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General Terms & Conditions Applicable to Supply of Shell Branded Bitumen Products and Services
In the absence of any Supply Agreement which has been signed on behalf of Shell and the Buyer, all Products and Services are supplied subject to Shell's General Terms and Conditions of Supply detailed below and (where relevant) the Delivery Promise (together this 'Agreement'). Without limitation, placing an order (which is subsequently accepted by Shell) and/or lifting and/or accepting the Product shall signify acceptance of this Agreement and shall override any other terms or conditions put forward by the Buyer. To the extent of any inconsistency between this Agreement and any other agreement signed by duly authorised representatives of Buyer and Shell, the terms of the latter agreement shall apply. This Agreement shall apply only to an individual order and supply of Products or services between Shell and the Buyer and shall not be construed as conferring an ongoing relationship or term contract between the Buyer and Shell. Shell has no obligation to accept any order from the Buyer and the Buyer has no obligation to place orders with Shell. Shell reserves the right to recover any loss it suffers as a result of the Buyer cancelling or amending an order after it has been submitted to and accepted by Shell.
DEFINITIONS In this Agreement:
“Affiliate” means, in reference to a Person, any other Person which: (i) directly or indirectly controls or is controlled by the first Person; or (ii) is directly or indirectly controlled by a Person which also directly or indirectly controls the first Person; and for the purposes of this definition, a Person controls another Person if such Person has the power to direct or cause the direction of the management and policies of the other Person, whether directly or indirectly, through one or more intermediaries or otherwise, and whether by ownership of shares or other equity interests, the holding of voting rights or contractual rights, by being the general partner of a limited partnership, or otherwise. “Person” means any individual, partnership, limited partnership, firm, trust, body corporate, government, governmental body, agency or instrumentality, unincorporated body of persons or association. “Change of Control” occurs whenever a legal or natural person (other than an Affiliate of that party) either ceases to have control of a party or acquires such control. “Buyer” means the purchaser of the Product and/or Services offered by Shell. “Services” means any services offered by Shell from time to time under this Agreement. “Delivery Promise” means any brochure of Shell (as may be updated and issued to Buyer from time to time) relating to supply of the Product and setting out details of such matters as ordering processes, delivery times, minimum orders and discounts. “Product” means any product offered by Shell from time to time under this Agreement. The words “include” and “including” shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words.
Payment for Product and/or Services shall be due in accordance with the payment terms agreed by Shell and Buyer which are confirmed on the invoice. Payment shall be made by direct debit unless otherwise agreed by Shell. If payment is not made in accordance with the agreed terms Shell reserves the right to claim interest or a late payment charge at a rate of 0.05% per day on late payment and additional compensation for debt recovery costs but such rate and compensation shall be capped at the maximum permitted under applicable law. Where the last day for payment falls on a day other than a “Working Day” (meaning a day that is neither a Saturday or a Sunday or a public holiday in Shell’s principal place of business) then any such payment shall be made on the nearest preceding Working Day.
Shell may at any time withhold and set off any sum due from Shell to Buyer against any sum due from Buyer or any of Buyer’s Affiliates to Shell under this Agreement or otherwise.
CREDIT LIMIT & SECURITY
At Shell’s request, Buyer shall provide Shell with financial performance data of Buyer and, prior to any and each assignment or novation, of any proposed assignees or novatees of Buyer. Additionally, Buyer agrees to dialogue with Shell in sufficient detail as is necessary for Shell to form a clear judgment on the financial health of Buyer (including in the event of a Change of Control) or any proposed assignee or novatee in order that Shell may set a credit limit (inclusive of VAT/GST) (the “Credit Limit”) for Buyer. If Buyer fails to comply with this provision or if at any time the reliability or the financial responsibility or creditworthiness of Buyer (or of any guarantor or other person furnishing security in support of Buyer) should, in Shell's opinion, be or become impaired or unsatisfactory (whether by failure to make any payment on its due date or otherwise) or should Buyer exceed the Credit Limit, without prejudice to any other rights or remedies under this Agreement, Shell shall be entitled to immediately suspend any delivery, collection or lifting and refuse access to Shell’s premises until such time as such default or situation has been remedied. Following any such occurrence, Shell shall be entitled (at Shell's option) either to receive upon demand immediate payment in cash in advance of the due date or to receive from Buyer on demand any security satisfactory to Shell, in respect of any delivery, collection or lifting or any proportion thereof.
