Definitions and Interpretation
The following definitions and rules of interpretation apply in these Terms and Conditions:
(A) “Agreement” means the contract between the Supplier and the User for the supply of the Priority Account Service in accordance with these Terms and Conditions.
(B) “App” means the mobile application which the User is given access to as part of the Priority Account Service, which is operated and managed by a third party and which facilitates Fuel level management.
(C) “Application” means the User’s application (whether by submission of the application form by the User or by the Supplier on the instructions of the User) to purchase the Priority Account Service from the Supplier.
(D) “Application Acknowledgement” shall have the meaning set out in Clause 3.
(E) “Commencement Date” shall have the meaning set out in Clause 4.
(F) “Device” means the NWF Fuels tank telemetry unit supplied by the Supplier under the Agreement.
(G) “Extended Term” shall have the meaning set out in Clause 9.
(H) “Fuel” means heating oil, white diesel, red diesel and/or AdBlue (as applicable).
(I) “Initial Term” shall have the meaning set out in Clause 9.
(J) “NWF Fuels Supply Terms” means the Supplier’s standard terms and conditions in force which relate to the supply and delivery of Fuel, with a copy of the version in force as at the Commencement Date being available on the Supplier’s website at www.nwffuels.co.uk (as may be amended and/or updated by the Supplier from time to time).
(K) “Priority Account Service” means the service provided by the Supplier under the Agreement, being the supply and installation of the Device, remote monitoring of the User’s Fuel usage by the Supplier and the supply and delivery of Fuel, as more particularly described in Clause 6.
(L) “Supplier” means NWF Fuels Limited (company registration number 01117133) whose registered office is at Jack Mills Way, Crewe, Cheshire CW2 5RX.
(M) “Terms and Conditions” means these terms and conditions.
(N) “User” means the person, firm or company who purchases the Priority Account Service from the Supplier.
(O) “Welcome Email” shall have the meaning set out in Clause 5.
(A) References to Clauses are to the Clauses of these Terms and Conditions (except where the context otherwise requires).
(B) A reference to writing or written includes email (except as otherwise expressly set out in the Agreement) but excludes fax.
(C) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(D) Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
Basis of Agreement
- These Terms and Conditions apply to the Agreement to the exclusion of any other terms that the User seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- The Application constitutes an offer by the User to purchase the Priority Account Service in accordance with these Terms and Conditions. The User is responsible for ensuring that the terms of the Application are complete and accurate.
- Following the submission of an Application by the User, the User will receive an email from the Supplier acknowledging that the Supplier has received the Application (“Application Acknowledgement”). The Application Acknowledgement shall confirm items such as Fuel prices and the pricing formula (as contemplated by Clause 6b) and minimum order quantities (as contemplated by Clauses 7a and 7b); however the receipt of an Application Acknowledgement does not mean that the Application has been accepted by the Supplier. The Supplier’s acceptance of the Application made by the User will take place as described in Clause 4.
- The Supplier may accept or reject an Application at its discretion. The Application shall only be deemed to be accepted when the Supplier, having agreed a date with the User to deliver and install the Device pursuant to Clause 7f, notifies the User (whether in writing or otherwise) that the installation of the Device by the Supplier at the User’s premises is complete (“Commencement Date”), at which point the Agreement shall come into existence.
- Shortly after the Commencement Date, the Supplier shall send to the User an email (“Welcome Email”) providing further information about the Priority Account Service.
- The Supplier shall, as part of the Priority Account Service, use reasonable endeavours to:
- supply and install the Device free of charge, and provide the User with access to the App. Use of the App is subject to separate terms and conditions which are displayed within the App and the User agrees that it shall comply in all respects with such terms and conditions. The Device shall at all times remain the property of the Supplier and the User shall have no right, title or interest in or to the Device (save the right to possession and use of the Device subject to the terms of the Agreement). The risk of loss, theft, damage or destruction of the Device shall pass to the User once installed by the Supplier. The Device shall remain at the sole risk of the User during the term of the Agreement until such time as the Device is uninstalled and collected by the Supplier;
- supply Fuel to the User at the prices, and using such pricing formula, notified by the Supplier to the User in the Application Acknowledgement. The charges which relate to membership of the Priority Account Service are factored into the aforementioned pricing formula. The price of the Fuel may be increased by the Supplier at any time during the term of the Agreement on giving to the User not less than thirty (30) days prior written notice. Any Fuel which the Supplier supplies to the User under or in connection with the Agreement shall be supplied on and subject to the NWF Fuels Supply Terms then in force at the relevant time in accordance with Clause 10. The User warrants and confirms that the User is acting for purposes solely related to the User’s trade, business, craft or profession and under no circumstances whatsoever shall the User be deemed to be a consumer;
- where agreed by the Supplier, provide to the User an initial credit limit of such amount as confirmed by the Supplier in writing in connection with the supply of Fuel; this credit limit may at any time be reduced, increased, or withdrawn at the sole discretion of the Supplier upon the Supplier notifying the User in writing (which shall include email);
- where agreed by the Supplier, provide a credit facility to the User, the terms of which shall be confirmed in writing by the Supplier.
