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GENERAL TERMS & CONDITIONS FOR COMMERCIAL FUELS
Shell Markets (Middle East) Limited
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 a company which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement. For this purpose control means the direct or indirect ownership of in aggregate fifty per cent or more of voting capital; “Shell'” means SHELL MARKETS (MIDDLE EAST) LTD. “Buyer” means the purchaser of the Products and/or Services offered by Shell. “Product/s” means fuels sold by Shell; “Services” means the services offered by Shell from time to time under this Agreement.
“Delivery Promise” means Shell’s brochure (as may be updated and issued to the Buyer from time to time) relating to supply of the Products and setting out details of such matters as ordering processes, delivery times, minimum orders and discounts.
Payment for Products and 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 Electronic Funds Transfer unless otherwise agreed by Shell. Shell reserves the right to claim interest on late payment and compensation for debt recovery costs to the maximum extent permitted under applicable law if payment is not made in accordance with the agreed terms.
Where the last day for payment falls on a day other than a Working Day (meaning a day that is neither a Friday or Saturday or a public holiday in UAE) 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 the Buyer against any sum due from the Buyer or any of the Buyers Affiliates to Shell under this Agreement or otherwise.
CREDIT LIMIT & SECURITY
Shell may set a credit limit (inclusive of VAT) (the “Credit Limit”) for the Buyer. Without prejudice to any other rights or remedies under this Agreement, if at any time the reliability or the financial responsibility of the Buyer (or of any guarantor or other person furnishing security in support of the 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 the Buyer exceed the Credit Limit, 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 the Buyer on demand any security satisfactory to Shell, in respect of any delivery, collection or lifting or any proportion thereof.
Unless otherwise agreed in writing the prices to be charged for Product and 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.
Prices charged by Shell are exclusive of VAT. Prices are inclusive of all other taxes, imports and duties leviable by any fiscal authority in the Dubai, UAE unless such product is permitted to be exempt from any such tax, import or duty under and in accordance with applicable law. Buyer warrants and undertakes that the Products supplied under this Agreement will not be used in contravention of the relevant regulations.
Any Product or Service shall conform to any specification or description set out in 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.
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. Fuels shall be measured at current temperature (i.e. “observed volume”) at the distribution terminal at the time of loading into the delivery vehicle. Shell, or Shell’s agents or contractors, may deliver fuels the temperature of which is different to the temperature at the time of loading into the delivery vehicle.
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 therefrom. The quantity of bulk Product actually delivered may vary by up to 1% (either way) in the case of fuels from the quantity ordered by the Buyer. Shell will charge the price for the quantity delivered but any load concessions agreed with the Buyer for which the order might otherwise have qualified will still be applied.
Products shall be delivered to Buyer or procured to be delivered on the days, 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. 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 Products itself or by sub-contractor directly from a designated Shell location. The collection vehicles shall be suitable for delivering Products 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 Products 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 clause.
PRODUCT DISCREPANCY/DAMAGED PRODUCT
Bulk Products: Bulk fuel will only be carried out by Shell if there has been a contamination of Product by Shell or its agents. All return requests must be submitted by telephone and agreed by Shell before returning to the authorized depot. The Buyer will incur a return order surcharge where the contamination arose as a result of the Buyer or its agents default.
RISK AND TITLE
Risk in Products supplied shall pass to Buyer either on delivery, or on collection by Buyer. Title to Products supplied shall pass to Buyer on payment of all debts due and owing by Buyer to Shell. Although Products supplied remain 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 Products 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 Products passes to Buyer, Buyer shall hold Products as Shell's fiduciary agent and bailee, and shall keep Products 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 Products or maintain an action for the price and/or damages.
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, CONFIDENTIALITY AND FORMULATIONS
'Shell trade marks' shall include the name 'Shell', the Shell pecten symbol, the mark 'LUBECUBE' and any other Shell trademark. Buyer shall use Shell trade marks only in such a manner as Shell may direct from time to time and nothing herein shall give Buyer any proprietary interest in or title, claim or right whatsoever to such trade marks. In the case of supply in bulk nothing herein shall be deemed to confer any right on Buyer to apply any Shell trade marks to any Product or to use Shell trade marks in relation to the Product. Buyer agrees that Product bearing Shell trade marks will be sold by Buyer in the form in which it is received and, in particular, without addition, adulteration, alteration or contamination of any kind whatsoever.
