Barton Petroleum Limited (the ”Company”) trade only on these terms and conditions which, if you are a business customer, apply to the exclusion of any other terms which the Customer seeks to impose or incorporate. The Customer’s attention is particularly drawn to the limitations on liability in clause 28 below. These terms will apply to the Customer, whether the Customer is buying as a consumer or a business, but some terms may differ as specified below.
OFFER AND ACCEPTANCE
The Company’s quotations for supply of goods shall not constitute an offer. An order by the Customer constitutes an offer by the Customer to purchase the goods in accordance with these terms and conditions. The Customer’s order shall only be deemed to be accepted when the Company subsequently agrees a time for delivery of the goods or, if earlier, on delivery of the goods to the Customer, at which point and on which date the contract shall come into existence. If the Customer:
purports to accept the Company’s quotation but subject to any other terms and conditions; or
purports to make a counter-offer on their own terms and conditions;
then (unless the contrary is agreed in writing by the Company) any such acceptance of the quotation or purported counter-offer shall be deemed to have been an offer by the Customer to purchase the goods on these terms and conditions as if there were no reference in the acceptance or purported counter-offer to any other terms and conditions.
Any quotation issued by the Company shall be valid for the period of 24 hours unless an alternative period is specified in the quotation subject always to earlier withdrawal or amendment by the Company. The price given in any quotation is subject to amendment in accordance with clause 23 below (Price).
ACCEPTANCE OF GOODS
Acceptance of delivery of the goods (or part thereof) from the Company shall be conclusive proof that the Customer has accepted these terms and conditions as being the only ones affecting any contract between the Customer and the Company.
The Company and Customer have taken into account their respective strength of bargaining position relative to the other and have considered the availability of suitable alternative goods which could be obtained and notwithstanding all such factors agree that they wish to proceed with this contract on these terms and conditions.
DELIVERY
The Company retains the right to impose an abortive delivery charge when it has attempted to deliver the goods but has been unable to deliver due to the absence of the Customer or any inability of the Company’s delivery vehicle to access the delivery point at the Customer’s address or if any order is cancelled or postponed after 4pm on the day prior to the scheduled delivery day. The Company will not apply an abortive delivery charge if the Company receives prior notification from the Customer postponing or cancelling such delivery before 4pm on the day prior to the scheduled delivery day.
Times quoted for delivery are approximate only. The Company makes reasonable efforts to meet delivery times to suit the Customer but sometimes through circumstances beyond the Company’s control the Company may be unable to meet those times. The Company shall not be liable for any damage or losses whatsoever (Including any consequential losses) suffered by the Customer which arise through the inability of the Company to deliver goods at the times and/or on the dates agreed due to the Customer’s failure to provide adequate delivery instructions or to make adequate provision and/or facilities available, for delivery (including the inability of the Company to access the delivery point at the Customer’s address) or because of any circumstances beyond the Company’s control which may include, without limitation, strikes, accidents, traffic delays or shortage of materials etc.
The Company does not accept responsibility for the measurement of the Customer’s storage tank by dipping, checking or testing its capacity on delivery. The Customer is responsible for ensuring that there is sufficient capacity in the storage tanks into which the delivery is to be made to store any goods being delivered.
The Company will not be held liable for any spillage and any consequent damage arising therefrom in the event of there being insufficient storage capacity to take the goods being delivered.
The Customer shall inspect any goods supplied immediately on delivery and shall give notice of any claim arising from such inspection of any allegation of deficiency in accordance with the claim procedure in clause 22 below. If the Customer fails to give such notice the goods shall be deemed to be, in all respects, in accordance with the Customers instructions and the contract.
It is the responsibility of the Customer to provide safe and suitable access to the Customer‘s point of delivery and the Customer shall notify the Company of any obstacles, hazards or conditions affecting any proposed delivery. This includes access to the Customer delivery point via both the public highway (obstacles to which may include, without limitation, weight restrictions, low bridges, single track roads, road works etc.) and any obstacles to access to the Customer delivery point which arise in connection with the off the public highway access to the Customer’s delivery point (which may include, without limitation, the state and condition of the access route to the Customer delivery point, and /or the site or facility at which Customer delivery point is situated).
