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Flogas Britain Limited Terms and Conditions of Sale

THIS AGREEMENT COMPRISES OF THESE PURCHASE ORDER TERMS AND CONDITIONS OF PURCHASE, together with the attached Purchase (the “Purchase Order”) (this “Agreement”), dated as of the date listed on the Purchase Order (the “Effective Date”), is entered into by and between Flogas Britain Limited (“Buyer”), and the person or company listed in the Purchase Order (“Supplier”), and together with “Buyer”, the “Parties”, and each, a “Party”.

BACKGROUND

A. Buyer wishes to purchase certain goods non-exclusively from Supplier and consolidate its purchases of such goods under this Agreement in order to improve service levels, develop consistency/standardization of goods, optimize costs and reduce overall complexity of ordering by streamlining its vendor base; and

B. Supplier is in the business of supplying and selling the goods described in this Agreement;

C. Supplier desires to supply and sell such goods to Buyer in accordance with this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Purchase and Sale.

    1. Purchase and Sale. Subject to the terms and conditions of this Agreement, the Buyer will purchase the goods described in the Purchase Order (the “Goods”) non-exclusively from Supplier, and Supplier shall supply and sell the Goods to Buyer, at the prices (the “Price”) set forth in the Purchase Order. Upon the written consent of both Parties, the description of the Goods and the Price may be amended from time to time to reflect any agreed revisions to any of the terms described. Nothing in this Agreement shall under any circumstances oblige Buyer to purchase any quantity of Goods from Supplier or prohibit Buyer from purchasing Goods (or products similar to the Goods) from any other Person.

    2. Terms of Agreement Prevail. The Parties intend for the express terms and conditions contained in this Agreement (including any Schedules hereto) to exclusively govern and control each of the Parties’ respective rights and obligations regarding the supply, sale and purchase of the Goods. Any additional, contrary or different terms contained in any Confirmation or any of Supplier’s invoices or other communications, and any other attempt by Supplier to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by Buyer and will not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized representatives of both Parties. Any additional, contrary or different terms and conditions contained in any Purchase Order shall modify, supersede, and supplement this Agreement with respect to such Purchase Order only to the extent such terms do not conflict with the terms of this Agreement and, to such extent, are deemed accepted by Buyer and will be binding on the Parties if Supplier has issued a Confirmation with respect to such Purchase Order.

  2. Acceptance, Rejection and Cancellation of Purchase Orders 

    1. The Supplier shall confirm to Buyer the receipt and acceptance of the Purchase Order and these terms and conditions by signing and returning the Purchase Order within 14 days of it being sent to the Supplier by the Buyer (a “Confirmation”).  The Confirmation shall confirm acceptance of the Purchase Order and these terms and conditions or advise the Buyer of Supplier’s rejection of such Purchase Order, the date of acceptance or rejection and the basis for rejection, if applicable. If Supplier fails to issue a Confirmation within the time set forth, or otherwise commences performance under such Purchase Order, Supplier will be deemed to have accepted the Purchase Order and these terms and conditions. Buyer may withdraw any Purchase Order or these terms and conditions prior to Supplier’s acceptance thereof and will not be liable to the Supplier in any respect for orders of materials or goods unless a Confirmation confirmed by our duly signed Purchase Order. 

  3. Delivery, Acceptance and Inspection

    1. Delivery Requirements & Liquidated Damages. The Supplier shall supply, or as the case may be, procure materials for fabrication and assemble the Goods strictly in the quantities, by the delivery dates, specified in this the Purchase Order, or if no Delivery Date is provided for in the Purchase Order, the Supplier shall deliver the Goods within a reasonable time (the “Delivery Date”). If any of the Goods are received after the Delivery Date, then the Buyer will enforce the liquidated damages agreed in clause 3.2 below. Delivery times will be measured to the time that Goods are actually received by Buyer at the location for delivery specified in the Purchase Order (if any) (the “Delivery Location”). 

    2. If the Supplier does not deliver the Goods at the Delivery Location by the Delivery Date the, the Buyer may, at the Buyer’s sole discretion and at Supplier’s sole cost and expense, (a) approve a revised Delivery Date, (b) levy liquidated damages for delay (but not as a penalty), the following liquidated damages: the Supplier shall pay (or credit) to Buyer 2% per week, up to a maximum of 10% of the total value of the Purchase Order (c) fully indemnify the Buyer against any and all loss or damage suffered by the Buyer as a result of such delay, including any consequential loss caused to the Company which is attributable to the delay.

