TERMS & CONDITIONS OF SALE (“Conditions”) TO BUSINESS CUSTOMERS
These Conditions form the basis of the Contract that will govern our dealings with you. They apply to the supply of Goods (and Services) to Business Customers (as defined). The latest version of these Conditions may be obtained at any time from our website (www.certasenergy.co.uk/terms-conditions) or by contacting your local depot – if we make any substantial changes to these terms these may be flagged on your delivery note and so you should check the reverse of your delivery notes regularly.
We draw your attention in particular to Condition 6 - Payment Arrangements, Condition 8 - Liability and Responsibility, Condition 10 - Limits of Liability, Condition 12 - Cancellation and Returns, Condition 14 - Top Up or Planned Delivery Service (and how we charge for this service) and Condition 16 - Boiler Maintenance Services.
1. Definitions and Interpretation
1.1 The following definitions, unless the context requires otherwise, apply to these Conditions:
“you” or “your”: the person, company or other type of organisation that enters into a Contract to purchase Goods (and Services) from us (and who will be a Business Customer);
“we”, “us” or “our”: Certas Energy UK Limited (Company No: 4168225) of 302 Bridgewater Place, Birchwood Park, Warrington, Cheshire WA3 6XG or any brand or trading division of, or any company which is controlled by or under common control with, Certas Energy UK Limited that is to supply the Goods (and/or Services) to you under a Contract;
“Additional Charge(s)”: means any one or more (as appropriate) of the Small Load Premium, late payment surcharge, priority charge, card processing charges or Failed Delivery Charges as described in Conditions 6.4 to 6.8;
“Aviation Fuel Supply”: refers to the supply of Goods and/or Services by us to a person supplying fuels designated for use in the aviation industry;
“Business Customer”: any customer that is ordering or receiving Goods (and Services) whilst acting in thecourse of his trade, business, craft or profession;
“Charges”: has the meaning set out in Condition 6.1 (or, in respect of the Planned Delivery Services, Conditions 14.7 and 14.9);
“Conditions”: means these Terms & Conditions of Sale;
“Contract”: contract under which we will supply Goods (and Services) to you pursuant to, in accordance with and subject to the Conditions and any Relevant Agreement;
“Goods”: any goods that we agree in a Contract to supply to you;
“Good Industry Practice”: the exercise of such high degree of skill and care as would reasonably be expected from an appropriately skilled and experienced person with expertise in the relevant area, including the handling of and dealing with goods the same as or similar to the Goods;
“Insolvent”: you are unable to pay your debts as they fall due or you are, or become, the subject of any
insolvency procedure (for example, without limitation, receivership, liquidation, administration, voluntary
arrangements (including moratorium) and bankruptcy) or any application or proposal for an insolvency procedure;
“Relevant Agreement”: additional terms, conditions and/or specifications that apply to the Contract, whether by variation under Condition 2.2 or under a separate agreement which we have entered into with you (and which incorporates these Conditions by reference);
“Retail Supply” refers to the supply of Goods and/or Services by us to a retail petrol station; and
“Services”: means: (i) the delivery of the Goods by us (or a third party on our behalf) to you; (ii) making the Goods available to you for collection; (iii) the Planned Delivery Services (as defined in Condition 14); (iv) the Maintenance Services (as defined in Condition 16), and/or (v) such other services as we may agree in a Contract to provide to you from time to time, as appropriate.
1.2 In these Conditions: references to the singular include the plural and vice versa; reference to one gender is to any gender; reference to a statute or statutory instrument is to as it is in force for the time being and includes any amendment, extension, application or re-enactment and any subordinate legislation made under it; headings do not affect the interpretation of these Conditions; and the term “including” shall be construed without implying limitation (and variants of “including” shall be interpreted accordingly).
2. Application of Terms and Contract Process
2.1 Subject to Conditions 2.2 and 2.3, these Conditions apply to all Contracts and set out the whole agreement between you and us to the exclusion of all other terms and conditions. Any terms or conditions which you put forward (whether endorsed on, delivered with or contained in your purchase order(s) or included in any other documents) do not form part of any Contract and any attempt by you to exclude, vary or limit any of these Conditions shall be void. You must ensure that you read and understand these Conditions because they will govern your dealings with us once a Contract is formed as set out below.
2.2 Any variation to these Conditions, and any representation about the Goods and/or Services, shall have no effect and shall not form part of the Contract unless agreed in writing by us, acting through one of our authorised employees (which do not include any of our telephone sales staff). If you have any particular requirements then you must make them clear at the time you place your order and if (at our discretion) we agree to meet those requirements then we will provide you with confirmation in writing.
2.3 We have entered into a Relevant Agreement with you (which will generally be the case in relation to any Aviation Fuel Supply and/or Retail Supply) then, if there is any conflict between the terms of that Relevant Agreement (including any pricing terms) and these Conditions, the terms in the Relevant Agreement shall apply.
2.4 Subject to Condition 2.5, we may provide you with a quotation for the Goods (and the related Services) in person, by phone or in writing (including by email). A quotation so provided is valid only on the same day as it is communicated to you, provided that we do not withdraw it (which we are free to do at any time). Where we quote a price for the Goods we shall provide you with both a price per litre which excludes VAT (the “Unit Price”) and an aggregate price which includes VAT for the volume of Goods that you wish to order (the “Net Price”). The Unit Price is intended to assist you in making comparisons between different suppliers and to provide an indication as to what we may invoice you should you subsequently take more or less than the volume of Goods which you ordered. Unless we expressly state otherwise, the Unit Price includes the costs of providing the related Services (subject always to any Priority Charges which may apply, as described in Condition 6.6). If you are a Planned Delivery Services customer please refer to Condition 14 (and in particular 14.9 for pricing information. If you are a Maintenance Services customer please refer to Condition 16 (and in particular Condition 16.14) for pricing information.
