1.1 In the Agreement the following words have the following meanings: “Agreement” means the specific terms agreed with us as stated overleaf in the Supply Agreement and these Conditions and the Technical and Safety; “Commencement Date” means the date agreed for the Tank to be transferred to us where there is a Tank which is to transfer to us or, if no Tank is being transferred to us, the date of our first supply of LPG to you, whichever is the earlier; “Conditions” means these terms and conditions; “Exclusivity Period” means the initial period of two years from the Commencement Date; “Fittings” means any items specified in the Supply Agreement (excluding the Pipes) including without limitation the tank control valves, whether above or below ground level and which form part of the overall gas supply; “Technical and Safety” means any instructions, recommendations, and/or Technical and Safety we provide to you with regard to the installation and maintenance of the Tank; “Installation” means the Tank, Fittings and the Pipes installed at the Site; “LPG” means the liquefied petroleum gas supplied and/or sold to you by us; “Order” means the Domestic Bulk Liquefied Petroleum Gas Market Investigation Order dated 13th October 2008; “Pipes” means the pipes, valves & regulators including the emergency control valve which form part of the overall gas supply located between the Tank and the building(s); “Services” means the services to be performed by us for you in respect of the Tank, Fittings and Pipes including without limitation any surveys or site visits conducted, delivery, unloading, installation, inspection, repair, maintenance, improvement, up-grading, draining and/or removal; “Site” means the land upon which the Installation is situated or is to be situated as specified in the Supply Agreement; “Supply Agreement” means the document signed by the parties, containing the individual terms of the Agreement; “Supply Agreement Date” means the date on which we accept your Agreement including your signed Supply Agreement; “Tank” means the storage container(s) supplied and installed by us; “Year” means each twelve month period from the Commencement Date and each subsequent consecutive period of twelve months during the period of the Agreement.
2.1 The Agreement supersedes all previous written agreements between you and us in respect of the Site.
2.2 Subject to the terms of the Order the details set out overleaf in the Supply Agreement contain the individual terms agreed with us for the provision of the LPG and any other specific terms agreed between you and us and we intend to rely on the terms overleaf and these Conditions. Therefore, if you require any changes to be made, these must be confirmed in writing to avoid any confusion.
2.3 Subject to the terms of the Order and except where clause 14.5 applies, you agree for the duration of the Agreement:
2.3.1 not to purchase any liquefied petroleum gas for delivery to the Site from any other person without our prior written consent; and
2.3.2 to only permit LPG purchased from us to be stored in the Tank; and
2.3.3 that you shall only use the LPG supplied under the Agreement for your own use and shall not resell or otherwise deal or dispose of it to any third party without our prior written consent.
2.4 The Pipes installed at the Site remain your property and responsibility at all times.
2.5 The Technical and Safety contain important health and safety information regarding the installation and ongoing use of your Tank and you must read (and act in accordance with) the information provided, in particular the necessity for you to obtain planning permission and other consents, prior to us installing the Tank at the Site. Please note that we want our customers to be safe and so we may, from time to time, update the Technical and Safety to reflect current best practice. The latest version of the Technical and Safety are always available at our website (www.flogas.co.uk) and if we introduce any material changes to the Technical and Safety then we will highlight those changes to you in writing (which may include, specifying the relevant changes on your delivery ticket or invoice) or issue you with an updated copy of the Technical and Safety as appropriate.
2.6 Please also note that we will act reasonably throughout the period of the Agreement in particular in relation to any rights we may have against you and any potential charges or costs that we may be entitled to recover from you. We will always provide you with an explanation of how costs and charges may be incurred in advance of you incurring those costs. Where there is a genuine dispute we will engage with you following the spirit of our Customer Charter.
3.1 The Agreement shall be formed between you and us on the Supply Agreement Date.
3.2 The supply of LPG to you shall commence on the Commencement Date. The Agreement shall run for an initial period of two years from the Supply Agreement Date (the “Exclusivity Period”). Following the end of the Exclusivity Period the Agreement shall continue unless or until it is terminated by either party under the terms of the Agreement. Please note that the period of the Agreement as set out above is subject to any early termination of the Agreement in accordance with its terms (as set out in clause 3 and clause 10).
3.3 Please also note your right to switch suppliers at the end of the Exclusivity Period (or otherwise on earlier termination of the Agreement) as set out in clause 9.
4.1 You have the right to cancel this Agreement either prior to the Commencement Date or within 14 days beginning on the Supply Agreement Date whichever may be the later (the “Cancellation Period”).
