Terms & Conditions

FUEL ADDITIVE SCIENCE TECHNOLOGIES LIMITED

STANDARD CONDITIONS OF BUSINESS

1.   MEANING OF TERMS USED IN THESE CONDITIONS

1.1   Definitions. The following definitions apply to these Conditions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business and “Business Days” means more than one of them.

Company: Fuel Additive Science Technologies Limited (registered in England and Wales with company number 5469984) of Unit 29 Atcham Business Park Upton Magna Shrewsbury Shropshire SY4 5UG

Conditions: the terms and conditions set out below as amended from time to time in accordance with Condition 12.6 and “Condition” followed by a number means the condition referred to by that number.

Contract: the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with and incorporating these Conditions.

Customer: the company named overleaf which purchases Goods from the Company

Customer Invoicing Address (if different from the address of the Customer stated within Invoice)

Force Majeure Event: has the meaning given in Condition 9.

Goods:  the fuel additive products (or any part of them) listed in the Invoice

Invoice: the invoice despatched by the Company in response to the Order from the Customer

Order: the Customer’s order for the Goods as set out in the Invoice received in writing or by telephone from the Customer.

Technical Assessor: any engineer registered with the Oil Fired Technical Association or other incorporated or unincorporated body or any individual having recognised professional expertise in fuel additive technology

1.2             Interpretation. The following rules apply to these Conditions:

1.2.1        A reference to a party includes its successors.

1.2.2        A reference to an Act of Parliament is a reference to that Act as amended from time to time and includes any regulations made under it.

1.2.3        Any phrase introduced by the terms including, include, in particular or any similar expression is illustrative only and does not limit the sense of the words preceding those terms.

1.2.4        A reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

2.1             These Conditions apply to and are incorporated in the Contract to the exclusion of all other terms including any terms which the Customer seeks to impose or incorporate without the prior written agreement of the Company or which are otherwise implied by trade practice or  course of dealing.

2.2             The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any additional requirements it wishes to bring to the attention of the Company in respect of the Goods referred to in the Order are complete and accurate.

2.3             The Order is accepted by the Company and the Contract comes into existence only on the issue of the Invoice.

2.4             The Contract constitutes the entire agreement between the Company and the Customer. The Customer acknowledges that it has not relied on any statement, promise or representation in respect of the Goods made or given by or on behalf of the Company which is not set out in the Contract.

2.5             Any samples, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in any catalogues brochures or other advertising or promotional material issued by the Company are provided for the sole purpose of giving an approximate idea of the products described in them and do not form part of the Contract.

2.6             Any quotation for the Goods given by the Company does not constitute an offer and is valid only for a period of twenty (20) Business Days from its date of issue.

2.7       The Company may at its discretion whilst the Customer is a customer of the Company provide free of charge or on any other basis agreed by the Company:

2.7.1     training in connection with the customer’s products which incorporate the Goods;

2.7.2     technical advice in dealing with problems or circumstances experienced by the Customer in dosing and the application of the Goods to the products of the Customer;

2.7.3     any other services which the Company agrees to provide in relation to the Goods.

3. DELIVERY

3.1             The Company shall ensure that:

3.1.1        each delivery of the Goods is accompanied by a delivery note with the Conditions  attached which shows the date of the Invoice, all relevant Customer and Company reference numbers, an Invoice number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

3.1.2        if the Company requires the Customer to return any packaging materials to the Company, that fact is clearly stated on the delivery note and the Customer makes those materials available for collection at any time within the Customer’s normal business hours as the Company shall reasonably request. Returns of packaging materials shall be at the Company’s expense.

3.2             The Company shall deliver the Goods to the location set out in the Invoice or any other location agreed between the Customer and the Company (Delivery Location) at any time after the Company notifies the Customer that the Goods are ready.

3.3             Delivery of the Goods shall be completed on the  arrival of the Goods at the Delivery Location.

3.4             Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence of the Contract. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply and delivery of the Goods.

3.5             If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that the failure is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.6             If the Customer fails or unreasonably refuses to take delivery of the Goods on delivery by the Company to the Delivery Location except where the failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:

3.6.1        delivery of the Goods shall be deemed to have been completed on the delivery date; and

3.6.2        the Customer shall store the Goods until collection by the Company takes place in a secure weatherproof storage area and pay the Company for all costs and expenses (including insurance) incurred by the Company in collecting the Goods.

3.7             The Company shall be entitled to resell any Goods collected from the Customer under Condition 3.6 at any price and time it shall in its absolute discretion decide and the Order for those Goods shall be treated as cancelled on collection of the Goods except in respect of any costs and expenses of the Company payable by the Customer.

3.8             The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Invoice on receipt of notice from the Customer and acceptance by the Company that the wrong quantity of Goods was delivered.

