1. Acceptance of Conditions
(a) These conditions apply to all Contracts between the Seller and Buyer. Any terms and conditions which the buyer seeks to impose or incorporate will be excluded and do not apply and not form any part of the Contract. Any attempt by the Buyer to limit or vary any these Terms and Conditions shall be void.
(b) Any variations to the Terms and Conditions will only apply if agreed in writing by one of the Seller’s authorised employees please note that (this does not include any of the Seller’s telephone sales staff).
(c) A Contract is formed between the Buyer and the Seller and comes into existence when the Buyer places an order with the Seller which is, in the opinion of the Seller, in acceptable terms.
(d) Once a Contract is formed, the Buyer agrees to adhere to and be bound by these Terms and Conditions.
2. Prices
(a) Products supplied will be charged at the price ruling on day of delivery. Quoted prices are only valid on the day they are issued by the Seller and may be withdrawn or amended at any time prior to acceptance.
(b) A quotation does not constitute an offer.
(c) Any order placed by the Buyer to the Seller is an offer to enter into a contract and as such may be accepted or rejected by the Seller at their discretion.
(d) Each order that the Buyer places with the Seller, which is accepted by the Seller, shall form a separate Contract between the parties.
3. Payment
(a) The price of the products shall be set out in the Contract.
(b) The Buyer shall pay the invoice in full and in cleared funds within 14 Days of receipt of the invoice from the Seller to the bank account of the Seller or such date as intimated by the Seller to the Buyer by any means of communication..
(c) The price of the Products is exclusive of amounts of VAT. The Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts of VAT as are chargeable on the supply of the Products.
(d) The Seller may withdraw from any agreed payment terms with the Buyer at any time without prior notice.
(e) Late payment of any invoice will render the whole account due and payable immediately.
(f) Late payment may result in the Seller cancelling or suspending any delivery of goods without prior notice.
(g) Late payment may incur interest being payable on the overdue account and any debt recovery fees incurred. The applicable per annum interest rate will be the greater of (a) 3% above Lloyds TSB base lending rate or (b) 8%. Such interest shall accrue on a daily basis from the due date until actual payment by the Buyer to the Seller of any debt recovery fees, interest due on the overdue account and the overdue account.
(h) The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except as required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing by the Buyer against any amount payable by the Buyer to the Seller.
(i) Any overdue arrears balance may be passed to a third party for further debt recovery action without any prior notification. Any fees incurred with the debt recovery will be payable in full by the buyer.
(j) If payment is made by Credit Card there will be an additional charge of 1.5% of the total sum due to the Seller plus VAT.
(k) In the event of a returned payment, Direct Debit or Cheque, the Seller will apply an administration fee of £15 plus VAT.
(l) If payment is made by credit or debit card at time of ordering goods, the Seller will collect payment from the Buyers bank within 5 working days of delivery. Should the goods delivered exceed the quantity ordered, the Seller may collect an additional payment from the Buyers bank, up to a maximum value of 15% above the original order value. If there is any shortfall after this, the Buyer is responsible for payment in full of any balance owed.
4. Quantity
(a) Bulk deliveries will be measured by meter and the Sellers measurement shall be accepted in all cases by the Buyer.
(b) The Seller will not accept any responsibility in any circumstances for discrepancies in the Buyers measurements once delivery has been made.
5. Delivery/Storage
((a) The Seller will deliver the products to the address the Buyer specified when opening his account unless it is specifically stipulated by the Buyer to use an alternative delivery address (“Delivery Location”).
(b) Delivery of the products shall be completed upon the completion of loading the Product at the Delivery Location.
(c) Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in the delivery of the Products caused by an event out with the Seller’s control or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions relevant to the supply.
(d) The Seller will not be held responsible for any losses incurred by the Buyer if the delivery address provided by the Buyer is incorrect and/or delivery was made to a third party.
(e) The Seller shall have no liability for any failure to deliver the products to the extent that such failure is caused by an event out with the Seller’s control or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions relevant to the supply.
(f) The Buyer must ensure that all necessary arrangements are in place to safely accept delivery from the Seller and the storage provided by the Buyer must meet all current and future rules and regulations.
(g) The Buyer is solely responsible for ensuring that there is sufficient ullage in the storage vessel to accept the quantity ordered by the Buyer.
(h) The Seller may terminate or delay delivery if they believe it to be unsafe until such time as they are satisfied that it is safe to proceed with the delivery.
(i) All risk associated with the Products will pass immediately to the Buyer upon completion of delivery notwithstanding that title to the products has not passed to the Buyer.
(j) The Seller reserves the right to apply charges where a delivery has been aborted through circumstances controlled by the Buyer
(k) The Seller will not accept any responsibility for any alleged spillages or measurement queries if the delivery is unattended.
(l) If 10 working days after the day on which the Seller notified the Buyer that the products were ready for delivery, the Buyer has not taken delivery of them, the Seller may resell or otherwise dispose of part or all of the Products.
6. Property
(a) Title to the products shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the products and all debts due by the Buyer to the Seller.
(b) Until title to the products has passed to the Buyer, the Buyer shall store the product separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property and remain separable from any other goods stored in the Buyer’s premises and insure the products to their full replacement value. (c) If the Seller delivers the products to the Buyer prior to payment of the price for the products and/or if any other sum is due by the Buyer to the Seller and the Buyer sells the products to a third party, the Buyer shall make such sale only as trustee for the Seller and the proceeds of that sale shall be identified and kept separate from the Buyer’s general bank accounts as monies to be held upon trust and payable on demand to the Seller. (d) The Buyer must notify the Seller immediately if it becomes subject to any of the events listed in clause 8(b).
(e) If before title to the products passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 8(b), or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the products and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the products are stored in order to recover them.
7. Credit Check
(a) The Seller reserves the right to carry out credit checks on the Buyer through a Credit Reference Agency who will keep a record of that search.
(b) Details of how the Buyer conducts its account with the Seller may be disclosed to the Seller’s said Credit Reference Agency.
(c) The Seller may perform a Credit Check on an individual, partner or director associated with the Buyer.
8. Termination and Suspension
(a) If the buyer becomes subject to any of the events listed in clause 8(b), the Seller may within a reasonable time thereafter, defer or cancel any further deliveries or services, stop any products in transit and treat the Contract of which these Conditions form part as determined but without prejudice to its rights to the full purchase price for products delivered and damages for any loss suffered in consequence of such determination, or terminate the Contract with immediate effect by giving written notice to the Buyer.