4.2 To cancel, you must tell us that you want to cancel, either by completing and sending us the cancellation form enclosed or by writing to us at 81 Rayns Way, Watermead Business Park, Syston, Leicester, LE7 1PF, by email to [email protected] or by fax to 0116 264 9014. To meet the cancellation deadline, it is sufficient for you to send us your cancellation notice before the Cancellation Period has expired.
4.3 If you cancel this Agreement within the Cancellation Period, we will reimburse to you all payments received from you other than those set out in clause 5.2 below.
4.4 We will make the reimbursement without undue delay and not later than 14 days after the day on which you notified us of the cancellation. Where we give you a reimbursement, we will use the same method of payment originally used by you to pay for the Services (unless you agree otherwise); in any event, you will not incur any fees as a result of the reimbursement. If we are entitled to charge you for any Services under clause 5.2, we may either deduct any amount from the reimbursement we give to you or ask you to pay such amount to us.
5.1 We will not commence any Services during the Cancellation Period unless you expressly request us to. You can make a request either by telephone or in writing (see clause 14 for our contact details) and we will confirm any such requests in writing to you explaining in detail all costs that you might incur.
5.2 If you request us to commence Services during the Cancellation Period and you subsequently want to cancel the Agreement during the Cancellation Period, you acknowledge that we will be entitled to charge you for the Services provided up to the point of cancellation. Our charges will be based on the prices set out in the Supply Agreement for the relevant element of the Services that we have performed but will include (without limit) the following (where applicable):
5.2.1 any charges agreed for any surveys we have carried out;
5.2.2 if we have installed a Tank, any installation charges;
5.2.3 if we have installed a Tank at the Site, and you are not switching supplier by Tank transfer or a new installation, you must pay us £120 for above ground Tank removal and £1000 for below ground Tank removal. In these cases, we will collect the Tank (and you must make it available to us for collection) upon reasonable notice; and
5.2.4 any LPG that you have used.
6.1 We shall not be required to deliver LPG where access to a Tank has changed so that in our reasonable opinion it is no longer sufficient and/or safe to do so.
6.2 If, in our reasonable opinion, we are prevented from delivering LPG for any reason, we may at our option supply LPG by an alternative means or cancel the Agreement by giving you forty two days’ written notice.
6.3 If, pursuant to clause 6.2 we deliver LPG by an alternative means for more than two months, you may cancel the Agreement upon giving us forty two days’ written notice.
6.4 Subject to the terms of the Order, if the Agreement is cancelled by either of us (other than in accordance with clause 4) you shall pay us the cost of all LPG used by you up to the date of removal of the Tank and the Fittings from the Site.
6.5 If you require additional deliveries of LPG, then subject to our normal delivery schedule, we shall try within reason to deliver within two working days of our receipt of your order. You may be liable to an additional delivery charge if you request delivery of an order outside our normal delivery schedule but we will notify you and explain the costs in advance.
6.5.1 Where there is a tank of 1600 litres or greater in size and a delivery of 899 litres or less is required, an additional charge may be applied, but you will be notified of this in advance of the delivery being made.
6.6 All LPG delivered under the Agreement shall be measured by us at the time of delivery through a calibrated meter and the amount measured by the meter shall be recorded on the delivery note. Whether or not you are present at the time of delivery and/or sign the delivery note, the amount of LPG delivered shall be deemed to be that recorded in the delivery note unless the delivery note contains an obvious and material error in respect of the quantity of LPG delivered, in which case you must notify us in writing and we will investigate the matter.
6.7 You can choose to opt into ‘regular top up deliveries’ by ticking the relevant section overleaf. You may cancel ‘regular top up deliveries’ by giving two working days’ notice to us. We will notify you in advance of any additional costs that might be payable in respect of this service.
6.8 Dates for delivery and/or performance are estimates only and are not guaranteed. We shall not be liable for any delay caused by events outside of our reasonable control.
6.9 Top up deliveries do not require a signed POD unless specifically detailed in the contract at the date of signing.
7.1 You shall pay any and all sums due and on the dates set out in the Supply Agreement.
7.2 If we have not requested payment in advance of delivery, you shall pay any monies owing for LPG fourteen days from delivery by direct debit or other method as agreed in the Supply Agreement.
7.3 Subject to clause 7.7, you shall make all payments due to us on time and in accordance with the Agreement. Payment shall not be deemed to be made until we have received either cash or cleared funds in respect of the full amount outstanding.
