Third party claims

With respect to the liability of ED&F Man set forth therein, the Customer shall indemnify ED&F Man from all and any claims by third parties against ED&F Man, or indemnify ED&F Man for any damage paid or payable to third parties:

(a) in connection with the Product entrusted by the Customer to ED&F Man, or in connection with damage, expenses and/or losses caused by the Customer, by third parties engaged by the Customer, by persons who – whether or not employed by the Customer or by the third parties engaged by the Customer – by order of or with the permission of the Customer, or who are present on behalf of the Customer on the Premises or on board of vessels moored alongside the Premises, or in connection with the storage or the performance of Operations with respect to the Product belonging to the Customer;

(b) due to damage, losses, expenses and other consequences for the said third parties, arising howsoever in connection with Article 48, paragraph 3 and Article 49.

Article 51

Force majeure

ED&F Man shall not be in breach of the relevant Storage Agreement nor liable for delay in performing, or failure to perform, any of its obligations if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

Article 52

Safeguarding provisions

All staff of ED&F Man or of Affiliated Business Enterprises, all (sub)contractors and their staff, agents and representatives of ED&F Man, or others who employed, have been assigned by, or have been appointed by or on behalf of ED&F Man, shall be entitled to invoke independently all legal and contractual means of defence which ED&F Man may invoke for the defence or limitation of its own liability towards the Customer, irrespective of whether or not their activities are related to the relationship between the Customer and ED&F Man.

Article 53

Sanctions

  1. Customer hereby represents and warrants that (i) neither it nor any person or entity that owns or controls it is a designated target of economic trade sanctions promulgated by either the United States and/or the European Union and/or the United Kingdom and/or the United Nations and/or Switzerland and/or the country of origin of the Product (together, “Sanctions Laws”); and (ii) the Product sold under the Storage Agreement shall not be resold or in any other way disposed of to any entity or person which directly or indirectly would cause ED&F Man to be in breach of the Sanctions Laws; and (iii) the Product bought by it under the Storage Agreement shall not be transported on a vessel or by other means of transport owned, flagged, chartered or operated by any entity or person which directly or indirectly may cause Seller in its opinion to be in breach of the Sanctions Laws.
  2. ED&F Man shall not be required by Customer to comply with any terms or requests, including documentary requests, which ED&F Man reasonably considers would result in ED&F Man being in breach of the Sanctions Laws.
  3. If either prior to or during performance of this Storage Agreement Customer becomes a designated target as set out above, or ED&F Man becomes aware that Customer is in breach of the above representation and warranty, then ED&F Man reserves the right to immediately terminate the Storage Agreement with all costs and consequences arising being for Customer’s account.
  4. Customer shall on demand indemnify ED&F Man against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by ED&F Man arising out of or in connection with any breach of Customer’s above representation and warranty. In this clause, reference to “ED&F Man” shall include Affiliated Business Enterprises, and shall be enforceable by each such Affiliated Business Enterprise, in addition to ED&F Man.

Article 54

Anti-bribery and corruption, anti-money laundering and anti-tax evasion

The Customer further represents and warrants to ED&F Man that, in connection with this Storage Agreement or otherwise, it has not and will not engage in any action that contravenes any applicable anti-bribery and corruption, anti-money laundering and anti-tax evasion laws or regulations, or otherwise gives rise to an offence of bribery, tax evasion or money laundering. The Customer accordingly undertakes to indemnify ED&F Man for any losses suffered as a result of a breach of the representation and warranty herein.

Article 55

Lapsing of claims

All claims against ED&F Man arising under these Conditions shall lapse and become void if Customer has failed to notify ED&F Man within 30 days of Product having been dispatched from relevant Premises.

Article 56

Assignment of the Storage Agreement

ED&F Man may assign, transfer or novate its rights and obligations under the Storage Agreement to an Affiliated Business Enterprise or other third party. The Customer may not assign, transfer or assign its rights and obligations under the Storage Agreement without the consent in writing of ED&F Man.

Article 57

Independent Contractor

Nothing contained in these Conditions shall create the relationship of joint venture, principal and agent or master and servant between Customer and ED&F Man and except for purposes of issuance of bills of lading or for purposes of insuring payment of invoices, ED&F Man, in the performance of the Operations, is not and shall not act as the agent of Customer but only as an independent contractor.

Article 58

Decisive text

The English text of these Conditions shall be the only text admissible as between Customer and ED&F Man.

Article 59

Severance

If any court or other competent authority finds that any provision of these Conditions (or part of any provision) is invalid, illegal or unenforceable), that provision or part-provision shall, to extent required, be deemed to be deleted, and validity and enforceability of remaining provisions shall not be affected.

If any invalid, unenforceable or illegal provision of these Conditions would be valid, enforceable and legal if some part of it were deleted, that provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

Article 60

Law applicable and Court of Law having jurisdiction

These Conditions shall be governed by the law of the jurisdiction in which the relevant Premises are situated and any dispute or claim arising out of or in connection with these Conditions or their subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts where the Premises are located.