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Standard terms and conditions for the sale of aviation fuel

1 Application

 

1.1  

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.

 

1.2 

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.

 

 

2 Definitions

 

2.1           

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

 

3.1         

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

 

3.2 

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.

 

3.3

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.

 

 

4  Quality

 

4.1           

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.

 

4.2           

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

 

5.1           

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.

 

5.2           

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.

 

5.3           

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

 

6.1           

If Buyer has requested that Fuel is delivered with Into-Plane Services, the following provisions apply:

 

6.1.1               

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. 

 

6.1.2               

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.

 

6.1.3               

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.

 

6.1.4               

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.

 

6.1.5               

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 or for death of or injury to any person caused by or arising out of or related to Seller’s action in performing or omission to perform the requested services, except to the extent caused by the Gross Negligence or Wilful Misconduct of Seller.

 

6.1.6              

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 or for death of or injury to any person caused by or arising out of or related to Seller’s action in performing or omission to perform the requested services, except to the extent caused by the Gross Negligence or Wilful Misconduct of Seller.

 

6.2           

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:

 

6.2.1               

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.

 

6.2.2               

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 or for death of or injury to any person 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.

 

6.3           

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

 

7.1           

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.

 

7.2           

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 or for death of or injury to any person caused by or arising out of or related to Seller’s action in performing or omission to perform the requested services, except to the extent caused by the Gross Negligence or Wilful Misconduct of Seller.  

 

7.3           

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

 

8.1           

Complaints as to short delivery or defects in quality or any other matter shall be notified to Seller at the time of delivery, followed by a written Claim to be made within 15 days after delivery. 

 

8.2          

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.

 

 


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

 

10.1         

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.

 

10.2         

Notwithstanding any other provision of these Terms and Conditions, no exclusions or limitations shall apply in the case of fraud or fraudulent misrepresentation.

 

10.3         

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.

 

10.4         

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:

 

10.4.1             

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

 

10.4.2             

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.

 

10.5         

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:

 

10.5.1             

properly stores, loads, uses and maintains the Fuel;

 

10.5.2             

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

 

10.5.3             

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

 

10.5.4             

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

 

10.5.5             

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;

 

10.5.6             

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

 

10.5.7             

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 

 

11.1         

Buyer shall comply with:

 

11.1.1             

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

 

11.1.2             

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.

 

11.2         

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.

 

11.3         

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:

 

11.3.1             

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;

 

11.3.2             

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

 

11.3.3             

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

 

11.4         

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 Data Protection Act 2018 as set out in our privacy statement (which can be found here).

 

 

13  Anti-corruption and trade laws 

 

13.1         

In connection with these Terms and Conditions, Buyer represents, warrants, and covenants as follows:

 

13.1.1             

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.

 

13.1.2             

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. 

 

13.1.3             

To its knowledge, no Public Official has a personal direct or indirect interest in the purchase of Fuel hereunder.

 

13.1.4            

It has complied and shall comply with the U.K. Criminal Finances Act of 2017.

 

13.1.5             

It is not, and is not reselling to, a Restricted Party.

 

13.1.6             

It has complied and shall comply with Trade Laws.

 

13.1.7             

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.

 

13.2         

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

 

13.2.1             

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

 

13.2.2             

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.  

 

13.3         

For the purpose of this clause:

 

13.3.1             

“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;

 

13.3.2             

“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;

 

13.3.3             

“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

 

14.1         

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.

 

14.2        

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.

 

14.3         

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

 

15.1         

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 England.

 

15.2         

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.