2.5 If we agree an alternative pricing formula with you in respect of the Goods then we shall apply that formula to the volumes of Goods delivered whilst that formula remains in effect so as to determine the relevant Net Price for each delivery.
2.6 If you place an order with us (pursuant to a quotation or otherwise) then that order is an offer from you to us to enter into a Contract which we are free to either accept or reject at our discretion. A Contract is formed (and these Conditions become binding on you) when we either: (a) confirm to you (either orally or in writing) that we have accepted your order or (b) commence performance of the Services, whichever is the earlier. Each order which you place and which is accepted by us shall form a separate Contract between us.
3.1 The description of the Goods (and Services) shall be as set out in our quotation and/or delivery documentation. If you have any general comments or queries regarding the Goods (and/or Services) then you must raise these issues when placing your order. Our sales personnel are not consultants and are not able to provide you with technical advice as to particular products or performance issues and so if you have any specific or technical queries then you should address them to us in writing (any response we might provide to such queries will be given only to the best of our knowledge and belief and without any liability on our part). All other descriptions, specifications and illustrations which we issue or which are contained in our brochures, website(s) or other materials are approximations and for information purposes only and you should not rely upon the same.
3.2 We may, at any time and without notice to you: (i) change any of the advertising or product information materials referred to in Condition 3.1; (ii) make changes to the specification of the Goods that we believe are necessary to ensure that they conform to any applicable safety or statutory requirements; and/or (iii) make minor modifications to the specification of the Goods that we consider necessary or desirable (and which should not have any material adverse effect on the performance of the Goods).
4.1 Unless otherwise agreed in writing, we will deliver the Goods to you at your premises or (if different) the address which you have specified for delivery at the time of quotation.
4.2 Delivery of the Goods (and performance of the Services (other than the Maintenance Services)) will be deemed to have taken place as follows:
(a) for Goods delivered in bulk by road vehicle, when on discharge it passes the hose connection of the storage tank, container, receptacle, vessel or fill line (as the case may be) which you have provided for receiving delivery;
(b) for Goods delivered in barrels, packages or some other form, when the Goods are off-loaded from the delivery vehicle (or at such point as the Goods are collected by you); or
(c) for Goods collected by you from us, when the relevant Goods pass through the meter of the loading arm of our loading gantry.
4.3 We will take reasonable steps to deliver the Goods by the date specified at the time of quotation or, if none is specified, within a reasonable period of time. However, any delivery dates are estimates only and we cannot guarantee that the Goods will be delivered on or by any particular date or time. Please be aware that our business is subject to marked seasonal fluctuations in demand and that during the winter months in particular we can be subject to the twin pressures of markedly increased demand and poor driving conditions so that you must allow extra time for deliveries and factor this into the orders which you place.
4.4 We may deliver the Goods (and perform the Services) in one or more separate instalments. If we choose to deliver in instalments for operational reasons then we will not charge you extra delivery costs for this. Each instalment will be invoiced and must be paid for separately and in accordance with the provisions of the Contract. Each separate instalment shall be a separate Contract. If there is an issue with one instalment and you are entitled to cancel the same then that will not entitle you to cancel any other Contract or instalment.
4.5 You must in respect of each delivery of the Goods:
(a) ensure that all necessary arrangements are put in place for the safe acceptance of each delivery including (without limitation) providing adequate and appropriate equipment for accepting delivery, ensuring delivery and storage access is clear and available (noting that delivery vehicles are both larger and heavier than private cars) and ensuring that sufficient storage capacity is available, is safe and suitable for the Goods, is clearly marked with product name (grade), safe working capacity and identification number, is provided with a safe means to check volume in tank before and during delivery and complies with any and all applicable laws and regulations;
(b) not mount any vehicle used by us (or on our behalf) for the delivery of the Goods and we may stop the relevant delivery if you attempt to do so;
(c) indicate to us the correct fill point in respect of your tanks (and note that we are not responsible for dipping, checking or testing your tank(s));
(d) in the case of motor spirit, (i) ensure that you are properly licensed by the appropriate local authority to store motor spirit; (ii) ensure that the connecting hose is properly and securely connected to the filling point; and (iii) observe all the conditions of your Petroleum Spirit Storage Licence (if any) and not allow any smoking, naked lights, fires, stoves, or heating appliances of any description in the vicinity of the storage and the fill dip and vent pipes connected to it;
(e) inspect and check (to the extent reasonably practicable) the Goods to ensure that they conform to the Contract and ensure that your authorised representative signs a delivery note (or equivalent documentation provided by our delivery agent) to confirm the Goods are as ordered and
(f) raise any issues regarding the safety or suitability of your storage facilities and/or tank before we commence delivery (ensuring that any out of service equipment is clearly marked and isolated);
(g) in any event, act sensibly and with all due care and caution in relation to the Goods (and receipt of the Services), acknowledging that there are health and safety issues inherent in receiving and storing the Goods, which if handled incorrectly can be dangerous. If you are collecting the Goods from us then you must ensure that you comply with our policies and procedures regarding access to, and conduct at, our premises; and
(h) where the Carriage of Dangerous Goods and Use of Transportable Equipment Regulations 2009/1348 and/or any regulations amending or replacing the same apply, ensure that such regulations are complied with before and during delivery.