Without prejudice to the foregoing the Customer shall ensure that, to the extent required, the Customer delivery point and/or site or facility and the storage tanks and all associated equipment and pipes comply with all applicable laws, regulations, local government requirements, codes of practice and guidance relating to the storage of the goods and are in good and safe operational working order and suitable for the goods being delivered.
If the Company believes that any aspect of the access to the Customer’s delivery point or any aspect of the state or condition of the Customer site or facility may made it unsafe or unsuitable for the delivery of the goods (including without limitation, any obstacles, hazards or conditions affecting delivery, any environmental or health and safety issues, the existence of any danger, any abuse or unlawful treatment of the Company personnel, or any non-compliance with any applicable laws, regulations, local government requirements, codes of practice or guidance) then it may decline to make a delivery until the Customer has satisfied the Company’s concerns and, if the Company encounters any such issues in the process of delivery to the Customer’s point of delivery it may abort that delivery and shall notify the Customer of such aborted delivery and the reason for the abortion of the delivery.
The measurement of the Company or its agents shall be conclusive as to the quantities delivered.
If for any reason the Customer mounts any tank wagons used on a delivery then the Customer does so entirely at his/her own risk.
Without prejudice to clause 10 any damages caused to any Company vehicle or property whilst off the public highway (other than due to the negligence of the Company personnel) at the Customer’s site/facility is the responsibility of the Customer.
The Company will not be held liable for any environmental damage or costs as a result of leaks from Customer’s underground storage tanks or underground pipework. Tanks & pipework installed underground cannot be checked by Company personnel and the integrity of such tanks and pipework is entirely the responsibility and risk of the Customer.
The Company will not be held liable for any damage caused to electronic gates which close on Company vehicles whilst entering or leaving a Customers premises. Electronic gates should be fitted with Obstacle Recognition Technology & remain open whilst vehicles pass through. The Customer shall compensate the Company for damage caused to any of its vehicles by electronic gates that close prematurely or are not fitted with Obstacle Recognition Technology.
The Customer shall provide all reasonable assistance to enable the Company to make the delivery of the goods including providing, prior to delivery, clear guidance as to which tank is to be filled and where it is sited (in the case of a site/facility which has more than one tank) and shall supply a site contact number in connection with each site/facility to which the Goods are to be delivered by the Company.
The Company may deliver the goods by instalments, and it shall be entitled to invoice the Customer for each instalment separately. Each instalment shall constitute a separate contract. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The Company acknowledges that the specification of the goods may be altered from time to time. The Company shall notify the Customer if it becomes aware of any change in the specification but shall have no liability for any such change.
INDEMNITY – for business customers only
The Customer will indemnify the Company against claims and all costs or expenses attributable to any failure by the Customer to provide safe and suitable access to the Customer’s point of delivery or its failure to comply with all applicable laws, regulations, local government requirements, codes of practice and guidance with which it is obliged to comply, as well as against any liability, cost or expenses incurred by the Company arising from any failure by the Customer to comply with the provisions of clauses 8 to 18.
The Customer shall indemnity the Company against all claims for personal injury, or loss or damage to property brought against the Company by third parties arising from the delivery, storage or use of the goods unless such injury, loss or damage is solely attributable to the negligence of the Company, its employees or agents.
CLAIMS
The Customer is to notify shortages to the Company or its delivery agents verbally within 24 hours and to confirm such shortages in writing within 48 hours after the arrival of a delivery.
If the Customer wishes to make a claim in respect of defective goods, such claim must be made:
If the Customer is a consumer, as soon as possible, and before the goods are used; or
If the Customer is a business customer, within 24 hours of delivery of the goods.