If Buyer fails to pay any indebtedness to Shell in accordance with the terms for such indebtedness (whether or not under this Agreement), Shell may in addition to any other remedies, postpone or withhold the supply of Product, change payment terms, cancel and/or terminate this Agreement immediately upon written notice to Buyer.
Unless otherwise agreed in writing the prices to be charged for Product and/or Services will be Shell's current price list for Product and/or Service in question. Product uplifted by Shell at Buyer's request will be credited at the invoice price unless agreed otherwise with Shell. Buyer shall also be liable for relevant charges as advised by Shell in writing from time to time. If Buyer’s requires Shell to handle any compulsory stock obligations on the part of Buyer, that shall be subject to separate agreement and charges.
Except as otherwise specified prices quoted for the Product are exclusive of any duties (including export duties), fees, income tax, value added tax/goods and services tax, energy tax and all other taxes, government levies, costs or payments at the places of loading and discharge including duties, interest, fines and penalties payable or levied as a consequence of non-payment of any of the foregoing or as a consequence of any operational situations giving rise to any difference between the quantity delivered and quantity received and all other charges on the consignment(s), or mode of transport vessel, or freight, all of which are for the account of and shall be paid by Buyer directly, or if Shell is compelled to or in their discretion decides to pay same first (but Shell shall not be obliged to do so), Buyer shall forthwith indemnify Shell in respect the same. All other such charges (including any taxes arising as a result of interest or late payment charges imposed pursuant to the terms of this Agreement) shall be for the account of Buyer.
Any Product or Service shall conform to any specification or description set out in this Agreement and any Shell literature published in relation thereto as current from time to time. Product will be fit for the purpose set out in such literature and not for any other purpose whatsoever. The express terms and conditions of this Agreement shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law. The express terms and conditions of this Agreement shall benefit only the direct purchaser of the Product and not any secondary or remote purchaser, provided that the Buyer shall ensure that in any resale by it of branded Product, the specifications, description and literature provided to the Buyer shall be conveyed with the Product.
QUANTITY AND MEASUREMENT
Shell shall be responsible for measurement of the quantity of Product delivered for the purposes of preparing accounts which shall be conclusive and binding in the absence of manifest error on the part of Shell. Buyer is entitled to be represented at the taking of measurements for bulk deliveries if it so requests. Shell does not accept any responsibility whatever for discrepancies in Buyer's tanks, dip rods or other measuring devices or any discrepancies arising there from. The quantity of bulk Product actually delivered may vary by up to 5% (either way) from the quantity ordered by Buyer. Shell will charge the price for the quantity delivered but any load concessions agreed with Buyer for which the order might otherwise have qualified will still be applied.
Product delivered to Buyer or procured to be delivered on the days, shall be delivered between hours and in loads of minimum and/or maximum quantity as may from time to time be prescribed by Shell, and Buyer shall request deliveries under this Agreement accordingly and shall allow reasonable time for Shell to deliver. Where applicable, Buyer warrants and undertakes to provide suitable facilities to allow safe offloading. The cost of uplifts requested by Buyer or caused by Buyer's default may be charged to Buyer. With Shell's consent Buyer may collect Product itself or by sub-contractor directly from a designated Shell location. The collection vehicles shall be suitable for delivering Product of the type and quantity to be collected and compatible with the facilities available at the Shell location. Vehicles must be insured, licensed and in proper roadworthy condition. Drivers of vehicles must be qualified, equipped for taking delivery of Product and must strictly comply with all safety and other requirements of applicable law and as stipulated by Shell at each location. Shell accepts no liability for any damage, losses, claims, liabilities, costs and expenses of any kind arising from failure to comply with the provisions of this section In the event that Buyer resells any Product, Buyer shall comply with the requirements contained in this clause regarding vehicles and drivers in the delivery of Product to its customers. Please note that minimum short quantity dispute that can be taken up is +/- 100Kg for a full truck load. This is to compensate for variations in different weighing bridge and temperature variations. Such variations (beyond 100kg) shall be notified to Shell within 24 working hours and also mentioned on the delivery note with supporting justification for Shell to conduct required investigation at their end and revert to Buyer within reasonable time of 7 working days.
In the event of missing consignments, short delivery or damage, Shell will investigate the circumstances if, in the case of damage to packed Bitumen products, Buyer notifies Shell in writing within 10 days of receipt quoting the delivery quantity and weight note and, in the case of short delivery or non-receipt, Buyer notifies Shell in writing within 10 days of the delivery date of the consignment concerned. To the extent permitted by law, Shell will not be liable to rectify damaged Product/short deliveries notified outside the time limits referred to above.