4.6 Please note that where we are delivering highly flammable Goods or other similar Goods to you it is important (for your safety and for the safety of our staff making the deliveries) that you are aware of and are complying with any and all applicable laws and regulations in relation to the health and safety risks associated with such goods. If you are unsure as to the obligations referred to above regarding the safe storage and receipt of the Goods then it is your responsibility to raise these concerns with the health and safety department at your local council who should provide you with the information you require. Please note the health and safety information printed on your delivery note. If we believe that it would be unsafe to make a delivery of Goods to you then we may suspend the relevant delivery unless or until we are satisfied (acting reasonably) that it would be safe for us to proceed.
4.7 We shall record the delivery date, quantity and description of the Goods delivered (and Services provided) to you, and such records shall, in the absence of evidence to the contrary, be deemed to be conclusive proof as to the date of delivery and the volume and type of Goods delivered (and Services performed). If you believe that the information which we have recorded, and which is set out on your delivery notice or invoice, is incorrect then you must notify us in writing providing full details of any disputed element(s) as soon as is reasonably practicable and, in any event within 7 days of the date of receipt of the relevant delivery note or invoice.
4.8 We will invoice you for the volume of Goods actually delivered (as determined in accordance with Condition 4.7), provided that we will not (without your prior consent) deliver more Goods than the ordered volume. We will always try to deliver the agreed volume of Goods, but if we are unable to do so (for example, if we find on delivery that: we are unable to safely access the tank; we deem the tank to be unsafe; or there is less space available in your tank than the ordered volume of Goods) and you have paid for the ordered Goods in advance then we will refund (on a pro rata basis utilising the Unit Price) a sum to you to reflect the lower volume of Goods actually delivered (though, unless the failure to deliver the ordered volume was caused by our default, any Priority Charge or other specified call-out charge(s) shall apply as quoted as these are charged on a ‘per delivery’ basis). For the avoidance of doubt, where a second delivery is required to fulfil the original order, a Priority Charge may be payable (where urgent delivery is requested in accordance with Condition 6.6) unless the failure to deliver the ordered volume at the initial delivery was caused by our default.
4.9 If for any reason (other than our failure to comply with these Conditions): (i) you fail to accept delivery of any of the Goods when they are ready to be delivered; (ii) you fail to collect the Goods when they are ready for collection; (iii) you wish to delay delivery, or (iv) we are unable to deliver the Goods because of some act or omission on your part then:
(a) we shall have no liability to you for late delivery;
(b) we may store the Goods until actual delivery, and you will be liable to pay a reasonable sum for all related costs and expenses (including, storage, insurance and re-delivery costs) that we may incur; and/or
(c) we may deliver the relevant Goods to another customer which may mean that our ability to subsequently deliver replacement Goods to you may be delayed.
4.10 If you become aware that the wrong or defective Goods have been delivered then you must stop using those Goods with immediate effect and notify us as soon as practicable regarding the same. We will contact you to arrange collection of the goods or to reach an alternative agreed solution appropriate to the circumstances.
4.11 Following receipt of a notice from you in accordance with Condition 4.10, we shall, either (i) remove the relevant Goods and replace them with the correct Goods, or (ii) issue a credit note or refund to you in respect of the relevant Goods applying the Unit Price. We shall determine which option is to be taken, and our liability to you in respect of that Contract shall be limited to our undertaking our chosen option.
4.12 Subject to Condition 4.9, if we fail to deliver the Goods by any agreed delivery date, or if no date has been agreed, within a reasonable time frame, then you may call us and cancel your Contract provided that if you do cancel the Contract in this manner then (in the absence of any default on our part) you shall have no claim against us under that Contract in respect of any failure to deliver.
5. Risk and Title
5.1 You shall be responsible for the Goods from the time of delivery. Ownership of the Goods shall pass to you when we receive (in cash or cleared funds) payment in full of all sums due for the Goods.
5.2 Until ownership of the Goods passes, you shall:
(a) store the Goods (at your own cost) in accordance with these Conditions, Good Industry Practice and any applicable laws and regulations;
(b) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition, keep them insured on our behalf for their full price against all risks for which a prudent owner would insure them and provide us with a copy of the insurance policy on request; and
(d) deliver up the Goods to us promptly on demand.
5.3 You may resell the Goods before ownership has passed to you if such sale is a sale of the relevant Goods on your own behalf dealing as principal in the ordinary course of your business at full market value.
5.4 Your right to possession of the Goods shall terminate immediately if you:
(a) become Insolvent;
(b) suffer or allow any execution (legal or equitable) to be levied on your property or to be obtained against it;
(c) suspend, cease or threaten to cease to carry on all or substantially the whole of your business; or
(d) any event or procedure is taken, with respect to you, in any jurisdiction to which you are subject that has a similar or equivalent effect to any of the events listed above, and you shall immediately notify us if any of the events set out in this Condition 5.4 occur (or are likely to occur).
5.5 We are entitled to recover payment for the Goods in accordance with these Conditions notwithstanding the fact that ownership of the Goods may not have passed to you at that time.
5.6 You hereby grant us, our agents and employees an irrevocable licence to access and enter any premises to which the Goods are to be delivered and to where the Goods may be stored at any time to inspect them or (where your right to possession has ended) to recover them.