3.9             The Company may with the prior agreement of the Customer deliver the Goods by instalments, which shall be invoiced and paid for separately in accordance with Condition 6.5. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4. QUALITY

4.1             The Company warrants that on delivery, and for a period of twenty four (24) months from the date of delivery (warranty period), the Goods shall:

4.1.1        conform in all material respects with their description in the Invoice; and

4.1.2        be free from material defects in composition.

4.2             Subject to Condition 4.3, if:

4.2.1        the Customer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 4.1; and

4.2.2        the Company is given a reasonable opportunity of examining the Goods;

the Company shall arrange collection of the Goods and at its option, replace the defective Goods, or refund the price of the defective Goods in full.

4.3             The Company shall not be liable for the failure of the Goods to comply with the warranty set out in Condition 4.1 if:

4.3.1        the Customer makes any further use of those Goods after giving notice in accordance with Condition 4.2; or

4.3.2        the defect arises because the Customer failed to follow the Company’s instructions as to the storage, use and application or blending of the Goods or (if there are none) good trade practice; or

4.3.3        the defect arises as a result of the Company following any instructions or request supplied by the Customer; or

4.3.4        the Customer alters the Goods in any way before blending with the Customer’s products without the written consent of the Company or contaminates them; or

4.3.5        the defect arises as a result of the negligence, or abnormal storage or working conditions of the Customer.

4.4             Except as provided in this Condition 4, the Company shall have no liability to the Customer for the failure of the Goods to comply with the warranty set out in Condition 4.1 unless that liability is otherwise imposed by law.

4.5             These Conditions shall also apply to any replacement Goods supplied by the Company.

5. TITLE AND RISK

5.1             The risk in the Goods shall pass to the Customer on completion of delivery of the Order in accordance with Condition 3.3.

5.2             Title to the Goods shall not pass to the Customer until the Company has received payment in full in cash or as cleared funds for:

5.2.1        the Goods; and

5.2.2        all other sums which are or which become due to the Company for sales of the Goods or any other products to the Customer.

5.3             Until title to the Goods has passed to the Customer, the Customer shall:

5.3.1        treat the Goods as being on loan from the Company and hold them as the Company’s bailee;

5.3.2        store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the property of the Company;

5.3.3        not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

5.3.4        maintain the Goods in good condition and keep them insured against all risks for their full price from the date of delivery;

5.3.5        notify the Company in writing immediately if the Customer becomes subject to any of the events listed in Condition 7.2; and

5.3.6        give the Company any information relating to the Goods which the Company may require from time to time

but the Customer may resell or use the Goods in the ordinary course of its business.

5.4             If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 7.2, or the Company reasonably believes that any of those events is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6. PRICE AND PAYMENT

6.1       The price of the Goods shall be the price set out in the Invoice, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery

6.2       The price of the Goods is inclusive of all fuel duties, which shall be paid or met by the Company and the Customer shall for the avoidance of doubt ensure that Goods supplied to it by the Company upon which the Company has paid fuel duty are not returned by the Customer as dutiable commodities in the Customer’s own fuel duty returns to H M Revenue & Customs.

6.3       The price of the Goods is exclusive of amounts in respect of value added tax. The Customer shall, on receipt of a valid value added tax invoice from the Company, pay to the Company all value added tax chargeable on the supply of the Goods at the rate applicable on the date of the Invoice.

6.4       The Customer shall pay the Invoice in full in cleared funds within thirty (30) Business Days of the payment due date stated on the Invoice.

6.5       The provisions of Condition 6.4 shall for the avoidance of doubt also apply to any Goods delivered by instalments in accordance with Condition 3.9 except that a separate Invoice shall be issued for each consignment of the Goods, payment shall be due within thirty (30) Business Days of the date of each relevant Invoice and interest on late payment shall be payable in accordance with Condition 6.6.

6.6       If the Customer fails to make any payment due to the Company by the due date for payment the Customer shall if demanded in writing by the Company pay interest on the overdue amount at the rate of 3% per calendar month or part calendar month.  Interest shall accrue on a daily basis from the due date for payment until the date of actual payment of the overdue amount, whether before or after judgment and the Customer shall pay the interest together with the overdue amount.

6.7       The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any  amount due to the Company in whole or in part.

6.8       The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

7. CUSTOMER’S INSOLVENCY

7.1             If the Customer becomes subject to any of the events listed in Condition 7.2, or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Company, the Company may cancel or suspend any future deliveries under the Contract or under any other contract between the Customer and the Company without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

7.2             For the purposes of Condition 7.1, the relevant events are:

7.2.1        the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

7.2.2        the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or

7.2.3        a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or any part of its assets and the attachment or process is not discharged within fourteen (14) days; or

7.2.4        an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or  

7.2.5        a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or

7.2.6        a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or

7.2.7        any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 7.2.1 to Condition 7.2.6 (inclusive); or

7.2.8        the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business.