RISK AND TITLE
Unless otherwise provided in this Agreement, risk in Product supplied shall pass to Buyer either on delivery, or on collection by Buyer. Title to Product supplied shall pass to Buyer on payment of all debts due and owing by Buyer to Shell. Although Product supplied remains the property of Shell under this condition, Buyer may use them in the ordinary course of business. When any payment is overdue Shell will be entitled to enter Buyer's premises during business hours and secure or remove Product supplied or any of them and Buyer permits Shell to do so. All costs and expenses reasonably incurred by Shell in connection with such recovery shall be paid by Buyer. Until such time as title in Product passes to Buyer, Buyer shall hold Product as Shell's fiduciary agent and bailee, and shall keep Product properly protected and insured and identified as Shell's property. In the event that any payment for Product is not made by the due date Shell shall at its absolute discretion either recover Product or maintain an action for the price and/or damages.
SHELL CONTAINERS AND/OR PALLETS
If the Product is supplied in containers and/or on pallets Buyer shall ensure that appropriate facilities are available for off-loading and loading the containers and/or pallets. Buyer shall be responsible for the safe storage and handling of the containers and/or pallets while in its possession and shall not use them for any purpose other than the storage of Product supplied by Shell. Buyer shall notify Shell promptly when the containers and/or pallets are ready for collection and shall ensure that they are empty and safe to handle. Shell reserves the right to invoice Buyer for the costs to Shell of replacing lost or damaged containers or pallets at the costs prevailing at the time of loss or damage.
Shell reserves the right to withdraw all or any Product and may from time to time change any specification to comply with any applicable safety or statutory requirements or if the changes do not materially affect their quality or fitness for purpose, in relation to any Product. Shell may discharge its obligations under this Agreement by supplying a different formulation of grade ordered or by supplying in substitution for that grade another Product or, in the case of that grade being ordered under or sold under a brand name, another Product or the same Product with another brand name provided that after substitution takes place the Product is in all material respects as suitable for the known purposes of the Customer as the original grade. Shell may make changes to the packaging of Product, including changes to design, size or weight and may cease to make available any Product in bulk.
SHELL TRADE MARKS AND FORMULATIONS
“Shell Trade Marks” shall include the name “Shell”, the Shell pecten symbol and any other Shell trade mark, symbol or emblem. Buyer shall use Shell Trade Marks only in such a manner as Shell may direct from time to time, and unless otherwise agreed with Shell in writing, nothing herein shall give the Buyer any proprietary interest in or title, claim, right or goodwill whatsoever to/in any Shell Trade Marks, including any right for the Buyer to apply any Shell Trade Marks to any products (including the Product or its derivatives), or to use Shell Trade Marks in relation to any products (including the Product or its derivatives). If the Product bearing any Shell Trade Marks is to be sold on to any third party, the Buyer shall sell such Product only in the form in which Buyer received the Product from Shell, and the Buyer shall not add to, adulerate, alter or contaminate the Shell Trade Marks pertaining to the Product in any way whatsoever. Furthermore, the Buyer shall store, handle and transport the Product as instructed by Shell, or in any event in such a way as to maintain the Product in its original condition without deterioration. “Confidential Shell Information” shall include all Shell commercial or business information in any format disclosed to the Buyer either directly or indirectly by Shell, as well as all formulations, proprietary and technical information in any format, including any obtained by observation, concerning the Product and its use, acquired by Buyer whether directly or indirectly from Shell or any Affiliates of Shell. Where work is undertaken for or on behalf of Shell or any Affiliate of Shell under this Agreement using Confidential Shell Information and/or the Product, the results of such work or work product, in any format (collectively the “Results”), shall also be deemed “Confidential Shell Information” and shall be treated by the Buyer as such in accordance with the provisions of this Agreement. Buyer shall not, during the term of this Agreement or after its expiry, use Confidential Shell Information other than as agreed with Shell, or disclose any Confidential Shell Information to any third party without the prior written consent of Shell. Such obligation of confidentiality shall not apply to any Confidential Shell Information which the Buyer can prove to Shell by written evidence in all cases was, or has become, lawfully known to Buyer without binder of secrecy, or is/was publicly available through no act or omission on the part of Buyer. Buyer may only disclose Confidential Shell Information to those of its employees of the Buyer that need to know Confidential Shell Information to enable Buyer to perform its obligations under this Agreement, and who are bound to Buyer (or Shell or any Affiliate of Shell) by written obligations of confidentiality no less stringent than those under this Agreement, prior to the disclosure by the Buyer. Buyer shall not mention Shell’s name or the existence of the Agreement in any publicity material or other communications to third parties without Shell’s prior written consent. At the request and option of Shell, Buyer shall either destroy or return promptly to Shell, or its nominee, all tangible records containing Confidential Shell Information which is/are in the possession or control of the Buyer. The obligations of confidentiality pertaining to Confidential Shell Information, or to the Product shall survive the expiry or termination of the Agreement for any reason. Where, under this Agreement, work is undertaken for or on behalf of Shell or any Affiliate of Shell using the Product, all right, title and interest in respect of the intellectual property rights pertaining to the Results shall vest exclusively in Shell, and shall be assigned to Shell promptly upon creating or generating to Shell by the Buyer, in any event. Buyer shall execute all instruments, deeds or actions necessary to vest such rights in Shell, and/or assist Shell as such. Buyer hereby irrevocably waives all moral or other non-transferable rights in the Results.
