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Terms and Conditions of Sale

Standard Terms & Conditions of Sale

 

Interpretation

1.1. In these Terms:

1.1.1. “Buyer” means the person who purchases the Goods from the Seller;

1.1.2. “Contract” means the contract for the sale and purchase of the Goods in accordance with these Terms;

1.1.3. “Goods” means the Goods (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Terms;

1.1.4. “Order” means the Buyer’s order for the Goods, as set out in the in the Buyer’s purchase order form, the Buyer’s written acceptance of the Seller’s quotation, or overleaf, as the case may be;

1.1.5. “Seller” means New Era Fuels Ltd Registered in England under number 07378045 whose registered office is at Lynton House, 7-12 Tavistock Square, London, WC1H 9BQ;

1.1.6. “Terms” means these standard terms of sale and (unless the context otherwise requires) includes any special terms agreed in writing between the Buyer and the Seller;

1.1.7. “Working Day” means a day (other than a Saturday or Sunday) on which banks are open for business in the City of London.

1.2. Any reference in these Terms to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

1.3. The headings in these Terms are for convenience only and shall not affect their interpretation.

1.4. Any reference to writing or written includes fax and email but not text messages.

  1. Basis of purchase

2.1. These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the

Contract.

2.3. The Order shall only be deemed to be accepted when the Seller’s authorised representative issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4. No variation to these Terms shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.

2.5. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

2.6. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a director of the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.

2.7. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.8. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.9. The Buyer warrants that it and all its employees and servants are familiar with and have had all necessary training in respect of the necessary and relevant Health and Safety legislation and industry guidance of the sale, use, storage and delivery of the Goods in particular the Buyer shall at all times meet the requirements as recommended by the CA Control of Major Accident Hazards (COMAH) Containment Policy and any other regulations or recommended practices issued by the Health and Safety Executive.

  1. Orders and specifications

3.1. The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Order (if accepted by the Seller).

3.2. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a drawing, design or specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses including direct, indirect or consequential losses, loss of profits, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses suffered or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for alleged or actual infringement of a a third party’s intellectual property rights which results from the Seller’s use of the Buyer’s drawing, design or specification.

3.3. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

  1. Price of the Goods

4.1. The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the Order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid at time of order.

4.2. The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the

Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3. The price is exclusive of any applicable VAT, which the Buyer shall be additionally liable to pay to the Seller subject to receipt of a valid VAT invoice.

4.4. The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, and Customer is responsible for disposal.

  1. Terms of payment

5.1. Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller may invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2. The Buyer shall pay the price of the Goods upon delivery or within 18 days of the date of the Seller’s invoice at the Seller’s option (and which shall be stated on the Invoice and any confirmation of order), and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3. Payment by credit card will be taken for the price of the order plus a 5% ringfence which will be released back to the Buyer if the number of litres taken does not exceed the original order value. If the Buyer takes more litres than originally ordered, the ringfence value will be allocated against this and be kept by the Seller and any further litre costs will be recovered.

5.4. Any overpayments relating to proforma invoices will remain on the Buyer’s account and can be allocated to the next order.

5.5. All amounts due under the contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than as required by law).

5.6. If the Buyer takes less litres than originally ordered the value of the pence per litre may increase.

5.7. If the volume ordered or taken by the Buyer is below 500 litres, this will incur a £50 below minimum charge.

5.8. If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:

5.8.1. cancel the Contract or suspend any further deliveries to the Buyer;

5.8.2. appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

5.8.3. the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.8.3 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

  1. Delivery

6.1. Delivery of the Goods shall be either, by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.

6.2. The Buyer shall be solely responsible for the off-loading of the Goods and the provision of suitable means and facilities for the reception of the Goods and for the storage after delivery.

6.3. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.

6.4. Delivery of Goods made by hose shall be effected at the delivery end of the Seller’s hose of that of the Seller’s agent or authorised distributer, as the case maybe.

6.5. Delivery of the Goods if made at premises other than those of the Seller or the Sellers’ authorised distributer shall be made when the Goods or the package or packaging in which the Goods are contained are off-loaded from the delivery vehicle.

6.6. Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.

6.7. Deliveries in Bulk.

6.7.1. Where the road tank wagon is fitted with a metering device, the quantity of fuel delivered is to be ascertained by reference to such meter.

6.7.2. Where no meter is fitted the quantity is to be ascertained by measurement of the contents of the Seller’s road tank wagons by using the gauge dip rod provided with each wagon.

6.7.3. The Buyers shall be at liberty to check the correctness of the Seller’s calculations and to be present at the measurement if they so wish, but in the absence of the Buyer being present the Seller shall be entitled to commence delivery in which case the weight and measurement ascertained by the Seller shall be accepted by the Buyers as correct.

6.7.4. The Buyer shall be responsible for ensuring that sufficient ullage exists when the Seller delivers any bulk product and that the delivery will fit into the tank.

6.8. The Orders is divisible. Each delivery made:

6.8.1. shall be deemed to arise from a separate Contract, and

6.8.2. shall be invoiced separately and any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for in the relevant Contract without reference to and notwithstanding any defect or default in the delivery of any other instalment or of any other instalment under any other contract.

6.9. If the Seller fails to accept or deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, the Seller’s liability shall be limited to the cost to the Buyer of similar goods (in the cheapest available market) to replace those not delivered less the price of the Goods.