5.7 If any of the events listed in Condition 5.4 occur before title to the Goods passes to you or if we reasonably believe any such event is about to occur and we notify you accordingly then, in respect of the Goods which remain in your possession, you will deliver up the Goods to us upon request and/or we may exercise our rights under Condition 5.6.
5.8 If we repossess any Goods or you deliver up any Goods, in accordance with these Conditions, the Contract(s) in respect of those Goods shall be cancelled.
6.1 Unless otherwise agreed in writing (including pursuant to any Relevant Agreement) and subject to the remaining terms of this Condition 6, the amount we will charge you for the Goods (and Services) we provide (the “Charges”) shall be the Net Price stated in our quotation or otherwise provided by us to you in accordance with Condition 2. Unless otherwise agreed, the Unit Price and Net Price will include the costs of delivery (subject to Condition 6.6 where appropriate). The Unit Price given will be exclusive of VAT and the Net Price will be inclusive of VAT. The Charges are exclusive of any Additional Charges which may apply. As noted above, if you are a Planned Delivery Services customer, please refer to Condition 14 (and in particular Condition 14.9) for pricing information and if you are a Maintenance Services customer, please refer to Condition 16 (and in particular Condition 16.14) for pricing information.
6.2 The Unit Price, and resulting Net Price, are each based on the cost of materials, labour, sub-contracts, transport, exchange rates, the volume of Goods ordered, taxes and duties, levies and all other relevant costs, together with our margin as at the date the prices are communicated to you.
6.3 You acknowledge that the Goods are a commodity product and as such the price at which we are able to source the Goods and certain associated costs (such as transport) are subject to a
considerable degree of fluctuation, often over very short timescales. We therefore reserve the right to vary the Unit Price (and the resulting Net Price), by giving notice to you (which may be given in writing, by email, telephone or SMS) at any time prior to delivery, to take account of any variation (howsoever arising) in these costs or the imposition or revision of any applicable rates, taxes, duties or levies between the date the prices were provided and the delivery date.
If we revise the Unit Price (and resulting Net Price) pursuant to this Condition 6.3 and as a result of the new Charges which will apply you no longer wish to receive the relevant delivery then you must inform the person undertaking the delivery (or if you are not present when the delivery takes place, promptly within 2 business days of your receipt of the delivery note) that you wish to cancel the Contract. Provided that you give such notice (which may be given in writing, by email, telephone or SMS), and you make available to us any Goods which have been delivered, then we will have an option to either: (i) confirm the Contract at the original Unit Price and invoice you accordingly or (ii) confirm that the Contract is cancelled and remove our Goods at no charge to you (and you must provide us with the necessary access to the relevant Goods to enable us to remove the same). We will invoice you (using the original Unit Price) in respect of any Goods used in the period between your giving a cancellation notice and our collecting the Goods.
6.4 Small Load Premium: one factor we use in calculating the Unit Price is the volume of the Goods which you have ordered. There is a cost to us in fulfilling each order and providing the Services and so if we are unable to deliver the volume which you ordered due to some act or omission on your part (for example, we find there is insufficient capacity in your storage facilities to take the ordered volume) then we may (at our option) include an additional charge set at a reasonable level to cover our costs, this charge being referred to on your invoice as the “Small Load Premium”.
6.5 Late Payment Surcharge: if you fail to pay any Charges in accordance within the timescales set out in Condition 7.1 then by way of compensation to us for the costs we reasonably incur due to your failure to comply with the payment terms we may require you to pay a late payment surcharge. The late payment surcharge will be a reasonable amount to reflect our costs and we may apply this charge automatically if you are late in paying the relevant Charges.
6.6 Priority Charge: if you should require an urgent delivery of Goods then you may request that we undertake a priority delivery of the required Goods. If we are willing and able to make a priority delivery then we will use our best efforts to undertake a delivery to you by the agreed delivery date. This Service is subject to your paying (in addition to the Charges) the relevant Priority Charge quoted to (and accepted by) you at the time you place an order for an urgent delivery. If we are unable to make a delivery by the agreed delivery date then you will not be charged the Priority Charge (or it will be refunded to you if charged in advance).
6.7 Card Processing Charges: If you choose to pay any Charges using a credit card then we reserve the right to charge you a reasonable card processing fee (as detailed on your payment invoice) to cover our costs and the fees we incur from the credit card companies. Any credit card charge will be made clear to you at the time of order. There are no card processing charges in respect of payments made via debit cards.
6.8 Failed Delivery Charge: if we are unable to complete a delivery of the ordered Goods due to some default on your part (including, in circumstances where you fail to cancel an order following the delivery of goods from an alternative supplier) then we may, at our option, charge you a “Failed Delivery Charge” which will be a reasonable reflection of the cost to us in seeking to fulfil your order.
7.1 Unless otherwise notified to you, you will pay each of our invoices (in respect of the relevant Charges and any Additional Charges) within 25 days of the date of the invoice. However, we may require you to pay the Charges in advance at the time you place the relevant order (and any Additional Charges in accordance with the payment terms set out in this Condition).
7.2 If we require (further) security from you in connection with the performance and discharge of your obligations under any Contract or for any other reason we consider reasonable then you will use your best endeavours to ensure that any additional security we require (including a third party guarantee) is promptly provided.
7.3 We shall be deemed to have received payment under the Contract only on receipt of cash or cleared funds from you. All sums properly due and payable to us under a Contract shall become due immediately upon its termination.
