Commercial Fuel Purchase Terms and Conditions

1.    INTERPRETATION

1.1    Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.7.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person, company or firm who purchases or receives the Goods, whilst acting in the course of business, from the Supplier.
Delivery Note: the delivery note detailing the volume of Goods delivered provided by the Supplier to the Customer following delivery of the Goods.
Delivery Location: has the meaning set out in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 14.1.
Goods: the goods (or any part of them) set out in the Order or as the Supplier agrees to Supply to you in a Contract. 
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or the Customer’s written or oral acceptance (by telephone or otherwise) of the Supplier’s quotation, or overleaf, as the case may be. 
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; and/or (iii) such other services as we may agree in writing or in a Contract to provide to you from time to time, as appropriate.
Supplier: Thomas Silvey Limited (company number 00360922) whose registered office is at Floor 5, Portland House, Cardinal Place, ‚ÄčLondon SW1E 5RS (registered in England and Wales with company number 00360922). NB. All correspondence pursuant to these Conditions should be sent to Thomas Silvey Ltd, Building A St James Court, Bradley Stoke, Bristol BS32 4QJ. 

1.2    Construction. In these Conditions, the following rules apply: 
(a)    a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); 
(b)    a reference to a party includes its successors or permitted assigns;
(c)    a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; 
(d)    any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e)    a reference to writing or written includes faxes and e-mails. 

2.    BASIS OF CONTRACT

2.1    The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. 

2.2    The Order (placed by the Customer pursuant to a quotation or otherwise) shall only be deemed to be accepted when the Supplier issues written or oral acceptance of the Order or when we have commenced performance of the Services (whichever is the earlier) at which point and on which date the Contract shall come into existence (Commencement Date).

2.3    The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract. 

2.4    Any samples, descriptive matter or advertising issued by the Supplier and any illustrations or descriptions contained on our website or in the Supplier’s brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

2.5    These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing and any attempt by the Customer to vary or limit any of these Conditions shall be void. 

2.6    The Supplier 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 shall be an illustrative estimate only and the Supplier is free to withdraw a quotation at any time. 

2.7    All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

3.    GOODS

3.1    The Goods are described in our quotation, in the Order or the Goods Specification.

3.2    The Supplier reserves the right at any time and without notice to the Customer: (i) change any of the advertising or product information materials referred to in Condition 2.4; (ii) make changes to the specification of the Goods that the Supplier believes 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 the Supplier considers necessary or desirable (and which should not have any material adverse effect on the performance of the Goods).

4.    DELIVERY OF GOODS

4.1    The Supplier shall ensure that each delivery of the Goods is accompanied by a Delivery Note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods and the outstanding balance of Goods remaining to be delivered.

4.2    The Supplier shall deliver the Goods to the Customer’s business premises as set out in the Order (Delivery Location) and on such date as confirmed in the Order or as the parties may agree (which for indicative purposes is usually within 5 Business Days). 

4.3    Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.

4.4    Delivery of the Goods (and performance of the 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 any Goods collected by you from us (barrels of fuel only), when the relevant Goods pass through the meter of the loading arm of our loading gantry.

4.5    The Supplier shall record the delivery date, quantity and description of the Goods delivered and such records, in the absence of evidence to the contrary, be deemed proof of the date of delivery and the quantity and type of Goods delivered. 

4.6    Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier 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 Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.7    If the Supplier 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 Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

4.8    If the Customer fails to accept or take delivery of the Goods when they are ready to be delivered, or the Customer fails to collect the Goods when they are ready for collection, or the Customer wants to delay delivery, or the Supplier is unable to deliver the Goods due to an act or omission of the Customer, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
a)    The Supplier shall have no liability to the Customer for late delivery;
b)    the Supplier may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance and re-delivery costs); and
c)    the Supplier may deliver the Goods to another customer. 

4.9    Subject to Condition 4.7, if the Supplier fails to deliver the Goods by an agreed delivery date, or if no date has been agreed, within a reasonable time frame, then you may call the Supplier cancel your Contract by written notice to the Supplier, 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 the Supplier under that Contract in respect of any failure to deliver. 

4.10    The Supplier may deliver the Goods (and perform the Services) by instalments, which shall be invoiced and paid for separately. If we choose to deliver in instalments for operational reasons, 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. 

4.11    If and when the Supplier delivers by instalments, all delivery vehicles have meters, which are inspected annually. The meters are sealed units. On instalment deliveries, the Supplier’s delivery note will record the meter readings before and after delivery to verify the volume delivered. If the Supplier’s delivery note indicates that the Supplier has delivered less than the quantity ordered the Supplier will (at your option): charge you only for the quantity delivered; or deliver the balance to you as soon as we are able to (however the Supplier is not obliged to do so and the Customer shall have no right to reject the goods if the shortfall is less than 500 litres). If our delivery note indicates that we have delivered more than the quantity ordered we will either: charge you for the full quantity delivered; or should the excess be more than 500 litres, and fit for resale, remove it as soon as we are able to (if you wish us to do so and it is practicable to do so). If you believe that our metered delivery note does not accurately record the quantity delivered, we will arrange for our delivery vehicle’s meter to be checked, but first you must demonstrate, to our reasonable satisfaction, that the discrepancy has not arisen, after delivery, from misappropriation or leaks. We will bear the cost of checking the meter if, on checking, it is found to be inaccurate and that inaccuracy is the cause of the alleged short delivery. Otherwise you will have to bear that cost (and we may require a full deposit against that cost before the meter is checked)