6.10. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:

6.10.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and any re delivery costs as maybe reasonably incurred; or

6.10.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

  1. Risk and Property

7.1. Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

7.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3. Until such time as the property in the Goods passes to the Buyer, the Buyer shall:

7.3.1. hold the Goods as the Seller’s fiduciary agent and bailee;

7.3.2. shall keep the Goods separate from those of the Buyer and third parties; and

7.3.3. shall keep the Goods properly stored, protected and insured and identified as the Seller’s property.

7.4. The Buyer may resell or use the Goods in the ordinary course of its business however if the Buyer resells the Goods it does so as principal and not as the Seller’s agent and title to the Goods shall pass from the Seller to the Buyer immediately before the time of any resale. This right shall cease automatically on the occurrence of any of the events referred to in clause 12.1.

7.5. Until such time as property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time:

7.5.1. terminate the Buyer’s right under clause 7.4 to resell the Goods or use the Goods in the ordinary course of its business; or

7.5.2. require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.6. The Buyer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) become due and payable.

  1. Warranties and liability

8.1. Subject to the following provisions the Seller warrants that the Goods will correspond with their specification at the time of delivery

8.2. The above warranty is given by the Seller subject to the following conditions:

8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;

8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal storage or working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;

8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;

8.2.4 the Buyer alters the Goods without the Seller’s prior written consent; and

8.2.5 the Buyer shall not make further use of such Goods after giving notice in accordance with clause 8.4

8.3. Subject as expressly provided in these Terms, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.4. A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

8.5. The Buyer warrants that they shall take proper and appropriate care of the Goods to appropriate industry standards of the Goods and shall prevent any contamination of the Goods subsequent to delivery.

8.6. Subject to clause 8.5 where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.

8.7. The Seller provides a Fuel Contamination Testing Service and upon notification of potential contamination, the Seller will attend the Buyer’s site to test whether contamination has occurred. The Seller will levy a charge for this service which is ringfenced via credit or debit card prior to attendance. If the contamination can be proven to be the Seller’s responsibility, the charge will be released, and attendance will be free of charge. If the contamination cannot be proven to be the Seller’s responsibility, then the charge will remain.

  1. Liability

9.1. The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

9.2.1. death or personal injury caused by negligence;

9.2.2. fraud or fraudulent misrepresentation;

9.2.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

9.2.4. defective products under the Consumer Protection Act 1987.

9.3. The terms implied by sections 13- 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

9.4. Subject to clause 9.2, the Seller’s total liability to the Buyer shall not exceed the price of the Goods.

9.5. Subject to clause 9.2, the following types of loss are wholly excluded:

9.5.1. loss of profits;

9.5.2. loss of sales or business;

9.5.3. loss of agreements or contracts;

9.5.4. loss of anticipated savings;

9.5.5. loss of use or corruption of software, data or information;

9.5.6. loss of or damage to goodwill; and

9.5.7. indirect or consequential loss.

9.6. This clause 9 shall survive termination of the Contract.

  1. Force Majeure

10.1. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

10.1.1. Act of God, explosion, flood, tempest, fire or accident;

10.1.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;

10.1.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

10.1.4. import or export regulations or embargoes;

10.1.5. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

10.1.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery;

10.1.7. power failure or breakdown in machinery.

10.2. If any of the circumstances specified in clause 10.1 shall apply 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.

11 Indemnity

11.1 If a claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any third party, then unless the claim arises from the use of a drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:

11.1.1 the Seller is given full control of any proceedings or negotiations in connection with the claim;

11.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;

11.1.3 except pursuant to a final award, the Buyer shall not pay or accept the claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);

11.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);

11.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and

11.1.6 without limiting any duty of the Buyer at common law, the Seller may require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.

  1. Insolvency of Buyer

12.1 This clause 12 applies if:

12.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

12.1.2 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

12.1.3 the Buyer ceases, or threatens to cease, to carry on business; or

12.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

12.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

  1. Confidentiality.

13.1. Each party undertakes that it shall not at any time during the Contract and for a period of [five] years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.

13.2. Each party may disclose the other party’s confidential information:

13.2.1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and

13.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

  1. Notices 14.1. All notices under the Contract must be in writing and are considered effective on the Working Day of delivery as long as they’re delivered before 5:00pm on a Working Day. Otherwise the notice is effective on the next Working Day. An email or fax is effective when sent unless an error message is received. 14.2. Notices to the Buyer or Seller must be sent to their address set out in the Order.

14.3. This clause does not apply to the service of legal proceedings or any documents in any legal action, arbitration or dispute resolution

  1. General

15.1. Where the Seller is a member of the group of companies whose holding company is New Era Holdings Ltd and accordingly the Seller may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.

15.2. The terms and conditions of the Contract are the entire agreement between the parties with regard to their subject matter and no other terms, conditions, warranties or statements (unless fraudulent) will apply.

15.3. Each party acknowledges that in entering into the Contract it does not do so on the basis of, and does not rely on any representation, unless made fraudulently, warranty or other provision not expressly contained in the Contract.

15.4. Any variation to the Contract must be in writing and signed on behalf of both parties.

15.5. The Buyer may not assign or transfer any benefit, interest or obligation under the Contract.

15.6. Save for any third party purchaser, the provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.

15.7. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

15.8. If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.

15.9. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

15.10. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Last updated: 08.06.2021