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Standard terms and conditions of sale for the sale of aviation fuel (DE)

1 Application



Except where seller and buyer (or affiliates of either party) have entered into a valid framework fuel supply agreement or any other applicable written signed framework agreement in relation to the supply of fuel, these terms and conditions shall apply to the sale of fuel by seller to the buyer to the exclusion of all other terms and conditions referred to, implied, offered or relied on by the Buyer, by trade, custom, practice or in the course of dealing, whether in negotiation or at any stage in the dealings between the parties, including any standard or printed or other terms tendered by the buyer.



Any variation to these terms and conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by seller.



For any bulk delivery and/or barrel/drum delivery the terms and conditions set out in the schedule shall apply in addition to these terms and conditions and in the event of any conflict of terms between the aforementioned for such supply the following prevailing order shall be applied (1) the schedule shall prevail over 2) these terms and conditions (excluding the schedule).



2 Definitions



The following terms, when capitalised, shall have the meaning defined hereinafter, unless the context otherwise requires:


“affiliate” means any company which seller controls, or which controls seller, or is controlled by the same company which controls Seller, and for these purposes, “control” means a direct or indirect ownership interest of 50% or more of the issued voting shares or stock, or having the right to vote to appoint directors or other governing authorities of the relevant company;


“buyer” means the person who buys the fuel from seller;


“claims” means claims, demands, proceedings, damages, liabilities, expenses and costs;


“delivery note” means a document, produced in writing or by electronic means, accurately and clearly stating the date of receipt, time, product description, meter readings and quantity delivered in kilograms, litres, gallons or barrels, the registration number of aircraft, flight number and aircraft type;


“fuel” means, as the context so requires, jet and/or aviation gasoline, in each case conforming to the relevant (quality) specification set forth in clause 4.1 of these terms and conditions;


“gross negligence” means any act or omission which constitutes a marked and flagrant departure from the standard of conduct of any reasonably competent person;


“into-plane services” means the service of physically delivering fuel into buyer’s aircraft;


“invoice” means the invoice or receipt issued by seller to the buyer with respect to the supply of the fuel;


“seller” means the bp company supplying the fuel pursuant to these terms and conditions;


“wilful misconduct” means deliberate acts, deliberate omissions, wanton or reckless conduct which constitute, in effect, a deliberate disregard for harmful, reasonably foreseeable and avoidable consequences.



3 Price and payment



The price for delivery of the fuel shall be the price as agreed between the parties in writing.



The price is exclusive of any taxes, fees or other charges, imposed by any national, local or airport authority, which are shown as separate items on the Invoice for the account of buyer.



Unless otherwise agreed in writing between the buyer and seller, payment of the price and any taxes, fees or other charges payable under these terms and conditions shall be due from the buyer by credit/debit card or bank transfer payment against an invoice upon ordering the fuel from seller.



For the correct application of taxes, fees or other charges, the buyer undertakes to and shall, according to applicable tax or other laws, provide the correct classification of the flight: (a) commercial or private (b) international or domestic. It is the buyer’s responsibility to provide documentation to the seller to support the correct classification of the flight for compliance with applicable tax and other laws. Any taxes, penalties, costs, fines, losses and/or interest that the seller suffers or incurs arising out of the buyer’s (and/or its personnel/representatives’) acts and/or omissions, shall be for the buyer’s account pursuant to which the seller shall invoice the buyer, and buyer shall hold harmless and indemnify the seller for all such taxes, penalties, costs, fines, losses and/or interest.



4  Quality



Seller warrants that all fuel delivered will comply with one of the relevant specifications listed below: 


(a) Aviation jet kerosene

ASTM D 1655 - Grades Jet A and Jet A-1; Defence Standard 91-091 Jet A-1; Aviation Fuel Quality Requirements for Jointly Operated S (Checklist - latest issue). AFQRJOS for Jet A-1 embodies the most s requirements of ASTM D 1655 & Defence Standard 91-091 (JIG loc CGSB-3.23 - Grades Jet A and Jet A-1; GOST R 52050 - Grade GOST 10227 - Grades TS-1 and RT; GB 6537 - Grade No. 3 Jet Fuel; Grade Jet A-1; DCSEA 134 - Grade Jet A-1; MIL-DTL-83133F – Grad and F-34; MIL-DTL-5624U – Grade JP-5; Defence Standard 91-87 – Grade F-34 


(b) Aviation gasoline

Defence standard 91-90 (latest issue) for grades 80/87, 100/130 an or ASTM D910 (latest issue) for grades 80, 91, 100, 100LL.



