STANDARD TERMS AND CONDITIONS OF SALE
1.0 Defined Terms
1.1 In these Conditions of Sale the following words and phrases have the following meanings:
means the person who has agreed under the Contract to buy the Product;
means these Conditions of Sale;
means the Contract consisting of the Buyer's order and the Seller's acceptance of the order whether written or oral;
means the Seller’s commercial and domestic fuels product which is to be sold and bought under the Contract the quantity and specification of which are as stated in the Contract. In these Conditions, “Product” may mean any part of the Product if appropriate in the context;
means Gleaner Limited (Company Number SC030017) whose registered office is at Milnfield, Ashgrove Road, Elgin, Moray IV30 1UU.
2.0 Purchase and sale
The Contract incorporates these Conditions. The Product is sold by the Seller and bought by the Buyer on the terms stated in these Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation order, specification or other document). If anything in the Contract is inconsistent with these Conditions then these Conditions prevail.
The quantity and description of the Product is as specified by the Seller when it accepts the Buyer’s order.
4.1 The price payable by the Buyer to the Seller for the Product is the price stated in the Contract or, where no price is stated in the Contract, the Seller's price list current at the date of acceptance of the Buyer’s order. The price includes the cost of delivery of the Product.
4.2 The price is stated exclusive of any value added tax (“VAT”) which may be payable by the Buyer in addition. The price includes excise duty where such duty is payable. The Seller will supply the Buyer with a VAT invoice, as appropriate..
5.1 The Seller will arrange for delivery of the Product to an address agreed with the Buyer.
5.2 The Seller will use commercially reasonable efforts to meet any quoted date of delivery. However, the Seller will not be liable for any loss, costs or expense suffered by the Buyer by reason of any delay in delivery.
5.3 The Buyer must not interfere with or otherwise board any vehicle used by the Seller in delivering the Product. The Seller will have no liability to the Buyer for any loss or damage incurred as a direct or indirect consequence of any breach of this Condition by the Buyer.
6.1 The Seller will measure the quantity of any delivery of Product using its own measuring devices when it dispatches an order from its place of business or, if appropriate, when it delivers Product in bulk into the Buyer’s storage vessel. This measurement is conclusive evidence of the quantity received by the Buyer on delivery to the exclusion of any measuring devices used by the Buyer.
6.2 The Seller will have no liability for any non-delivery of Product (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within 5 days of the date when the Product would in the ordinary course of events have been received.
6.3 Any liability of the Seller for non-delivery of Product shall be limited to replacing Product within a reasonable time or issuing a credit note at the applicable price against any invoice raised by the Seller for such Product.
7.1 Unless otherwise agreed, the Buyer must pay the price and any applicable VAT and any costs or charges for which the Buyer is liable under the Contract by Direct Debit on the Tenth day of the month following the date of the Seller's invoice.
7.2 Payment of the price must be made in Pounds Sterling. Payment will only be treated as having been made once the Seller has received cleared funds.
7.3 The Seller may issue its invoice to the Buyer on or at any time after it has made arrangements for delivery of the Product.
7.4 All payments due by the Buyer under the Contract must be made in full on the due date without any deduction, set-off, counterclaim, discount, delay, compensation or other retention.
7.5 If any invoice due by the Buyer is not paid within the time limit set in Condition 7.1, or the Buyer fails for any reason to accept delivery of the Product then:
7.5.1 interest will accrue on the sum invoiced day by day from the due date until the date of payment at 4 per cent above the Bank of England official base rate, from time to time, compounded monthly, whether before or after any judgment. The Seller nevertheless also reserves its right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
7.5.2 the Seller may suspend performance on the Contract and under any other Contract between the Seller and the Buyer (but without affecting the Buyer's obligations under); and
7.5.3 the Seller may resell or otherwise deal with or dispose of the Product for its own account in such manner as the Seller may think fit.
7.6 The Seller reserves the right to charge to the Buyer all costs, charges or expenses which may be incurred or involved in the collection of any account should the account become overdue for payment.
