General Terms & Conditions of Sale and Supply for BP Europa SE – BP Belgium

1. Applicability

1.1. These General Terms and Conditions of Sale and Supply (the ‘Terms and Conditions of Sale’) apply to all offers, quotations and agreements to which BP Europa SE – BP Belgium (formerly BP Belgium N.V.) and/or companies affiliated to it and/or parties working in cooperation with it (hereinafter referred to jointly and separately as ‘BP’) in Belgium is a party or in which it is involved (whereas the counter-party of BP in question shall be referred hereinafter as the ‘customer’) and relate to all business, services and advice (“Products”) made available or be provided or be made available by BP and to all activities carried on in connection therewith, among others those pursuant to purchases and/or orders and/or contracting work and/or rental services.

1.2. All quotations, tenders and offers are made free of obligation.

1.3. Departures from the Terms and Conditions of Sale are only valid if this has been expressly agreed in writing.
Departures from them shall only be valid in respect of the agreements to which the applicability of such departure has been stated in writing.

1.4. Once these Terms and Conditions of Sale have become applicable they will also be applicable to new agreements between the parties, unless this is expressly ruled out, and to all extra-contractual relations between the parties. If the stipulations in these Terms and Conditions of Sale are amended at any time, but their business contents on the whole has not changed, the new amended Terms and Conditions of Sale shall apply in place of the present Terms and Conditions of Sale.

1.5. Any general conditions of the customer are expressly refused. If, and to the extent that the parties have expressly agreed in writing that the customer’s conditions shall likewise apply, the Terms and Conditions of Sale shall take precedence, provided nothing else has been agreed in writing.

2. Sales

2.1. Unless it has been otherwise agreed in writing, the agreed quantity must be purchased in approximately equal monthly (estimated) quantities. BP is not obliged during any contract month to supply more or less than such monthly (estimated) quantity with a maximum of 10% divergence from this.
If supply can only be effected in (partial) supply quantities smaller than a minimum quantity laid down by BP or if deliveries need to be made with urgency, BP shall be entitled to charge a surcharge for this to the customer.

2.2. BP shall make every effort to supply BP-branded fuel or products if the supply of BP-branded fuel or products has been agreed in writing. BP may however, if the occasion arises, decide, at any time, for any reason whatsoever – and without prior consultation with the customer – to supply the customer with non-BP-branded fuel and/or products, although such fuel and/or products must be of the quality usual in this sector. In this case the customer has no right of any kind to compensation in any form whatsoever (including premiums or discounts). Under “BP branded” is understood any product of BP included the product “Castrol”.

3. Delivery

3.1. Unless it has expressly been agreed otherwise in writing, the place of which delivery is made is the place of loading of the means of transport offered by the customer.

3.2. Delivery free at quay or free to house is applied in general to mean delivery to storage tank or facilities indicated in writing by the customer, and/or delivery to a place nearby that is accessible without difficulty by the means of transport used. If the delivery in question cannot, in the judgment of BP, be effected without difficulty and/or with its own resources in the normal manner, BP shall then be free not to make delivery, without being obliged to pay any compensation.

3.3. The risks connected with the products, including risk of loss or damage, are transferred to the customer on delivery, or at the moment when BP notifies the customer that the products in question are being kept at the customer’s disposal.

3.4. BP shall not, among other things, be obliged to carry out unloading if the customer – in the opinion of BP – has not ensured in good time that a safe, efficient and adequate means of unloading is in place, such that unloading can take place in an adequate manner, without delay, efficiently and in compliance with BP’s safety regulations and with regulations in law. The customer shall be responsible to ensure that (storage) facilities for products such as tanks and utilised equipment conform to all regulations in law and are moreover safe and maintained in good condition. The customer shall use the products at all times, in clean condition and unmixed, for those purposes for which they may be intended.