- The User will:
- order Fuel from the Supplier in quantities of not less than the minimum volumes stated in the Application Acknowledgement on a per order basis;
- order from the Supplier such minimum quantity of Fuel in each calendar month of the Agreement as stated in the Application Acknowledgement;
- purchase Fuel exclusively from the Supplier or any of the Supplier’s associated brands (as notified by the Supplier to the User from time to time) during the term of the Agreement;
- subject to being provided with a credit limit, make payment for all Fuel up to the credit limit agreed in writing by the Supplier in accordance with the payment terms as stipulated in writing by the Supplier from time to time. The credit limit may at any time be reduced, increased or withdrawn at the sole discretion of the Supplier pursuant to Clause 6c. Any supplies of Fuel ordered in excess of the credit limit in force, or after withdrawal of the credit limit, must be paid for prior to delivery;
- co-operate with the Supplier in connection with the Priority Account Service;
- allow the Supplier (or its representatives) unrestricted access, at mutually agreed times, to the User’s premises for the purposes of delivering and installing the Device and permit the Supplier, or its representatives, at all reasonable times to enter the premises where the Device is located to inspect and test the Device;
- use the Device properly, sensibly and in accordance with the Agreement and the Supplier’s written instructions and directions;
- give immediate written notice to the Supplier in the event of any loss, accident or damage to the Device arising out of or in connection with the User’s possession or use of the Device;
- ensure that at all times the User’s storage tank is fit for purpose. In particular, the storage tank must not be damaged and must comply with the directions notified by the Supplier from time to time. A failure by the User to ensure that their storage tank is fit for purpose may lead to discrepancies with the Device and/or the Priority Account Service;
- indemnify and keep indemnified the Supplier in full against any and all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred by the Supplier arising out of, or in connection with, any failure by the User to comply with the terms of the Agreement.
- The User shall not:
- do or permit to be done anything which may cause damage to the Device;
- make any alteration to the Device and shall not remove any existing component (or components) from the Device without the prior written consent of the Supplier;
- do or permit to be done any act or thing which will or may jeopardise the right, title or interest of the Supplier in the Device.
- The Agreement shall commence on the Commencement Date and shall, unless terminated earlier in accordance with the express terms of the Agreement, continue for an initial period of 2 years from the Commencement Date (“Initial Term”). The Agreement shall automatically extend for 12 months (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Should the parties agree, following the expiry of the Initial Term, to enter into a new agreement in connection with the subject matter of the Agreement which shall have the effect of replacing and superseding the Agreement, then any such agreement shall be recorded in writing and signed by the parties.
- The Fuel is supplied by the Supplier to the User under the Agreement subject to the NWF Fuels Supply Terms then in force at the time of the User’s relevant order (including without limitation those exclusions of and limitations to the Supplier’s liability). The NWF Fuels Supply Terms are hereby incorporated by reference into, and are made part of, the Agreement. If there is any conflict, inconsistency or ambiguity between these Terms and Conditions and the NWF Fuels Supply Terms, the provisions of these Terms and Conditions shall prevail.
- All terms, conditions, or warranties (whether implied or made expressly) whether made by the Supplier, its employees, subcontractors, consultants or agents or otherwise relating to the quality and/or fitness for purpose of the Device are excluded (to the fullest extent permitted by applicable law). With regard to those elements of the Priority Account Service which relate to the App and the provision of remote monitoring of the User’s Fuel usage, these are provided on an “as is” basis and the Supplier does not provide any guarantee or assurance that the User’s use of the Priority Account Service will be uninterrupted or error-free.