Except as specifically provided in these terms and conditions, there are no guarantees, conditions or warranties herein, express or implied, as to the satisfactory quality, merchantability, fitness or suitability of the fuel for any particular purpose or otherwise.



5 Selecting grade of fuel



The buyer is wholly responsible for ensuring that it orders or selects the correct grade of fuel for its aircraft, including for the avoidance of doubt and without limiting the generality of the foregoing, if the buyer uses any self-serve pumps or other fuel delivery equipment.



To the extent permitted by law, the seller excludes all liability whatsoever for the selection of the correct fuel grade by the buyer and the seller makes no representation of any kind as to which grade of fuel is appropriate for buyer’s aircraft.



The buyer agrees to indemnify, defend and save harmless seller from and against any and all claims for loss of or damage to property or to the environment or for death of or injury to any person caused by or arising out of or related to the buyer’s selection of fuel grade.



6  Delivery



If buyer has requested that fuel is delivered with Into-plane services, the following provisions apply:



Title to and risk of loss of the fuel shall pass to buyer at the time the fuel passes the inlet coupling of buyer’s aircraft. 



Deliveries shall be made in accordance with all applicable laws and regulations and the requirements laid down by the airport governing authority. Furthermore, unless otherwise agreed, seller shall use or apply the air bp Regulations fuel and quality control (GEN 550) or an equivalent internationally recognised quality control and operating procedure.



Buyer acknowledges that deliveries to other aircraft arriving on regular and scheduled flights, and to other aircraft arriving on irregular and unscheduled flights ahead of buyer’s aircraft may have priority over deliveries to buyer’s aircraft.



Seller shall provide a delivery note which shall be signed by buyer or a representative of buyer (such as the pilot or flight engineer).  However, buyer shall be deemed to have received and accepted the quantity of fuel stated in the delivery note pursuant to these terms and conditions irrespective of any failure by it or its representative to sign the delivery note.



Buyer shall have sole responsibility for operating all appropriate aircraft fuelling switches, valves and pre-set quantities gauges. If buyer requests the seller to operate any aircraft re-fuelling switches, valves and/or pre-set quantities gauges, buyer shall:

(a) remain solely responsible for the supervision of the refuelling, and entry in the aircraft’s refuelling record of the volume and distribution of fuel delivered into the aircraft; and

(b) indemnify, defend and hold harmless seller from and against all claims for loss of or damage to property or to the environment caused by or arising out of or related to seller’s action in performing or omission to perform the requested services.



If buyer requests that fuel is delivered when there are passengers or other persons on board buyer’s aircraft or embarking or disembarking, buyer shall:

(a) be solely responsible for ensuring that the provisions of the local airport regulations relating to such delivery are carried out, that appropriate instructions are issued by buyer's employees for the safety of said persons during such delivery and that such instructions are strictly observed by buyer's employees and said persons; and

(b) indemnify, defend and hold harmless seller from and against all claims for loss of or damage to property or to the environment caused by or arising out of or related to seller’s action in performing or omission to perform the requested services.



If buyer has made its own arrangements for the delivery of fuel into the wing of buyer’s aircraft, including by using self-service dispensers, the following provisions apply:



Title to and risk of loss of the fuel shall pass to buyer at the earlier of the time the fuel passes the inlet coupling of the receiving aircraft or the time the fuel passes the inlet coupling of buyer’s or buyer’s agent’s receiving equipment or, in the case of self-service customers, as the fuel passes from the nozzle of the dispensing apparatus.



