Terms Conditions of Purchase

1 Interpretation

1.1. In these Terms:

1.1.1. “Buyer” means: New Era Fuels Limited Company No. 07378045 and whose registered office is Lynton House, 7-12 Tavistock Square, London, WC1H 9BQ;

1.1.2. “Contract” means the contract for the sale and purchase of the Goods and the supply and acquisition of the Services;

1.1.3. “Delivery Address” means the address stated on the Order;

1.1.4. “Delivery Date” means the date specified in the Order, or if none is specified, within [14] days of the date of the Order;

1.1.5. “Goods” means the goods (including any instalment of the goods or any part of them) described in the Order;

1.1.6. “Group” means in relation to the Buyer, the Buyer, any subsidiary or holding company from time to time of the Buyer, and any subsidiary from time to time of a holding company of the Buyer;

1.1.7. “Order” means the Buyer’s purchase order to which these Terms are annexed;

1.1.8. “Price” means the price of the Goods and/or the charge for the Services;

1.1.9. “Restricted information” means any information which is disclosed to the Seller by the Buyer under or in connection with this Agreement (whether orally or in writing, and whether or not such information is expressly stated to be confidential or marked as such);

1.1.10. “Seller” means the person so described in the Order;

1.1.11. “Services” means the services (if any) described in the Order;

1.1.12. “Specification” includes any plans, drawings, data or other information relating to the Goods or Services;

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

1.1.14. “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. The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the Services subject to these Terms.

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

2.3. The Order will lapse unless unconditionally accepted by the Seller in writing within seven days of its date.

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

  1. Specification

3.1. The quantity, quality and description of the Goods and the Services shall, subject as provided in these Terms, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.

3.2. The Seller acknowledges that all materials, equipment and tools, drawings, Specifications and data supplied by the Buyer to the Seller (Buyer Materials) are and shall remain the exclusive property of the Buyer. The Seller shall keep the Buyer Materials in safe custody at its own risk, maintain them in good condition until retuned to the Buyer and not dispose or use the same other than in accordance with the Buyer’s written instructions or authorisation.

3.3. If the Specification is specifically produced by the Seller for the Buyer, then the Specification and all intellectual property rights in the Specification, shall be the exclusive property of the Buyer and the Seller assigns with full title guarantee to the Buyer any and all such intellectual property rights for no further consideration, subject only to the payment of the Price.

3.4. The Seller shall not disclose to any third party or use any Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.

3.5. The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services including but not limited to holding and maintaining all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

3.6. The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods at the premises of the Seller or any third party prior to despatch, and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.

3.7. If as a result of inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the Contract, and the Buyer so informs the Seller within seven days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance.

3.8. The Goods shall be marked in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.

  1. Price of the goods and services

4.1. The Price of the Goods and the Services shall be as stated in the Order and, unless otherwise so stated, shall be:

4.1.1. exclusive of any applicable VAT (which shall be payable by the Buyer subject to receipt of a valid VAT invoice); and

4.1.2. inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than VAT.

4.2. No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.

4.3. The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms of sale.

  1. Terms of payment

5.1. The Seller may invoice the Buyer on or at any time after delivery of the Goods or performance of the Services, as the case may be, and each invoice shall quote the number of the Order, the Seller’s VAT number and any supporting documents that the Buyer may reasonably require.

5.2. Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods and the Services within 30 days after the end of the month of receipt by the Buyer of a correctly rendered invoice or, if later, after acceptance of the Goods or Services in question by the Buyer.

5.3. The Buyer may at any time without notice to the Seller set off against the Price any sums owed to the Buyer by the Seller.

  1. Delivery

6.1. The Goods shall be properly packed and secured in such manner as to enable them to reach the Delivery Address in good condition.

6.2. The Goods shall be delivered to, and the Services shall be performed at, the Delivery Address on the Delivery Date during the Buyer’s usual business hours.

6.3. Where the date of delivery of the Goods or of performance of the Services is to be specified after the placing of the Order, the Seller shall give the Buyer reasonable notice of the specified date.

6.4. The time of delivery of the Goods and of performance of the Services is of the essence of the Contract.

6.5. Delivery of the Goods shall be completed on the completion of the unloading of the Goods at the Delivery Address.

6.6. A packing note quoting the number of the Order, any special storage instructions, and if the Goods are being delivered by instalments, the outstanding balance of the Goods to be delivered must accompany each delivery or consignment of the Goods and must be displayed prominently.

6.7. If the Goods are to be delivered, or the Services are to be performed, by instalments, the Contract will be treated as a single contract and not severable.

6.8. The Buyer may reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.

6.9. The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods and performance of the Services.

6.10. The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.

6.11. If the Seller:

6.11.1. Delivers less than 95% of the quantity of Goods ordered, the Buyer may reject the Goods; or

6.11.2. Delivers more than 105% of the quantity of Goods ordered, the Buyer may at is discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Seller’s risk and expense. If the Seller delivers more than the quantity of Goods ordered and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.

6.12. If the Goods are not delivered or the Services are not performed on the due date then, without limiting any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has paid the Price) to claim from the Seller by way of liquidated damage for delay 10 per cent of the Price for every week’s delay, up to a maximum of 50 per cent of the Price. If the Buyer exercises its rights under this clause 6.12, it shall not be entitled to any of the remedies set out in clause 6.13 in respect of the Goods’ late delivery (but such remedies shall be available in respect of the Goods’ condition).

