Revised January 2022.
For the purposes of these Conditions:
“Agreement” means the contract between Pro Gases UK Ltd (known as PGUK) and the Customer for the supply of Gas, PGUK Equipment, Goods and/or Services. Each order from the Customer for Gas, PGUK Equipment, Goods or Services which is accepted by PGUK shall constitute a separate Agreement which shall be governed by these Conditions.
“PGUK” or “we” or “us” means Pro Gases UK Ltd (company number 09177139), whose registered office is at 32 Derby Street, Ormskirk, Lancashire, L39 2BY.
“Application Equipment” means any PGUK Equipment described in Schedule 1.10 (if applicable).
“PGUK Equipment” means any Containers, Application Equipment and/or other equipment provided by PGUK (but not sold) to the Customer under this Agreement.
“Business Day” means a day other than a Saturday or Sunday or public holiday in England, Wales, Scotland or Northern Ireland.
“Consumer” means a natural person acting outside of the course of a business, profession or trade.
“Customer” or “you” means the individual, partnership or company entering into the Agreement with PGUK.
“Customer Equipment” means the Customer containers and any other equipment owned by the Customer used in connection with the supply of Gas, Goods and/or Services under this Agreement.
“Container” means any container, cylinder or other storage vessel provided by PGUK (but not sold) to the Customer in which Gas is stored.
“Controller” (or data controller), “Processor” (or data processor).
“Data Subject”, “Personal Data” and “processing” all have the meanings given to those terms in DP Laws (and related terms such as “process” shall have corresponding meanings).
“DP Laws” means any law relating to the processing of Personal Data, as applicable to PGUK, you and/ or the Services, including:
- the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any laws or regulations implementing Council Directive 2002/58/EC (“ePrivacy Directive”); and/or
- the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) and any corresponding or equivalent national laws or regulations, once in force and applicable, and/or
- any laws that replace, extend, re-enact, consolidate or amend any the foregoing; and/or
- any judicial or administrative interpretation of such DP Laws, and any mandatory guidance, guidelines or codes of practice relating to such DP Laws.
“Gas” means any gas or gas mixture supplied by PGUK to the Customer including liquefied, solidified, compressed or dissolved gas.
“Goods” means any goods or materials sold by PGUK to the Customer, excluding Gas.
“Processing Purposes” means the purposes set out in our Privacy Statement a copy of which is available at request, or which we may provide to you by another method depending on the way that you are contracting with us.
“Product Source” means PGUK’s normal source of supply of Gas to the Customer.
“Safety Data Sheet” means a sheet prepared by PGUK containing material safety and other data relating to the applicable Gas.
“Services” means any services provided by PGUK to the Customer (including, without limitation, the provision of training, technical advice, installation, removal, modification, moving or upgrading of any PGUK Equipment and the inspection and maintenance of PGUK Equipment and/or Customer Equipment) unless dealt with under a separate agreement between the parties.
1. Delivery/Collection and Installation/Commissioning
(a) Save as set out in Conditions 1(b), 1(c) and 7(l) below and the other terms of this Agreement, or as otherwise agreed, PGUK will supply Gas, PGUK Equipment, Goods and Services against orders placed by the Customer and which are accepted by PGUK and PGUK reserves the right to charge for delivery.
(b) In relation to bulk liquid Gases, Gas in trailers or any other Gas (including cylinders) on a managed service for scheduled deliveries, PGUK will use reasonable endeavours to deliver Gas in appropriate quantities and frequency having regard to the Customer’s average Gas consumption rate based on historical data held by PGUK and the PGUK Equipment or Customer Equipment storage capacity.
(c) The Customer acknowledges that collection of PGUK Equipment from a PGUK site or agent shall be at the Customer’s own risk and that the Customer is responsible for handling and transporting the load safely, training the driver on the hazards of the Gas and PGUK Equipment and compliance with all relevant legislation including (without limitation) the Carriage of Dangerous Goods by Road Regulations and European Agreement concerning the International Carriage of Dangerous Goods by Road.
