Standard Terms for Commercial LPG Supply
1. Sale and Purchase of LPG: Nova Energy Limited will supply LPG to the Customer and the Customer will purchase and pay for LPG supplied by Nova Energy Limited upon the terms set out in this Agreement.
2. Term and Renewal: The term of this Agreement shall commence on the Supply Commencement Date and, unless otherwise terminated in accordance with its terms, continue for the Supply Period. At the conclusion of the then current Supply Period, unless notice has been given under clause 23, or the Agreement is otherwise terminated in accordance with its terms, this Agreement shall continue for a further Supply Period. If, for any reason, no Supply Period is specified the Supply Period shall be deemed to be 24 months, commencing on the date that the Customer receives notice of this clause.
3. LPG quality: LPG supplied by Nova Energy will be of a specification that complies with all applicable laws.
4. Information to be provided by Customer: The Customer will, on request, promptly and freely provide Nova Energy with all necessary information to enable Nova Energy to comply with any applicable law and any information relating to the Customer’s likely future LPG consumption requirements that Nova Energy may reasonably require.
5. Certification: Prior to Nova Energy supplying LPG the Customer must, if requested by Nova Energy, provide a copy of any certificate in relation to any gas or LPG installation operated by the Customer required by any statute, regulation, or code. The Customer must ensure that its gas and LPG installations, equipment and appliances are safe and comply with all relevant law and standards and any reasonable requirements of Nova Energy.
6. Obligation in relation to unsafe practices: Nova Energy may suspend the supply of LPG to any of the Customer’s sites if it considers that access to that site is hazardous or if any gas or LPG installations used for distribution or combustion of LPG at that site does not comply with sound engineering practice and workmanship or applicable law and standards.
7. Cylinder and bulk tank delivery: Where cylinder supply is the Customer’s normal method of supply, Nova Energy will use reasonable endeavours to deliver LPG cylinders on a regular basis. Where the customer is connected to a bulk tank facility, Nova Energy will use reasonable endeavours to deliver LPG to the bulk tank on a regular basis. If the Customer requires LPG to be delivered at any time outside the normal delivery schedule, Nova Energy will use reasonable endeavours to make such deliveries (additional costs may apply). However, this clause is subject to clause 13 below.
8. Hire of LPG cylinders/equipment: Nova Energy may rent to the Customer LPG cylinders and associated equipment (together “Equipment”) necessary for the supply of LPG to a site. Equipment rental charges may apply, at the rate indicated on the Term Sheet, or otherwise at a rate to be agreed between Nova Energy and the Customer. The Equipment remains the property of Nova Energy.
9. Security Interest: The Customer grants a security interest to Nova Energy in each and every part of the LPG supplied and the Equipment as security for payment for that part and of each other parts of LPG supplied and the Equipment, and for any other amount owing by the Customer to Nova Energy from time to time, and for the performance of all the Customers other obligations to Nova Energy from time to time.
10. Continuity of network supply: Where supply from a local LPG network (as determined by Nova Energy) is the Customer’s normal method of supply, Nova Energy will use reasonable endeavours to maintain a continuous supply of LPG to the Customer via its network. However, this clause is subject to clause 13 below.
11. Maximum and Minimum Supply: In the event that a Minimum or Maximum Usage is indicated on the Term Sheet:
(a) If a Minimum Usage is indicated, unless LPG is unavailable to a customer as a result of a situation to which clauses 7 or 10 of this Agreement apply, the Customer shall be required to take an amount of LPG at least equal to the Minimum Usage, but in any event shall pay for that amount of LPG.
(b) If a Maximum Usage is indicated, Nova Energy shall not be obligated to supply an amount of LPG in excess of that. However, if Nova Energy does supply LPG in excess of that Maximum Quantity, that further LPG shall be supplied:
(i) at the price specified on the Term Sheet; or
(ii) at a price agreed in writing between Nova Energy and the Customer.