7.4 You shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise (except as may be required by court order).
7.5 Without limiting any other rights or remedies we may have, if you do not pay us on time (and/or if any of the events in Condition 5.4 occur), we may do all or any of the following:
(a) cancel or suspend the Contract (and any other Contracts we have with you) and/or any outstanding
(b) cancel any discount we previously offered to you under the Contract;
(c) without notice suspend or cancel delivery of the Goods (and/ or performance of the Services) under the Contract, and any other Contract, until you pay the outstanding amounts in full; and/or
(d) charge interest on the outstanding amount, calculated on a daily basis from the due date for payment up to the date of actual payment. You must pay us this interest together with the overdue amount. The rate of interest shall be determined in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
8. Your Liability to Us and Our Liability to You
8.1 You shall be liable to pay us (on written demand) for, and indemnify us against, all reasonable costs and expenses and/or losses sustained or incurred by us (including any direct, indirect or consequential losses, loss of profit or reputation, damage to property, loss of opportunity to deploy resources elsewhere, and legal costs) which arise in connection with your fraud, negligence or a material breach of the Contract.
9.1 We warrant that the Services will be performed with reasonable skill and care and that the Goods are free from material defect at the time of delivery and unless otherwise agreed in writing we give no other warranty in respect of the Goods or Services and all warranties, conditions and other terms implied by statute or common law (save for the condition implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
9.2 Without limiting Conditions 9.3 and 9.4, if the relevant Goods do not conform with the warranty in Condition 9.1 we shall at our option replace such Goods or issue a credit note or refund to you at the Unit Price (plus VAT), provided that you must give us: (i) written notice of any alleged breach of warranty within one week of the time when you discover or ought to have discovered such breach; and (ii) a reasonable opportunity, after receiving the notice, to examine the relevant Goods.
9.3 The warranties in Condition 9.1 shall not apply to any defect which arises as a result of your (or any third party’s) negligence, failure to follow our instructions as to the storage, use or maintenance of the Goods (or (for Business Customers only) to comply with Good Industry Practice) or if you make any further use of the Goods after identifying that there is any issue with them, if you alter, modify, mishandle or try to remedy such Goods without our prior consent or fail to adopt Good Industry Practice in handling and using the Goods.
9.4 If we comply with our obligations under Condition 9.2 we shall have no further liability to you in respect of such Goods.
9.5 These Conditions shall apply equally to any replacement Goods we supply to you pursuant to Condition 9.2.
10. Limitation of Liability
10.1 Subject to Conditions 10.2 and 10.4, if there is any breach of the Contract, neither you nor we shall be responsible for any losses that the other suffers as a result, except for those losses which are direct losses.
10.2 Subject to Condition 10.4, neither you nor we shall be responsible for losses that result from a failure to comply with the Contract which fall into the following categories:
(a) loss of income or revenue;
(b) loss of profit;
(c) loss of business;
(d) loss of anticipated savings; or
(e) any waste of time.
However, this Condition 10.2 shall not prevent claims for loss of, or damage to, your physical property, where such losses or damage could reasonably have been expected to result from the relevant breach.
10.3 Subject to Condition 10.4, our total liability to you in contract, tort (including breach of statutory duty or negligence), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to:
(a) in relation to any damage to your physical property, a sum equal to 150% (one hundred and fifty percent) of the Charges or £10,000 (whichever is the greater); or
(b) in relation to any other claim, a sum equal to 125% (one hundred and twenty five percent) of the Charges or £5,000 (whichever is the greater).
10.4 Nothing in the Contract (including anything in these Conditions) excludes or limits in any way our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) any breach of the obligations implied by law that we own the Goods and that we are able to pass ownership of those goods to you (under section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982); or
(d) any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
11. Events outside our reasonable control
11.1 Subject to Condition 10.4, we will not be liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (these are referred to as “Events”).
11.2 An Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), the following: acts of God, governmental action, war or national emergency, acts of terrorism, protest, riot, civil commotion, fire, explosion, flood, epidemic, labour disputes (other than in relation to our own workforce) or restraint or delay affecting our delivering agents or inability or delay in obtaining the Goods.
11.3 Our obligations under the Contract are suspended for the period that the Event continues, and we will have an extension of time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Event to a close or to find a solution by which our obligations under these Conditions can be performed despite the Event.
11.4 If we suffer any temporary interruptions or shortages in supply (whether or not due to an Event) then both you and we will use our reasonable efforts to minimise any adverse impact. If we need to ration or allocate our available supplies of the Goods then we will do so fairly having regard to the circumstances. You acknowledge that in such circumstances we may allocate supplies to public utilities and emergency services before Goods are rationed and allocated to other customers.
12. Cancellation and returns
12.1 You have the right to cancel a Contract by serving written notice on us at any time prior to our carrier leaving our premises to fulfil your order (or in the case of collections, prior to delivery) provided that we reserve the right to charge you a reasonable sum in respect of any Goods held specifically to meet the Contract, or which we are committed to acquire or hold ready to supply under the Contract, and/or for any costs associated with the cancellation, subject to us using our reasonable efforts to allocate such Goods elsewhere and otherwise to mitigate our losses.
12.2 We will accept the return of Goods from you provided that you pay our reasonable costs incurred in receiving and checking the Goods (save where the Goods are defective and subject to Condition 9) and the Goods are as fit for sale on their return as they were on delivery.