The Company shall investigate any claims received by it and will notify the Customer if it agrees that such goods are defective:
If the Customer is a business customer and the Company agrees that the goods are defective, the Company will offer either a replacement of the goods (if available) or a refund of the price paid (if not); or
If the Customer is a consumer, the Customer will be entitled to either a replacement goods or refund if it notifies the Company within 30 days of receipt of the goods.
If the Customer is a business customer, the Company will not be liable in respect of a consequential loss or damage nor in respect of conditions or warranties whether express or implied by statute or at common law, which have not been confirmed by the Company in writing and all implied warranties are excluded to the maximum extent permitted by law.
Without prejudice to the foregoing the Customer is put on notice that all fuels delivered are unsuitable for any use other than as liquid fuel and no liability of any kind whatsoever is accepted by the Company for any consequences of using any such fuels for any other purpose.
Aviation and Motor fuels contain or may contain lead and are to be used only as fuels in an engine, and every precaution must be taken to avoid spilling. Prolonged contact with hydrocarbon products may cause irritation or more serious skin disorders. The Customer must ensure that proper precautions are taken (in line with all applicable regulations) by those likely to come into contact with such fuels, and should take medical advice thereon.
It is a condition of sale of any Motor fuel or other petroleum products by the Company that the Customer will strictly observe all the conditions of its petroleum storage licence (if any) and all statutory and other legal requirements imposed upon the Customer in respect of all the receipt, storage or use of such Motor fuel or other petroleum products. The Customer will not permit smoking or naked lights nor electric or gas fires or radiators near to a tank or inlet pipe into which a delivery of Motor Fuel or other petroleum product, adblue, oils, greases or other products is being made or a vent pipe connected to such tank. The Customer will indemnify the Company against any damages or costs arising out of the breach of this clause.
PRICE
The Customer acknowledges that the price of the goods fluctuates on a day by day basis. If the Customer is a business customer, the Company will do its best to supply goods at the price quoted but the Company reserve the right to increase its prices at any time before delivery to take proper account of fluctuations in the wholesale price of the goods, exchange rates movements and/or increases in the cost of materials or other factors which are not under the Company’s control.
Prices are subject to increase to match any new or increased taxes duties and/or market variations imposed or occurring up to the time of delivery, and shall be those ruling at the place and the date of delivery.
The Company also reserves the right to amend the price of the goods if it identifies an administrative error in the pricing (although if the Customer is a consumer, the Company will reduce the price if it should have been lower and give the Customer the option to cancel or pay the extra if higher).
The price of the goods excludes amounts in respect of value added tax (VAT) which the Customer shall additionally be liable to pay to the Company at the prevailing rate.
Where quotations have been given for a minimum quantity of goods and the Customer subsequently orders less than that minimum, the Company reserves the right to increase its unit price appropriately (it being understood that the larger the order, the cheaper the unit price).
WARRANTIES
If the Customer is a business customer, unless the Company specifically confirms in writing that its goods are fit for a particular purpose or purposes specified by the Customer then the Company gives no warranty nor will it be a term of this contract that the Company’s goods will be fit for any particular purpose or purposes. If the Company is asked to confirm fitness for a particular purpose, the Company reserve the right to increase the price of the Goods to take into account of the increased potential liabilities arising from that confirmation.
If the Customer is a consumer, the Company warrants that the goods will (a) be as described at the time of the Customer placing its order, except for specific variations as noted in these terms (b) be fit for their intended purpose (c) be of satisfactory quality (as defined in the Consumer Rights Act 2015); and (d) comply with any other statutory or regulatory requirement applicable to them.
The Company will not be liable for any good not complying with the warranties in clause 25 where:
the defect arises because the Customer failed to follow our instructions about storing, or using the goods or (if there are none) good practice;
the defect arises because of wilful damage, negligence, incorrect installation (by anyone other than us), theft, loss, accidental damage or abnormal storage or working conditions.
The Customer undertakes that with the exception of Diesel and Petrol the goods as ordered will not be used as fuel in mechanically propelled vehicles constructed or adapted for use on roads in contravention of the Hydrocarbon Oil Duties Act 1979 and/or any amending or replacing legislation.