(b) For the purposes of clause 8(a), the relevant events are (i) failure by the Buyer to make any payment when it becomes due; (ii) breach by the Buyer of any of the terms or conditions of the Contract; (iii) the Buyer’s proposal for or entry into any composition or arrangement with creditors; (iv) the presentation against the Buyer of any Petition for a Bankruptcy Order, Administration Order, Winding-Up Order, or similar process; (v) the appointment of an Administrative Receiver or Receiver in respect of the business or any part of the assets of the Buyer; (vi) the Seller forming the reasonable opinion that the Buyer has become or is likely in the immediate future to be-come unable to pay his, her or its debts (adopting, in the case of a Company, the definition of that term set out in Section 123 of the Insolvency Act 1986) or the Buyer being a partnership has any partner to whom any of the foregoing apply; or (vii) being an individual the Buyer dies or, by reason of illness or incapacity (whether mental or physical) is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9. Limitation of Liability
(a) Nothing in these Conditions shall limit or exclude the Seller’s liability for (i) death or personal injury caused by its negligence, or the negligence or its employees, agents or subcontractors (as applicable); or (ii) fraud or fraudulent misrepresentation.
(b) The Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any interdict or consequential loss arising under or in connection with the contract.
10. Environmental
(a) The Buyer shall be solely responsible to maintain storage tanks and associated equipment and ensure that they are installed to legal requirements.
(b) If the storage tanks or associated equipment are the cause of any environmental pollution as a result of leakage or spillage the Buyer has sole responsibility to clean up the damage to the standard required by the relevant statutory authority and for all costs incurred by them in relation thereto.
(c) The Buyer shall indemnify the Seller against any costs, fines or expenses of any kind incurred by or upon the Seller as a result of the Buyer’s tanks or equipment or as a result of any damage caused by the Buyer’s tanks or equipment.
(d) The Seller will ensure that the delivery truck and associated equipment is properly maintained so as not to cause environmental pollution through spillage
11. Notification of Loss or Damage
(a) The Buyer must notify the Seller in writing within one day of the date of delivery of any partial loss, damage or non-delivery of whole consignment.
(b) The Seller will not uphold any claims that are outwith this time frame.
12. Resale
(a) All products supplied by the Seller to the Buyer must be for the Buyer’s own use exclusively.
(b) The Buyer will not resell or dispose of any products supplied by the Seller unless previously agreed with the Seller in writing
13.Refusal to Deliver – Downtime of Labour, Plant and/or Equipment
(a) The Seller reserves the right not to make delivery by the expected date for reasons of health and safety, environmental, credit, site access, product availability and/or weather.
(b) The Seller will not accept any charges or claim for downtime of labour, plant and/or equipment from the Buyer.
14. Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a force majeure event (any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if
it could have been foreseen, was unavoidable, including air strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown
of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors).
15. 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 principal place of business or such other address and that party may have specified and shall be delivered personally or sent by first class recorded delivery post.
16. Severance
If any provision or part-provision of the Contract 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 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 Contract.
17. Waiver
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver or any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract 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 the further exercise of any other right or remedy.
18. Variation
Except as set out in these Conditions, no variation of the Contract including the introduction of any additional terms and conditions shall be effective unless it is in writing and signed by the Seller.
19. Governing Law and Jurisdiction
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
Each Party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
20. Cancellation of Order
You have a right to cancel a Contract for any reason, including if you change your mind, up to 24 hours after you have placed the order.
21. Refunds
We will make any refund due to you using the same method originally used by you to pay for your purchase. You will not incur any fees as a result of the reimbursement.
If you cancel the Contract within 24 hours for any reason.
We will refund the price that you paid for the Product in full, including any costs of standard delivery (if you have selected a different delivery option, we will only refund up to the amount of our usual standard delivery costs).
The information below (together with the documents referred to in it) tells you the terms and conditions on which we supply any of the products (including gas and other goods) (“Products”) listed on our website www.johnstonfuels.co.uk (“our site”) to you.
Please read these terms and conditions carefully before ordering any Products from our site as they affect your rights and liabilities under the law and set out the terms under which we make the Products available to you.
By ordering any of our Products, you agree to be bound by these terms and conditions.
Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Products from our site.
These terms and conditions, and any Contract between us, are only in the English language.
» 1. INFORMATION ABOUT US
1.1
(a) www.johnstonfuels.co.uk is a site operated by J Gas Limited (“J Gas/us/we”). We are registered in Scotland under company number SC 274899 and with our registered office at Standhill, Bathgate, West Lothian, EH48 2HR.
(b) Your use of our site and orders placed by the site are subject to:
– our General terms and conditions of website use.
– these shop terms and conditions;
– our Privacy Policy, which sets out how we use your personal information; and
– if you are using a J Gas online account then any applicable supply agreement provided to you via the J Gas online account.
1.2 J Gas is a member of the UKLPG, which is the national body for the LPG industry in the UK. Its website is at www.uklpg.org
» 2. YOUR STATUS
2.1 By placing an order through our site, you confirm and agree that:
(a) you are legally capable of entering into binding contracts (and if you are a business user, you confirm that you have the authority to bind any business on whose behalf you use our site to order Products);
(b) you are at least 18 years old;
(c) you are resident in mainland Great Britain, or are ordering to a location within mainland Great Britain; and
2.2 The Gas Safety (Installation and Use) Regulations 1998 require that any person carrying out any work in relation to a gas fitting must be competent to do so, and in most cases be Gas Safe* registered. Certain like-for-like hose/regulator replacement activities do not require Gas Safe registration provided the person undertaking the work is competent, and it is undertaken in accordance with the manufacturer’s instructions. J Gas recommends that all gas work is undertaken by an LPG qualified Gas Safe registered installer. For further guidance, and a list of suitable Gas Safe registered installers in your area, please contact Gas Safe on 0800 408 5500.
*“The Gas Safe Register” trademark replaced CORGI gas registration in Great Britain on 1st April 2009. It is the official industry stamp for gas safety.