Seller shall have no liability in respect of any problem or disruption (for example, delays, shortages or contamination) attributable to buyer or buyer’s agent in relation to such transfer arrangements.  Buyer shall indemnify, defend and save harmless seller from and against any and all claims for loss of or damage to property or to the environment caused by or arising out of buyer’s or buyer’s agent’s acts or omissions in transferring fuel from the delivery point to buyer’s aircraft.



Seller’s measurement shall be accepted as prima facie evidence of the quantities of fuel delivered except where buyer makes a complaint in accordance with clause 8. 



7  Defuelling



Buyer may request and seller may agree upon a de-fuelling of buyer’s aircraft.  The fuel so removed from buyer’s aircraft shall be disposed of or stored as agreed between the parties and at buyer’s sole cost and expense. Seller may charge an extra fee for such services.



If buyer requests that fuel is removed from buyer’s aircraft when there are passengers or other persons on board buyer’s aircraft or embarking or disembarking, buyer shall indemnify, defend and hold harmless seller from and against all claims for loss of or damage to property or to the environment caused by or arising out of or related to seller’s action in performing or omission to perform the requested services. 



If de-fuelling of buyer’s aircraft is necessary due to seller’s fault or negligence (e.g. delivery of off-spec fuel or delivery of a larger quantity than agreed upon), seller shall defuel buyer’s aircraft at buyer’s request and at seller’s sole cost and expense.



8 Complaints, claims



Complaints as to short delivery or defects in quality or any other matter shall be notified to seller immediately after delivery or, in case of a hidden defect that could not be detected by the buyer when duly inspecting the delivered fuel, immediately after detection of that defect, followed by a written claim to be made within 15 days after delivery or detection of that defect. 



If the claim is not made within the 15-days period, it represents the buyer’s waiver of the right to claim. In no event a waiver of the right to claim is made or implied by a signature or any other statement on the delivery note, irrespective of whether or not such delivery note contains conditions implying such waiver.



This clause 8 does not apply, in case the buyer is not an entrepreneur or a merchant according to the relevant provisions of the law applicable to this contract.



9 Force majeure



No failure or omission by either party to carry out or observe any of its obligations shall give rise to any claim against that party, if the same shall arise out of force majeure event.  A force majeure event for the purposes of this clause means any cause not reasonably within the control of the parties, whether or not that party could foresee it happening, including such causes as (without limitation) labour disputes, strikes, governmental intervention, or the party’s response to the insistence of any governmental instrumentality or person purporting to act therefor, manufacture, supply or delivery failures beyond the seller's reasonable control, cyber incident beyond the seller's reasonable control, terrorism, wars, civil commotion, hijacking, fire, flood, accident, pandemic or epidemic, storm or any act of god.



10 Liability and indemnity



Except where expressly provided in these terms and conditions, no claims shall be made for indirect or consequential damages, punitive damages, special damages, loss of profits or revenues, whether or not the possibility of such damages was foreseen or foreseeable and regardless of any legal or equitable theory upon which the claim is based.



Notwithstanding any other provision of these terms and conditions, no exclusions or limitations shall apply

10.2.1        in case of fraud or fraudulent misrepresentation;

10.2.2       in case of injury to life, body or health;

10.2.3       for claims arising from wilful misconduct or gross negligent by one party, the party’s legal representative or party’s vicarious agent;

10.2.4       for claims resulting from a breach of basic contractual obligations (so-called cardinal duties) by a party. In such case the party´s liability shall be limited to the reasonably foreseeable damage which is considered typical for the respective nature of contract.



Subject to clause 10.2, for any delivery where seller does not perform into-plane services, the liability of seller for any claim arising from seller failing to perform its obligations shall be limited to the sole and exclusive remedy of prompt refund of the price of an affected delivery or, at seller’s option, the replacement of the affected fuel at no additional cost to buyer.



Where buyer has requested seller to perform into-plane services, seller excludes any liability for any claims of the buyer arising out of the contamination of the fuel supplied by the seller if the contamination is caused by: 



contaminants in buyer's aircraft which existed before the time of supply; or 



in case of over-wing fuelling, contaminants which enter buyer's aircraft during the delivery of fuel by the seller from the environment outside of the refuelling equipment (for example, the ingress of dust or water if delivery is being performed in sandstorms or in the rain respectively), except to the extent caused by seller’s gross negligence or wilful misconduct.