7.4 We reserve the right to ask for payment in advance.
7.5 All charges and invoice amounts will be subject to the appropriate rate of VAT from time to time and the total amount shown to be due on each invoice will be inclusive of VAT.
7.6 If you fail to pay us on the due date we may charge you interest (both before and after judgment) on the amount unpaid at 4% above the base rate from time to time of the Bank of England per annum and also recover from you any reasonable administrative and legal costs incurred by us in recovering overdue amounts from you.
7.7 We acknowledge that you have a right to withhold monies to us where you have a genuine dispute against us in relation to the LPG and/or Services and we will not charge interest in respect of overdue payments in genuine dispute.
8.1 Please note that there is standing charge which applies in respect of the costs we incur from having in place the infrastructure necessary to provide ongoing support and assistance to you in relation to any issues which may arise in relation to Tank maintenance during the term of the Agreement. This standing charge will be set out in the Supply Agreement. Please further note that this standing charge may increase if our costs in relation to providing support services increases (provided always that such increases shall in any event be no greater than any equivalent increase in the retail prices index during the relevant period since the last increase to the standing charges).
8.2 Where the cost of supplying the LPG increases due to:
8.2.1 any underlying increase in the cost of LPG as evidenced by reference to the relevant Platts LPG price index for North West Europe (taking into account any relevant exchange rate issues);
8.2.2 any increase in our direct transportation costs; and/or
8.2.3 any increase (not related to clause 8.2.1) in the cost to us of purchasing LPG from our suppliers, we retain the right to pass on such increases to you by increasing the price of our LPG but subject .
We may increase (in a single step or a series of steps) the price of LPG for the reasons listed at clauses 8.2.2 and 8.2.3 by no more than five pence per litre in any twelve month period.
Please note that no such limit shall apply to any increase which reflects an increase in the underlying cost of LPG (as set out at clause 8.2.1).
For the avoidance of doubt, the maximum increase in the price of LPG (the “Upper Annual Limit”) in a given period is:
(a) the cost increase over the corresponding period due to clause 8.2.1; plus
(b) the cost increase over the corresponding period due to clauses 8.2.2 and/or 8.2.3 together, where (a) is an unlimited increase and (b) shall be limited to a maximum of five pence per litre in any 12 month period.
8.3 We will notify you in writing regarding any proposed increase. If our prices are increasing due to an increase in the underlying indexed price of LPG as set out in clause 8.2.1 then we will provide you with details of the relevant Platts index pricing in effect as at the date of the notice and as at the date of our last price increase.
8.4 If we have sought to increase the price of LPG supplied to you at a rate higher than the Upper Annual Limit then you may, within two weeks of receiving notice of the price increase, terminate the Agreement by giving us not less than forty two days’ notice in writing (during which time the original pricing shall apply).
9.1 You will be liable for any damage to people or property as a result of the operation of the Installation at the Site and the storage of LPG in the Tank. Subject to clause 10, we will only remain liable for breaching our obligations or for our negligent acts and omissions in providing the Services and in delivering LPG to you.
9.2 You will be responsible for the safekeeping of the Installation whilst in your possession. You must always refer to the Technical and Safety or contact us for the safekeeping and maintenance of the Installation and Site.
9.3 You must at all times respect our ownership of the Tank and Fittings supplied under the Agreement which at all times will remain our property irrespective of whether ownership of the Site has been transferred.
9.4 We shall retain title and ownership of the LPG in the Tank until we have received payment in full in cash or cleared funds of all sums due and/or owing for all LPG and/or Services supplied to you under the Agreement.
10.1 The Competition Commission made an Order with the intention of making it easier for customers to switch suppliers. Under the Order if you choose to move to another supplier then it can offer to purchase the Tank from us following which they will take over responsibility for LPG supply and maintenance.
If they choose not to purchase the Tank then they will need to supply their own and we will remove your existing Tank in accordance with clause 11.8 (without any charge to you assuming that the Tank is one which we own).
10.2 We are committed to acting in compliance with the Order and so we will take such steps as are required to assist you should you want to move to another supplier of LPG, which you are entitled to do by giving us notice in writing of termination in accordance with clause 4 or clause 10.
10.3 Please refer to the Technical and Safety in relation to alternative providers of liquefied petroleum gas (details may also be found at www.uklpg.org, the website of the LPG trade association) together with details of the procedures, dates and requirements for the transfer of ownership of (and responsibility for) the Tank to a new supplier.
10.4 Under the terms of the Order we are obligated (save where we have terminated the Agreement due to a serious breach by you) to continue to supply you with LPG and ensure you are not left without any LPG and, therefore please note you will continue to be responsible for payment of all LPG which we have supplied in accordance with the terms of the Agreement, even if you terminate the Agreement.