3.5. Without prejudice to the stipulations of Article 4 hereunder, the customer is responsible to ensure that, in order to prevent overfilling of the (storage) facilities, the indications relating to maximum contents shown by a liquid gauge on the (storage) facilities, and also the type of product present in them, are accurate. Damage arising from incorrect indications, the absence or non-functioning or faulty functioning of measuring instruments, inferior (storage) facilities or any other cause shall be attributed to customer’s risk, including the loss of the delivered product. The customer shall release BP from all third party claims resulting from failure to comply with its obligations under this Article.

3.6. If a delivery experiences delay or hindrance for any reason whatsoever, BP shall be entitled to charge costs for BP arising from this to the customer.

3.7. Unless it has been otherwise agreed in writing, the delivery time indicated is not absolutely unbreakable. BP shall not be responsible for the consequences of a delay in delivery, irrespective of how this has arisen, and exceeding the delivery time shall at no time give the customer the right not to comply with any obligations it has pursuant to the Agreement.

4. Measurements/Weighing/Analyses/Administration

Measuring and weighing carried out by BP and weight indications and analyses to be carried out by BP, as well as the administration hereof, done by or on behalf of BP, shall be binding and final for the parties in respect of the delivered quantities and quality.

5. Unloading

The customer is obliged, if shipment is made by railway wagon, to unload the wagon immediately, and send it back to BP within 24 hours from time of its arrival, empty and free from dirt/contamination. If shipment is made by BP road tanker or by BP vessel, the customer is obliged to immediately enable BP to commence unloading or enable it to cause such unloading to be carried out, and for it to be completed safely, in an adequate manner and without interruption. If there is a delay the customer shall be directly liable to pay BP on demand compensation of € 250.00 or € 750.00 and € 4,000.00, respectively, for each day or part thereof for which the return of a railway wagon or the unloading of a road tanker or vessel is delayed, without prejudice to BP’s right to demand a higher compensation.

6. Shipment, Storage, Use and Application

The customer commits that its business and facilities as well as these of his occasional contractors and auxiliary personnel guarantee a well-maintained,
skilled and regulatory exploitation, so that shipment, storage, use andapplication of the by BP delivered products conform to the norm. Any circumstance differing from this must be notified in good time beforehand by the customer to BP in writing. The customer will also provide all administrative or other required permits and will be guided by the applicable laws and regulations. BP is not liable for the consequences of shipment, storage, use and application by auxiliary personnel not skilled in these areas or under circumstances not confirming to the norm or in case of a not reliable, not adequately maintained or non-regulatory environmental. BP is also not liable if he customer does not have the required permits, does not comply with the applicable regulations or specific advice that may be provided by BP whether general or specific relating to the shipment, storage, use or application of the delivered products. The customer commits himself to fully reimburse BP and to pay any damage or fines for whatever reason could arise from any violation of any obligation under this article; the customer commits himself also to fully indemnify BP up to the limit of all claims by third parties in connection with any violation of any obligation enumerated in this article.

7. Packing and Packaging

7.1. Unless otherwise mentioned under 7.2 packing material will not be taken back by BP and its recycling/destruction shall be carried out at the charge and risk of the customer.

7.2. For BP recycled packaging a deposit may be charged to the customer.
Recycled packaging, provided it has been supplied by BP, offered empty and free from dirt/contamination, will be taken back on request if an oil sector regulation relating hereto is in force and then under conditions applicable to BP and/or to be laid down in more detail. Containers are supplied on loan and remain the property of BP. Containers must be returned within 1 month of delivery, empty and free from dirt/contamination. For each day of delay a charge of € 25.00 per container shall be made, without prejudice to the right of BP to demand full compensation. If the customer has not returned the container empty within 2 months after delivery, it shall pay compensation in addition corresponding to the as-new value thereof. Any defects and/or dirt/contamination found in or on containers received by return shall be repaired/rectified at the expense of the customer.

8. Payment

8.1. Unless otherwise expressly agreed in writing, payments made by the customer to BP shall be made at the latest upon delivery, without discount, credit or right of postponement.

8.2. Payments due to BP must be executed at the registered office or branch notwithstanding BP’s right to pursue payment at the customer’s location.

8.3. Unless otherwise expressly agreed in writing, costs and expenses are not included in the agreed price, and must be paid separately by the customer.