(d) PGUK reserves the right to introduce an electronic identification system for Containers. If such a system is introduced, any delivered, returned or collected Containers will be reconciled against the account of the Customer to which they were supplied.
(e) Subject to Condition 7(i) PGUK’s delivery/collection note shall be conclusive evidence of delivery and quantity of the Gas, PGUK Equipment and Goods.
(f) Failure by PGUK to deliver or perform by any time specified by PGUK shall not entitle the Customer to terminate this Agreement and time shall not be of the essence in respect of deliveries or performance. PGUK’s liability for a failure to deliver or perform shall be limited in accordance with Condition 7.
(g) If delivery or collection of any Gas, PGUK Equipment or Goods cannot be made due to the act or omission of the Customer (or the act or omission of any employee, agent or contractor of the Customer), such Gas, PGUK Equipment and Goods shall be deemed to have been delivered or collected and in relation to failed deliveries PGUK may charge for abortive journeys or part deliveries and for storage thereof until delivered.
(h) If collection of any Gas, PGUK Equipment or Goods cannot be made due to the act or omission of the Customer (or the act or omission of any employee, agent or contractor of the Customer) the items shall be deemed to have been collected and PGUK may charge for abortive journeys or part collection.
(i) PGUK will supply Gas into Customer owned containers considered suitable by PGUK by special arrangement with the Customer. Such supply is subject to container examination and testing when necessary in accordance with PGUK procedures and applicable statutory requirements at the Customer’s cost.
(j) PGUK can provide a certificate of analysis for the Gas supplied on the Customer’s prior written request upon reasonable notice. PGUK will make an additional charge for this.
(k) PGUK may suspend deliveries of Gas if the Gas storage or handling equipment or process equipment to be used by the Customer is considered by PGUK not to be safe.
(l) The Customer must pay the PGUK (or their associates) charges for the installation, commissioning and or removal of PGUK Equipment at or from the Customer’s or its nominee’s site and an additional charge may be payable when PGUK Equipment is supplied by certain PGUK agents.
(m) PGUK reserves the right to charge for emergency delivery of Gas, PGUK Equipment and Goods when this is required due to circumstances outside PGUK’s control. PGUK reserves the right to charge for any emergency call out of our technical staff where such call out is required due to circumstances outside of PGUK’s control or for a reason which is not PGUK’s (or their associates) fault.
(n) Where appropriate installation and commissioning of PGUK Equipment shall be carried out by or on behalf of PGUK in accordance with their associate engineering survey report. PGUK may increase its charges for the installation and/or commissioning of PGUK Equipment in order to cover the extra costs incurred by it as a result of additions or variations to PGUK’s engineering survey report, installation or commissioning requested by the Customer or for delays within the control of the Customer.
(o) PGUK reserves the right to vary the sizes of the PGUK Equipment supplied to the Customer from time to time if required for operational or health and safety reasons. Any replacement or substituted vessel or Containers will then become “PGUK or associates Equipment”.
(p) PGUK Safety Data Sheets are supplied with the first consignment of each Gas or as soon as practicable thereafter (customers can also down-load copies by visiting www.progasesuk.com. If further copies of these are required or copies of PGUK safety booklets, these can be obtained by contacting PGUK via telephone (+44 0151 922 1118), email (firstname.lastname@example.org).
2. PGUK Equipment
(a) Except as provided in Condition 2(b), or as otherwise agreed in writing by PGUK, the Customer shall not refill or allow the refilling of Containers or allow them or any PGUK Equipment to be used other than for storage, transport or use of Gas placed in them by PGUK.
