TERMS & CONDITIONS

(For Sale of Diesel (Gasoil) within UAE)

The following General Terms and Conditions shall apply to all Diesel Sale Agreements (For Sale of Diesel (Gasoil) within UAE) (“Agreement”) entered between the Seller and Buyer, are deemed to be fully incorporated therein, and considered as fully accepted and acknowledged by the Buyer. All changes to the below may be made by the Seller from time to time, without any prior notice to the Buyer.

DEFINITIONS AND INTERPRETATIONS:

1. ‘Agreement’ The Agreement entered between the Seller and Buyer, and any further schedules attached herewith are collectively referred as the Agreement entered by and between Parties for the supply of Product and Services and includes any document expressly incorporated herein by reference and shall include any amendments or supplementary agreements specifically referred hereunder. The attachments in the form of schedules and annexures form integral part of the Agreement. Any other written confirmation or authorizations are subject to the terms agreed hereunder.

2. ‘Affiliate’ means any company, corporation, partnership, or other entity that, directly or indirectly through one or more intermediaries, controls/owns, is controlled by/ owned by, or is under common ownership with, such Party hereto, for so long as such ownership exists. For the purposes of the foregoing, “control” or “own” in its various forms shall mean ownership of voting securities, whether or not more than fifty percent (50%) of the ordinary shares or other equity interests, entitled to vote for the election of directors and/or controlling the administration of the entity by contract or otherwise.

3. ‘Service Facilitator’ means a third-party company chosen by the Seller and authorised to provide services, implementation, customer support, training, and other services, as well as to invoice and collect monies from Buyer in relation to such services provided.

4. ‘Service Fee’ [Not Applicable]

5. ‘Service’ [Not Applicable]

6. Buyer’s Asset/ Asset: Buyer’s Asset/ Asset includes any storage tank and/ or vehicles or any other asset wherein the fuel is discharged as per instructions of Buyer. This term will also include Buyer’s Affiliates’ asset to which Product are delivered pursuant to the Agreement.

DELIVERY:

1. Unless stated otherwise in the Agreement, the delivery will be deemed complete when the Product passes the load manifold of Buyer’s Asset.

2. The Buyer agrees that the Delivery Location of Buyer remains same as agreed under the Agreement. It is sole discretion of the Seller to impose Delivery charge on delivery to any other location/s which is not stated as Delivery Location agreed hereunder in Schedule A or not included as Delivery Location by addendum to the Agreement. Buyer can amend Delivery Location only with prior approval of the Seller.

3. Any loss of or damage to the Product during the transfer of goods from Seller’s tank/ vehicle to Buyer’s Asset on agreed Delivery Location will be on account of party whose fault, negligence or willful misconduct has caused such loss of quantity during such transfer.

4. Delivery and arrival dates shall be approximate only, and the Seller shall not be liable for any delay, regardless of the cause of such delay except otherwise agreed herein.

5. All deliveries outside Dubai are subject to availability of required permits and/or licenses.

QUALITY:

1. The quality of Product supplied will be based on quality certificate/reports given by the Seller. The Seller’s obligations with regard to the quality of the Product supplied are limited solely to supplying Product which corresponds with the UAE diesel description as specified by Ministry of Energy.

2. Calibration test of the fitted meters and lab test is conducted annually. Such reports can be shared at request.

3. The Buyer have right to reject such Product immediately and should not be later than the 48 hours from the time the delivery took place or in case of delay in getting quality report immediately upon receiving the quality reports from independent surveyor. The rejection of the Product by Buyer will be considered as valid and acceptable provided it is evidenced by quality reports of the sample taken in accordance with the sample collection procedure stated below.

4. In case the test is required to be conducted for quality confirmation, the samples must be collected in presence of the representative of both Parties. The Buyer agrees and acknowledges that failing the presence of the Seller’s representative while collecting the sample will render the sample unreliable for testing and any test results availed as a result shall be deemed invalid. Such samples must be collected at the time of delivery of fuel into the Asset and not later. The cost of quality inspection by independent surveyor shall be borne by a party in following method: (i) The cost shall be borne by the Buyer except if the Product tested is conclusively determined to be off-specification Product by independent surveyor. (ii) Under the circumstances where the quality reports evidences the Product is off-specification, the inspection cost will be charged to the Seller on actual cost basis in addition to the other reliefs available to the Buyer under the Agreement. The certificate(s) of quality issued by independent surveyor for the sample collected as per agreed process shall, save in cases of fraud or manifest error, be deemed final, conclusive and binding upon both Parties.