Buyer agrees not to alter the decoration or visible design of packaged Product in any way or to remove, obliterate or otherwise deface the trade marks appearing thereon. Buyer shall immediately discontinue any use of and return any material containing Shell trade marks on termination of this Agreement or upon written request of Shell. Buyer will not make use of or disclose Shell formulations, specifications or technical data without Shell's prior written permission.
Where any Product specification has been supplied by Buyer for manufacture by or to the order of Shell Buyer warrants that the use of that specification does not infringe any legal rights of any party. Buyer agrees that any unbranded Product including that purchased in bulk will be sold by Buyer in the form in which it is received and, in particular, without addition, adulteration, alteration or contamination of any kind whatsoever. If the specification or formulation of the Product is changed in any manner after delivery by Shell, Shell shall not be responsible in any manner whatsoever.
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 Products and Buyer shall be responsible for ensuring that its employees, contractors and customers read and observe all instructions and recommendations. Replacement health and safety data sheets may be obtained, in the case of fuels by writing to Sales Support, Bulk Fuels, 8th floor, Dubai Convention Tower, Al Sa’ada Street, P.O. Box 307, Dubai (U.A.E) or such other address notified to the Buyer from time to time or in either case by contacting the Shell representative.
Buyer shall ensure that all installations and equipment used with Products are set up, maintained and operated in such manner to avoid accidents which could have reasonably been anticipated and shall do everything necessary to prevent Products, used or unused, entering drainage, sewage systems, water courses or soil. Buyer is required to co-operate, so far as it can reasonably, with Shell in implementing measures designed to improve health, safety and environmental performance. The Buyer shall ensure all oil storage facilities comply with the Control of Pollution (Oil Storage) Regulations.
Neither Shell or the Buyer shall be responsible for any failure to fulfil any term of this Agreement if fulfilment has been delayed, hindered or prevented by a “Force Majeure Event” meaning any circumstance which is not within the reasonable control of Shell or the Buyer as the case may be including, without limitation, any (or the apprehension of any) strike, lockout or labour dispute (whether or not the settlement thereof shall be at the discretion of the party in question) or any Government order or restriction or compliance with any order or request of any national, supra-national, provincial, port or any other public authority or any person purporting to act for such authority or by failure, total or in part of any of Shell's or Shell's suppliers' existing or contemplated sources of supply of crude petroleum, the Products or any of them, or any other petroleum products or the means of delivery thereof howsoever such failure is caused. 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 acknowledge that an inability to pay any sums due or other economic distress shall not be a force majeure event. The performance of any obligation arising out of any contract or arrangement by which any authority, body or person as aforesaid is entitled to require crude petroleum or petroleum products shall be deemed to be compliance with an order or request as aforesaid. If by reason of any such circumstances or by failure as aforesaid the availability from any of Shell's or Shell's suppliers' sources or contemplated sources of supply (wherever situated) of crude petroleum, the Products or any of them or other petroleum products is so curtailed or interfered with as either to delay or hinder Shell in or to prevent Shell from supplying the quantity of the Products then Shell shall be at liberty to withhold, reduce or suspend supply under this Agreement 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 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 supply under this Agreement. The Buyer shall be free to purchase from other suppliers any deficiencies of supply caused by the operation of this clause but Shell shall not be responsible for any additional cost thereby incurred by the Buyer.Shell reserves the right to increase the price charged for any Products or Services (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.
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 Products 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 the
a) if the 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 the 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 the Buyer with a view to the administration, winding up or bankruptcy of the 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 the 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 the 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 the Buyer fails to pay any sum due under this Agreement by the date it is due.
Either Shell or the Buyer shall be entitled to terminate this Agreement on 30 days written notice to the other.