(b) Subject to the remainder of this Condition, Containers shall only be used for handling Gas supplied by PGUK. In the event PGUK is unable to supply bulk liquids, the Customer may use bulk liquid containers for handling equivalent Gas obtained from another source, provided that the Customer notifies PGUK in advance. PGUK shall have no liability whatever in relation to any such supply, and the Customer hereby indemnifies PGUK against all claims, demands, liability, loss, damages, costs (including legal costs on a full indemnity basis) and expenses incurred by PGUK arising out of or in connection with such supply.
(c) PGUK Equipment will comply with any technical specifications provided by PGUK or its associates and applicable legal and statutory requirements.
(d) PGUK will maintain or its associates PGUK Equipment in accordance with PGUK or its associate’s procedures and current safety requirements. If this requires interruption of supply this will, whenever possible, be by arrangement with the Customer. If the Customer causes undue delay to PGUK’s or nominated maintenance service provider, PGUK may charge for all costs and expenses incurred.
(e) PGUK shall have the right upon reasonable notice to enter the Customer’s sites to inspect any PGUK Equipment.
3. Customer ‘s Duties And Responsibilities
The Customer shall:
(a) Provide or procure free of charge adequate and safe access to the Customer’s sites, information, documents and facilities (including labour for loading and unloading of Gas, PGUK Equipment and Goods and the provision of electricity and materials for use during testing and commissioning and any consents from third party’s) for PGUK or its associates to carry out its duties and rights under this Agreement including without limitation any right to remove PGUK or its associates Equipment, Gas and Goods on termination or expiry of this Agreement and paying all costs related to the installation and or removal of PGUK Equipment.
(b) Be responsible for the safe custody of PGUK’s and its sub-contractor’s property left on the Customer’s site for the purposes of installation, commissioning, maintenance and removal of PGUK Equipment and for the performance of any other Services.
(c) Insure PGUK Equipment to its full replacement cost against “all risks” and against all normal public liability risks. All insurance shall be on terms satisfactory to PGUK.
(d) Ensure that all work and materials for which the Customer is responsible meet and comply with all legal and statutory requirements and with PGUK’s and their associate’s specifications.
(e) Obtain all necessary consents and comply with all legal obligations in connection with installation, removal or use of any Gas, PGUK or their associates Equipment, Goods and/or any Services performed at the Customer’s or its nominee’s site.
(f) Notify PGUK if at any time if:
(i) anticipates a significant change in its Gas consumption rate; or
(ii) it becomes aware of any defect, malfunction or damage to PGUK Equipment or Customer Equipment: or
(iii) reasonably believes, based on current usage and historical frequency of deliveries by PGUK, that it will run out of any Gas.
(g) Keep and return all PGUK Equipment in a clean and serviceable condition. If they are not, the Customer will report any loss or damage promptly and pay a sum equal to:
(i) the cost of new PGUK Equipment if the PGUK Equipment is lost or damaged beyond repair, or
(ii) the cost of repairing and restoring the PGUK Equipment to a clean and serviceable condition; in addition to any associated costs and expense incurred by PGUK in recovering and/or repairing the PGUK Equipment and/ or in collecting any sums due under this Condition; (h) not mortgage, pledge, sell or lend PGUK Equipment to a third party.
(i) Subject to Condition 5, not part with possession of PGUK Equipment to a third party.
(j) Not obliterate, remove or deface identification marks or notices on the PGUK Equipment and/or alter or tamper with PGUK Equipment without the prior written consent of PGUK.
(k) Use the PGUK Equipment only for the purposes for which it is designed and comply with any operating manual (or other instructions) provided, and not otherwise adjust, repair or interfere with PGUK Equipment.
(l) Be responsible for the safety and condition of, and comply with applicable legal requirements in respect of, any Customer Equipment and other Customer owned equipment, goods or materials and attachments to PGUK Equipment beyond the agreed take over point.