5. In case the Parties have not agreed on and appointed mutually any independent surveyor/inspector for quality determination as stated above the quality as evidenced in the quality certificate/ quality assurance letter will be deemed final and binding.

6. Save as expressly agreed herein with respect to description of Product, the Seller's obligations with respect to fitness for purpose (whether or not such purpose is known to the Seller) of the Product to and (save to the extent that exclusion thereof is not permitted or is ineffective by operation of law) all statutory or other conditions or warranties, express or implied, with respect to the description or satisfactory quality of the Product or its fitness for any particular purpose or otherwise are hereby expressly excluded. The Buyer assumes all risk and liability for the use of the Product, whether used solely or in combination with other substances, and for loss, damage, or injury to persons or property of Buyer or others arising out of the use or possession of the Product.

QUANTITY:

1. Except as otherwise provided under quality and quantity determination clause of the Agreement, the quantity discharged will be determined by dispensing valve (meter reading) on the Seller’s vehicle Tank and such volume shall be deemed final and binding to determine the quantity delivered.

CLAIMS:

1. If the quality reports of the sample collected as per above clause evidence that the quality is off-specification, the Buyer can seek reimbursement of the Product price paid for such lot of delivery excluding the price of the already consumed quantity from the date of delivery.

2. Such quality claim shall be admissible only if notified in writing to the Seller within one (1) week from the date of receipt of the independent surveyor’s report. If the Seller has not received such claim notice within abovementioned time, the Buyer shall be deemed to have waived all claims in respect thereto, and such claims shall be barred thereafter.

INSURANCE:

The Seller maintains an insurance policy covering the third-party liability and third-party injury caused due to accident and shall, upon request, provide the Buyer with evidence of such insurance cover. The Buyer may immediately contact Seller in writing in the event of any loss or damage that it considers to be falling under third party liability cover.

PRICE, TAXES AND SERVICE FEES:

1. Buyer shall pay the Purchase Price and Service Fees (if applicable) in accordance with payment terms set forth in the Agreement.

2. Time for payment will be of the essence of the Agreement. Interest will be chargeable on payments made later than the Due Date.

3. Taxes, Fees, dues, etc.: Purchase Price and Service Fees are exclusive of all government excise, sales, use, value added, property, occupational, or like taxes. The Buyer shall pay every tax, fee, duty or other charge, including VAT at the current or then current rates, now or hereafter imposed by any governmental agency upon the product or any part thereof. If any such tax, fee, duty or charge is required to be paid or collected by the Seller, an equal amount shall be added to the Purchase Price and payment shall be made together with the Purchase Price. Buyer will pay any tax (other than tax based on net income) Seller may be required to collect or pay any fee, charge, due, etc. which is imposed upon the Product or provision of the Service hereunder. In the event Seller or its Service Facilitator pays any such taxes on behalf of Buyer, Seller or its Service Facilitator shall invoice Buyer such taxes and Buyer agrees to pay such taxes under the Agreement.

4. The Buyer shall provide the Seller with a valid VAT number issued by the UAE or respective country’s tax authorities in which the Product is to be dispatched. In case of failure by the Buyer to either provide VAT registration number or any other provisions of this clause:

5. the Seller shall be entitled to issue an invoice for the amount of any VAT payable on the Product, plus interests at the rate stipulated under the applicable VAT rules, to be paid in accordance with the payment provisions of the Agreement; and

6. the Buyer shall indemnify the Seller in respect of any costs, penalties and interests incurred by the Seller due to delay in payment of any VAT amount payable.

7. If the Product is supplied to any Buyer’s Affiliates, the Buyer shall be completely liable for such supplies to the Buyer’s Affiliate pursuant to the Agreement. Buyer’s failure to make payments within Due Date as agreed hereunder for any reason whatsoever, without prejudice to other rights and remedies, shall entitle Seller to recover such outstanding unpaid amounts from such Affiliate making them severally and jointly liable for the payment obligations hereunder.