- Subject to Clause 15, the Supplier shall not under any circumstances whatsoever be liable to the User, whether in contract, tort (including negligence), equity (including restitution), breach of statutory duty, under an indemnity or otherwise for:
- loss of profits (whether direct, indirect or consequential);
- loss of sales or business (whether direct, indirect or consequential);
- loss of agreements or contracts (whether direct, indirect or consequential);
- loss of anticipated savings (whether direct, indirect or consequential);
- loss of revenue (whether direct, indirect or consequential);
- wasted expenditure (whether direct, indirect or consequential);
- loss of use or corruption of software, data or information (whether direct, indirect or consequential);
- loss of or damage to goodwill (whether direct, indirect or consequential); and
- indirect or consequential loss.
- If the Supplier’s performance of its obligations set out in Clause 6 and elsewhere in the Agreement is prevented or delayed by any act, breach, delay, failure or omission of the User, or, where applicable, their respective agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall not be deemed to be in breach of the Agreement and shall be allowed an extension of time to perform its obligations equal to the delay caused by the User.
- The Supplier shall not be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the Supplier shall be entitled to a reasonable extension of the time for performing such obligations.
- Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- any other liability which cannot be excluded or limited by law.
- Without prejudice to any other right or remedy available to the relevant party, the Agreement may be terminated:
- by either party giving at least 3 months written notice to the other party expiring on or at any time after the end of the Initial Term;
- by the Supplier immediately by written notice to the User if the User is or becomes subject to any insolvency or bankruptcy procedure;
- by the Supplier immediately by written notice to the User should the User be in breach of Clauses 7, 8 and/or any other provision set out in the Agreement (except for non-payment which is dealt with by Clause 16d);
- by the Supplier immediately by written notice to the User if the User fails to pay any amount due under the Agreement on the due date for payment and such amount remains in default not less than three (3) working days after being notified by the Supplier to make such payment;
- by the Supplier immediately by written notice to the User if the User does, or causes anything to be done, which in the Supplier’s reasonable opinion, brings or is likely to bring the Supplier’s (or any member of its group’s) name, image and/or reputation into disrepute.
- Without limiting the Supplier’s other rights or remedies, the Supplier may suspend the provision and delivery of the Priority Account Service:
- to deal with technical problems or make minor technical changes to the Device;
- to update the Priority Account Service (including the Device) to reflect changes in relevant laws and regulatory requirements;
- to make changes to the Priority Account Service (including the Device) as requested by the User and agreed by the Supplier or where otherwise notified by the Supplier to the User;
- should the User become subject to any insolvency or bankruptcy procedure or the Supplier reasonably believes that the User is about to become subject to any such procedure, or if the User fails to pay any amount due under the Agreement in cleared funds on the due date for payment.
- In the event that the Agreement is terminated by either party in accordance with Clause 16:
- the Supplier shall cease to provide the Priority Account Service under the Agreement;
- the User shall immediately pay to the Supplier in cleared funds any outstanding debit balance on the User’s membership account (as notified by the Supplier to the User) and any other sums due to the Supplier under or in connection with the Agreement; and
- the Supplier has the right to access the User’s premises (or such other premises where the Device is located) to uninstall and remove the Device, and the User shall be responsible for any and all costs and expenses incurred by the Supplier in connection with the uninstallation and removal of the Device and the User shall pay such sums to the Supplier in full and in cleared funds on demand.
- Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect. Termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
- If, at any time during the term of the Agreement, the User enters into discussions or negotiations with a third party buyer with a view to selling or otherwise transferring all (or a substantial part of) the User’s business, assets or liabilities, the User shall promptly notify the Supplier in writing. Subject always to Clause 23, the Supplier and the User shall discuss in good faith whether it may be possible to transfer the User’s account for the provision of the Priority Account Service to the third party buyer and if requested by the Supplier, the User shall take all reasonable steps to facilitate an introduction between the Supplier and the relevant third party buyer and the User shall carry out such further actions as may be directed by the Supplier in connection with any such transfer.
- The Agreement (and the NWF Fuels Supply Terms) set out the entire agreement and understanding between the Supplier and the User and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
- If any provision or part-provision of the Agreement 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 22 shall not affect the validity and enforceability of the rest of the Agreement.
- The User shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without the Supplier’s prior written consent (which may be withheld at its absolute discretion).
- The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.