(m) Be responsible for any risks to health or safety from Gas, PGUK Equipment and Goods in the Customer’s possession and/or control including ensuring the Gas, PGUK Equipment and Goods are kept and operated, used, cleaned and where applicable maintained in a safe environment. The Customer’s attention is drawn to the fact that statutory regulations and recognised codes of practice exist covering the use, handling, processing, storing and transporting of Gas, PGUK Equipment and (where applicable) Goods. The Customer must ensure that persons who use, handle, process, store or transport Gas, PGUK Equipment and Goods receive adequate training and safety literature from the Customer; and
(n) Where PGUK or its associate’s telemetry is installed, the Customer is responsible for ensuring that the power supply and telephone line to the telemetry system is operational. During any period of the power supply and/or telephone line being non-operational, PGUK shall have no liability in respect of failing to make any telemetry-based deliveries of liquids. In the event of failure of the telemetry system, the Customer shall upon becoming aware of such failure or when they could reasonably be expected to have become aware, be responsible for stock monitoring and placing orders for delivery of Gas.
4. Title And Risk
(a) Property in any Goods and/or Gas shall only pass to the Customer on receipt by PGUK in full of:
(i) the price (and VAT) for the relevant Goods and/or Gas; and
(ii) all other sums due from the Customer under this Agreement; and
(iii) all sums due from the Customer under any other contracts, agreements or arrangements between the Customer and PGUK.
(b) PGUK Equipment remains, as between PGUK and the Customer, the property of PGUK and is supplied to the Customer for the Customer’s sole use. (unless purchased)
(c) The Customer shall have no rights over any other property of PGUK or its contractors brought onto the Customer’s or its nominee’s site.
(d) Until such time as the property in any Goods or Gas has passed to the Customer under Condition 4(a) the Customer shall:
(i) hold such Goods and/or Gas as a fiduciary of PGUK.
(ii) not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Goods and/or the Gas; and
(iii) not dispose of or deal with the Goods and/or the Gas or any documents of title relating to them or any interest in them, except that the Customer may, without prejudice to Condition 4(d)(i), and subject to the other terms of this Agreement, on its own account use the Goods and/or the Gas in the ordinary course of its business.
(e) The risk of loss or damage to Gas, PGUK Equipment and Goods shall pass to the Customer upon delivery to or collection by the Customer.
5. Gas Re-Sale
(a) Subject to Conditions 3 and 5(e) Gas supplied by PGUK may be re-sold provided that prior to any re-sale the Customer has demonstrated to PGUK’s reasonable satisfaction that it has the capability to re-sell safely.
(b) The Customer hereby indemnifies PGUK against all claims, demands, liability, loss, damages, costs (including legal costs on a full indemnity basis) and expenses incurred by PGUK to PGUK’s satisfaction arising out of or in connection with any alleged defects in Gas re-sold by the Customer, or any alleged defect in any Container (where Gas is re-sold in the Container) unless proved by the Customer beyond reasonable doubt to have been in existence when the Gas and/or Container was supplied by PGUK.
(c) The Customer shall be entirely responsible for providing proper instructions, warnings and other safety information in connection with any re-sale of the Gas.
(d) For the avoidance of doubt, no re-sale of any Gas by the Customer shall relieve the Customer of any of its obligations under this Agreement without limitation, payment of any charges and any liability in relation to PGUK Equipment.
(e) The Customer shall be responsible for documenting the use of the Gas and keeping appropriate records including the complete batch number per Container and to disclose these records immediately to PGUK on request.
(f) Balloon Gas, Industrial Gas and Cellar Gas shall not be re-sold in Containers except with specific agreement between PGUK and the Customer.
6. Price And Payment
(a) The prices for the Gas, PGUK Equipment, Goods and Services and any other charges applicable to your supply shall be the prices effective at the time of supply. Unless specifically quoted as a fixed price for a specific period or agreed otherwise in writing, all prices are subject to variation from time to time by PGUK which shall notify or publish such variations to the Customer accordingly.