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 Products the property in which remains vested in Shell and Shell may enter upon Buyer's premises for that purpose. Any order for Products accepted by Shell which remains to be fulfilled may be cancelled at Shell’s option without liability on Shell’s part.
The provisions in these General Terms and Conditions of Supply headed Definitions, Taxes, Product Discrepancy, Risk and Title, Shell Trademarks, Confidentiality and Formulations, Suspension and Termination, Liability. Applicable Law, Waiver, Third Party Rights, Invalidity and information shall survive any termination of this Agreement.
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 expense and other costs of litigation on account of any injury, disease or death of persons (including, but not limited to, the Buyer's employees) or damage to property (including, but not limited to, Buyer's property) 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. the Buyer’s negligence or any failure by the 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 Health, Safety and Environment.
Neither party shall be liable to the other party under or in connection with this Agreement for 1) loss of actual or anticipated profit 2) losses caused by business interruption 3) loss of goodwill or reputation 4) 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, tort, negligence, 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 total liability to the Buyer in respect of losses or claims arising under or in connection with this Agreement in respect of an event or a series of related events, whether as a result of breach of contract, breach of warranty, breach of statutory duty, negligence or other tort, shall not exceed the purchase price of the relevant delivery of Product (at the date of order), or if the above breach of contract consists of a failure to deliver, the 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 or special delivery, or in person or by facsimile transmission (and confirmed by pre-paid first class mail placed in the post on or on the day after the date of transmission) to the other party and shall be deemed received on the next postal delivery day except for facsimile transmission which shall be deemed received on successful transmission evidenced by the sender's printed transmission report.
No delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall affect that right, power or remedy or operate as a waiver of it. The single or partial exercise of any right, power 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.
THIRD PARTY RIGHTS
Where any clause in this Agreement confers a benefit or benefits on an Affiliate of either Shell or the Buyer (each a "Third Party Beneficiary") the Parties intend that each Third Party Beneficiary shall be entitled by virtue of the Contracts (Rights of Third Parties) Act 1999 to enforce the benefits conferred on it by such clauses. No variation or termination of this Agreement, even if that variation or termination affects the benefit conferred on a Third Party Beneficiary shall require the consent of any Third Party Beneficiary.]
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 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 a Buyer and/or which relates to a Buyer’s account will be held and processed by computer or otherwise by Shell to operate the 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 the Agreement has ended. 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 the 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 the 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 thisAgreement, all monies due and owing by the Buyer to Shell shall become due and payable forthwith if Shell discovers that any information provided by the Buyer to Shell is materially inaccurate.
The Buyer shall not assign, sub-contract or transfer any of its rights or obligations hereunder without the prior written consent of Shell.
This Agreement shall be interpreted in accordance with English Law and the parties submit to the non-exclusive jurisdiction of the English Courts.
Buyer undertakes to: to (i) obtain any and all import licences and government approvals that may be necessary together with any approvals and consents required for the distribution and resale of Products by the Buyer, (ii) comply with all registration requirements in the area of operation of the Buyer, (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, (iv) comply with any and all governmental laws and regulations and relevant international laws, including in respect of any embargoes and/or sanctions prevailing at the relevant time, 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 in the in the area of operation of the Buyer and any requirement to be registered as Shell’s independent distributor with any governmental authority and (v) not export, re-export, divert, trade, ship, import, transport, store, sell, supply, deliver or re-deliver, whether directly or indirectly, any of the Products to or for end use in any Prohibited Country or by any entity associated with any Prohibited Country
Buyer shall furnish Shell with such documentation as Shell may request to evidence Buyer’s compliance with this Clause 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. In this Clause 26, “Prohibited Country” means a country on the following list of countries: Cuba, Iran, Sudan, Syria and North Korea, as such list may be amended by Shell from time to time by notice to Buyer.
SHELL’S PRINCIPLES AND POLICIES
The Shell Statement of General Business Principles (“SGBP”) and the Shell’s Health, Safety and Environment policy (“HSEP”) are displayed on Shell’s website www.shell.com/sgbp (see “our commitments and standards”). The 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.