HEALTH, SAFETY AND ENVIRONMENT
Shell is committed to the promotion of health and safety and to proper regard for the environment in respect of all its activities. Shell issues health and safety data sheets for Product and Buyer shall be responsible for ensuring that its employees, contractors and customers read and observe all instructions and recommendations in these. Replacement health and safety data sheets may be obtained by contacting Shell in the manner described in this Agreement or in such other manner notified to Buyer from time to time or in either case by contacting the Shell focal point. Buyer shall ensure that all installations and equipment used with Product are installed, maintained and operated in such manner to avoid accidents which could have reasonably been anticipated and shall do everything necessary to prevent Product, used or unused, from entering drainage, sewage systems, water courses or soil. Buyer is required to co operate, so far as it reasonably can, with Shell in implementing measures designed to improve health, safety and environmental performance.
Neither Shell nor Buyer shall be liable for any failure to fulfil their respective obligations under a contract governed by these terms and conditions (other than the payment of money) if fulfilment has been delayed, hindered, interfered with, curtailed or prevented by any circumstance whatsoever which is not within the reasonable control of Shell (“Force Majeure Event”), including: (a) any act of God, fire, explosion, landslide or earthquake; or any storm, hurricane, flood, tidal wave or other adverse weather condition; or any war (whether declared or not), revolution, act of civil or military authority, riot, blockade, embargo, trade sanction, terrorism, sabotage, or civil commotion; or any epidemic or quarantine restriction; or (b) any curtailment, failure or cessation of supplies of labour, service, utility or facility, or raw material, feedstocks or other substances from which such Products are derived or any of Shell’s sources of supply (whether in fact sources of supply for the purposes of these terms and conditions or not) or packages into which they might be filled; or (c) any unavailability of or interference with the usual means of transporting the Products; or (d) any unplanned shutdown or shutdown in anticipation of a breakdown or malfunction affecting the plant or source of supply of Products; (e) compliance with any law, regulation or ordinance, or with any order, demand or request of any international, national, port, transportation, local or other authority or agency or of any body or person purporting to be or to act for such authority or agency or any corporation directly or indirectly controlled by any of them; or (f) any strike, lock-out or labour dispute (whether or not Shell or Buyer as the case may be is party thereto or would be able to influence or procure the settlement thereof). The parties acknowledge that without prejudice to other cases and without limitation the closure or standstill of production facilities, depots or other delivery facilities of Shell shall be considered a Force Majeure Event. The parties further acknowledge that an inability to pay any sums due or other economic distress shall not be a force majeure event. If by reason of any of the causes referred to above, either the availability from any of Shell's sources of supply (wherever situated) of Products, whether deliverable under a contract governed by these terms and conditions or not, or the normal means of transport of such Products is delayed, hindered, interfered with, curtailed or prevented, then Shell shall be at liberty to withhold, reduce, suspend or cancel supplies under a contract governed by these terms and conditions; or apportion any reduced quantity of Products among itself and its customers and affiliates in any manner it determines to be fair and reasonable and to such extent as Shell may in its absolute discretion think fit, and Shell shall not be bound to acquire by purchase or otherwise additional quantities from other suppliers. Any additional quantities which Seller does acquire from other suppliers or from alternative sources may be used by Shell at its complete discretion and need not be taken into account by Shell for the purpose of determining the extent to which it is to withhold, reduce or suspend deliveries under a contract governed by these terms and conditions. Any additional quantities which Shell does acquire from other suppliers or from alternative sources may be used by Shell at its complete discretion and need not be taken into account by Shell for the purpose of determining the extent to which it is to withhold, reduce or suspend deliveries under this Agreement. Buyer shall be free to purchase from other suppliers any deficiencies of deliveries of Products caused by a Force Majeure Event but Shell shall not be liable for any additional cost thereby incurred by Buyer. Shell reserves the right to increase the price charged for any Products (whether the price was originally determined by reference to Shell’s prices or separately agreed in writing) if there is any increase in the