4.12    The Customer 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 the Supplier (or on the Supplier’s behalf) for the delivery of the Goods and the Supplier 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 the Supplier is 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 undamaged;
(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; (h) you inform us clearly-when placing the order-of any special delivery instructions or hazards (and confirm those in writing); the drive or access road (including man-hole covers and lids) over which our vehicle must pass will accept a heavy goods vehicle; (i) that the Customer’s tank is sound and operational and will (on delivery) hold the volume of goods ordered; your tank is clearly marked (if it is located near others) as yours and with the grade of fuel it contains; your tank has a working contents gauge (visible to our driver) and that there is a reasonable and safe access to your tank; any gates or barriers will allow access and exit to our vehicle without damage and your tank and equipment (sight gauges and valves in particular) are set to your requirements after delivery; (j) The Customer is responsible for the correct dipping, checking and testing of your tanks. If you fail to comply with the requirements set out (or any specific written advice we may give) and any loss, damage or injury occurs, we (and our insurers) may consider you as responsible in whole or part.

4.13    Please note that where the Supplier is delivering highly flammable Goods or other similar Goods to the Customer it is important (for the Customer’s safety and for the safety of the Supplier’s staff making the deliveries) that the Customer is aware of and is complying with any and all applicable laws and regulations in relation to the health and safety risks associated with the Goods. If the Customer is unsure as to the obligations referred to above regarding the safe storage and receipt of the Goods then it the Customer’s 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 the Supplier believes that it would be unsafe to make a delivery of Goods to you then the Supplier may decline or suspend the relevant delivery unless or until the Supplier is satisfied (acting reasonably) that it would be safe for the Supplier to proceed.

4.14    If the Customer becomes aware that the wrong or defective Goods have been delivered then the Customer must stop using those Goods with immediate effect and notify the Supplier as soon as practicable regarding the same. The Supplier will contact the Customer to arrange collection of the Goods or to reach an alternative agreed solution appropriate to the circumstances.

4.15    Following receipt of a notice from the Customer in accordance with Condition 4.14, the Supplier 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. The Supplier shall determine which option is to be taken, and the Supplier’s liability to the Customer in respect of that Contract shall be limited to our undertaking our chosen option.

5.    QUALITY OF GOODS

5.1    The Supplier warrants that on delivery the Goods shall be free from material defects. Unless otherwise agreed in writing the Supplier gives 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.

5.2    Subject to clause 5.3, if:
a)    the Customer gives notice in writing within a reasonable time of discovery (such time period being no more than 5 Business Days) that the Goods do not comply with the warranty set out in clause 5.1;
b)    the Supplier is given a reasonable opportunity of examining such Goods; and
c)    the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. 

5.3    The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if: 
a)    the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
b)    the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
c)    the defect arises as a result of the Supplier following any directions supplied by the Customer;
d)    the Customer alters or repairs such Goods without the written consent of 
the Supplier;
e)    the defect arises as a result of the Customer’s or any third party’s wilful damage, negligence, or abnormal working conditions;
f)    the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4    Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5    The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2.

6.    TITLE AND RISK

6.1    The risk in the Goods shall pass to the Customer on completion of delivery.

6.2    Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums and the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4. 

6.3    Until title to the Goods has passed to the Customer, the Customer shall:  
a)    notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.2(a) to clause 13.2(g); and
b)    give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4    Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business at full market value (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
a)    it does so as principal and not as the Supplier’s agent; and
b)    title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

6.5    If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.2(a) to clause 13.2(g) then, without limiting any other right or remedy the Supplier may have:
a)    the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
b)    the Supplier may at any time:
i.    require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another 
product; and
ii.    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.

7.    SUPPLY OF SERVICES

7.1    The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

7.2    The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

8.    CUSTOMER’S OBLIGATIONS 

8.1    The Customer shall:
a)    ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
b)    co-operate with the Supplier in all matters relating to the Services;
c)    provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
d)    provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;  
e)    prepare the Customer’s premises for the supply of the Services; and
f)    obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are
to start.

8.2    If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
a)    the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
b)    the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
c)    the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

9.    CHARGES

9.1    The price for Goods and Services shall be the price set out in the Order.

9.2    The price of the Goods and Services as shown in the Order is inclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.

9.3    The Customer acknowledges that the Goods are a commodity product and as such the price at which the Supplier is able to source the Goods and certain associated delivery costs are subject to a considerable degree of market fluctuation, often over very short timescales and beyond the control of the Supplier. The Supplier therefore reserves the right to vary the charges by giving notice to you which may be given in writing, by email or telephone at any time prior to delivery, to take account of any variation 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.