6.13. If the Goods are not delivered on the Delivery Date, or do not comply with the warranties set out in clause 8.1 or the Services do not comply with the warranty set out in clause 8.2 then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Buyer may exercise any one or more of the following rights and remedies:

6.13.1. to terminate the Contract;

6.13.2. to reject the Goods (in whole or in part) and return them to the Seller at the Seller’s own risk and expense;

6.13.3. to require the Seller to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

6.13.4. to refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;

6.13.5. to require the Seller to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);

6.13.6. to refuse to accept any subsequent performance of the Services which the Seller attempts to make;

6.13.7. to recover from the Seller any expenditure incurred by the Buyer in obtaining substitute goods or services or deliverables from a third party; and

6.13.8. to claim damages for any other costs, loss or expenses incurred by the Buyer which are in any way attributable to the Seller’s failure to carry out its obligations under the Contract.

6.14. These Terms shall apply to any repaired or replacement Goods or Services supplied by the Seller.

6.15. The Buyer’s rights and remedies under these Terms are in addition to its rights and remedies implied by statute and common law.

  1. Risk and Property

7.1. Title and risk of damage in the Goods shall pass to the Buyer on delivery to the Buyer in accordance with the Contract.

Warranties and liability

8.1. The Seller warrants to the Buyer that the Goods: –

8.1.1. will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Seller or made known to the Seller in writing at the time the Order is placed;

8.1.2. will be free from defects in design, material and workmanship;

8.1.3. will correspond with any relevant Specification or sample; and

8.1.4. will comply with all statutory requirements and regulations relating to the sale of the Goods.

8.2. The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect in all the circumstances.

8.3. The Seller shall indemnify the Buyer 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Buyer arising out of or in connection with:

8.3.1. any claim made against the Buyer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Buyer Materials);

8.4. Neither the Seller nor the Buyer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods or the Services, if the delay or failure is beyond that party’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:

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

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

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

8.4.4. import or export regulations or embargoes;

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

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

8.4.7. power failure or breakdown in machinery.

8.3.2. any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and

8.3.3. any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.

8.5. This clause 8 shall survive termination of the Contract.

  1. Confidentiality

9.1. Except as provided by clauses 9.2 and 9.3 the Seller shall during the term of the Contract and for a period of 2 years after its termination or expiry:

9.1.1. keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and

9.1.2. not use any Restricted Information for any purpose other than the performance of the obligations under the Contract.

9.2. Any Restricted Information may be disclosed by the Suppler to:

9.2.1. any customers or prospective customers;

9.2.2. any governmental or other authority or regulatory body; or

9.2.3. any employees of the Buyer or of any of the aforementioned persons,

9.2.4. to such extent only as is necessary for the purposes contemplated by the Contract, or as is required by law and subject in each case subject to the Seller using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.

9.3. Any Restricted Information may be used by the Seller for any purpose, or disclosed by the Seller to any other person, to the extent only that it is on the date of the Contract, or becomes, public knowledge through no fault of the Distributor (provided that in doing so the Distributor shall not disclose any Restricted Information which is not public knowledge).

  1. Restrictions

10.1. In order to protect the Buyer’s legitimate business interests the Seller covenants with the Buyer for itself and as agent for each member of its Group that it shall not (and shall procure that no member of its Group shall) (except with the prior written consent of the Buyer):

10.1.1. solicit or entice away or attempt to solicit or entice away from the employment or service of the Buyer or any member of its Group the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of the other party or any member of its Group.

10.1.2. solicit or entice away (or attempt to solicit or entice away) from the Buyer or any member of its Group the business or custom of any Restricted Customer.

10.2. The Seller shall be bound by the covenants set out in clause 10.1 during the term of the Contract and for a period of 12 months after termination or expiry of the Contract.

10.3. For the purposes of this clause 10, a Restricted Person shall mean any firm, company or person employed or engaged by the Buyer or any member of its Group during the term of the Contract who has been engaged in the provision of the Services or the management of the Contract.

10.4. For the purposes of this clause 10 a Restricted Customer shall mean any firm, company or person who is or has been at any time during the immediately preceding 12 months a customer or prospective customer of, or in the habit of dealing with, the Buyer or any member of its Group.

10.5. Any consent given in accordance with clause 10.1 shall be subject to payment to the consenting party of a sum equivalent to 30% of the then current annual remuneration of the Restricted Person or, if higher, 20% of the annual remuneration to be paid to the Restricted Person.

  1. Termination

11.1. The Buyer may cancel the Order in respect of all or part only of the Goods and/or the Services by giving notice to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay to the Seller the Price for the Goods or Services in respect of which the Buyer has exercised its right of cancellation, less the Seller’s net saving of cost arising from cancellation.

11.2. The Buyer may terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:

11.2.1. the Seller 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;

11.2.2. the Seller 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;

11.2.3. the Seller ceases, or threatens to cease, to carry on business; or

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

11.3. On termination or expiry of the Contract the Seller shall immediately return all Buyer Materials. If the Seller fails to do so then the Buyer may enter the Seller’s premises and take possession of them. Until they have been returned of delivered, the Seller shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

  1. Notices

12.1. 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.

12.2. Notices to the Buyer or Seller must be sent to their address set out in the Order.

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

  1. General

13.1. Where the Buyer is a member of the group of companies whose holding company is New Era Holdings Ltd and accordingly the Buyer 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 Buyer.

13.2. 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.

13.3. 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.

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

13.5. The Seller may not assign or transfer any benefit, interest or obligation under the Contract.

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

13.7. 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.

13.8. 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.

13.9. 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.

13.10. 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: 23/06/2021