costs incurred or to be incurred by Shell in making the relevant supply due to factors which are beyond the control of Shell. These factors include without limitation any increased taxes, duties, the making of any law, order, bye-law or other regulation, the occurrence of any currency fluctuation affecting the cost of any imported items. No curtailment or suspension of deliveries, or acceptance of deliveries, pursuant hereto shall operate to extend the term of a contract governed by these terms and conditions or to terminate such contract, unless such curtailment or suspension lasts for a continuous period of 30 days, in which case either party shall be entitled to terminate such contract forthwith on written notice to the other party. Neither Shell nor Buyer shall be liable for any damage, loss, expense, claim or costs incurred by the other party as a result of such termination. Such termination shall be without prejudice to any right, obligation or liability which has accrued prior to the effective date of such termination. Shipments of the Products or any portion thereof, the delivery or acceptance of which has been prevented by any of the causes referred to in this section above, shall be deducted from the amount required to be delivered and received hereunder unless otherwise agreed in writing. Performance under such contract shall resume to the extent made possible by the end or amelioration of the cause(s) referred to in this section above.
SUSPENSION AND TERMINATION
Without prejudice to any other rights or remedies available under this Agreement or at law, Shell shall be entitled to suspend supply of Product or Services or vary the stipulated method of payment if Buyer breaches any of its obligations under this Agreement. Shell shall be entitled to terminate this Agreement on written notice to Buyer:
(a) if Buyer stops or suspends or threatens to stop or suspend payment of all or a material part of its debts or is unable to pay its debts as they fall due; or if any steps are taken by Buyer for a moratorium in respect of or affecting all or substantially all of its debts; or any step is taken by any person including Buyer with a view to the administration, winding up or bankruptcy of Buyer; or any step is taken to enforce security over or a distress, execution or other similar process is levied or served against all or substantially all of the assets or undertaking of Buyer, including the appointment of a receiver, administrator, administrative receiver, trustee in bankruptcy, manager or similar officer; or any event or circumstance occurs which under the law of any relevant jurisdiction has an analogous or equivalent effect to any of the events listed above;
(b) if Buyer commits any breach of any of its obligations under this Agreement (whether or not such breach would otherwise qualify as a repudiatory breach at common law) which is either incapable of remedy or if capable of remedy, is not remedied within 14 days of a notice having been served by Shell requiring remedy or commits a repetition of such breach; or
(c) if Buyer fails to pay any sum due under this Agreement by the date it is due.
On termination of this Agreement all sums owed to Shell shall become immediately due and payable and Shell shall be entitled to recover and resell Product the property in which remains vested in Shell and Shell may enter upon Buyer's premises for that purpose. Any order for Product accepted by Shell which remains to be fulfilled may be cancelled at Shell’s option without liability on Shell’s part. In the event of a termination of this Agreement for failure by Buyer to accept or lift Product or any other termination by Shell under this section 16, and without prejudice to any other rights and remedies available to Shell at law or elsewhere in this Agreement, Buyer shall pay Shell the value of the undelivered quantity of Product Buyer agreed to purchase from Shell in accordance with this Agreement (the “Undelivered Quantity Value”). Within fifteen (15) days of termination Shell shall notify Buyer of the Undelivered Quantity Value reasonably assessed by Shell as being equivalent to its expected net loss (or gain expressed as a negative number) incurred as a result of the termination of this Agreement including any and all losses, costs, damages, liabilities and expenses (including attorney’s fees) incurred by Shell:
(a) as a result of terminating, liquidating, obtaining or re-establishing any hedging arrangement or related trading position; and
(b) by reasonably selling the undelivered Product on a basis other than the price calculation basis under this Agreement.
No payment is due from Shell or Buyer to the other if the early termination of this Agreement results in a gain for Shell rather than a loss. The parties acknowledge that the purpose of this section 16 is to establish a mechanism for the calculation of compensation when this Agreement is terminated early. Shell and Buyer accept that this section 16 provides for compensation which is reasonable and proportionate and hereby waive any right they each may have or acquire to contend that such paragraph is unenforceable as a penalty clause.