11.1 On the ending of the Agreement for whatever reason you must pay to us in accordance with the payment terms set out in clause 7 all monies which are properly due and payable to us under the Agreement and on any account of whatever nature (subject always to the provisions of clause 7.7 where there is a genuine dispute between us).
11.2 We may terminate the Agreement at any time by giving you not less than forty two days’ prior notice in writing.
11.3 Without prejudice to any other rights or remedies which we may have, we may terminate the Agreement without liability to you immediately on giving notice if you:
11.3.1 fail to make any payment to us when due then (without prejudice to your obligation to pay any outstanding sums) we will write to you detailing the payments due to us and if you then fail to make the required payments within thirty days of the date of that notice;
11.3.2 commit a material breach of any of the terms of the Agreement and, where the breach is capable of remedy, have not remedied the breach within thirty days of receiving notice requiring the breach to be remedied;
11.3.3 provide materially inaccurate or misleading facts or information in connection with the Agreement;
11.3.4 pledge or charge the Tank and Fittings and/or any LPG owned by us;
11.3.5 appear reasonably to us due to your credit rating to be financially inadequate to meet your obligations under the Agreement; and/or
11.3.6 are about to (or we reasonably believe that you are about to) do any of the above actions or omissions or suffer any of the above events.
11.4 As noted in clause 2.5, it is important (both for your safety and the safety of our staff) that you comply with the information set out in the Technical and Safety. If you fail to act in accordance with the Technical and Safety and we (acting reasonably) believe that such failures represent a health and safety hazard then we may suspend further deliveries of LPG unless or until the relevant issues have been resolved to our reasonable satisfaction.
11.5 You may terminate the Agreement by giving us not less than forty two days’ prior notice in writing to expire no sooner than the end of the Exclusivity Period.
11.6 Under clause 8.2, if we have sought to increase the price of LPG supplied to you at a rate higher than the Upper Annual Limit then you may terminate the Agreement by giving us not less than forty two days’ notice in writing (during which time the original pricing shall apply).
11.7 If we commit a material breach of the Agreement which we fail to remedy within thirty days, or which is incapable of remedy, then you shall be entitled to terminate the Agreement by giving us notice in writing (with either immediate effect or with up to forty two days’ notice, at your discretion). If you terminate the Agreement under this clause with immediate effect (or during the forty two day notice period, as appropriate) then we will use our best efforts to arrange an ongoing supply of LPG to you under the terms of the Agreement for a period of forty two days or (if sooner) a new supplier takes over your supply.
11.8 Unless we have agreed to transfer the Tank to a new supplier upon the terms of the Order we may collect the Tank (and you must make it available to us) upon reasonable notice, regardless of whether there is any LPG remaining in the Tank or not. Where the Tank is an underground installation, you must arrange for the Tank to be fully exposed and provide safe access for Flogas appointed engineers and a crane vehicle with a 7m reach to remove the Tank from the excavation. Please note that unless termination is as a result of: (i) switching supplier either by tank transfer or a new installation or (ii) you terminating the Agreement for our material breach under clause 11.7, the following charges will apply: £225 for above ground Tank removal and £400 for below ground Tank removal, which will be payable by you to us. Please note that this clause 11.8 shall survive termination of the Agreement.
11.9 If your Tank contains LPG (which is in a saleable condition) at the time we collect it (other than if you cancel the Agreement in accordance with clause 4) then we will buy back that LPG from you for a sum determined by reference to the volume of LPG in your Tank applying fifty per cent (50%) of our then current price per litre. The sums due to you shall be applied in the first instance against the charges due in respect of the lifting of the Tank with any balance being paid directly to you within thirty days of the Tank being lifted.
12.1 We shall have no liability:
12.1.1 for defects in the Tank and Fittings and/or Services to the extent the defect has been caused or contributed to by you this includes you failing to follow the Technical and Safety and/or our reasonable instructions;
12.1.2 unless you give us a reasonable opportunity to remedy any matter for which we are liable before you incur any costs and/or expenses in remedying the matter itself;
12.1.3 for the Pipes (except to the extent that the Pipes are damaged as a result of our negligence);
12.1.4 to reinstate the Site upon removal of the Tank to the condition the Site was in before the Tank was installed;
12.1.5 for any damage which occurs as a result of persons performing the Services following your instructions, guidance and/or advice except to the extent that such damage results from our negligence;
12.1.6 for any damage to your property including without limitation damage to man- hole covers, drives, paths, walls, bridges, flags, plants and/or garden ornaments during delivery, installation and/or removal of the Tank and/or LPG unless such damage is caused by our negligence;
12.1.7 for any failure to deliver LPG if you fail to provide sufficient, safe and suitable vehicular access to the Tank for our tankers;
12.1.8 for damage, loss, liability, claims, costs or expenses solely caused or contributed to by your continued use of a defective Tank and/or Fittings and/or Services after a defect has become reasonably apparent to you or reasonably suspected by you or should have been suspected by you except to the extent that any defect was due to our fault; and/or
12.1.9 unless you provide us with written evidence of any claims together with written details of how the loss was caused by us.