LIMITATIONS ON LIABILITY
References to liability in this clause 28 include every kind of liability arising under or in connection with these terms and conditions and any use or resale by the Customer of the goods including liability in contract, tort (including negligence) or otherwise.
Nothing in this clause excludes or limits any liability of the Company for any matter which cannot legally be limited or excluded including liability for death or personal injury caused by negligence; fraud or fraudulent misrepresentation; or breach of the terms implied by section 12 of the Sale of Goods Act 1979 or any rights the Customer may have as a consumer.
Subject to clause 28b, if the Customer is a consumer customer, the Company shall be liable for losses suffered by the Customer where the Company has broken its contract with the Customer, unless such loss is:
Unexpected: It was not obvious that it would happen and nothing said by the Customer to the Company before the order was accepted meant the Company should have expected it (so, in the law, the loss was unforeseeable).
Caused by a delaying event outside the Company’s control (as long as the Company has taken steps to notify the Customer of the delay as required by this Contract).
Avoidable by the Customer; or
A business loss (the Company’s liability for any loss suffered by a consumer Customer in connection with any trade, business, craft or profession is excluded).
Subject to clause 28b, if the Customer is a business customer, the Company shall have no liability to the Customer for:
any loss of profit or anticipated saving, loss of sales or business, loss of agreements or contracts, loss of or damage to goodwill in each case whether direct or indirect;
any indirect or consequential loss.
Subject to clauses 28b, and d, if the Customer is a business customer, the Company’s total liability to the Customer in respect of each order of the goods or in connection with any goods supplied under any such order shall not exceed the sum paid by the Customer under the invoice relating to that order.
DIRECT DEBIT DUE DATES:
When the due date falls on a Sunday, a Direct Debit will be collected on the Monday following. When the due day falls on the Saturday, the Direct Debit will be collected on the previous Friday. In the case of a bank holiday which falls on a Monday, the Direct Debit will be collected on the next business day. For Bank Holidays which fall on any other day of the week the Direct Debit will be collected on the previous business day.
TERMS OF PAYMENT
The Company reserves the right to require payment before delivery and, if not so required, then in accordance with the arrangements agreed by the Company in the original on-boarding email supplied to the Customer, but in the absence of specific arrangements being agreed in the original on-boarding email payment shall be made on the day following delivery. If the Customer is a business customer, the Company reserves the right to change the Customer payment terms at any time on written notice to the Customer and any subsequent order from the Customer after notification of any change in the payment terms will be subject to such revised payment terms.
In the event of the Customer failing to make payment to the Company on the due date, the Customer will pay interest on the overdue sum at the rate of 4% per annum above the base rate for the time being of HSBC Bank PLC such interest to accrue on a daily basis until payment is made.
Customers will be liable to pay any costs incurred by the Company in connection with any action taken to recover any sums not paid on the due date.
DATA PROTECTION ACT 2018
To the extent that the Customer provides the Company with any personal data (“personal data”) in connection with any order and/or any contract to be entered into between the Customer and the Company (including any credit application) the Customer warrants and represents that all such personal data provided will be true and accurate in all material respects and that it has all required authority and consent to pass such personal data to the Company for the purposes for which it is to be processed by the Company. The Company will hold any personal data received from the Customer securely in confidence and process such personal data for the purposes required in connection with any order, contract or application made by the Customer and for any additional activities, arrangements or purposes notified to the Customer and/or to which the Customer has consented. The Customer acknowledges that in considering any credit application, the Company may consult with and disclose the personal data to credit reference agencies, and other third parties outside its business (“third parties”), and that Customer personal data will be passed to such third parties in order that such third parties may process the Customer personal data in connection with any such application.