The provisions in these GT&Cs headed Definitions, Taxes, Product Discrepancy, Risk and Title, Shell Trademarks, Confidentiality and Formulations, Suspension and Termination, Liability and Indemnity, Applicable Law, Waiver, Third Party Rights, Invalidity, Information, Compliance with Laws, Licenses, Approvals, Export Controls and REACH shall survive any termination of this Agreement
LIABILITY AND INDEMNITY
Buyer will indemnify, defend, and hold harmless Shell, its Affiliates, directors and employees, against any liability (whether strict, absolute or otherwise) for any claim, loss, damage, cost, and/or expense and other costs of litigation on account of any injury, disease or death of persons (including Buyer's employees) or damage to property (including Buyer's property) or the environment arising out of or in connection with:
(a) Buyer's unloading, storage, handling, sale, use or disposal of the Product except to the extent caused by Shell's negligence; and/or
(b) Buyer’s negligence or any failure by Buyer to comply with any of its obligations under this Agreement; and/or
(c) any failure by Buyer to disseminate safety and health information as provided above under section 14 Health, Safety and Environment.
Any claim under this Agreement shall be made by Buyer by written notice setting forth fully the facts on which it is based, immediately after the date when the facts were discovered or should have been discovered but in any event no later than 90 days after the delivery or loading date.
Notwithstanding any other provision in this Agreement, neither party shall be liable to the other party under or in connection with this Agreement for loss of actual or anticipated profit, losses caused by business interruption, loss of goodwill or reputation, or any indirect, special or consequential cost, expense, loss or damage EVEN if such cost, expense, loss or damage was reasonably foreseeable or might reasonably have been contemplated by the parties and whether arising from breach of contract, negligence or other tort, breach of statutory duty or otherwise. Neither party excludes or limits its liability for fraud or death or for personal injury arising from its negligence or any liability to the extent the same may not be excluded or limited as a matter of law. This clause shall not affect the indemnities given in this Agreement.
Notwithstanding anything to the contrary in this Agreement, Shell’s and any Affiliate of Shell’s total liability for any claim arising out of or in connection with this Agreement for breach of contract, warranty or statutory duty or other tort including Shell’s negligence shall not exceed the sale price of the relevant delivery of Product, if delivered, or, if liability arises from a failure to deliver, the sale price of the Product had it been delivered and invoiced.
Any notice shall be sufficiently given if sent by first class prepaid post, registered post, recorded delivery post or special delivery post, or delivered in person, or sent by fax transmission to the other party at the addresses or numbers specified in this Agreement or at the addresses or numbers subsequently specified from time to time by the party to whom the notice is addressed. Where so given notices sent by fax shall be deemed received upon successful transmission evidenced by the sender's printed transmission report, and notices sent by post shall be deemed received on the fifth next postal delivery day after posting. Notices sent by other means such as electronic mail are permitted if they are not given by instant messaging and the sender bears the risk of non-receipt of any such notice. Notices shall be given in the
English language. Notwithstanding the other provisions in this section, the service of any document that initiates or is a part of litigation proceedings, claims, suits or actions shall be made in accordance with applicable law.
The failure or delay of either party in exercising any right, power or remedy provided by law or under this Agreement shall not affect that right, power or remedy or operate as a waiver of it. The single or partial exercise of any right, power or remedy provided by law or under this Agreement shall not preclude any other or further exercise of it or the exercise of any other right, power or remedy.
AMENDMENT OR MODIFICATION
No amendment or modification of any of the provisions of this Agreement or the rights or obligations of the parties shall be valid unless it is agreed in writing by and is signed on behalf of each of the parties, and specifically refers to this Agreement.
If at any time any provision of this Agreement is or becomes illegal, invalid, void or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.
Data supplied, whether personal or otherwise, by Buyer and/or which relates to Buyer’s account will be held and processed by computer or otherwise by Shell to operate Buyer’s account(s); to confirm, update and enhance Shell’s Buyer records; for statistical analysis; to establish any identity or otherwise as required under applicable legislation; to assess each Buyer’s credit status on an ongoing basis; and otherwise as considered necessary or appropriate by Shell. In each case the processing may continue after this Agreement has expired or has been terminated. Alternatively, Buyer may be requested to complete or fulfil other checks as may be necessary to satisfy credit assessments, money laundering or fraud detection requirements.