» 3. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US
3.1 Your order is an offer to buy from us. When you are placing an order, the following steps have to take place before a contract for the sale of Products (“Contract”) is made between us in relation to your order:
(a) browse our site and add any items that you wish to buy to the shopping cart by clicking ‘Add to basket’. After you have finished your selection, click on ‘Checkout’. You will be asked to complete your personal details, delivery details and method of payment (or if you already have an account with us, you will be asked to sign into your account);
(b) you place your order for your Product be pressing the “Pay Now” button at the end of the checkout process and submitting your payment details to us;
(c) before placing your order, the checkout process will give you the opportunity to review and, if necessary, to change your selection of Products and/or correct any errors in your order information. Please take the time to read and check your order at each page of the order process;
(d) before placing your order, you will be asked to click to confirm that you accept our terms and conditions. If you do not wish to be bound by what you read you should not place any orders through our site;
(e) once you have submitted your order details, you will see an on screen acknowledgement and you will receive an automatic e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in paragraph 4.1(f); and
(f) unless we contact you to notify that we do not accept your order, your order will be accepted by us when we despatch the Products to you. In addition to the rights set out in paragraph 6 below, you can cancel your order at any time before despatch (at no cost to you). You can log into your account and view orders placed at any time.
3.2 We take payment from your card when we process your order and have checked your card details.
» 4. CANCELLATION OF A CONTRACT (IF YOU ARE A CONSUMER)
4.1 We believe you’ll be delighted with your purchase, but if you are a consumer and have purchased Product(s) online, you have rights under various legislation to cancel the Contract (including under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the Sale of Goods Act 1979 (or from 1 October 2015, the Consumer Rights Act 2015). We have set these rights out below for convenience. Advice about your legal right to cancel the Contract is available from your local Citizens’ Advice Bureau or Trading Standards Office.
You have a right to cancel a Contract for any reason within 14 days
4.2 You have a right to cancel a Contract for any reason, including if you change your mind, until 23:59 on the 14th (fourteenth) day after the day on which you (or the person you have identified to take delivery of the Products) takes physical possession of the Product.
However, if you have ordered:
(a) a regular delivery of Products over a defined period (if applicable), your legal right to cancel will end at 23:59 on the 14th (fourteenth) day after the day on which we complete the delivery of the first of those Products.
4.3 You can tell us that you wish to cancel the Contract in the period set out in paragraph 4.2 by:
(a) sending us an e-mail to sales@jgas.co.uk;
(b) calling us on 0345 450 3121; or
You have the right to cancel a Contract if the Product(s) are faulty or not as described
4.4 If the Products are not of satisfactory quality, fit for purpose (i.e. fit for the purpose forwhich it was intended to be used or a purpose made known to us in writing) or are not as described, you may either:
(a) reject the Products and claim a refund – you have a “short term” right to reject the Product(s) and claim a refund within 30 days of delivery (see paragraph 7.1(a)); or
(b) request a repair or replacement of the Product(s)– if you request a repair or replacement, we will carry out the repair or replacement at no extra cost, within a reasonable time and without significant inconvenience to you. If you request a repair or replacement within 30 days of delivery, you have the remainder of the 30 day period (or 7 days if longer) to check whether the repair or replacement has been successful and to decide whether to reject the Products and claim a refund (see paragraph 7.1(a)). Please note that in some circumstances it may not be possible to offer a repair or replacement.
4.5 If you request a repair or replacement as set out in paragraph 6.4(b), and we do not do this properly, you may either:
(a) keep the Product(s) and claim a price reduction – please note that if you have had the Product(s) for more than 6 months, we may deduct a reasonable amount from the amount owed to you; or
(b) reject the Product(s) and claim a refund – you then have a “final right” to reject the Product(s) and claim a refund (see paragraph 7.1(b) below).
4.6 The rights above do not affect your right to claim compensation for any losses you may have suffered as a result of the faulty Product(s).
4.7 Please note that we do not accept returns or provide refunds if a fault arises from fair wear and tear, wilful or accidental damage, negligence by you or a third party, abnormal or inappropriate storage or working conditions, failure to operate or use the Product(s) in accordance with the user instructions or unauthorised misuse or alteration of the Product(s) by you or a third party. Under no circumstances will we accept returns or provide refunds more than 6 years after the date of delivery.
» 5. OUR RETURNS AND REFUNDS POLICY (IF YOU ARE A CONSUMER)
Returns and collection
5.1 If you cancel a Contract for any reason, or reject the Product(s) for being faulty, we will collect the Product(s) from you for free. We will telephone you (using the number you included in your order) to confirm certain details in order to arrange the collection. For small, low-value items, we may decide not to collect the Product, and will instead send you a pre-paid, padded envelope, which you can use to post the Product back to us. You will need to send the Product(s) back to us without undue delay and in any event not later than 14 days after the day on which you have given notice of your cancellation.
5.2 If you cancel a Contract, all ancillary contracts you have entered into associated with the cancelled Products will be automatically cancelled
Refunds
5.4 We will make any refund due to you using the same method originally used by you to pay for your purchase. You will not incur any fees as a result of the reimbursement.
If you cancel the Contract within 14 days for any reason
5.5 If you cancel the Contract within 14 days for any reason (see paragraph 4.2), we will process the refund due to you as soon as possible and, in any case:
(a) if we have collected the Product(s) from you, no later than 14 days after the day on which you have given notice of your cancellation; and
(b) if we ask you to post the Product(s) back to us using the pre-paid envelope, no later than 14 days of us receiving either the Products or proof that they have been returned (whichever is the sooner).
5.6 We will refund the price that you paid for the Product in full, including any costs of standard delivery (if you have selected a different delivery option, we will only refund up to the amount of our usual standard delivery costs). You should take reasonable care of the Product(s) while they are in your possession as we have the right to make a deduction from any refund due to you if the Product(s) are not returned in a reasonable condition. In particular, we reserve the right to deduct a sum from the refund of the price for the Product(s) to reflect the reduced value of the Product(s) if the Product(s) have been handled more than is necessary (i.e. in a way which would not be permitted in a shop).
If the Product is faulty or defective
5.7 If the Product is faulty or defective, you should contact us by sending us an email to sales@jgas.co.uk or by telephone on 0345 450 3121. If you contact us by email, our first action will be to call you on the phone number in your order to discuss the issue with you. We will examine the returned Product(s) and notify you within a reasonable time by telephone if you are entitled to a refund. We will process the refund for defective or faulty Product(s) as soon as possible and in any event within 14 days of us agreeing that you are entitled to a refund.
5.8 If you exercise your “short term” right to reject the Product(s) within 30 days of delivery (see paragraph 6.4), we will refund to you the full price of the Product(s) including any delivery changes. We may ask you for evidence that the defect was there at the time of delivery or further information about the defect.