8.4. If the customer, after expiry of the deadline indicated in Par. 8.1, remains in default in respect of prompt and full payment of the amount owing according to BP’s administration, then as a consequence, without prejudice to any additional rights accruing to BP:

a. all other claims outstanding with BP in the customer’s name shall immediately become claimable;

b. BP shall have the right legally and without declaration of default, to calculate default interest of 1% per month on the amount in question, from the date of the delivery, calculated from the date due until date of payment, inclusive, in which case a part of a month shall be reckoned as a whole month;

c. BP shall have the right legally and without declaration of default to charge a fixed compensation of 10 % on the amount in question;

d. BP shall have the right without further declaration of default to suspend either wholly or partially the execution of any agreement with the customer. It has been expressly agreed and understood between the parties that the stipulations of this article constitute an expressly avoidance clause subject to which BP legally has the right without previous declaration of default to terminate the agreement with the customer.

e. All costs to BP, both judicial and extra-judicial, including collection and lawyers costs incurred in obtaining complete or partial collection of its claims vis-à-vis the customer, shall be borne by the customer.

9. Circumstances Changing Prices

In case of circumstances changing prices, such as for example changes made by the government to charges, rights, taxes, fees and/or to other collective contributions/levies on the product being supplied, changes to (world) market prices and/or (maritime) shipment prices, BP has the right to increase or decrease the price accordingly. If the officially laid down value of the euro (€) decreases in respect of other currencies, BP may revise its price accordingly.

10. Intellectual and Industrial Property

10.1. All rights (of use) in respect of intellectual or industrial property pertaining to the products and also to business connected with them, remain solely in the hands of BP. Unless expressly otherwise agreed in writing, the customer has obtained no right of use or licence hereto.

10.2. The customer is not permitted to remove and/or alter any marking relating to the (intellectual and/or industrial) property of BP.

11. Sale/Delivery Transfer

In the event of transfer of sale or transfer of delivery to persons other than end-users or to retailers other than those recognised by BP, the customer shall offer and sell the products at all times under the brand names and markings laid down by BP, clean and unmixed, to both the above, without prejudice to the stipulations of the foregoing Art. 10.1.

12. Liability

12.1. BP is not liable for damage arising directly or indirectly for the customer or third parties, including consequential damage and loss of earnings, suffered by the customer or third parties resulting from a contractual or non-contractual cause, as a result of minor or gross negligence of BP even due to minor or gross negligence, intent or deceit of the last.

12.2. The customer is obliged to hold BP free of damage and protect it against claims of third parties, arising from or connected with the agreement between BP and the customer or with any contractual relations, and more especially if such damage is the consequence of supplying inaccurate or incomplete data and/or information on the part of the customer.

12.3. BP is not liable for these hidden defects that they did not know or could not have known.

13. Complaints

13.1. The customer is under an obligation to check the delivered goods upon or immediately subsequent to delivery. Complaints as to the delivery, including among other things complaints relating to departures from the quantity and/or quality of the delivered goods, must be immediately notified by the customer in writing to BP, but at the latest within 8 days after the delivery, in default of which all claims in respect hereof shall lapse.

13.2. Complaints relating to an invoice sent by BP must be submitted in writing within 8 days from date of invoice, in default of which all claims in respect hereof to which the customer has a right shall lapse.

13.3. Returns do not have to be accepted by BP, unless BP has given its prior consent to this in writing.

14. Retention of Title

Without prejudice to the stipulations of Art. 3.3 above, BP remains the owner of the delivered goods or products still to be supplied, for as long as the customer has not undertaken any commitment of this agreement, its terms and conditions or any other agreement with BP, and/or for as long as the customer has not fulfilled other extra-contractual obligations vis-à-vis BP. The customer shall allow BP immediate access at all times for the purpose of recalling or causing recall of the delivered products itself, at the charge and risk of the customer.

15. Transferability

15.1 Without prior written consent of BP the customer is not entitled under any agreement with BP to transfer its rights and obligations to another party or to transfer to (another) legal entity.