Seller shall not be liable under the warranties in clause 4.1 and the remedies in this clause 10 shall be deemed waived by buyer, and seller shall not be liable for a breach unless buyer:



properly stores, loads, uses and maintains the fuel;



does not modify the fuel in any way other than pursuant to seller's reasonable written instructions or approval;



does not use the fuel in any way in contradiction with its intended use or in contradiction of seller's reasonable written instructions;



does not subject the fuel to any kind of misuse or detrimental exposure;



does not adulterate, add to, mix, commingle or blend the fuel with any other products (other than aviation jet kerosene of the same specification), additives, materials or substances without first obtaining the written permission of seller;



makes a valid and timely claim pursuant to clause 8, and 



provides seller with full opportunity to inspect, measure and test the fuel, including the timely provision of a retained sample (one US gallon minimum) from any affected fuel.



11  Health, safety and the environment 



Buyer shall comply with: 



all relevant health, safety and environmental laws, regulations and government recommendations applicable at the place in which buyer receives fuel delivered under these terms and conditions; and



all applicable airport rules and regulations and all applicable health and safety standards of the seller, including (without limitation) in respect to safe driving and use of vehicles.  A clear unobstructed exit path for fuelling vehicles is to be left throughout the fuelling operation.



Seller shall not be responsible for any loss, damage or injury resulting from any hazards which are inherent in the nature of the fuel it delivers.



Buyer shall co-operate with seller, its employees and its subcontractors in respect of all safety measures.  Without limiting the generality of the foregoing buyer shall ensure that:



all care and practicable precautions are taken for the purpose of preventing the exposure of any person or property to any hazard relating to the delivery and receipt of fuel hereunder;



no maintenance work or operation of equipment which may create a source of ignition is carried out in the vicinity of any delivery or removal of fuel; and



if buyer’s aircraft requires over-wing fuelling, it must display appropriate fuel grade identification decals. 



If buyer fails to co-operate in any respect with the above requirements, or seller reasonably believes there to be a material health, safety or environmental issue which justifies withholding delivery of fuel, seller may in its absolute discretion cease or suspend delivery or removal and any exercise or forbearance in exercising such discretion shall be without prejudice to any other rights of seller.



12 Personal information


Seller undertakes that personal information of the buyer will be safeguarded and processed in accordance with the requirements of the general data protection regulation (GDPR).



13  Anti-corruption and trade laws



In connection with these terms and conditions, buyer represents, warrants, and covenants as follows:



It has complied and shall comply with applicable anti-bribery and anti-money laundering laws specifically including the laws of the United Kingdom (such as the bribery Act 2010), and the laws of the United States of America (such as the foreign corrupt practices act of 1977), and all successor legislation.



It and its respective owners, officers, directors, employees, and subcontractors have not and shall not offer, give, promise to give, authorize giving, solicit, accept or agree to accept; to or from any person (including public officials and private individuals); directly or indirectly; anything of value (monetary or nonmonetary, without limitation); in order to obtain, influence, induce, or reward any improper advantage. 



To its knowledge, no public official has a personal direct or indirect interest in the purchase of fuel hereunder.



It has complied and shall comply with the U.K. criminal finances act of 2017.



It is not, and is not reselling to, a restricted party.



It has complied and shall comply with trade laws.



It has in place and shall maintain policies and procedures designed to ensure compliance with anti-bribery laws, anti-money laundering laws, and trade laws including due diligence to ensure that the end use and/or end user of the fuel is not prohibited by trade laws. Without limiting the generality of the foregoing, where buyer is not itself the end user of the fuel, buyer shall provide seller with such information as it may require regarding the end use and/or end user of the fuel, prior to each delivery of fuel into buyer’s aircraft for regulatory, legal and/or tax purposes, including but not limited to verify that no trade laws will be infringed.



No party shall be obliged to perform any of its obligations to the extent that:



such performance is in violation of, or inconsistent with, any trade laws or will or could result in the imposition of any adverse measures against such party of any of its affiliates; or



such obligations cannot be performed without directly or indirectly requiring any action by any party or affiliate or their individual employees in violation of or inconsistent with any trade laws or will or could result in the imposition of any adverse measures against any such person or entity. 