12. Exclusive supply: Unless otherwise provided in this Agreement, the Customer must purchase all of its LPG requirements for each Site from Nova Energy and shall not purchase any LPG from other suppliers.
13. Unavailability of LPG: At any time, the supply or delivery of LPG or cylinders may be interrupted or reduced:
(a) for the purposes of repair, maintenance or inspection of plant and equipment or Nova Energy’s network;
(b) due to interruption to scheduled deliveries of LPG to Nova Energy;
(c) due to LPG use by other customers; and
(d) for any purposes necessary for Nova Energy to perform its obligations at law or as otherwise permitted under this Agreement. Nova Energy may also suspend supply at any time when, in its sole discretion, it is necessary or expedient to do so for any reasons of health and safety.
14. Risk: Every risk in relation to the supply of LPG by Nova Energy will pass to the Customer when that LPG enters into Equipment at the delivery address or otherwise comes into the Customer’s possession or control.
15. Customer’s Responsibilities: The Customer is responsible for all gas and LPG installations, Equipment, appliances and other property at the delivery address and must:
(a) provide all access necessary for Nova Energy to perform its obligations and obtain the benefit of this contract (including for delivery, testing, repair, and maintenance);
(b) ensure the safe storage and handling of all Equipment and any other property owned, by Nova Energy, at the delivery address or which otherwise comes into the Customer’s possession or control;
(c) never, and shall use all reasonable endeavours to ensure that any other person the Customer is responsible for (including its employees, agents and contractors) never, interfere with, damage or work on any part of the Nova Energy network, any metering equipment or any other Equipment or property of Nova Energy or any other person which is used in connection with the supply of LPG to the Customer;
(d) provide Nova Energy with the necessary convenient space to install any Equipment or other property to be used by Nova Energy to supply LPG to the delivery address.
16. Payment: Nova Energy shall use all reasonable endeavours to invoice the Customer each month for all LPG supplied to each of the Customer’s Sites pursuant to this Agreement, for any amount otherwise payable under clause 11 during the relevant invoice period, and for any applicable charges specified on the Term Sheet. Each invoice shall specify all amounts payable by the Customer for the relevant invoice period, calculated on the basis of any applicable prices specified in the Term Sheet, or, if none are so specified, on the basis of Nova Energy’s prices (which shall be available on demand from Nova Energy). The Customer must pay all Nova Energy’s invoices by the due date set out in the relevant invoice. Such payment must be made without deduction or set-off and unless agreed otherwise be made by cheque or direct debit.
17. Interest and costs: Interest may be charged by Nova Energy at its discretion in respect of any monies owing and unpaid after the due date for payment. The Customer shall also pay Nova Energy’s costs (including solicitor/client costs and debt collectors’ costs) associated with collecting any money the Customer owes Nova Energy.
18. Exclusion of Consumer Guarantees Act: The parties agree that, where the Customer is being supplied LPG for commercial use, the provisions of the Consumer Guarantees Act 1993 shall not apply.
19. Exclusion of Nova Energy’s liability: Notwithstanding any other provision of this Agreement, to the extent allowed by law, none of Nova Energy, its directors or representatives will be liable, whether in contract, tort (including negligence) or otherwise to the Customer for any interruption to, or reduction in, the supply of LPG or any indirect loss, consequential loss or loss of profits suffered by the Customer.
20. Limitation of liability: To the extent allowed by law, Nova Energy is only liable for direct loss or damage caused by Nova Energy to the Customer in relation to this Agreement, provided that Nova Energy’ liability in respect of any event or series of related events shall be limited to $2,000 and provided further that Nova Energy’ liability in respect of all claims over the term of this Agreement shall be limited to $20,000.