5.9 If you exercise your “final right” to a refund (having requested a repair or replacement and this having been unsuccessful – see paragraph 6.5(b)):
(a) within 6 months of the date of delivery – we will refund to you the full price of the Product(s) including any delivery charges. In such circumstances we will assume the fault was there as at the time of delivery unless it is obvious that this is not the case; or
(b) after 6 months from the date of delivery – we will refund to you the price of the Product(s) but this may be reduced to take into account any use you have had from the Product(s). In such circumstances we may require you to prove that the defect was there at the time of delivery.
» 6. AVAILABILITY AND DELIVERY
6.1 Products are subject to availability. In the event that we are unable to supply the Products, for example because that Product is not in stock or no longer available, we will telephone you as soon as possible (and no more than 48 hours following receipt of your order) and we will not process your order. If possible, we will give you the option of continuing with your order with a longer delivery lead time or continuing with part of your order. A full refund will be given where you have already paid for any Product(s) which cannot be suppliedas soon as possible, by the same method in which the payment was originally made.
6.2 Deliveries are restricted to mainland Great Britain. You may place an order for Product(s) from outside mainland Great Britain, but this order must be for delivery to an address in mainland Great Britain.
6.3 Our aim is to deliver the Products to you within the times displayed on the website for the Product. If we cannot deliver the Products within the time shown, we will contact you by either telephone or e-mail to provide you with a revised estimate.
6.4 Time for delivery shall not be of the essence. This shall not affect any rights which you may have as a consumer.
6.5 Delivery will be made to the address specified by you when you place your order. This must be an address within mainland Great Britain. Please note that for safety reasons, deliveries are not made to flats which are above four stories and we do not deliver to basement storeys in any circumstances. Please note that deliveries to flats of up to four stories are only permitted if the flats are of traditional build (to be determined in our reasonable opinion). We may cancel the Contract if the delivery address is to a flat above four stories or is of non-traditional build.
6.6 You must ensure that someone is available to take delivery of the Products (see paragraph 8.4 above about multiple deliveries). You must also ensure that suitable access is available for the purpose of delivery of the Products. If you fail to take delivery of the Products or fail to ensure that suitable access is available for the purpose of their delivery then we will attempt to redeliver the Products at another time.
6.7 It is your responsibility to arrange inspection of the Products immediately upon delivery. You will be required to confirm receipt of the Products by signing a delivery note when taking delivery. However, your inspection of the Products and your confirmation of receipt does not affect any rights you may have if the Products are defective on delivery.
6.9 Any delivery charges will be clearly marked on our site and at the checkout and added to your order.
» 7. RISK AND TITLE
7.1 The Products will be at your risk and responsibility from the time of delivery. Delivery will be completed when we deliver the Products to the address you gave us and you (or a person you have identified) has taken physical possession of the Products.
7.2 Ownership of the Products will only pass to you when we receive full payment of all sums due in respect of the Products, including any delivery charges.
» 8. PRICE AND PAYMENT
8.1 The price of any Products will be as quoted on our site. We use our best efforts to ensure that the prices of Products are correct at the time when the relevant information was entered on the system. However, if we discover an error in the price of Product(s) you ordered, please see paragraph 10.5 below.
8.2 Prices on our site include VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Products in full before the change in VAT takes effect.
8.3 Prices are liable to change at any time, but changes will not affect orders in respect of which we have already despatched the Products.
8.4 Our site contains a large number of Products and it is always possible that, despite our best efforts, some of the Products listed on our site may be incorrectly priced. We will normally verify prices as part of our dispatch procedures so that:
(a) where a Product’s correct price is less than the price stated on our site at the time you placed your order, we will charge the lower amount when dispatching the Product to you.
(b) if a Product’s correct price is higher than the price stated on our site at the time you placed your order, we do not have to provide the Product(s) to you at the incorrect (lower) price as the Contract between us will not yet have been formed. We will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Product at the correct (higher) price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing.
8.5 Payment for all Products must be by credit or debit card and in pounds sterling only. We accept payment from all major credit and debit cards providers. When placing an order, you confirm that the form of payment you use to make payment to us is yours and that you have authority to place the order.
8.6 We use Sage Pay to protect your credit or debit card information and ensure your security. We only see the last four digits of your credit/debit card information. When the order is processed it will be encrypted and processed by Sage Pay. Information can be found at www.sagepay.com
» 9. PRODUCT SPECIFICATION
9.1 Sometimes the product specifications from the manufacturer may change, in which case we will contact you to ask for your instructions and ask you if you would like a substitute of the same or better quality at the same price. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing.
9.2 All sizes and measurements are approximate but we do try to make sure that they are as accurate as possible.
9.3 We are under a legal duty to supply Product(s) which conform to the Contract.
» 10. OUR LIABILITY
10.1 Wherever possible, we will pass on the benefit of any manufacturer’s warranty to you. For details of the applicable terms and conditions, please refer to the manufacturer’s guarantee provided with the Products. If you are a consumer, a manufacturer’s guarantee is in addition to your legal rights in relation to Products that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
10.2 This paragraph 10.2 only applies if you are a consumer
If you are a consumer, we are responsible for losses you suffer as a result of us breaching these terms and conditions or for our negligence if the losses are a foreseeable consequence of our breach or negligence. Losses are foreseeable where they could be contemplated by you and us at the time we entered into the Contract. We only supply the Products for domestic and private use. You agree not to use the Products for any commercial, business or resale purposes and we have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
If you are a consumer, nothing in these terms and conditions excludes or limits in any way our liability:
(a) for death or personal injury caused by our negligence;
(b) for defective products under the Consumer Protection Act 1987;
(c) for fraud or fraudulent misrepresentation;
(d) for breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(e) for breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples); and
(f) for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
Where you are contracting as a consumer, no provision of these terms and conditions will affect your statutory rights.
10.3 This paragraph 10.3 only applies if you are a business user
If you are a business user, we only supply the Products for internal use by your business and you agree not to use the Product for any resale purposes. Subject to the provisions in the below paragraph, if you are a business user, we shall not be liable to you in connection with any Contract for any:
(a) loss of income;
(b) loss of revenue;
(c) loss of profit;
(d) loss of data;
(e) loss of opportunity;
(f) loss of contracts;
(g) damages arising from any breach of a customer contract; or
(h) waste of management or office time;
(i)loss of goodwill or reputation; or
(j) indirect or consequential losses or special or exemplary damages,
however arising and whether caused by breach of contract, negligence or otherwise.