    3. For clarity, any vessel contract for delivery, will be done so during the working week (Monday to Friday) nominated, the liquidated damages specified in clause 3.2 above will not apply to any vessel delivered at any point in the following working week (Monday to Friday).

    4. The Supplier shall, at Supplier’s sole cost and expense, take such actions as are necessary or appropriate to ensure the Delivery Date is met.

    5. Inspection; Rejection and Remedies. Goods are subject to Buyer’s inspection and approval or rejection notwithstanding Buyer’s prior receipt of or payment for the Goods. The Buyer shall have a reasonable period of time, not to be less than ten (10) days following delivery of the Goods to the Delivery Location (the “Inspection Period”), to inspect all Goods received under this Agreement and to inform Supplier, in writing, of Buyer’s rejection of any nonconforming Goods (the “Nonconforming Goods”).  If Buyer rejects any Nonconforming Goods, Buyer may elect to :

      1. return such Nonconforming Goods, at Supplier’s risk and expense, and promptly expect a corrective action report with a clear indication or lead times to resolution, at a discount of 2% per week, up to a maximum of 6% from the Price of such Nonconforming Goods. Replacement Goods may also be requested.

      2. keep and repair, or keep and have repaired, at Supplier’s expense, such Nonconforming Goods, and receive a discount of 2% per week, up to a maximum of 10% from the Price for such Nonconforming Goods; in each case without limiting the exercise by Buyer of any other rights available to Buyer under this Agreement or pursuant to applicable Law. Replacement Goods may also be requested.

    6. Goods that are not rejected within the Inspection Period will be deemed to have been accepted by Buyer; provided, however, that Buyer’s acceptance of any Goods will not be deemed to be a waiver of any warranties or remedies available under law (express or implied under statute or common law) or limitation of Supplier’s obligations pursuant to this Agreement (or any breach thereof), including those obligations with respect to Supplier’s Product Warranty and Supplier’s duty to indemnify Buyer.

  4. Price and Payment.

    1. Price. Buyer shall purchase the Goods from Supplier at the Price, which (unless otherwise agreed in writing) includes delivery to the Delivery Location. All Prices include, and Supplier is solely responsible for, all costs and expenses relating to delivery and insurance and any other similar financial contributions or obligations relating to the production, manufacture, sale and delivery of the Goods. At all times, Buyer reserves the right to purchase goods, including but not limited to the Goods, from any source of its choice. Such decisions may be based on, among other things, price, delivery and/ or service level.

    2. Invoices. Supplier shall issue invoices to Buyer for all Goods delivered to and accepted by Buyer. Each invoice for Goods must set forth in reasonable detail the amounts payable by Buyer under this Agreement and contain commercially reasonable identifying information and detail, including but not limited to purchase order and invoice numbers, prices and applicable taxes, quantities and descriptions of Goods, and supplier details as required by law.

    3. Payment. Except for any amounts disputed by Buyer in good faith, each accurate and correctly submitted invoice of Supplier will be payable within 30 days following the Invoice date in which Buyer receives such invoice. Buyer shall make all payments in GBP by BACS, wire transfer or automated clearing house in accordance with the instructions provided by Supplier from time to time.

    4. Quality. The Purchase Oder is made in reliance upon such samples, tenders, quotations, drawings, illustrations, photographs, plans as have been provided by the Supplier and any agreed specifications. These, therefore with any weights, measurements, powers, capacities, times and other particulars provided, are therefore an essential term of this agreement and the Supplier shall use its best efforts to cause the Goods to exceed, commercially reasonable quality standards and any quality standards as described in the Purchase Order.

  5. Supplier Obligations.

    1. Product Warranty. Supplier is aware of the intended use of the Goods by the Buyer and warrants to Buyer and any end users of the Goods that (the “Product Warranty”): for the greatest of the minimum period provided by applicable Law, a period of one(1) year, and the warranty period for any particular Good set out in the Purchase Order, and, with respect to any end user of the Goods, the period as provided by Buyer to such end user, the Goods will:

      1. conform, in all respects, to the Specifications;

      2. conform with commercially reasonable quality standards and Buyer’s quality standards;

      3. be merchantable and free from defects, latent or otherwise, in design, materials and workmanship;

      4. be fit and sufficient for the particular purpose intended by Buyer and its customers, of which the Supplier is aware (and Supplier acknowledges that it knows of Buyer’s intended use of the Goods and that such Goods have been selected, designed, manufactured or assembled by Supplier based upon Buyer’s stated use and will be fit and sufficient for the particular purposes intended by Buyer); and comply with all applicable Laws;

      5. each of the Goods will be new and conveyed by Supplier to Buyer with good title, free and clear of all encumbrances;

      6. in the case of cylinders and pressure vessels intended for the purpose of containing liquified petroleum gases, the Supplier guarantees that the Goods will comply with all statutes and regulations in force for the time being pertaining to such cylinders and pressure vessels and also the recommendations of Liquified Petroleum Gas Industry Technical Association (U.K.) and in particular will comply in all respects with the details set out in any specifications provided by the Buyer.