21. Failure to perform: Either party may terminate this Agreement by written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement by the due date and fails to rectify this default after being given 5 working days written notice to do so;
(b) the other party commits a material breach of any provision of this Agreement and if capable of remedy, upon receiving written notice of that breach from the other party, the party in breach has failed to remedy that breach within 5 working days of receipt of the notice; or
(c) an excusable delay pursuant to clause 33 continues for more than 5 consecutive working days or for an aggregate of 10 working days in any 12 month period.
22. Nova Energy may suspend supply of LPG: Without prejudice to Nova Energy’ other rights and remedies, Nova Energy may suspend the supply of LPG under this Agreement if any of the events specified in clause 21 occurs in respect of the Customer.
23. Termination: Either party may give notice to the other terminating the Agreement from the end of the then current Supply Period, provided that such notice is given at least three months before the end of that Supply Period.
24. Opportunity to match: The Customer will, by written notice, give Nova Energy an opportunity to match within ten working days of that written notice any bona fide improved price and/or terms offered in writing (a copy of which is to be supplied to Nova Energy) by another supplier (to apply following the termination of the Agreement) before agreeing to take any LPG supply services from that other supplier in relation to all Sites referred to on the Term Sheet and any other site of the Customer’s. If Nova Energy is willing to match that price and those terms, then the Agreement, as amended by any variations necessary to reflect the price and terms matched by Nova Energy, shall continue in force. This clause shall survive the termination of this Agreement for a period of 2 years.
25. Supply of gas outside Supply Period: If Nova Energy continues to supply LPG to the Customer following the termination of the Agreement and that supply of LPG is not governed by a separate written agreement between Nova Energy and the Customer, then the continued supply of LPG shall be provided on the basis of this Agreement.
26. Removal of Nova Energy’s equipment: Following the termination of this Agreement for any reason, the Customer must provide Nova Energy and its employees, agents and contractors free, safe and unobstructed access, during normal working hours to allow such persons to remove any metering equipment, plant or equipment owned or provided by Nova Energy.
27. Amendment to Standard Terms: Nova Energy may amend or replace these Standard Terms for LPG Supply from time to time, by notice in writing delivered to the Customer’s normal billing address and/or by public notice in a local daily paper.
28. Amendments to Prices: Nova Energy may alter the LPG price by notice in writing delivered to the customer’s normal billing address and/or by public notice in a local daily paper. If such an alteration occurs to pass on any reasonable increases in its costs, including (without limitation) any new or increased tax or charge or cost, this Agreement shall continue on its terms. In all other cases, if the Customer does not accept the alteration, the Customer may terminate this Agreement on 21 days’ written notice. For the avoidance of doubt, clause 24 shall continue to apply in the event of any such termination.
29. Assignment: The Customer must not assign any of its rights or interests under this Agreement without Nova Energy’s prior written consent.
30. Confidentiality: Except as required by law or authorised by Nova Energy in writing, the Customer must keep confidential all information relating to the Agreement, including the terms of the supply of LPG, pricing information and any related correspondence.
31. Privacy: The Customer acknowledges that Nova Energy may use any information it holds in relation to the Customer for the purposes of direct marketing or to enforce its rights pursuant to the Agreement.
32. Entire Agreement: These terms, along with the relevant Term Sheet, record the entire Agreement between Nova Energy and the Customer, and it supersedes and cancels any prior written or oral understanding, agreement or arrangement concerning the subject matter of this Agreement.
33. Excusable delay: Neither party will be liable to the other party for any failure or delay in performing an obligation under the Agreement (other than an obligation to make a payment when due) if due to a cause reasonably unforeseeable or beyond the control of a party and that party has used its best endeavours to perform its obligations on time despite the cause.
34. Waiver: No delay or failure to act is a waiver. No waiver is effective unless it is in writing. A waiver of one breach will not be a waiver of any other breach.
35. Survival: Each provision in the Agreement survives the expiry or earlier termination of this Agreement to the extent unfulfilled, and remains enforceable and does not merge, on performance of any other provision and, any provision which, by its nature is intended to survive termination, will survive termination of the Agreement and will remain in full force and effect.
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