If you are a business user, nothing in these terms and conditions excludes or limits in any way our liability:
(a) for death or personal injury caused by our negligence;
(b) for fraud or fraudulent misrepresentation;
(c) for breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); and
(d) for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
Except as expressly stated in these terms and conditions, in relation to business users we do not give any representations, warranties or undertakings in relation to the Products. Any representation, condition or warranty which might be implied or incorporated into these terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Products are suitable for your purposes.
» 11. WRITTEN COMMUNICATIONS AND NOTICES
11.1 Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
11.2 All notices given by you to us in accordance with these terms must be emailed to us at sales@jgas.co.uk. We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways specified above (although communications related to your order will not be via notices on our website).
11.3 Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
» 12. TRANSFER OF RIGHTS AND OBLIGATIONS
12.1 The Contract between you and us is binding on you and us and on our respective successors and assigns.
12.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent. However, we will not withhold our consent without good reason.
12.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract but this will not affect your rights or our obligations under the Contract. However, we would notify you of any such action and, if the Contract has yet to be performed by us, you would have the right to cancel the Contract.
» 13. EVENTS OUTSIDE OUR CONTROL
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (“Force Majeure Event”).
13.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks; or
(f) the acts, decrees, legislation, regulations or restrictions of any government.
13.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
13.4 In the event that a Force Majeure Event continues for a period of 30 days or longer, you shall have a right to cancel a Contract. To cancel a Contract, you must inform us by calling us on 0800 181 4512. We will process any refund due to you as soon as possible.
» 14. TERMINATION
14.1 We may end a Contract by notice to you in writing (such notice to have immediate effect), without affecting any other rights which we may have if:-
(a) except in the case of a genuine dispute, you have failed to pay any amount which you owe us under this Contract; or
(b) you commit any material breach of the terms and conditions of this Contract.
» 15. DATA PROTECTION
15.1 We will use the personal information that you provide to us as part of your order, or during subsequent correspondence or communications, for the purpose of processing your order and managing your account. Also, if you agree, by ticking the box where prompted on the order form, we (or one of our group companies) may send you e-mails with details of other products or services we think may be of interest to you. However, you can opt out of receiving further marketing at any time by using the opt-out function in any e-mail you receive from us, or by contacting us at sales@jgas.co.uk. We will not share your personal information for marketing purposes with companies outside Johnston Fuels Ltd.
15.2 When you visit our website we issue a “cookie” that allows us to identify your computer. The cookie contains information that allows customers to navigate through the site. This information is removed from the cookie at the end of the checkout process. Navigational information may be used to monitor customer traffic patterns, website usage and help us develop the design and layout of our website. For further information about cookies, visit www.aboutcookies.org or www.allaboutcookies.org. You can set your browser not to accept cookies and the above websites tell you how to remove cookies from your browser. However, some of our website features may not function as a result.
» 16. WAIVER
16.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
16.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
» 17. SEVERABILITY
If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
» 18. ENTIRE AGREEMENT
This paragraph only applies if you are a business user.
Without prejudice to any other contract you have entered into with us, these terms and conditions and any document expressly referred to in them (which includes, for the avoidance of doubt, the Cylinder Refill Agreement where you are ordering Cylinder Gas) represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing. You acknowledge that in entering into this Contract you do not rely on any statement, representation, assurance or warranty that is not set out in these terms and conditions.
» 19. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS
19.1 We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
19.2 You will be subject to the policies and terms and conditions in force at the time that you order Products from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we dispatch the products (in which case we will assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within fourteen working days of receipt by you of the Products).
Please read carefully: these terms and conditions create legally binding rights and obligations. In particular, we draw your attention to the exclusion clauses in clause 3.2 and clause 7.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires the following words and phrases shall have the following meanings:
“Account” the nominal account which the Company maintains which nominally tracks the amount of Fuel and Other Items obtained using Cards allocated to the Customer and sums received by way of payment;
“Application” the application for the Services, which can be made by completing an application form issued by the Company, on the Website or over the telephone;
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Company” Johnston Fuelcards Ltd a company registered in Scotland with company number SC 518487 whose registered office is situated at Standhill, Bathgate, West Lothian, EH48 2HR
“Contract” has the meaning given to it in clause 2.1;
“Customer” the person, firm or company identified in the Application;
“Card(s)” personalised plastic card(s) authorised by the Company which allows Users to obtain Fuel and/or Other Items at the Sites;
“Force Majeure” shall include act of God, flood, fire, tempest, war, civil commotion, riot, shortage of materials, enactment of legislation by Government or municipal authorities, industrial disputes or any other cause (whether or not of the same nature as the foregoing) which is beyond the reasonable
control of the party affected;
“Fuel” any form of fuel intended for use in a road vehicle which is purchased using your Card;
“Insolvency Event” if the Customer goes into liquidation or a winding up petition is presented in respect of it (other than for the purpose of a solvent bona fide reconstruction) and such petition is
not discharged within 7 days of its presentation or an order is made for the appointment of an
administrator or documents are filed for the appointment of an administrator or notice of intention to appoint an administrator is given by such party, its directors or a qualifying floating charge holder, or a receiver or administrative receiver is appointed over the whole or any part of the assets of such
company or it proposes to enter or makes any arrangement or composition with its creditors or makes an application to a court for the protection of its creditors in any way, is otherwise unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or is the subject of any similar event in any jurisdiction;
“Other Item(s)” any items which are available for purchase at any of the Sites using the Card other than Fuel;
“Per Card Fee” the per card fee as notified to the Customer (and which will be made available by the Company on request from the Customer);
“Price” the prices for Fuel, Other Items and other goods and services as published by the Company or notified to the Customer from time to time (and the Company shall make the prices available to the Customer on request);
“Services” the Account and Card service(s) the Customer has chosen as detailed in these Terms and Conditions and the Website and as specified on the Application;
“Site(s)” any participating site specified by the Company from time to time on the Website (and the Company shall confirm the participating sites on request by the Customer);
“Terms and Conditions” these terms and conditions (as updated by the Company from time to time in accordance with clause 2.6);
“User” any agent, employee, contractor or officer of the Customer permitted by the Customer to
use a Card;
“Website” the website at www.johnstonfuels.co.uk/fuelcards;
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having
separate legal personality).