9.4    If the Supplier revises its charges pursuant to this clause 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 Supplier (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 in writing, 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 price and invoice you accordingly or (ii) confirm that the Contract is cancelled and remove our Goods (and you must provide us with the necessary access to the relevant Goods to enable us to remove the same). 

9.5    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”.

9.6    Late Payment Surcharge: if you fail to pay any Charges in accordance within the timescales set out in Condition 10.1 or 10.6 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.

9.7    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).

9.8    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.

10.    PAYMENT TERMS

10.1    Subject to clause 10.2, the Customer shall pay for all Goods and Services in cleared funds in advance of delivery.

10.2    If the Customer is granted an approved account with the Supplier in respect of an ongoing supply of Goods and Services, the Supplier may accept payment by BACS payment, cheque, internet banking, via a Direct Debit mandate or such other payment method approved by the Supplier. If any Direct Debit mandate is cancelled by the Customer or a Direct Debit collection or cheque is returned unpaid by the Supplier’s bank, the account(s) of the Customer shall automatically become due and payable immediately in full. The Supplier reserves the right to charge a per item administration fee of £30.00 on any returned Direct Debits 
or cheques.

10.3 For Orders placed pursuant to clause 10.2, the Customer shall pay each invoice submitted by the Supplier:
a)    within 7 days of the date of the invoice unless agreed otherwise by the Supplier in writing; and
b)    in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

10.4    All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

10.5    If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Lloyds Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

10.6    The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

11.    DATA PROTECTION AND CREDIT CHECKS 

11.1     By placing an Order the Customer provides consent for its data to be processed for the administration, management and implementation of this Contract. Data may be shared with credit reference agencies and credit insurers for the purpose of assessing your credit score, to ensure and protect our mutual business dealings, our business partners, suppliers and sub-contractors for the performance of our contract. 

11.2     Credit limits and performance are reviewed periodically and this could result in further checks being made with credit reference agencies and credit insurers.

11.3     The Supplier may perform a check on the individuals associated with the Customer, such as a company director. This is done to prevent fraud, to check your identity, to prevent money laundering and for account management purposes. The Supplier may carry out these checks without obtaining your prior consent.

11.4     The Supplier may use the personal information the Customer provides to us to provide you with our Goods and Services, and may also use it to inform the Customer, by letter, fax, phone, SMS and email about promotions, news and new products and services that we think may be of interest to you. If the Customer does not want the Supplier to use its data in this way, or to pass the Customer’s details onto third parties, for marketing purposes, please tick the relevant box situated on the Supplier’s website or the Order form. More information on the Supplier’s approach is available in the Privacy Policy section of the 
Supplier’s website.

12.    LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1     Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
a)    death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b)    fraud or fraudulent misrepresentation;
c)    breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); 
d)    breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
e)    defective products under the Consumer Protection Act 1987.

12.2     Subject to clause 12.1:
a)    the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, or any indirect or consequential loss arising under or in connection with the Contract ; and
b)    the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the performance of the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £10,000 for damage to the Customer’s physical property or £5,000 in relation to any other claim.

12.3     The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract. 

12.4     This clause 12 shall survive termination of the Contract.

12.5     The Customer shall be liable to pay the Supplier on demand and indemnify the Supplier against all reasonable costs and expenses and losses incurred, direct or indirect consequential loss, loss of profit, loss of reputation, damage to property and professional costs arising from your fraud, negligence or material breach of this Contract. 

13.    TERMINATION AND CANCELLATION RIGHTS

13.1    The Customer may terminate this Contract by giving written notice to the Supplier at any time prior to the Supplier’s carriers leaving the Supplier’s premises to fulfil your Order (provided that the Supplier’s delivery costs have not already been incurred) and that the Supplier may charge you for the Goods held to fulfil your Order or which we are committed to acquire or hold to supply to you under the Contract and for such costs of cancellation, subject to the Supplier using its reasonable endeavours to mitigate its loss.

13.2     Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:  
a)    the other party 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; 
b)    the other party (being an individual) is the subject of a bankruptcy petition or order; 
c)    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 other party (being a company); 
d)    the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
e)    a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
f)    the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
g)    the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

13.3     Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

13.4     Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1(a) to clause 13.2(g) or the Supplier reasonably believes that the Customer is about to become subject to any of them.

13.5     On termination of the Contract for any reason:  
a)    the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
b)    the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
c)    clauses which expressly or by implication have effect after termination shall continue in full force and effect.

14.    FORCE MAJEURE

14.1     For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

14.2     The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

14.3     If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right  to terminate this Contract immediately by giving written notice to the Customer.

15.    GENERAL

15.1  Assignment and other dealings.
a)    The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
b)    The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

15.2     Notices. Any notice or other communication given to the Supplier under or in connection with this Contract shall be in writing, addressed to Thomas Silvey Ltd, Unit 5 Badminton Road Trading Estate, Yate, Bristol BS37 5NS and to the Customer, to the Customer’s  registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail. 

15.3     Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

15.4     Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or  remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 

15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

15.6     Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

15.7     Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.

15.8     Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

15.9     Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
 

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