Shell may disclose data relating to Buyer and/or a Buyer’s account(s) to (a) a credit reference agency where it may be accessed by other financial institutions to assist assessment of any application for credit made to Shell and for debt tracing and fraud prevention; (b) to any agent or sub-contractor of Shell performing services in connection with Buyer’s account; (c) to any person to whom Shell proposes to transfer any of its rights and/or duties under this Agreement; (d) to any guarantor or person providing security in relation to Buyer’s obligations under this Agreement; (e) as required or permitted by law or any regulatory authority; (f) as otherwise considered necessary or appropriate by Shell.
Without prejudice to any other provisions for termination contained in this Agreement, all monies due and owing by Buyer to Shell shall become due and payable forthwith if Shell discovers that any information provided by Buyer to Shell is materially inaccurate.
Each party shall obtain the written consent of the other party prior to and as a condition of the assignment or novation by the first party of any right, benefit and/or obligation under this Agreement (including rights to receivables).
No consent to assignment or novation by Shell of any right, benefit and /or obligation shall be required where the novatee or assignee is either an Affiliate of Shell or is a purchaser of or other successor to a significant portion of the assets used to manufacture, market or distribute Product sold to Buyer. In the event of a novation the parties shall promptly enter into a deed of novation with the novatee in such form as may be required by Shell, acting reasonably.
SHELL’S PRINCIPLES AND POLICIES
The Shell General Business Principles (“SGBP”) and the Shell Commitment and Policy on Health, Safety, Security, the Environment and Social Performance (“HSEP”) are displayed on Shell’s website www.shell.com/sgbp (see “our commitments and standards”). Buyer and its officers, employees and agents shall use their best endeavours to ensure that their performance of this Agreement shall not cause Shell or its Affiliates to be in breach of the SGBP or HSEP. Buyer and Shell will base their relationship on mutual respect, honesty, and integrity. Neither party may accept or solicit gifts, entertainment, or other social favours to influence business decisions. Courtesies of nominal value and social invitations customary and proper under the circumstances are not unethical as long as they imply no business obligation whatsoever or do not involve significant or out-of-the-ordinary expense.
TEMPORARY PERFORMANCE MODIFICATION
The parties acknowledge that each of them may be obliged periodically to shut down its production or manufacturing plant or facilities temporarily for renovations or repairs with the intention of continuing operations as soon as reasonably possible. A party unable to fulfil any of its obligations under this Agreement due to such a temporary shut down that is not necessitated by or considered to be a Force Majeure Event (as defined in above section of these GT&Cs entitled “Force Majeure”)(the “Impacted Party”) shall notify the other at least thirty (30) days in advance of the temporary shut down and shall include in the notice the estimated time when the Impacted Party can fulfil the obligations that were reduced or diminished by the temporary shut down. The obligations of the Impacted Party to sell or buy Product under this Agreement, as the case may be, and whose plant or facilities are temporarily shut down as aforesaid, shall be reduced or diminished but only to the extent necessitated by the temporary shutdown. After start-up, the Impacted Party shall use reasonable efforts to sell or buy, as the case may be, the quantities of Product that would have been sold or bought during the period of temporary shutdown.
NEW AND CHANGED REGULATIONS
It is understood by the parties that each party is entering into this Agreement in reliance on the laws, rules, regulations, decrees, agreements, concessions and arrangements (“Regulations”) in effect on the date hereof with governments, government instrumentalities or public authorities affecting the Product sold/purchased hereunder including those relating to the production, acquisition, gathering, manufacturing, transportation, storage, trading or delivery thereof, insofar as such Regulations affect the parties. In the event that at any time and from time to time during the term of this Agreement any Regulations are changed or new Regulations become effective, whether by law, decree or regulation or by response to the insistence or request of any governmental or public authority or any person purporting to act therefore, and the material effect of such changed or new Regulations (a) is not covered by any other provision of this Agreement, and (b) has a material adverse economic effect upon either party, the affected party shall have the option to request renegotiation of the prices or other pertinent terms provided for in this Agreement. The said option may be exercised by either party at any time after such changed or new Regulation is promulgated, by written notice of desire to renegotiate, such notice to contain the new prices or terms desired by the requesting party. If the parties do not agree upon new prices or terms within thirty (30) days after party give such notice, Requesting party shall have the right to terminate this Agreement at the end of the said thirty (30) day period. Any Product lifted during such thirty (30) day period shall be sold and purchased at the price and on the terms applying hereunder without any adjustment in respect of the new or changed Regulations concerned.