1.3 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
1.4 A reference to a party includes its personal representatives, successors or permitted assigns.
1.5 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate
legislation made under that statute or statutory provision, as amended or re-enacted.
1.6 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
1.7 A reference to writing or written includes faxes and e-mails.
2. Terms & Conditions
2.1 The Services shall be provided by the Company to the Customer subject to these Terms and Conditions and to the exclusion of all other terms and conditions which the Customer purports to apply under any purchase order, acceptance of quotation or other document. 2.2 The Customer shall be deemed to have accepted these Terms and Conditions on the earlier to occur of: (a) the Customer signing the reverse of the Card; or (b) the Customer’s first use of the Card. (the “Contract”)
2.3 The only circumstances in which the Customer will not be bound by these Terms and Conditions is if the Customer immediately returns the Card to the Company on receipt of the Card and before the Card is signed or used.
2.4 The Customer warrants, represents and undertakes to the Company that all information provided by the Customer including information submitted in connection with the Application shall be true, accurate and complete and the Customer shall immediately notify the Company if any information becomes untrue, inaccurate,incomplete or misleading. The Customer acknowledges that the Company has been induced to enter into the Contract in reliance on the information provided by
the Customer.
2.5 The Company may require the Customer to provide
documentation which the Company requires in relation to the operation of the Account from time to time including the Customer’s latest set of accounts.
2.6 The Company may change these Terms and Conditions from time to time and it shall notify the Customer of any changes and use of the Card by the Customer after the date of such changes shall constitute the Customer’s deemed acceptance of the changes. In the event that the Customer does not wish to be bound by any changes to the Terms and Conditions, the Customer shall return all Cards to the Company and terminate the Contract pursuant to clause 6.3.
3. Services
3.1 The Company shall provide the Services with reasonable care and skill, and in particular, the Company shall use reasonable endeavours to: (a) ensure that information which it makes available in connection with the Card and the Services (including records of Fuel and Other Items obtained using the Cards) is accurate and complete but the Company provides no warranty or representation that Information made available by the Company is accurate, up-to-date or complete (b) supply the Customer on request with the details of the balance of the Account
3.2 The Customer acknowledges and agrees that the Fuel and Other Items are made available by third parties and that the Sites are operated by third parties, and as such, the Company is not responsible or liable in any in connection with the Fuel, Other Items or Sites (and any issues, damage or loss
relating to any of them). Any dispute between the Customer and any third party regarding Fuel, Other Items and/or the Sites (and any issues connected with them) is the sole responsibility of the Customer and the relevant third party.
3.3 The Company reserves the right in its absolute discretion without giving notice to the Customer
to vary the Sites in any directory of Sites from time to time produced by the Company and also to exclude any one or more of the Sites.
4. Use of Card & Services
4.1The Company shall, subject to the Customer observing and performing all its obligations under the Contract, make available to the Customer such number of Cards as the Customer shall reasonably require to enable the Customer to obtain Fuel and/or Other Items from the Sites. The Company may in its absolute discretion from time to time set limits as to the amount of Fuel and/or Other Items the Customer is permitted to obtain and may also charge for the non-use of such Cards. The limits and charges applicable to the Card shall be as stated on the Application, the Website and will also be made available by the Company on request from the Customer.
4.2 The Cards: (a) shall at all times remain the property of the Company and shall be returned to the Company on demand and may be retained at any time by the Company or any person acting on the Company’s behalf; (b) shall not be used after its expiry date and the Customer shall, on the day after such expiry date, destroy the Card; (c)are not transferable or assignable in any way and shall only be used by the Customer and/or its Users; and (d)and the operation of the Account may be suspended, cancelled or their use withdrawn by the Company in its absolute discretion at any time.
4.3 The Customer shall at all times ensure that the Cards are not damaged or defaced.
4.4 If a Card is lost or stolen or the Customer believes that the security of a Card is or may be
compromised, the Customer shall immediately notify the Company of the same quoting the Card number (and if such notification is given orally it must be confirmed in writing as soon as is reasonably practicable and in any event within 3 days). In such event the Company shall cancel the Card so
notified and shall issue a new Card with a different number. The Company may elect to levy a fee
for the provision of replacement Cards and the fee will be notified to the Customer before the
replacement Cards are issued.
4.5 The Customer shall immediately notify the Company if at any time the Customer suspends
cancels or otherwise prohibits use of any Card by a User for any reason (and if such notification is given orally it shall be confirmed in writing as soon as is reasonably practicable and in any event within 3 days). Such notification shall include details of the Card number.
4.6 In the event that a Card is cancelled and/or withdrawn from use for any reason the Customer shall destroy the Card in question and shall, if requested to do so, confirm in writing to the Company that the Card has been destroyed.
4.7 In either of the cases envisaged by clause 4.4 or clause 4.5 the Customer shall be liable for all Fuel and Other Items obtained from a Site using such a Card until, in the case of automated Sites capable of accepting stop list updates via electronic data transfer 1 Business Day after the Customer’s written notice under clause 4.4 or clause 4.5 in respect of that Card is received by the Company, or in the case of manual sites, 3 Business Days after such notice is given to and confirmed by the Company provided such notice is given before 2.30 pm during the course of a Business Day and any notice given outside such hours shall be deemed given at 9.00 am on the Business Day thereafter.
4.8 The Customer shall, if requested to do so, give the Company and any person acting on the Company’s behalf all assistance and information as to the circumstances of the loss, theft or possible or actual security compromise of the Card, and shall take all reasonable steps to assist the Company to recover the Card. The Customer consents to the disclosure to third parties of such information as is relevant concerning the User or use of the Card in connection with such loss, theft or possible or actual security compromise of the Card.
4.9 The Company may from time to time issue a list of stopped or invalid Cards and the Company shall not be liable for any loss or damage sustained by the Company in the event of any Card appearing on a list of stopped or invalid Cards (for whatever reason and including any Card being placed on a list of stopped or invalid Cards by an error of the Company or its employees agents or
otherwise) or if a Card is not accepted for any other reason.
4.10 The Customer shall ensure that Users: (a) keep all personal identification numbers provided for the Cards secret at all times; (b) present a valid Card prior to the commencement of the transaction at the Site; (c) allow the Card to be checked (including verification of the signature or the vehicle registration number on a Card) by the Company or any person authorised including the Site operator and its employees, agents or other persons authorised by the Site operator; (d) comply with the terms of this Contract insofar as they relate to the use of the Card.