15.2 By simple notification BP is entitled at all times to transfer its agreement with the customer either wholly or in part, to another party which shall then become the contracting party, being authorised for example to replace the brand names under which BP was entitled to sell either wholly or partially . With its first order or with its first delivery the customer hereby gives its irrevocable and unconditional consent

16. Security

If the (financial) circumstances of the customer, according to BP, give good grounds for assuming that the former will not (or cannot) (completely) fulfil its obligations pursuant to this Agreement, the customer shall be obliged to provide security satisfactory to BP, to pay to BP an advance, to be stipulated by BP, and/or to provide goods as payment pursuant to all its obligations arising from the Agreement. In default hereof BP is entitled to suspend either wholly or partially the execution of any agreement with the customer, and/or to annul the same, without being obliged to make any compensation for this.

17. Cancellation

BP has the right at all times and without being obliged to pay any compensation vis-à-vis the customer, to cancel the agreement or any part thereof not yet implemented, with interim notice of cancellation of 5 working days.

18. Termination an dissolution

18.1. BP may, without proof of default and without judicial intervention, take steps, by means of written notification with immediate effect, to terminate the agreement vis-à-vis the customer, without BP being obliged to pay any compensation, and without prejudice to any obligation on the part of the customer to pay damages – in the cases listed below, among others, which the customer – to the extent this applies to it – should inform BP of in writing without delay:

a. Seizure of the customer’s property;

b. Loss on the part of the customer of a licence to carry on its business;

c. Failure on the part of the customer to meet its payment obligations or circumstances which (could) endanger its creditworthiness;

d. False or incomplete statements made by the customer to BP;

e. Any action or any failure to act on the part of the customer that conflicts with the conditions of the Terms and Conditions of Sale or the underlying agreement and/or any other agreement between the customer and BP;

f. Ending or changing of the legal relationship between BP and its suppliers, which makes further supplies to BP and as a consequence to the customer impossible, or which seriously restrict or encumber the same;

g. If the customer – whether on a temporary basis or not – requests or obtains suspension of payments, requests a court settlement, if the customer is declared bankrupt or if bankruptcy or debt restructuring is applied for by the customer, or if the customer otherwise becomes insolvent;

h. Sale, transfer (direct or indirect) ) or suspension of (a substantial part of) (the undertaking of) the customer, the merger, splitting up or liquidation of the customer, or loss of control over or a preponderant economic interest in the customer;

i. Other circumstances under which it cannot reasonably be demanded of BP that the agreement with the customer should remain in effect.

18.2. Termination of the agreement as a consequence of the above stipulations has no effect on any right to fulfil existing obligations on the part of the customer without prejudice to any claim on compensation on the part of BP.

19. Force Majeure

19.1. BP shall not be responsible for the non-fulfilment or untimely or inadequate fulfilment of its obligations if, to the extent that and for as long as such fulfilment has been delayed, impeded or prevented, whether wholly or in part, by force majeure, which is in existence, among others, in the following cases:

a. Compliance with a regulation or request from a public body, a harbour or local or other authority, or any body or person which indicates that it is such a body or authority or is acting on behalf of the same;

b. Prevention, restriction or hindrance in relation to the extraction, production and/or supply (including replacement of supply lines) and/or the import of raw materials or consumables for the products sold and/or having reference to manufacture of the products and/or the shipment of them to the place of delivery (including in both cases a failure to perform on the part of the supply companies);

c. Facts and/or circumstances that were not foreseeable by BP or which it could not reasonably have been expected to foresee, and which have an influence such that BP, if these facts and/or circumstances had been known to it, would not have entered into the supply agreement, or if it had, then under altered terms and conditions.

19.2. Among the circumstances indicated in Art. 19.1 are included, without being limited: war, mobilisation, rebellion, boycott, devastations, epidemics, natural disasters, meteorological conditions, strikes, fire, forced cessation of oil well exploitation or exploitation of refineries and/or installations, traffic congestion or transport delays, computer malfunctions, interruptions to the electricity or gas supply, price increases which cannot be passed on and further all other circumstances having a disruptive effect on the regular carrying on of BP’s business or the business of its supply companies, in the judgment of BP.