8.0 Risk and Lien
8.1 The risk of any loss or destruction of or of any damage to the Product shall pass to the Buyer when the Seller delivers the Product to the Buyer’s premises.
8.2 In the case of bulk Product, delivery is deemed to have occurred when the Product passes the hose connection or fill line of the storage vessel used by the Buyer to store the Product. In all other cases, delivery is deemed to have occurred when the container in which the Product is stored is physically deposited on the Buyer’s premises.
9.1 Although the Product may have been delivered and risk in the Product may have passed to the Buyer, title and ownership in the Product remains with the Seller and passes to the Buyer only when the Seller has received in cash or cleared funds the full price for the Product and payment of any other sums then due by the Buyer to the Seller under the Contract.
9.2 Until title and ownership in the Product does pass to the Buyer then the Buyer:
9.2.1 holds the Product on a fiduciary basis for the Seller;
9.2.2 must store or keep the Product separate from its own products and the products of third parties;
9.2.3 ensure that the Product is kept safe, secure and maintained in satisfactory condition; and
9.2.4 keep the Product insured against loss or damage on the Seller’s behalf and against all normal and usual commercial risks to the full replacement value; and the Buyer undertakes to hold any proceeds of such insurance and all rights to obtain payments under such insurance in trust for the Seller.
9.3 The requirements in the Condition above do not affect the Buyer's right to re-sell the Product in the ordinary course of business.
9.4 For as long as the Product has not been re-sold by the Buyer in the ordinary course of business and title in the Product has not passed to the Buyer, the Seller, its employees or agents may at any time re-take possession of the Product in such way as it thinks fit, including entering any premises of the Buyer where the Product is located to remove it.
9.5 The Buyer may resell the Product before ownership has passed to it solely on the following Conditions:
9.5.1 any sale may only be effected in the ordinary course of the Buyer’s business at full market value with the consent of the Seller; and
9.5.2 any such sale is deemed a sale of the Seller’s property on the Buyer’s own behalf and the Buyer is treated as dealing as principal when making such a sale.
9.6 Subject to Condition 9.4, in the event of a sale or disposal of the Product by the Buyer prior to the payment in full of the price, the Buyer is trustee in respect of the proceeds of such sale or disposal, including insurance proceeds and must keep such proceeds separate from any monies or property of the Buyer and third parties, must hold such proceeds in a fiduciary capacity for the Seller and account to the Seller for them.
9.7 No Product will be supplied by the Seller to the Buyer on a sale or return basis. Nothing in these Conditions entitles the Buyer to return the Product.
9.8 The Buyer’s right to possession of the Product shall terminate immediately if:
9.8.1 the Buyer (being an individual, or in the case of the Buyer being a partnership or a limited liability partnership incorporated under the Limited Liability Partnerships Act 2000, then any individual partner, individual member or individual designated member) has entered into sequestration, has signed a trust deed for the benefit of his creditors or has agreed an arrangement or composition with his creditors or becomes apparently insolvent, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part of it, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
9.8.2 the Buyer suffers or allows any diligence, execution or distress to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/her obligations under the Contract or any other Contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade.
9.9 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Product is or may be stored in order to inspect it, or, where the Buyer’s right to possession has terminated, to recover it.
10.0 Product Storage and Use
10.1 Where the Seller delivers in bulk it is the Buyer’s responsibility a) to provide a safe and suitable bulk storage which complies in all respects with all applicable legislative or regulatory requirements, b) to ensure that the storage vessel into which delivery is to be made will accommodate the full quantity ordered and in the case of Motor Spirit to procure certification to this effect and also to the effect that the connecting hose is properly and securely in force relating to the storage and use of Motor Spirit, and c) in the case of highly flammable products and where otherwise applicable, strictly to comply with any applicable laws or regulations with respect to the avoidance of smoking, use of mobile phones, naked lights, fires, stoves and heating appliances of any description in the vicinity of the storage and the fill, dip and vent pipes connected to it.
10.2 The Buyer undertakes that Kerosene, Gas Oil and Fuel Oils will not be used as fuel in mechanically propelled vehicles constructed and adapted for the use on roads in contravention of Hydrocarbon Oil Duties Act 1979 and/or amending legislation. The Buyer undertakes that Lubricating Oils will not be used as heating fuel, motor fuel or as additive or extended to motor fuel.