4.11 A Card shall not be valid unless the signature strip on the reverse of the Card has been completed by the Customer or the Authorised Cardholder in accordance with the instructions issued by the Company from time to time.
4.12 The Customer shall ensure that all details relating to the Card and the Services are kept confidential at all times including the PIN number for each Card and any user names and/or passwords which are provided to the Customer in connection with the Website. The Customer shall notify the Company immediately if it becomes aware of or suspects any loss or unauthorised use of or disclosure of such information.
5. Price and Payment
5.1 The Customer shall pay the Company the Per Card Fee per annum for each Card issued. The Per Card Fee is non refundable.
5.2 The Company shall invoice the Customer at intervals notified by the Company to the Customer from time to time for all Fuel and Other Items obtained using the Card at the Price applicable at the time of such items were obtained using the Card and all other fees and payments due to the Company in connection with the Contract.
5.3 The Customer shall pay such invoices in full within the timeframe and in the manner notified by the Company to the Customer from time to time. All fees and payments referred to in these Terms and Conditions are exclusive of Value Added Tax which, where applicable, shall be added to the
relevant charge.
5.4 Where the Customer is required to make payment to the Company by direct debit, the Customer shall ensure that it has sufficient cleared funds available to enable the direct debit payment to be made.
5.5 Where payment by direct debit falls due on a non-business day, the company reserves the right to collect the payment on the previous business day.
5.6 No payments shall be deemed to have been received until the Company has received payment in full in cleared funds.
5.7 The Company reserves the right in its absolute discretion to levy an administration fee and/or any other charges on the drawings on an invoice(s) and/or invoices for any reason including to reflect any variation in the market or economy or the rejection or cancellation of any direct debit.
5.8 The Company may set a credit limit for the Customer, the level of which will be at the Company’s discretion and the Company will notify the Customer of its assigned credit rating after receipt of the Application. The Company may change the credit rating from time to time in its absolute discretion. Should the sums due to the Company exceed or look likely to exceed the Customer’s assigned credit limit, the Company may suspend the Account with or without notice which means no more Fuel and/or Other Items may be obtained using the Cards until further notice.
5.9 The Customer shall make all payments due under the Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
5.10 If the Customer fails to pay to the Company any sums due to the Company under the Contract: (a) the Customer will be liable to pay the full amount due together with interest from the due date for
payment at the rate prescribed by law, accruing on a daily basis until payment is made, whether before or after judgment; (b) the Company may terminate the contract for breach under clause 6.4(a); (c) the Company may increase Prices and other fees and payments due under this Contract and/or reduce the payment period for invoices and/or require the payment of a deposit or the provision of additional security arrangements to cover the increased trade risk; (d) the Company may suspend the Card(s) and/or Account and the Customer shall not be entitled to draw Fuel from the Sites and/or
purchase Other Items or from otherwise use the Card;(e) the Company may withdraw rebates or other allowances given to the Customer and such additional resulting sums shall become due to the Company immediately; and/or (f) the Customer shall pay all the Company’s reasonable costs incurred in the course of recovering any overdue debt, including any credit card payments. in each case,
such rights and remedies shall be exercisable at the discretion of the Company.
5.11 The Company may at any time require the Customer to provide a payment by way of deposit as a condition of providing the Services including in circumstances where the Company believes that there is a risk of the Customer experiencing an Insolvency Event or otherwise defaulting on its
obligations pursuant to this Contract. In the event that the Customer breaches the Terms and Conditions, the Company shall be entitled to forfeit the deposit.
6. Termination
6.1 The Contract shall continue in full force and effect until terminated in accordance with this clause 6.
6.2 The Company shall be entitled to terminate the Contract at any time by giving notice in writing to the Customer.
6.3 The Customer shall be entitled to terminate the Contract by giving at least 90 Business Days notice in writing to the Company.
6.4 The Company shall be entitled to terminate the Contract immediately in whole or in part (or
suspend the provision of the Services temporarily or indefinitely), if: (a) the Customer is in breach of any of its obligations under the Contract (regardless of whether such breach is trivial, material or
repudiatory); (b) there is a change of control of the Customer (within the meaning section 1124 of the Corporation Tax Act 2010); (c) the Customer suffers an Insolvency Event; (d) the Company, acting
reasonably, believes the Company is at risk of suffering an Insolvency Event; or (e) the Customer fails to comply with a request made by the Company under clauses 2.5, 4.8, 5.4 or 5.10.
6.5 Upon termination of the Contract for whatever reason the Customer shall return to the Company each Card and pay all sums due to the Company in accordance with the terms of the Contract.
6.6 Termination of the Contract shall be without prejudice to the rights and remedies which have accrued as at termination.
6.7 Clauses 1, 4.4, 4.5, 4.7, 4.8, 4.10. 4.11, 5.8, 5.10, 6.5, 6.6, 7, 8.2, 8.3 and 8.12 shall survive
termination and shall continue in full force and effect.
7. Limitation of Liability and Indemnity
7.1 Subject to clause 7.4, all conditions, warranties or other terms which might be implied or
incorporated into the Contract or any collateral contract, whether by statute, common law or
otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care and statements and representations made by the Company’s employees and/or agents shall not be
binding upon the Company and the Customer is advised to ask for such statements and representations to be confirmed in writing by the Company. In addition, the Company makes no warranty that Sites, Fuel and/or Other Items will be available nor that Sites will accept or honour the Card or that Account data will be accurate, up-to-date or complete.
7.2 Subject to clause 7.4, the Company shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever arising, which fall within any of the
following categories: (a) loss of profits; (b) loss of anticipated savings; (c) loss of business opportunity or contracts; (d) damage to goodwill or reputation; (e) third party claims; and/or (f) loss of production.
7.3 Subject to clause 7.2 and 7.4, the total liability of the Company, whether in contract, tort (including negligence) or otherwise howsoever arising and whether in connection with the Contract or any
collateral contract shall in no circumstances exceed a sum equal to £150 in aggregate.
7.4 The exclusions in the Contract shall apply to the fullest extent permissible at law, but the Company does not exclude liability for death or personal injury caused by the negligence of the Company, its officers, employees, contractors or agents, for fraud or fraudulent misrepresentation, for breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982, or for any other liability which may not be excluded by law.