19.3. If such a situation is in evidence as laid down in Arts. 19.1 or 19.2, BP shall notify the customer – if this is possible and advisable for BP – whether, to what extent and under what conditions it will continue to make deliveries, partially or in full. BP shall at no time be obliged to cover any shortfalls using other suppliers, and shall continue to be authorised to dissolve the agreement or to suspend or limit deliveries.

20. EXW/FCA/FOB Deliveries

20.1. Deliveries under the terms and conditions of sale EXW, FCA or FOB, for the purpose to apply the 0 % VAT rate in connection with intra-community supplies, the customer must confirm in writing to BP, at the latest at the time of delivery, that the products will be shipped by it or on its behalf to another EU member state, without prejudice to the right of BP to require, prior to handling this tariff further information or evidence. BP has the right at any time to charge the applicable rights, levies or VAT to the customer, together with default interest on grounds of negligence and any fines demanded of BP.

20.2 In respect of the AGD (‘Administrative Consignment Note’) relating to the transport of excisable goods, the customer must ensure that, prior to the physical shipment of the goods the names and signatures of the authorised persons of the receiving warehouse, registered or non-registered company,
as well as a valid excise number and full address of the consignee must be notified in writing to BP or if the forwarding warehouse keeper is a third party to this third party, will see to it to communicate in time the changes. The customer must see to it that after 14 days after shipment the AGD is presented to the authorities and returned to forwarding warehouse keeper.
For EWC, FCA or FOB deliveries the customer is liable for the taxes, levies, fines, interest and additional costs resulting from violations or irregularities
during the transport or shortages ascertained on receipt/entry as well as all irregularities related to the AGD including incorrect or incomplete markings, late or not returned by the forwarding warehouse keeper and as a result of which these deliveries cannot be cleared.

20.3 If and to the extent that BP hands over or causes to be handed over customs or excise documents in BP’s name, on BP’s first request in writing the customer shall without restriction and without right of offset and/or suspension, compensate all damages that could arise as a consequence of use of these documents, irrespective of whether this is a question of culpability or blame on the part of the customer or not, or its employees or third parties engaged by the customer. If and as soon as the customer sells on or supplies on the products without paying taxes and levies, the customer shall draw up or cause to be drawn up follow-up customs or excise documentation in settlement of BP’s customs or excise documents, in order to end BP’s liability vis-à-vis the authorities.

20.4 In case the goods are exported by and on behalf of the customer to a destination outside the EU but with a customs export declaration drawn up in BP’s name the customer must return to BP within 30 days after the date of export the by the customs endorsed copy of the export declaration.
Non-compliance of this condition gives BP the right to charge VAT on this transaction at the local VAT rate.

20.5 The customer commits, at BP’s first request in writing, to pay to BP all duties, levies, taxes or fees including those charged by the authorities to BP resulting from any cause of violation, or non-compliance of any agreement customer had under this article.

21. Offset

BP is entitled to offset all debts it may have vis-à-vis the customer at any time against all claims that BP, its affiliated companies, and/or joint ventures may prove to have vis-à-vis the customer, and likewise BP has the right to offset claims against it with the debts referred to. The foregoing also applies to a claim of BP against the customer that has not yet become payable and/or is conditional, for any reason whatsoever.

22. Miscellaneous

If any provision in these Terms and Conditions of Sale should for any reason whatsoever become invalid either wholly or in part, the agreement and these Terms and Conditions shall for the rest remain in full force, until the parties, in respect of the invalid provision, are deemed to have agreed what in legal force comes nearest to the effect of the invalid provision. BP is entitled to amend the Terms and Conditions of Sale. Such amendment shall come into effect from the moment BP has informed in writing the customer thereof.

23. Applicable Law and Disputes

23.1 Unless otherwise agreed in writing, the laws of Belgium shall apply to all agreements and resulting disputes to all agreements and resulting disputes closed by a Belgian business.

23.2 Under Belgian law the Courts of Antwerp are authorised to hear any disputes, without prejudice to the right of BP to elect to bring the dispute before the judge of the customer’s place of domicile.