For the purpose of this clause: 



“public official” shall include (a) any minister, civil servant, director, officer, employee, or other official, or anyone acting in any official, legislative, administrative, judicial or representative capacity, on behalf of any government or any department, agency or body thereof, and/or of any government-owned  or controlled company including any company or enterprise in which a government owns an interest of more than thirty percent, and/or of any public international; (b) any political party, political party officials, or candidates for political office; (c) any member of a royal or ruling family; and (d) any close family member (spouse, parent, child, sibling) of any of the foregoing. For avoidance of doubt, the term “public official" shall include all directors, officers and employees of state-owned or controlled airlines;



“restricted party” means any person who is: (a) targeted by national, regional, or multilateral trade laws, or (b) directly or indirectly owned or controlled by or acting on behalf of such persons, such that trade laws apply;



“trade laws” means laws, rules, regulations or equivalent applicable to either party expressly including, but not limited to, the laws of the United Kingdom, the laws of the United States of America, and the laws of the European Union and its member states regarding export controls, economic sanctions, international boycotts, or restrictions including but not limited to those that: (a) prohibit or restrict the export or import of goods, services, software, or technology to or from persons and countries specified therein; or (b) would expose buyer or seller to punitive measures for violation;



14 General



The failure by either party to enforce at any time or for any period any one or more of the terms and conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all of them.



If any term or provision of these terms and conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed, and the remainder of the provisions hereof shall continue in full force and effect as if these terms and conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.



The parties do not intend to create a continuing obligation to buy, sell or exchange petroleum products. Accordingly, each party expressly waives any rights it may have under any existing government regulations to insist upon the continued purchase, sale or exchange of petroleum products.



15 Governing law and jurisdiction



These terms and conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of Germany, excluding German conflicts of law provisions and the United Nations convention on Contracts for the International Sale of Goods (CISG).



All disputes (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions shall be finally settled under the rules of arbitration of the international chamber of commerce by a sole arbitrator appointed in accordance with the said rules.  The seat of arbitration shall be London.  The language to be used in the arbitral proceedings shall be English. This clause 15.2 shall not apply in cases where the buyer is considered not to be an entrepreneur or a merchant according to the relevant provisions of the law applicable to this contract.




Schedule - Terms Applicable to Bulk Delivery and Barrel/Drum Delivery


1 Risk and Property


The risk and property in the fuel shall pass to the buyer when on discharge it passes the hose connection of the container, storage tank, or fill line (as the case may be) provided by buyer. In the case of barrel, drum or other packaged deliveries the risk and property in such package and in any product contained therein shall pass to the buyer at the time of off-loading when the package is removed from the delivery wagon provided by the seller for delivery of such package.


2 Delivery



Bulk delivery into static and portable tanks



Buyer warrants and undertakes: 

that the receiving tank is suitable and safe for receiving delivery without risk to property or persons;

to take responsibility for any loss, leakage or contamination of the product deliverable which may occur in any tank or in any pipeline or equipment of the buyer;

to ensure that at the time of delivery there is sufficient ullage in the tank for the safe reception of the quantity of product ordered and that all connections to the tank are properly secured;

to ensure strict observance to buyer’s fuel storage license and/or applicable storage regulations;

in the case of a delivery into a static tank to ensure that before delivery commences a competent representative of the buyer who is in charge of the storage installation for the purpose of delivery and who shall:

receive from each compartment of the vehicle making such delivery samples to satisfy him/herself upon a visual inspection that the product therein is in accordance with the grade of product ordered, the grade of product indicated on the relevant compartment and the documentation supplied by the seller;

sign a form or permission to discharge provided by seller and where appropriate in the case of a highly inflammable product, hand over a signed copy of the certificate, in accordance with applicable law at all times;

in the case of delivery in to a portable tank to be transported offshore to ensure that a competent representative of buyer shall oversee compliance with paragraph at the time of delivery and that such tank is, at the time of delivery in a clean and fit condition to receive and convey the product deliverable.