7.5 The Customer shall indemnify the Company in full and on demand against all loss damage action claims expenses and costs including but not limited to financial loss and the fees of the Company’s legal advisers whatsoever and howsoever arising directly or indirectly out of or in connection with:
(a) any breach by the Customer of its obligations contained herein; (b) use of a Card after the Customer has confirmed such Card as destroyed, stolen or damaged, subject to clause 4.7; (c) the use of a Card or the Website by anyone other than a User.
8. General
8.1 Neither party shall be under liability whatsoever to the other for failure or delay in the performance of any of its obligations hereunder if and for so long as such performance becomes impracticable by reason of Force Majeure, except that the Customer shall still be liable to pay any sums which have become payable by the Customer under the Contract. The party which is prevented from performing its obligations hereunder by Force Majeure shall advise the other party as soon as practicable of its inability to meet its obligations specifying the cause of the force majeure and shall advise the other party when such difficulty ceases.
8.2 Any dispute relating to this Contract shall be notified in writing to the Company within 14 days from the earlier of the date of the statement or invoice to which the dispute relates or the date on which the Customer became aware (or ought to have been aware) of the dispute. Thereafter, all statements and invoices shall be deemed to be final and conclusive and the Customer waives its right to dispute such statements and invoices.
8.3 Each right or remedy of the parties under the Contract shall not effect any other right or remedy of the parties whether under the Contract, at law, in equity or otherwise.
8.4 Any purported waiver by the Company of any breach of any of the conditions herein shall not be deemed a waiver unless and until confirmed by the Company in writing and such purported or
confirmed waiver shall not be construed as a waiver of any earlier or later default of a like nature.
8.5 In the event of the invalidity or unenforceability of any part or provision of the Contract such
invalidity or unenforceability shall be deemed omitted or as the case may be reduced in size or
duration to the extent necessary to render such provision or part enforceable but it shall not affect the validity or enforceability of any other part or provision which shall remain in full force and effect.
8.6 Nothing in the Contract shall be deemed to create a partnership or relationship of agent and
principal or relationship of employer and employee between the Company and the Customer.
8.7 Where the Customer consists of two or more persons acting in partnership or otherwise such expression throughout shall mean and include such two or more persons and each or any of them and all obligations and liability on the part of such a Customer shall be joint and several.
8.8 Any notice served hereunder pursuant to the Contract shall be in writing and shall be deemed to have been properly served on the addressee if delivered by hand sent by facsimile transmission or sent by pre-paid first class ordinary or registered or recorded delivery post to the addressee at its address set out above in the case of the Company and set out in the Application in the case of the Customer or at such other address as shall have later been notified to the sender in writing and such notice shall, subject to clause 4.7, be deemed to have been given at the time of delivery if delivered by hand or facsimile transmission or 48 hours after despatch of it posted as aforesaid.
8.9 The Company may assign, transfer, charge or deal with the Contract or any part of it. The Customer may not assign, transfer, charge or deal with the Contract or any part of it.
8.10 A person who is not a party to the Contract shall not have any rights under or in connection with it pursuant to the Contract (Rights of Third Parties Act) 1999.
8.11 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other
than as expressly set out in the Contract.
8.12 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
In accordance with the Modern Slavery Act 2015, Johnston Fuels Limited (“Johnston Fuels”) is committed to a work environment that is free from human trafficking, forced labour and unlawful child labour (collectively “human trafficking and slavery”). It also strongly believes that it has a responsibility for promoting ethical and lawful employment practices.
Accordingly, Johnston Fuels will not knowingly use unlawful child labour or forced labour in any of the commodities and/or services it provides, nor will it accept commodities, products and/or services from suppliers that employ or utilise child labour or forced labour.
Rationale
Human trafficking and slavery are crimes under UK and international law. These crimes exist in countries throughout the world. This policy statement thus defines Johnston Fuels commitment to ensuring that human trafficking and slavery does not exist within its own business, but also provides how Johnston Fuels will make efforts to eradicate the same from other businesses with whom it shall maintain a relationship (and especially from within its supply chain).
Johnston Fuels has appointed its Group Human Resources Manager as its senior compliance officer (its Anti- Slavery and Human Trafficking Officer) and will take appropriate steps to ensure not only its own compliance but also that these requirements are followed by its suppliers, subcontractors and/or business partners (collectively by its “Suppliers”).
All Supplies are therefore required to adhere to the following:
Definitions
Human Trafficking: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation.
Forced Labour: all work or service, not voluntarily performed, that is obtained from an individual under the threat of force or penalty.
Harmful Child Labour: consists of the employment of children that is economically exploitative, or is likely to be hazardous to, or interfere with, the child’s education, or to be harmful to the child’s health, or physical, mental, spiritual, moral, or social development.
Requirements for Suppliers:
• Will not use forced or compulsory labour, i.e., any work or service that a worker performs involuntarily, under threat of penalty;
• Will ensure that the overall terms of employment are voluntary;
• Will comply with the minimum age requirements prescribed by applicable laws
• Will compensate its workers with wages and benefits that meet or exceed the legally required minimum and will comply with overtime pay requirements;
• Will abide by applicable law concerning the maximum hours of daily labour;
• Will not engage in any practice of slavery, servitude, forced labour, compulsory labour and/or human trafficking outside the UK which would constitute an offence if that conduct took place within the UK; and
• Will ensure that any sub-contractors or suppliers from whom they source goods and/or services for incorporation in those supplied to Johnston Fuels, also adhere to these requirements.
Audits
Upon request, Suppliers must be able to demonstrate compliance with this Policy to the reasonable satisfaction of Johnston Fuels. Johnston Fuels may perform periodic audits on this Policy and Suppliers are expected to fully co-operate with any such audit.
Reporting
Any breach of this Policy (including by a Supplier) can be reported (in confidence, if required) by contacting Johnston Fuels Human Resources Manager (in his capacity as Johnston Fuels Anti- Slavery and Human Trafficking Officer).
Consequences
Johnston Fuels takes any breach of this Policy extremely seriously.
Suppliers who are found to have or be engaging in human trafficking and slavery or which refuse to co-operate with any audit to verify compliance with this Policy will be liable to have any supply agreement, arrangement or other contract with Johnston Fuels terminated immediately, without compensation.
If a Supplier to Johnston Fuels is found in violation of this policy, Johnston Fuels will take prompt action which may include terminating any supply agreement, arrangement or other contract with that Supplier (as above). It shall also take such other (remedial) steps as the Anti- Slavery and Human Trafficking Officer shall determine to be necessary to address the violation and seek to prevent its reoccurrence.