LIMITATION OF LIABILITY

1. Other than in respect of death or personal injury caused by Seller’s negligence, fraud or fraudulent misrepresentations, or in relation to any other liability which by law may not be limited or excluded, Seller’s liability for damages pursuant to the Agreement shall be limited to the amount of Purchase Price paid by the Buyer till date of termination from Effective Date.

2. In no event shall Seller under any circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: indirect, incidental, special or consequential damages, or damages for loss of profits; revenue; loss of goodwill, loss of business or opportunity; loss of anticipated saving; loss or corruption of data or information; suffered by the other party that arises under or in connection with the Agreement.

FORCE MAJEURE:

1. No failure or omission to carry out or to observe any of the terms, provisions or conditions of the Agreement shall give rise to any claim by Buyer hereto against the Seller, or be deemed to be a breach of the Agreement if the same shall be caused by the Events of Force Majeure beyond Seller’s control. For the avoidance of any doubt, Force Majeure Event include delay, hindrance, reduction in, interference with, curtailment or prevention of a party's performance of its obligations hereunder resulting from events such as, not being exhaustive, acts of God, riots, civil commotions, insurrection, wars terrorism, hostilities, sabotage, blockade, revolution, or disorder; expropriation or nationalization; disruption of transportation of Product to the loadport, and consequent delays; breakdown or damage to storage, pipeline or loading facilities; prevention of loading by terminal or port authorities; embargoes or export restrictions; explosion, fire, earthquake, storm, lightning, tide, tidal wave or perils of the sea; accidents of navigation or breakdown of the vessel engine, accidents on road or engine breakdown of storage tank mechanism, delivery vehicle or injury to vessels or tank vehicle; accidents to or closing of harbors, docks, straits, canals, roads or other assistances to or adjuncts of road journey, shipping or navigation; restrictions imposed by any governmental authority (such as including allocations, priorities, requisitions, quotas, price controls), pandemic and epidemic events, any curtailment, reduction in, interference with, failure or cessation of supplies of Product from any of the Seller's or the Seller's suppliers' sources of supply or by any refusal to supply Product whether lawful or otherwise by the Seller's suppliers (provided in fact the sources of supply are for the purposes of the Agreement); by any strikes or lockouts; any governmental restriction for imports/exports or any compliance with any law, regulation or ordinance, or with any order, demand or request of an international, national, port, transportation, local or other authority or agency (including the International Energy Agency ("IEA")) or of anybody or person purporting to be or to act for any such authority or agency or any corporation directly or indirectly controlled by any of them;

2. The Seller will notify the Buyer about the occurrence of Force Majeure Event impeding the delivery of Product.

3. On the occurrence of Force Majeure Event, the Seller will provide the new delivery schedule as soon as the Force Majeure Event comes to an end.

4. Nothing in this clause shall be taken to limit or prevent the operation of doctrine of frustration’s (as per common law) equivalent doctrine under UAE laws.

5. Any occurrence of the Force Majeure Events will not affect the Buyer’s obligations of payment for the Product delivered by the Seller and remains recoverable along with any interest chargeable on delayed payments.

TERMINATION

1. Parties agree that any Party may terminate the Agreement for reasonable cause without the need for a court order by giving written notice to the other Party being not less than period of 30 days from the date of termination notice. For the purpose of this clause, reasonable causes for Buyer are (i) breaches of Response Time for more than five times in any given term as provided under the Agreement; (ii) breach of any other contractual term by the buyer after giving time for remedy the default as per below clause; (iii) any other cause which seller mutually agrees as reasonable. The termination for any other cause by Buyer shall be deemed as termination for convenience and is not permission under this contract. For purpose of this clause, the reasonable cause for Seller is (i) change in procurement prices to the extent that agreed product price (if other than pump price) is not commercially viable to continue (ii) volume of product quantity declines below estimated or agreed minimum quantity to make it unfeasible to deliver in given location for such declined volumes.