11.0 Warranties and liability
11.1 On the terms set out in this Condition, the Seller warrants to the Buyer that the Product shall, at the time when the Buyer delivers it be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
11.2 Subject to the overriding terms of Conditions 11.3, 11.4, 11.5 and 11.6, if the Product does not conform with the warranty in Condition 11.1, the Seller shall refund the price of such Product; provided that if the Seller so requests and if reasonably practicable, the Buyer shall, at the Seller’s expense, return the Product which is defective, to the Seller.
11.3 Subject to Conditions 11.5 and 11.6: -
11.3.1 the Seller’s total liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the full Contract price payable by the Buyer to the Seller under the Contract; and
11.3.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, loss of revenue, loss of opportunity, loss of turnover, loss of expenditure, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.4 The rights conferred on the Buyer by this Condition 11 are exhaustive of the Buyer's rights in relation to defects in the Product or any failure to comply with any specification or sample. Except in relation to the Seller’s liability for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability, the Seller shall have no liability to the Buyer for any representation or any implied term as to the fitness of the Product for any purpose, compliance with any sample, satisfactory quality or otherwise and all warranties, conditions or representations implied by law are hereby expressly excluded from the Contract to the fullest extent permitted by law.
11.5 Nothing in this Condition 11 shall affect the Buyer's statutory rights if the Buyer is a consumer.
11.6 The Seller shall have no liability to the Buyer if any breach of Contract by the Seller is due to any circumstances beyond its reasonable control.
Any credit given by the Seller to the Buyer may be withdrawn or limited at any time by the Seller on such notice as the Seller may think fit and the Seller may refuse to deliver all or part of the Product other than against due payment of the price in accordance with any Contract to which these Conditions apply. The Seller will not give any credit for returned Product (irrespective of the reason for their return) unless the return has previously been agreed by an authorised officer of the Seller.
The Buyer indemnifies the Seller on a full indemnity basis against all losses, costs, claims, demands, expenses and liabilities of whatsoever nature made by third parties, or sustained, suffered or incurred by the Seller and caused in whole or in part or arising out of any act, omission or negligence of the Buyer in connection with the use, storage or shortage of the Product (including, without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and all other professional fees and expenses).
14.1 Without prejudice to any rights it may have under any law to terminate the Contract and without prejudice to rights it may have for damages or compensation in respect of any breach of this Contract, the Seller may terminate the Contract by notice to the Buyer if:
14.1.1 the Buyer fails to make any payment due under the Contract on the due date or otherwise breaches or fails to perform any obligation of the Contract to be performed by it;
14.1.2 the Buyer suffers any diligence to be levied on its assets which is not discharged within 14 days;
14.1.3 the Buyer commits any act of bankruptcy or compounds or makes any arrangements with his creditors or a trustee in sequestration is appointed or the Buyer signs a trust deed for the benefit of his creditors or the Buyer becomes apparently insolvent, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
14.1.4 the Buyer becomes apparently insolvent, convenes a meeting of creditors, or enters into liquidation except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed in respect of its undertaking or any part of it, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
14.1.5 the Buyer ceases to trade; and/or
14.1.6 the Buyer fails to take delivery of any of Product within the period stipulated in the Contract.
14.2 The Buyer may not cancel the Contract, unless the Seller agrees upon the Buyer first indemnifying the Seller against any loss, damage or expense (including loss of profit) which the Seller may suffer or incur as a result of the cancellation.
15.1 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer is not a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.2 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
15.3 If any provision of the Contract or these Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. If any provision of the Contract or these Conditionsis found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
15.4 The Contract and these Conditions, and any documents referred to within the Contract and the Conditions, constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of the Contract and these Conditions.
15.5 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.0 Governing Law and Jurisdiction
The Contract is governed by Scots Law and the Buyer and Seller submit to the non-exclusive jurisdiction of the Scottish Courts.
© Gleaner Limited – Standard Terms and Conditions of Sale 2019