Standard Conditions of Sale
1. Application These are the sole conditions of sale of the Southern Counties Fuels Division of Southern Counties Fuels Ltd (the "Company" "we" or "us") and shall govern all transactions between us and any person, firm or company ("you") who or which purchases any product or service from us. They are applicable to all sales and deliveries of our products and services except in relation to the supply of mains gas which is the subject of separate conditions. All orders accepted by us are accepted on these conditions to the exclusion of all other conditions including any which you purport to apply to any purchase order, confirmation of order, specification or other document or which might otherwise have been relied upon by you whether in negotiation or at any stage in the dealings between us in respect of any products and services supplied by us to you. Any contract entered into between us (whether, for example, by an exchange of correspondence or over the telephone) shall be subject to these conditions of sale and, in the event of any inconsistency between these conditions and any other apparent contract term, these conditions shall apply except where a change to these conditions is expressly agreed to in writing and signed by a director or the secretary of the Company. Any representations about the products equipment or services ("the Products") we provide shall have no effect unless expressly agreed in writing and signed by a director or the secretary of the Company. Each order placed by you shall be deemed to be an offer by you to purchase products or services subject to these conditions. In these conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, extended, re-enacted or replaced. In these conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires. Clause headings shall not affect the construction of these conditions.
2. Delivery Where our products are delivered in bulk through a hose, delivery shall be deemed to take place when such products pass from the tank wagons permanent or temporary hose pipe connection. In all other cases, delivery shall be deemed to take place on transfer of possession of our products to you or on delivery of our service to you. All orders are accepted subject to availability. Where our products are delivered in bulk through a hose, you accept that the quantity shown by the calibrated dip rod or meter shall be conclusive evidence of the quantity delivered. We cannot accept any responsibility for discrepancies between our measuring device and any other measuring device used by you. Where we are delivering fuel oil we will attempt to deliver the quantity ordered and you are responsible for ensuring that that there is room in your tank for that quantity. However, we shall not be in breach of our contract with you if less than the amount ordered is delivered or if up to 10% more than that amount is delivered and you shall pay for such product at the pro rata contract rate. Where we are delivering fuel oil to a site with more than one tank, you are responsible for ensuring that our products are delivered into the correct tank. You are responsible for providing us with all necessary information to ensure that each delivery by us is safe and meets your product or service requirements (including a complete and accurate specification of the correct product or service) and for providing adequate and appropriate equipment and storage. Any date or dates quoted by us for delivery to you are approximate and time for delivery shall not be made of the essence by notice. If no date or dates are so specified we shall be entitled to a reasonable time to procure delivery of any product or service. We shall use our reasonable endeavours to deliver an order for liquid fuel within 5 working days but you hereby agree that you will not be entitled to refuse delivery of any liquid fuel by reason of any delay in delivery unless such delay shall be longer than 10 working days. Subject to the other provisions of these conditions we will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of any product or service (even if caused by our negligence). We shall be entitled to suspend any delivery if any of our invoices to you is due for payment but remains unpaid.
3. Price The price for each product or service shall be that agreed between us and you or, in the absence of any specific agreement, the prevailing price charged by us at that time. The certificate of our Company Secretary as to the prevailing price shall be conclusive evidence of the facts certified therein. The price of the Product shall be given inclusive of any applicable duty, but exclusive of VAT at the date and time of each delivery of the product or service, which you shall be liable to pay to us in addition. We reserve the right to increase our charges to reflect any change in costs that we are required by law to pass on (such as VAT and excise duty) and you must pay such increased charges.
4. Terms of Payment If you are not an account holder and if another method of payment (for example by bank transfer, banker's draft or cash on delivery) is not specified, you must pay for any product or service within 7 days of the date of invoice. If you are so notified at the time of contract (and it will be confirmed on your invoice) you will be entitled to a discount of two pence per litre excluding VAT on the supply of liquid fuel providing and only if you pay on or before the settlement date agreed at the time of order and confirmed on your invoice. Time for payment shall be of the essence. No payment shall be deemed to have been received until we have received cleared funds. If you do not meet the payment terms which apply to you, you will be liable to pay us interest at an annual rate (but accruing daily) of 4 per cent above the base rate for the time being of National Westminster Bank Plc from the date on which payment became due to the date of actual payment (whether before or after any judgement). In the event that you are declared bankrupt or insolvent or you compound or make any arrangement with your creditors or you have any distress levied against any of your assets or you have a receiver or liquidator appointed, we shall have the right to cancel delivery of any product or service. All payments due to us shall become due immediately upon the termination of any agreement between us and you despite any other provision. You shall make all payments to us without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless you have a valid court order requiring an amount equal to such deduction to be paid by us to you.
5. Title Legal and beneficial ownership of any product supplied by us to you shall remain with us until we have received payment in full of all our invoices to you outstanding at the date of delivery or arising from the delivery. During such time as we retain title to any product supplied by us, you acknowledge that you hold the product in a fiduciary relationship as our bailee, that you will keep the products properly stored, protected and insured on our behalf. At any time prior to payment in full (whether or not payment is overdue) we may retake possession of the product (or, in the event of such product being indistinguishable, to take possession of product of a like quality and quantity) and may enter upon your premises for this purpose (and such action shall be without prejudice to any other rights we may have and without liability for loss suffered by you) and you shall accept in respect of any product repossessed any credit note raised or issued by us. We shall be entitled to recover payment for the product notwithstanding that ownership of the product has not passed from us.