8. LIMITATION OF LIABILITY

8.1             Nothing in these Conditions shall limit or exclude the Company’s liability for:

8.1.1        death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

8.1.2        fraud or fraudulent misrepresentation; or

8.1.3        breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

8.1.4        defective products under the Consumer Protection Act 1987; or

8.1.5        any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

8.2             Subject to Condition 8.1:

8.2.1        the Company shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract;

8.2.2        the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the price of the Goods referred to in the Invoice;

8.2.3        the Company shall not be liable to the Customer whether in contract tort (including negligence) breach of statutory duty or otherwise for any loss arising directly or indirectly from or in consequence of the provision by the Company of any advice or services without charge to the Customer.

9. FORCE MAJEURE

Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that the failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or that of a third party), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of Companys or subcontractors.

10. Dispute Resolution

10.1      If any dispute or difference arises between the Customer and the Company in respect of:

10.1.1   the interpretation or legal effect of the Conditions or the terms or legal effect of the Contract or

10.1.2   any dispute between the Customer and any of its customers in which the quality or performance of fuel additive products supplied by the Company under the Contract is alleged to be defective or sub standard

the dispute or difference shall as respects the Customer and the Company be decided in accordance with this Condition 10.

10.2      The Customer shall notify the Company in writing without delay once it has become apparent any dispute or difference has arisen stating clearly the reason(s) for the dispute or difference and indicating as precisely as possible why the Customer suspects or believes the problem has been caused by fuel additive products supplied by the Company

10.3      The Customer and the Company shall have seven (7) Business Days from the date of receipt by the Company of the notice specified in Condition 10.2 to settle the dispute between themselves

10.4      If after seven (7) Business Days the dispute or difference has not been resolved to the satisfaction of the Customer and the Company they agree that if the dispute relates

10.4.1   to a matter specified in Condition 10.1.1 it shall be referred to mediation in accordance with the Model Mediation Procedure of the Centre for Dispute Resolution and if

10.4.2   to the technical quality or performance of the Goods to a Technical Assessor for the purpose of determining whether and if so to what extent the fuel oil additive products or any of them comprising the Goods are the cause of the complaint which led to the dispute or difference.

10.5      To begin a mediation under Condition 10.4.1 or a technical assessment under Condition 10.4.2 the Customer or the Company shall give notice to the other requesting that the mediation or (as the case may be) technical assessment take place not later than fourteen (14) Business Days after (but not including) the date of the notice unless the Customer and the Company and the mediator or Technical Assessor agree a different period in writing

10.6      If there is any issue arising from the conduct or proposed conduct of the mediation or technical assessment which the Customer and the Company cannot agree between themselves within seven (7) Business Days of the date of the notice referred to in Condition 10.5 the mediator or (as the case may be) the Technical Assessor shall decide the matter after consulting the Customer and the Company and his decision shall be final and binding upon them

10.7      The Customer and the Company agree that:

10.7.1   the decision of any mediator appointed under Condition 10.4.1 or Technical Assessor appointed under Condition 10.4.2 shall except as provided by Condition 10.8 be final and conclusively binding upon each of them in the absence of serious error and

10.7.2   his fees shall be paid by them in the proportions he directs on in the absence of direction in equal shares

10.8      Nothing in this Condition 10 shall prevent either the Customer or the Company requesting the intervention of the court if the dispute or difference of opinion cannot be resolved in accordance with the provisions of this Condition

11. GENERAL

11.1      Assignment and subcontracting

11.1.1   The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

11.1.2   The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.

11.2      Notices

11.2.1   Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or its principal place of business (if different) or such other address as that party may have specified to the other party in writing in accordance with this Condition 11.2, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail.

11.2.2   A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 11.2.1; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

11.2.3   The provisions of this Condition 11.2 shall not apply to the service of any proceedings or other documents in any legal action.

11.3      Severance

11.3.1   If any court or competent authority finds that any provision of the Contract or these Conditions (or part of any provision or Condition) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract or Conditions shall not be affected.

11.3.2   If any invalid, unenforceable or illegal provision of the Contract or Conditions would be valid, enforceable and legal if some part of it or these were deleted, the provision or Conditions shall apply with the minimum modification necessary to make it or them legal, valid and enforceable.

11.4      Waiver

A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be treated as a waiver of any later breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of the right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

11.5      Third party rights

A person who is not a party to the Contract shall not have any rights under or in connection with it.

11.6      Variation

Any variation to the Conditions or to the terms of the Contract if different, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by or on behalf of the Customer and the Company

11.7      Governing law and jurisdiction

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation or in respect of the Conditions (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and subject as provided by Condition 10 the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.