DEFAULT OR INSOLVENCY OF THE CUSTOMER
If the Customer is a business customer, if the Customer makes default in, or commits any breach of, any of its obligations under these terms and conditions or fails to pay any amount due on the due date or if any distress or execution is levied upon it, its property or assets or if it makes or offers to make any arrangements or composition with its creditors, any act of bankruptcy, or if any petition or receiving order in bankruptcy is presented or made against it or in the event of the Customer being a limited Company, any resolution or petition to wind up the Customer is passed or presented (otherwise than for purposes of a solvent reconstruction or amalgamation) or if a receiver of the Customer’s undertaking, property or assets or any part thereof is appointed, or if the Customer enters administration or obtains a moratorium or ceases to carry on business or, if the Customer suspends, or threatens to suspend, or ceases or threatens to cease or carry on all or a substantial part of its business, or if the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these terms and conditions is in jeopardy then the Company shall (without prejudice to any claim or right the Company might otherwise make or exercise) have the right forthwith to determine any contract with the Customer by summary notice and all amounts payable by the Customer to the Company under any contract whatsoever shall become due and payable immediately, notwithstanding any terms of credit agreement entered into between the Customer and the Company or any credit terms shown on the face of any invoice.
If the Customer is a consumer, the Company reserves the right to cancel any order accepted by it if (a) the Customer fails to pay for the goods in full when due (b) the Customer fails to comply with any other terms that apply (c) the Customer fails to give the Company any information it needs to process the order (d) the Company suspects the Customer’s order is fraudulent or illegal for any other reason.
TITLE AND RISK
If the Customer is a business customer:
title in all goods delivered to the Customer by the Company remains with the Company and the Company shall remain legal and equitable owner of them until such time as the Customer has paid to the Company the agreed price for those goods together with the full price due for any other goods the subject of any other contract between the Customer and the Company together with any interest due for late payment or, if earlier, until the Customer resells the goods.
Until such time as the Customer becomes the owner of the goods it will store them on its premises on a fiduciary basis as the Company’s baliee and will maintain the goods in satisfactory condition and keep them insured.
The Customer shall have the right to sell the goods in the ordinary course of business at full market value as principal and not as the Company’s agent and title to such goods shall pass to the Customer immediately before such resale.
At any time before title in the goods passes to the Customer the Company may by notice to the Customer:
terminate the Customer’s right to resell the goods or use them in the ordinary course of its business;
require the Customer to deliver up the goods in its possession and control which have not been resold and if the Customer fails to do so promptly the Customer agrees that the Company may, for the purposes of recovery of its goods, enter upon any premises where those goods are stored or where they are reasonably thought to be stored and may repossess the same.
If the Customer is a consumer, title in the goods shall pass to the Customer once the Customer has paid for the goods in full.
Notwithstanding that title shall not pass save as above, risk in the goods passes to the Customer at the time of delivery. Goods delivered by tanker delivery will be deemed to have taken place when the goods pass from the Company’s tanker discharging hose or coupling. Delivery of other goods will be deemed to have taken place following unloading of the goods from the Company delivery vehicle in circumstances where the Company unloads the goods at the Customer premises and on arrival of the Company delivery vehicle at the Customer premises in circumstances where the Customer unloads the goods from the Company delivery vehicle.
GENERAL PROVISIONS
Any notice to be given under these terms and conditions shall be given in writing and delivered by hand or first-class post. If delivered to the Company the notice shall be addressed to the registered office of the Company and for the attention of the Accounts Department if to be delivered to the Customer the notice shall be addressed to the address of the Company on any order received from the customer or at the delivery address if no other address is given.
If any provision of these terms and conditions is found by any court or other body to be illegal, invalid or unenforceable it will be deemed deleted but this will not affect the validity and enforceability of the remaining provisions of these terms and conditions. If any provision or part-provision is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
These terms and conditions constitute the entire agreement between the parties.
The Company may assign, transfer sub-contract, delegate or deal in any other manner with its rights and obligations under this contract.
No variation of these terms and conditions shall be effective unless it is in writing and signed by the Company.
English Law shall govern this contract and all disputes shall be dealt with exclusively by the English Courts alone.