13.1 The provisions of Conditions 7, 8, 9 and 10 shall continue after the Contract has terminated.
13.2 Each right or remedy that we have under the Contract is without limit to any other right or remedy we may have whether under the Contract or otherwise.
13.3 If any Condition is found by any court of competent jurisdiction to be unlawful, invalid or unenforceable to any extent then it shall, to that extent only, be removed from the remaining Conditions, and the remainder of such Condition, which shall continue in full force and effect.
13.4 If a court of competent jurisdiction decides that a Condition cannot be removed (in whole or in part) then it is agreed that the relevant Condition shall be replaced with a legal, valid, enforceable and reasonable provision which achieves, to the greatest extent possible, the same effect as the original Condition.
13.5 If we fail or delay in enforcing any provision of the Contract, or fail to insist that you comply with any of your obligations, this shall not mean that we have waived any of our rights under the Contract and that you do not have to comply with your obligations. Any waiver by us of any breach of, or any default under, any provision of the Contract by you shall be effective only if given in writing and it shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other provisions of the Contract.
13.6 A person who is not party to the Contract shall have no rights under or in connection with the Contract (and this includes pursuant to the Contracts (Rights of Third Parties) Act 1999).
13.7 All Contracts for the supply of Goods (and provision of the Services) in Scotland shall be governed by Scottish law and shall be subject to the non-exclusive jurisdiction of the Scottish courts. All other Contracts shall be governed by English law and shall be subject to the non-exclusive jurisdiction of the English courts.
13.8 Unless a Condition expressly provides otherwise, all communications between the parties about the Contract, including any notices to be sent or received under the Contract, must be in writing, sent to the other party’s registered office and signed by an authorised representative. Notices shall be deemed served on delivery if delivered by hand, 48 hours after posting if sent by post and on completion of transmission if sent by email or facsimile.
Data Protection & Credit Checks
13.9 In assessing your application for credit, to prevent fraud, to check your identity and to prevent money laundering, we may ask our credit intelligence partners (as we may engage from time to time) and our credit insurers to run a credit check on your business. We may also disclose details of how you conduct your account to such companies. This information may be used by other credit intelligence companies for making credit decisions about your business, you, and the people with whom you are financially associated, for fraud prevention, money laundering prevention and occasionally for tracing debtors. Information used for these purposes will include publicly available information such as corporate accounts and county court judgments.
13.10 We may perform a check on you if you are an individual associated with a Business Customer, such as company director. We do this in order to prevent fraud, to check your identity, to prevent money laundering and for account management purposes. Information used for these purposes will include publicly available information such as the electoral roll, county court judgments, assets registered in your name on public registers, such as the Land Registry, bankruptcy orders and repossessions. We shall not carry out these checks without obtaining your prior consent.
14. Planned Delivery Services
14.1 We operate three separate planned delivery services: (i) Signalman, which uses an electronic device to measure the fuel remaining in your tank; (ii) the Degree Day Service, whereby we measure the daily temperature and your typical consumption rates so as to estimate when you are likely to be running low on fuel; and (iii) our “Top Up” service, whereby we “top-up” your tank according to an agreed delivery cycle; these services are referred to collectively in these Conditions as the “Planned Delivery Services”.
Note that (for new customers wishing to receive the service) the Signalman service requires that you purchase a Signalman device which we then operate on your behalf – separate terms apply to the purchase of the Signalman device and will be provided to you if you wish to receive this particular Planned Delivery Service.
14.2 These Conditions apply equally to the Planned Delivery Services provided that if there is any conflict between the provisions of this Condition 14 and any other Condition then, in respect of the Planned Delivery Services only, the terms of this Condition 14 shall take precedence. For the avoidance of doubt, the terms set out in this Condition 14 only apply in respect of the Planned Delivery Services.
14.3 As noted above, our estimates are based on either: (i) the information provided by the Signalman device, (ii) our understanding as to your available storage, weather patterns and your past patterns of use, and/or (iii) our agreed delivery cycle. If you anticipate that there is likely to be a material change in your storage capacity or pattern of consumption of the Goods (for example, you buy a new, smaller, tank or you extend your property) then you must notify us so that we can take such factors into account.
14.4 We will use our best efforts to ensure (based on the provisions above) that you do not run out of the Goods.
However, we cannot guarantee that this will not happen (especially in periods of high use such as the winter when it can be very difficult for our drivers to make as many deliveries, safely, as may be required) and it is important that you do, from time to time, take a look at the fuel level in your tank and if you believe that you are due to run out of the Goods or anticipate any material fluctuations in demand that you let us know as soon as you can so that we can seek to arrange to make the required deliveries to you.
14.5 If you realise that you have run out of (or are about to run out of) the Goods then you should contact us by telephone and we will use our best efforts to make an urgent delivery of the Goods to you. The Priority Charges referred to in Condition 6.6 do not apply to such deliveries made to our Planned Delivery Services customers.
14.6 You acknowledge that there are benefits to you in receiving the Planned Delivery Services (such as continuity and security of supply and the convenience of not having to place individual orders). As a Planned Delivery Services customer, the Unit Price we charge in respect of Goods delivered (and Services provided) to you will be as described in 14.7. The Unit Price is set so as to reflect the benefits you receive together with any additional costs which we incur in providing the Services to you, which means that the relevant Charges that apply in respect of each delivery to you can be higher than those that you might otherwise have paid if you had placed a one-off (or ‘spot’) delivery in respect of the same volume of Goods on that date.