    2. Additional Terms. The Product Warranty (a) is in addition to all other warranties, express, implied, statutory and common law, (b) extends to the Goods’ future performance, (c) survives Supplier’s delivery of the Goods, Buyer’s receipt, inspection, acceptance, use of the Goods and payment for the Goods, and the termination or expiration of this Agreement, (d) inures to the benefit of Buyer and its successors and assigns and the users of Buyer’s products, and (e) may not be limited or disclaimed by Supplier. 

    3. Continuous Improvements. Supplier shall work together with Buyer to achieve global process improvements in the areas of quality, price, cost, efficiency, responsiveness and delivery. Supplier shall, on a continuous basis, use its best efforts to identify ways to improve quality, price, cost, efficiency, responsiveness and delivery. Supplier shall collaborate with, and maintain avenues of communication through which, Buyer may suggest strategies to effect such improvements. At Buyer’s request, appropriate representatives of Supplier shall meet with Buyer regularly and/or from time to time to formulate such strategies and review the progress made on these objectives. Such meetings shall also allow for discussion on progress on the continuous improvements described above, legal compliance, service levels, and quality matters, and any other relevant items. 

  6. Indemnity

    1. The Supplier shall keep the Buyer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Buyer as a result of or in connection with:

      1. any claim made against the Buyer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the supply or use of the Goods, to the extent that the claim is not attributable to the acts or omissions of the Buyer, its employees, agents or subcontractors;

      2. any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are not attributable to the acts or omissions of the Buyer, its employees, agents or subcontractors;

      3. any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and

      4. any breach of clause 8.

    2. This clause 6 shall survive termination or cancellation.

  7. Insurance

    1. For a period of 1 years after the supply of the Goods, the Supplier shall maintain in force, with a reputable insurance company product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the supply and normal use of the Goods, and shall, on the Customer's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.

  8. Compliance with relevant laws and policies

    1. In performing its obligations, the Supplier shall:

      1. comply with all applicable laws, statutes, regulations and codes from time to time in force; and

      2. any of the Buyer’s policies as notified to it.

  9. Miscellaneous.

    1. Relationship of the Parties. The relationship between Supplier and Buyer is solely that of vendor and vendee, and are independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.

    2. Intellectual Property. Where the Goods include any intellectual property, the Supplier grants the Buyer a non-exclusive licence to use such intellectual property to the extent required by the Buyer for normal use and service of the Goods. The Supplier shall keep the Buyer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Buyer as a result of or in connection with any claim made against the Buyer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the supply or use of the Goods;

    3. Title and Risk. Title and risk in the Goods shall pass to the Buyer on completion of delivery to the Delivery Location.

    4. Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to appropriate representatives of Supplier and Buyer.  Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within thirty (30) days after delivery of the applicable Dispute Notice, either Party may file suit in a court of competent jurisdiction.

    5. Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of England without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

    6. Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). Supplier shall give Buyer prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Supplier shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.

    7. Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under this agreement without the prior written consent of the Buyer. If the Buyer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all acts and omissions of its subcontractors as if they were its own.

    8. Confidentiality

      1. Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 9.8.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

      2. Each party may disclose the other party's confidential information:

        1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 9.8.2; and

        2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

      3. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Contract.

    9. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

    10. Waiver. No failure or delay by a party to exercise any right or remedy provided under the agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.

    11. Severance. 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 shall not affect the validity and enforceability of the rest of the agreement.

    12. Notices. 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 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 pre-paid first class post or other next working day delivery service, commercial courier, email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 9.12; if sent by pre-paid first class post or other next working day delivery service, 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 email, one Business Day after transmission. The provisions of this clause 9.12 shall not apply to the service of any proceedings or other documents in any legal action.

    13. Third party rights. No one other than a party to this agreement shall have any right to enforce any of its terms.