COMPLIANCE WITH LAWS
The parties shall comply with all applicable (including health, safety, security and environment) laws, governmental rules, regulations and orders.
PRICE REPORTING SERVICES
If a price reporting service used in this Agreement is not available or ceases, or if the parties agree in writing that a price reporting service used in this Agreement is no longer appropriate for the purposes of this Agreement, the parties shall promptly meet to negotiate in good faith so as to agree upon another reliable publication for determination of the price. In the event the parties are unable to agree on a substitute price reporting service as provided above during a period of at least 30 days, either party may terminate this Agreement upon thirty (30) days’ notice to the other party
LICENSES, APPROVALS, EXPORT CONTROLS GENERALLY
(a) to: (i) obtain any and all import licences and government approvals that may be necessary to permit the sale by Shell and the purchase by Buyer of the Products, together with any approvals and consents required for the resale of Products hereunder; (ii) comply with all applicable registration requirements; (iii) obtain such approvals from banking and any governmental authorities as may be necessary to guarantee payment of all amounts due hereunder to Shell in the agreed currency; and (iv) comply with any and all governmental laws and regulations that may be applicable to Buyer by reason of its execution of this Agreement and including any laws, regulations or orders that govern or affect the ordering, export, re-export, diversion, trade, use, shipment, import, transportation, storage, sale (including government procurement) delivery or redelivery of the Products and any requirement to be registered as a re-seller of the Products with any governmental authority;
(b) to furnish Shell with such documentation as Shell may request to evidence Buyer’s compliance with this section 30 and that controls are in place which actively support such compliance and agrees that it shall not engage in any course of conduct that, in Shell’s reasonable belief, would cause Shell to be in violation of the laws of any jurisdiction.
With respect to Product deliverable under this Agreement, if the Loading Point, Collection Point or Destination Point is located in the European Union, Shell and Buyer each agree and undertake to the other that they will each comply with their respective obligations under REACH Regulations (EC) No. 1907/2006, as amended, of the European Parliament as applicable to the Product.
This Agreement (including all Annexes and any attachments thereto, and any other documents incorporated into this Agreement by reference) constitutes the whole agreement between Shell and Buyer and supersedes any and all prior agreements, pre-contractual statements, representations, arrangements, terms and understandings whether oral or written between the parties with regard to its subject matter unless otherwise provided for herein. Each party acknowledges that it has not relied upon any pre-contractual statement, representation or promise in agreeing to enter into this Agreement. Except in the case of fraud, no party shall have any right of action against any other party arising out of or in connection with any pre contractual statement, representation or promise except to the extent that it is repeated in this Agreement.
The following clauses pertain to the Agreement and shall be deemed to replace the same clause in the Agreement (including the General Terms and Conditions) or to be additional provisions if there is no similar provision in the Agreement. These Additional Provisions clauses shall govern in the event of a conflict.
APPLICABLE LAW AND DISPUTES
This Agreement shall be interpreted in accordance with the laws of United Arab Emirates and the laws of Dubai in particular. The United Nations Convention on contracts for the international sale of goods, signed in Vienna 11th April 1980 shall not be applicable to this Agreement and the transactions contemplated herein. All proceedings shall be conducted in the English language.
All amounts or values of consideration provided for in this Agreement are exclusive of Value Added Tax (“VAT”), sales tax or a similar tax chargeable under the applicable tax legislation and which shall be borne by Buyer. Payment of VAT, GST or a similar tax (if chargeable) shall be made by Buyer in addition to the value of the supply in the manner and at the same time as payment of the said value. Shell shall render a tax invoice that is in compliance with the requirements of the applicable tax legislation to Buyer. Where legally possible, Shell will apply a tax exemption, 0% rate or any other tax facility applicable. Buyer will in such case provide Shell with all documents (including an annotated copy of the administrative accompanying document) and information reasonably requested by Shell in accordance with the applicable legislation.
If any (additional) tax becomes due because Buyer has not timely provided Shell with such documents or information, or because of any fraud, loss or misappropriation in relation to the Product, documents or information, Buyer will indemnify Shell against all liabilities for such Tax which Shell reasonably needs to pay to a third party, including any interest, penalties and costs. If Shell is subsequently able to obtain a credit or repayment of such Tax from a third party, Shell shall reimburse Buyer the amount so credited or repaid less all reasonable costs, penalties and interest incurred by Buyer. Shell shall also have the option to charge a higher rate of tax to the Buyer in case the law requires higher rate of tax to be levied in case the Buyer has not provided the necessary tax related documents.