A competent representative of buyer shall, during the whole time of delivery into a tank, keep a constant watch thereon.



Seller reserves the right to refuse deliver in to any tank in the event of buyer failing to observe paragraph 2.1.1 or if there is not, at the time of delivery, properly fixed and prominently displayed at the permanent hose connection of each tank the correct grade label or additionally in the case of a portable tank to be transported offshore it does not, or appears not to, conform to relevant required specifications of seller from time to time for compliance with law. In the event of such refusal to make delivery so that the seller has to return to its premises with the load, seller shall be entitled to charge such amount seller considers reasonable and equitable in all circumstances.



Barrel/Drum Delivery


Where product is deliverable in barrels, drums or other packages and delivery is made in such packages, it will be made, at Seller’s election, to any point served by transportation which is appropriate for such delivery.






Buyer shall indemnify defend and hold the seller and its servants and/or agents harmless against all claims, demands, proceedings, damages and liabilities for death of or injury to any person including the parties hereto, their servants and/or agents, loss or damage to property and any other loss, damage, claims, costs and expenses in any way arising, directly or indirectly as a result of buyer’s non-observance of these delivery conditions in paragraph 2 or otherwise out of or in connection with the delivery of any product except arising from the negligence of seller or seller’s servants and/or agents.



The liability of seller for any loss, damage, claim or other expenditure arising out of or in connection with, the failure by seller to perform its obligations under this agreement shall be limited to:

the reimbursement of the cost of, or at the option of the buyer, the replacement free of charge of any aviation fuel supplied which is not in accordance with this contract;

the reasonable costs of any property and equipment damaged as a result of any delivery; and

those arising from the death or personal injuries to any person caused by seller’s failure to perform this contract in a safe and careful manner in accordance with industry standard operating standards, subject to the exclusions set out in this contract.


Liability for any other loss, damage, claim or other expenditure howsoever arising whether as a result of any breach or negligence or breach of statutory duty on the part of the Seller and/or any of its affiliates, agents or sub-contractors and their respective directors, officers and employees is hereby excluded. This limitation of the liability shall not apply to claims according to the German product liability act (Produkthaftungsgesetz) and in in cases of death or injuries to body and health of any person or wilful intent or gross negligence.)



The quantities of product delivered shall be determined by reference to seller’s measurements taken at the place of delivery and for the purpose of accounts shall be accepted by the buyer, but Buyer may be represented at the taking of the measurements in order to verify them if the buyer so desires.



In the event of missing consignments, short delivery or damage, the seller can only investigate the circumstances if:



in the case of damage, buyer notifies the carrier and seller of the damage immediately upon receipt of the damaged products, such notices to be in writing and to quote the invoice number;



in the case of non receipt or short delivery, buyer notifies seller in writing of non-receipt or short delivery, quoting the invoice number within 21 days of the date of dispatch;


in default of which the Buyer waives any claim.



Buyer warrants that it is either:



a dealer in the fuel, as may be required to be approved by law, in which case it will provide the applicable documentation to the seller to show it is approved by law (e.g. in the UK RDCO certificate stating that the buyer is approved by HMRC as a registered dealer in controlled oils for aviation turbine fuels as required by HMRC Notices 179A (Dec 2006)); or



using the fuel supplied to buyer for its own use and consumption as an end user of aviation fuel;


and if Buyer fails to provide a copy of the documentation referred to in paragraph 2.6.1 then Seller shall be entitled to refuse to supply Buyer with Fuel or to suspend Buyer’s right to use any BP Card until Seller is in receipt of such documentation.


3 Health, Safety and the Environment 



Buyer shall comply with all relevant health, safety and environmental laws, regulations or recommendations operating in any jurisdiction whatsoever in or to which buyer supplies, delivers, carries, sells or uses product delivered under this contract and with any instructions with respect to health and safety and the environment given by the seller or seller’s servants or agents or subcontractors in relation to the delivery, storage or use of the product.



None of the seller or seller’s servants or agents shall be responsible for any loss or damage resulting from the hazards inherent in the nature of the product delivered under this contract.