14.7 Charges in respect of the Planned Delivery Services: if we have agreed a fixed “cost plus” price with you (i.e. the cost of the fuel and our relevant business costs (such as transport costs), together with duty, levies, VAT and a fixed margin) under a Relevant Agreement then that will determine the Unit Price for our deliveries to you under the Contract. In all other instances the price charged to you will be determined with reference to the local market price on the date of delivery. Whenever we make a delivery to you pursuant to the Planned Delivery Services our driver will leave with you (or post at your premises as appropriate) a meter stamped delivery note which sets out the delivery volume (and in the absence of any clear evidence to the contrary, the volumes shown on this note will be deemed to be the quantity of the Goods that we delivered to you).
14.8 You must pay the Charges (determined in accordance with Condition 7) through our Budget Payment Scheme (as detailed below) or by variable direct debit in accordance with our normal terms of settlement, which are 25 days of the date of the invoice. If your direct debit is returned unpaid by your bank or any payment is otherwise overdue, we may suspend deliveries under the Contract until all outstanding payments are made.
14.9 Termination of the Planned Delivery Service:
(a) We will provide the Planned Delivery Services on a continuing basis unless or until it is cancelled by you or by us by giving the other not less than 2 weeks prior written notice.
(b) We may stop providing the Planned Delivery Services at any time if you fail to make payment of any sums which are due to us or you are otherwise in breach of any of your obligations under the Contract.
14.10 As noted above, we plan our deliveries based around our estimate as to your requirements and so if you purchase fuels from another supplier and we are not aware of this; then this may result in wasted time and costs being incurred by us when we come to deliver the estimated volume of the Goods that we believe you will require. You therefore agree not to place orders with another supplier during the term of the Contract, provided that if you contact us regarding an urgent requirement for the Goods and we are unable to fulfil the same within a reasonable time period then you may in those limited circumstances place a one-off order with a third party supplier. If we identify that you have placed an order with another supplier so that we cannot deliver the relevant volume of the Goods to you then we may, in addition to any other rights we might have, invoice you in relation to our reasonable wasted delivery costs.
14.11 If you vacate your premises then you must give us at least 7 days advance notice of any change of address. If you fail to do this and a delivery is made to your old address then you will be obliged to pay for the cost of the Goods delivered to that address.
15. Aviation Fuel Supply and Retail Supply
These Conditions (together with the Relevant Agreement, if such an agreement exists) apply to Aviation Fuel Supplies and Retail Supplies, both of which are provided to Business Customers only.
16. Maintenance Services
16.1 The following definitions, unless the context requires otherwise, apply to this Condition 16:
“Annual Service”: means the Boiler service (as detailed in the Pack) which we will undertake in respect of your Boiler pursuant to the Maintenance Services to be undertaken during the Term.
“Boiler” means the boiler situated at your Residence, including any controls/thermostats (and such other parts/elements of your heating system as may be detailed in the Pack as falling within the scope of the Maintenance Services).
“Emergency Repair” means a repair to your Boiler undertaken by us pursuant to an emergency call-out.
“Maintenance Services” means the Services to be provided pursuant to our Boiler maintenance scheme as described in Condition 16.2 (and as more fully described in the Pack), and which may include the Annual Service and/or the Emergency Repairs as appropriate.
“Pack” means the welcome pack we will send to you following your initial order to receive the Maintenance Services, and which includes a copy of these Conditions, together with a description of the Maintenance Services.
“Residence” means the property at which your Boiler is located.
“Term” means the period of 12 months for which you have agreed to pay to receive the Maintenance Services (and each subsequent 12 month period as appropriate).
For the avoidance of doubt, the terms set out in this Condition 16 only apply in respect of the Maintenance Services.
16.2 During the Term, we shall:
(a) perform the Annual Service (the scope of this Service shall be as specified in the Pack – if you have not received your copy or if you require a further copy then please contact your local depot); and
(b) upon request perform the Emergency Repairs (in accordance with Condition 16.10), in each case subject to and in accordance with the terms of the Contract.
16.3 We will only be obliged to provide the relevant Services during the Term if:
(a) your Boiler: (i) is a standard domestic boiler and it has not been modified (other than in accordance with the manufacturer’s instructions); (ii) has been correctly installed and maintained; (iii) complies with any and all relevant laws, regulations and standards; and (iv) is of a make and model which is covered by our Maintenance Services (as detailed in the Pack);
(b) we are able to obtain any spare parts required to perform the Services on reasonable commercial terms;
(c) it is safe and practicable for us to provide the Services at your Residence; and
(d) you have obtained any and all necessary consents and permissions required for us to provide the Services.
If we believe that you have failed to comply with any of the conditions set out above then we may terminate the Contract with immediate effect, without any charge to you or any liability on our part.
16.4 The Term of the Contract is 12 months and at the end of the initial Term it shall automatically renew for a further Term (and so on) unless or until either you or we give not less than one month’s notice in writing (at any time) to terminate the Contract.
16.5 During each Term we will issue an appointment notice to you in respect of your next Annual Service, which will include a proposed date for some time during our normal operating hours and in the following 2 to 6 weeks. This appointment notice will also include details as to our updated Charges for the relevant Annual Service.
16.6 If the proposed appointment date is not convenient then we ask that you call the contact number set out in the appointment notice to arrange an alternative date. If, however, you do not wish to receive an Annual Service at all then you may cancel the Contract by giving us notice in writing – such termination will (provided it is received more than 24 hours before the relevant appointment date) be without any charge to you (other than in respect of any Services performed prior to the date of termination) or any liability on our part.