6. Risk The risk in our products or services passes to you when we deliver those products or services to you or, where so requested by you, to any third party on your behalf. We will not be liable for any breach by us of our agreement with you (which breach will be subject to the limitation of liability provisions in these conditions): (a) unless you notify us within 7 days of the date on which you became aware, or ought upon diligent enquiry to have become aware, of such breach (in particular you must check the type and quantity of any product delivered before it is used); (b) unless we are given a reasonable opportunity after receiving notice of examining the product or service; (c) if you make further use of the product or service after giving such notice; (d) if you alter or repair any product or service without our written consent. Subject to the express provisions of this clause we shall be entitled, in respect of the delivery of any product or service (or any defective part thereof) in breach of our agreement with you, at our absolute discretion either to rectify such breach within the greater of 7 days and a reasonable period or to refund the price of the product or service (or any defective part thereof) provided we are able to recover (in the case of a service to the extent possible) such product or service.
7. Liability Subject to the provisions of clause 6, the following provisions of this clause 7 set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of both any breach of our agreement with you and any representation, statement or tortious act or omission including negligence arising under or in connection with such agreement. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from our agreement with you. Nothing in these Conditions excludes or limits our liability for death or personal injury caused by our negligence or fraudulent misrepresentation.
YOUR ATTENTION IS IN PARTICULAR DRAWN TO THIS CONDITION. Subject to the express provisions of this clause 7 our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of our agreement with you shall be limited to the contract price and we shall not be liable to you for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with such agreement. We will not be responsible for any direct loss or damage and any indirect or consequential loss or damage (including any loss of income, loss of profits or loss of interest or opportunity) arising from any breach by you of our agreement with you and you will fully and effectively indemnify us on demand against any such loss that we suffer whether directly or as a result of a claim against us by any third party. Unless arising from our driver's negligence, we shall not be liable for any damages whatsoever caused by any wagon which is required to leave the public highway to effect delivery or to gain access to effect delivery of any product or service.
8. Your responsibilities You agree to ensure that: (a) any special delivery instructions or hazards are clearly and concisely notified at the time of the order; (b) you provide safe access for our or our agent's vehicles between the public highway and the actual point of delivery (c) if, to effect delivery, our wagon is required to leave the public highway, the surface of any drive, access road or similar (and any man-lids or ducts) is capable of accepting heavy goods vehicles; (d) each oil storage tank is sound and operational and, in the case of a site with more than one tank, the tank or tanks to be filled are clearly marked with the grade of fuel contained in each; (e) each oil storage tank is properly vented and has a working tank contents gauge visible to the delivery driver; (f) reasonable and safe access is provided to us; (g) where electric or other forms of controlled gates are present, they do not close on our delivery vehicle or its equipment; (h) you observe all the conditions of any applicable Petroleum Storage Licence; (I) you shall not allow any smoking or naked lights, nor permit any stoves, electric or gas fires or radiators to function in the vicinity of the point of delivery; (j) no gas oil and/or kerosene sold to you by us is sold for use in, or used as a fuel in, mechanically propelled vehicles constructed or adapted for use on roads in contravention of the Hydrocarbon Oil Duties Act 1979.
9. LPG cylinders, monitoring and other equipment We may, by written agreement, hire or place on loan with you equipment (including LPG cylinders, oil tank monitoring equipment, oil storage tanks etc), such equipment being owned by us. Such equipment is supplied in good and safe condition. If such equipment is damaged or destroyed for any reason other than our negligence, or not made available to us to disconnect or remove at our request, we will charge you for the repair or full replacement cost of such equipment. You will be advised in writing prior to the supply of such equipment of any special terms and conditions applicable to it, which shall be in addition to our Standard Conditions of sale referred to herein.
10. General You shall not be entitled to assign our agreement with you or any part of it without our prior consent. We may assign our agreement with you or any part of it to any person, firm or company. Neither party shall be liable to the other for any breach of contract by reason of any delay in performing or any failure to perform any of its obligations if the delay or failure was due to any cause beyond its control and could not be avoided by taking reasonable measures, provided that you shall not be relieved thereby of any payment obligation to us. Each right or remedy of us under our agreement with you is without prejudice to any other right or remedy of us whether under our agreement with you or not. If any provision (or any part of any provision) of our agreement with you is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonableness be deemed severable and the remaining provisions of our agreement with you and the remainder of such provision shall continue in full force and effect. Failure or delay by us in enforcing or partially enforcing any provision of our agreement with you will not be construed as a waiver of any of our rights under our agreement with you. Any waiver by us or any breach of, or any default under, any provision of our agreement with you will not be deemed a waiver of any subsequent breech or default and will no way affect the other terms of our agreement with you. The formation, existence, construction, performance, validity and all aspects of our agreement with you shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.