12.2 We shall only be liable to you:
12.2.1 for losses that were foreseeable to both parties when the Agreement commenced to the extent that these losses result from our negligence; and
12.2.2 for losses that are caused as a result of our negligence, or a breach of contract or breach of statutory duty by us.
12.3 Nothing in the Agreement shall exclude or limit our liability for death or personal injury due to our negligence, breach of duty or breach of contract.
12.4 We are under a legal obligation to deliver the Tank in conformity with this Agreement. As a consumer, you have certain statutory rights regarding the supply of defective goods or equipment and claims in respect of losses caused by our negligence or failure by us to carry out any of our obligations under the Agreement. Nothing contained in the Agreement shall affect your statutory rights. Statutory rights are rights given to you as a consumer by the law in respect of claims/losses arising from the supply of goods and services where the supplier has been negligent or fails to carry out its obligations as agreed with you.
13.1 Information that we may acquire about you whether in accordance with the Agreement or otherwise may be used by us, our employees or agents:
13.1.1 to identify you during any communication between us and you;
13.1.2 assist in detecting fraud or loss;
13.1.3 assist in the administration of accounts, services or products provided by us throughout the Agreement and following termination; and
13.1.4 we may also write to or telephone you with information about other services or products offered by us or any associated company. We shall not contact you in this way unless you have consented to such contact.
14.1 If you breach the Agreement, are negligent in any way and/or commit any breach of statutory duty, we will have the right to claim damages for our losses from you (including our reasonable legal and other costs in enforcing our rights).
14.2 No waiver by us of any breach of the Agreement shall be a waiver of any subsequent breach of the same provision or any other provision.
14.3 If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Agreement and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
14.4 We shall not be liable to you for any delay in performance of the Agreement to the extent that such delay is due to any events outside our reasonable control including but not limited to acts of God, war, flood, fire, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events, and labour disputes, strikes and lock- outs which are outside of its reasonable control (“Force Majeure Event”).
14.5 Notwithstanding clause 2.3.1, if we are unable to deliver LPG because of a Force Majeure Event, you shall be permitted to purchase liquefied petroleum gas from another source until such time as the Force Majeure Event has, to our satisfaction ceased or until the Agreement is terminated by either party in accordance with clause 10.
14.6 Unless otherwise provided within the Agreement, any notices given under the Agreement shall be in writing and delivered to the addresses on the Supply Agreement and marked for your attention or the attention of our Customer Services Manager.
14.7 All third party rights are excluded and no third party shall have any right to enforce the Agreement. This shall not apply to members of our group.
14.8 Where the Site is in England or Wales, the Agreement shall, as far as is legally possible, be governed by the laws of England and Wales and we and you each agree to the non-exclusive jurisdiction of the courts in England and Wales. For sites in Scotland, the Agreement shall, as far as is legally possible, be governed by the laws of Scotland and we and you each agree to the non-exclusive jurisdiction of the courts in Scotland. In some circumstances, the laws where you are domiciled may apply and the courts where you are domiciled may have jurisdiction.
14.9 We reserve the right to carry out credit searches on you as appropriate with one or more licensed credit reference agencies and they will retain a copy of the search.
15.1 If you have any questions or complaints, please contact our Customer Services team on 0800 574 574 between the hours of 8.30am and 7:00pm. Our Customer Charter is also designed to help you and can be found at http://www.flogas.co.uk/customer-charter.
Alternatively, please write to us at: Flogas Britain, 81 Rayns Way, Watermead Business Park, Syston, Leicester, LE7 1PF. Or, you can email us at [email protected] or send a fax to 0116 264 9014.
We are Flogas Britain Limited. We are a private limited company incorporated in the UK (company number: 993638). Our registered address: 81 Rayns Way, Syston, Leicester, LE7 1PF. Flogas Britain Limited is part of the DCC Energy LPG