16.7 We may terminate the Contract at any time with immediate effect if you breach any term of the Contract, or on one month’s notice without cause, without any charge to you or any liability on our part.
16.8 If we have agreed a date with you on which we are to provide the Annual Service then:
(a) we will use our reasonable efforts to perform the relevant Maintenance Services on that date (and within the window of time notified to you (if any)); and
(b) you must ensure that our engineer can gain access to your Residence so as to perform the Maintenance Services. If you fail to do so and as a result we are unable to perform the relevant Services then we reserve the right to invoice you a reasonable charge to cover our wasted time and costs.
16.9 All appointment dates and times are subject to availability and change although we will endeavour to notify you as early as possible if this is the case.
16.10 Emergency Repairs:
(a) If, during the Term, your Boiler fails to function correctly then you may call the emergency call out number set out in your Pack (or visit our website for contact details www.teamenergy.eu) to request the provision of Emergency Repairs.
(b) Our ability to undertake Emergency Repairs is subject to the availability of our engineers, though we will endeavour to ensure that one of engineers is available to review the situation and attempt to remedy the problem(s) during our normal operating hours (which are 8am to 6pm Monday to Friday).
(c) We will use our reasonable efforts to perform the necessary repairs to rectify any defect with your Boiler during our initial visit but if we are unable to do so, or we need to order parts, then we will arrange for one or more follow-up visits as required (subsequent visits will be charged on a time and materials basis in accordance with our rates in effect as at the date of the relevant visit).
16.11 We shall ensure that all of the engineers we use are either employed by us or have been approved by us and that in each case they have the necessary qualifications to perform the Services in accordance with these Conditions.
16.12 Any parts which we supply and fit in connection with any Repair or Annual Service shall comply with the warranties set out in Condition 9.2.
16.13 Liability: In addition to the provisions of Condition 10, you acknowledge that in performing the Annual Service or any Repairs it is always going to be a possibility that damage could be caused to your Residence (including damage to any decoration, flooring, covers, fixtures or fittings etc.) and notwithstanding our compliance with our obligation to perform the Services to the standards set out in Condition 9.2 it is agreed that we will not be responsible for any such damage unless it is caused by our negligence.
(a) Charges in respect of the Annual Service: we will inform you as to the price you will be charged for
the first Annual Service based on the information which you have provided to us (and on the assumption that the Annual Service can be completed within one and half hours). If we find upon arrival at your Residence that any of the information you have provided is incorrect or incomplete then we reserve the right to revise the price accordingly – we will then inform you as to the new price and you may accept the revised price or cancel the Contract with immediate effect and without charge. If the Annual Service takes longer than one and a half hours to complete then in addition to the quoted charge there will be an additional charge based on the time spent by us providing Maintenance Services (applying the quarter-hour charge out rate as detailed in your Pack (as amended by any subsequent appointment notice). Spare parts will be charged at cost plus a reasonable margin to cover our procurement costs and as advised to you prior to the relevant part(s) being fitted.
For each subsequent Annual Service the price will be as is set out in the relevant appointment notice.
(b) Charges in respect of the Emergency Repairs: the Charges for any Emergency Repairs are equal to the initial callout charge plus a charge based on the time spent undertaking the repairs together with the
cost of any spare parts (which will be charged at cost plus a reasonable margin to cover our procurement
costs and as advised to you prior to the relevant part(s) being fitted). If any subsequent visits are required in connection with the same emergency then those visits will be charged on a time and materials basis
(excluding the initial callout charge). Charges in respect of the Emergency Repairs are determined
by reference to our latest price list (which may be obtained by calling us - visit our website for contact details www.teamenergy.eu) and the costs which will also be advised to you when you call to arrange an Emergency Repair. If you require Emergency Repairs during the Term then we guarantee that the price that we charge will be at least 25% less than the prices that apply in respect of customers that do not have a Contract to receive the Annual Service.
16.15 All Charges in respect of the Maintenance Services are inclusive of VAT (if applicable).
16.16 Payment: We will invoice you following the performance of the Annual Service in respect of the relevant Charges. Unless otherwise notified to you, you will pay each of our invoices (in respect of the relevant Charges) within 25 days of the date of the invoice. However, we may require you to pay the Charges in advance at the time you place the relevant order.
16.17 We will invoice you following the performance of any Emergency Repairs in respect of the relevant Charges.
Such Charges shall be payable in accordance with the payment terms referred to in Condition 16.16.
16.18 Insurance: we may, from time to time, include in your Pack or otherwise make available to you details regarding certain third party insurance policies which relate to heating systems and which may be of interest to you as a means to protect yourself against unexpected repair costs. Any insurance policies that we refer are provided for information purposes only and we cannot comment as to the suitability of any insurance product to your particular circumstances. You need to read carefully the terms governing any insurance policy (including the exclusions and the extent of any cover provided) and discuss any issues you may have with the relevant insurance provider or your insurance broker as appropriate.
For further information please contact your local depot or email email@example.com
If you require a paper copy of your Terms and Conditions, or a version in Braille, large print or audio format, please contact us using one of the methods below stating clearly your name, address and customer reference number:-
Post: Certas Energy UK Limited, 302 Bridgewater Place, Birchwood, Warrington, Cheshire, WA3 6XG
Phone: 01925 858617
Printed June 2014