2. Either Party may terminate the Agreement with immediate effect by notice in writing to the other party (the “Defaulting Party”) in the following circumstances:

3. if the Defaulting Party breaches the term of the Agreement and has not remedied the breach within ten (10) Business days after written notice is given to the Defaulting Party specifying the breach; or

4. if any order is made or resolution passed for the winding up of the Defaulting Party; if the Defaulting Party enters into liquidation, whether voluntarily or compulsorily (other than for the purposes of amalgamation or reconstruction while solvent); or it enters into any arrangement or composition with its creditors; an administrator, liquidator, receiver or similar officer is appointed, enters into an assignment for the benefit of creditors; a winding-up order is made or if the Defaulting Party takes or suffers any similar or analogous action in consequence of debt.

5. Any termination shall not affect the rights and obligations of the Parties accrued before date of termination. The Buyer shall remain obligated to make payments for the Product quantity delivered without set-off or counterclaim.

6. Seller will be entitled to terminate the Agreement by notice with immediate effect and charge Buyer for any costs, damages or liabilities incurred by the Seller if the Seller makes delivery within the mutually agreed Delivery Schedule (means schedule given by Buyer for delivery as per requirements of Seller) or arrival dates (or in case of delay if the delay is the result of the Force majeure Event) and Buyer fails to accept/take the delivery on agreed date mentioned in Delivery Schedule; or Buyer fails to make timely payment; or to provide security or guarantee of payment in a form satisfactory to the Seller.

MISCELLANEOUS:

1. Entire Agreement: The Agreement as defined above, along with these General Terms and Conditions, constitute entire agreement between the Parties relating to the sale of the Product for the Term specified therein. All prior and contemporaneous representations, understandings and agreements, customs and usages are superseded herein. In the event of any conflict between any provision in the Agreement and any other document not attached herein, the terms of the Agreement shall prevail. Each party acknowledges that in entering into the Agreement it has not relied on any representations, warranties, statements or undertakings except those which are expressly set out herein. Each party further acknowledges that it will only be entitled to remedies in respect of breach of the Agreement and will not be liable in tort or under any collateral contract or warranty in respect of any representations, warranties, statements or undertakings which may have been made prior to the Agreement being entered into.

2. Variation: No variation of any term shall be effective unless it is mutually agreed in writing.

3. Waiver: Except as provided specifically under any clause of the Agreement, no delay or failure on part of any Party to enforce any right or claim which either of them may have hereunder shall constitute a waiver of such right or claim. Any waiver by Parties of any term, provision or condition hereof or of any default hereunder in any one or more instances shall not be deemed to be a further or continuing waiver of such term, provision, or condition or of any subsequent default.

4. Assignment: Neither Party can assign the rights or obligations under the Agreement without the express written consent of the other Party. The Seller shall have the right to designate an affiliated parent or subsidiary company to make the delivery or lifting of Product provided that the Seller shall remain in all respects responsible to the Buyer for the full and timely performance of the Seller’s obligations under the Agreement.

5. Severability: If any provision or part-provision of the Agreement is held to be so by court of law or becomes invalid, illegal or unenforceable under any applicable law, it shall be deemed severed, but that shall not affect the validity and enforceability of the rest of the terms of the Agreement. If any provision is deemed severed under above sub-clause of this clause is relevant for the Parties to the Agreement, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

6. The transaction between Parties and information shared pursuant to the Agreement is confidential information and must be kept confidential. Such information cannot be shared without written consent of the Seller.

NOTICES

1. Any notice permitted or required under the Agreement must be in writing and, unless otherwise stated, may be given in person or by courier, e-mail or fax, to the recipient at the address set forth in the Agreement. Any such notice will be deemed to be given: (a) if delivered in person, at the time of delivery; (b) if sent by courier, upon receipt, as evidenced by a delivery notice from the courier; (c) if sent by fax, at the time specified in the fax transmission report of full transmission, free of errors, to the recipient’s fax number; (d) if sent by e-mail, then deemed to be delivered on same Business Day if sent during the working hours, if not a Business Day or after the working hours then first Business Day following such date.

2. Address for any notice will be the address specifically mentioned in Particular Terms and any other email address as confirmed by Parties in the Agreement or from time to time in writing or implied from the communications.

GOVERNING LAW AND JURISDICTION

The Agreement shall be governed and construed in accordance with the substantive laws of the Emirates of Dubai and federal laws of United Arab Emirates. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination, or validity thereof or any other claims whether arising under contract, tort or otherwise, shall be referred to the Dubai Court.

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Updated on July 2022