(b) Unless otherwise agreed, rental charges for PGUK Equipment are payable in advance from the earlier of
(i) collection or delivery or
(ii) the commencement date. If delivery, installation or commissioning of PGUK Equipment cannot be carried out on the agreed date(s) due to the act or omission of the Customer (or the act or omission of any employee, agent or contractor of the Customer), PGUK may charge the rental charge or a proportion thereof during the period of delay.
(c) When a Customer hires PGUK Equipment which is additional to and of the same type as PGUK Equipment already hired on a yearly payment frequency this PGUK Equipment will either:
(i) be charged to the Customer on a monthly payment frequency until the next yearly rental payment is due for the PGUK Equipment already hired, when it will be transferred on to a yearly payment frequency; or alternatively:
(ii) be charged immediately on a yearly payment frequency, a proportionate part of the full yearly payment being charged for the part of the period that remains, until the next yearly payment is due for the PGUK Equipment already hired on yearly payment frequency.
(d) Normal terms of payment are by direct debit, net 30 days from the invoice date. The Customer shall ensure that any payment of invoices by direct debit is made in full by the Customer’s bankers on presentation to them by PGUK of invoice information. For payment by any other means PGUK reserves the right to charge any additional costs PGUK incurs as a result of such payment.
(e) In relation to payment for Gas, PGUK Equipment, Goods or Services by debit card, credit card or charge card, the Customer will be charged when PGUK systems confirm to PGUK that the Gas, PGUK Equipment, Goods or Services have been supplied. Where, with prior agreement of PGUK, the Customer pays by debit card, credit card or charge card for the rental of PGUK Equipment the Customer will be charged at the time the billing process is actioned internally by PGUK. Where the Customer pays by debit card, credit card, or charge card in any other circumstances, PGUK reserves the right to charge any additional costs PGUK has incurred as a result of such payment by debit card, credit card or charge card.
(f) PGUK’s preferred method of invoicing is electronic. PGUK reserves the right to charge any additional costs PGUK incurs in generating paper invoices or non-standard invoices for the Customer.
(g) In the case of other methods of payment, full payment of invoices in cleared funds must be received by PGUK net 30 days of invoice date.
(h) PGUK should be notified of any error on an invoice within 14 days of date of the invoice.
(i) The commitment on the part of PGUK to supply the Customer under this Agreement is conditional on PGUK remaining satisfied with the Customer’s credit worthiness. If any payment is overdue or the Customer’s credit worthiness changes or any event referred to in Condition 9(a) occurs PGUK may stop the delivery or collection of Gas, PGUK Equipment or Goods or provision of Services to the Customer and payment shall become immediately due for all goods and services supplied under this Agreement to the Customer.
(j) PGUK may charge interest at the statutory rate and/ or charges otherwise provided for pursuant to The Late Payment of Commercial Debts (Interest) Act 1998. Such charges or interest shall be payable on demand. Furthermore, PGUK reserves the right to claim compensation for debt recovery costs as set out in the same legislation where PGUK are not paid according to agreed credit terms.
(k) All prices and charges are expressed exclusive of VAT which shall be charged and paid as applicable.
(l) PGUK buy some Gases (“factored Gases”) from other suppliers. PGUK may alter the price of these factored Gases if its suppliers change the price that they charge PGUK.
(m) If at any time PGUK’s costs change due to government action or to a change in the law, PGUK reserves the right to adjust prices to take account of such change in its costs.
(n) If any applicable price variation indices (or any substitute indices) are changed or discontinued, PGUK will adopt an appropriate substitute.
(o) Where PGUK charges rent on PGUK Equipment and Containers, payment of a rental invoice is deemed conclusive (subject to transactions prior to the date of invoice which have not been included in the invoice and to (p) below as to the Customer’s holding of PGUK Equipment during the period to which the invoice relates.
(p) If the Customer has a PGUK Equipment holding that is greater than is recorded by PGUK, PGUK reserves the right to amend its records and charge the Customer rental accordingly.
(q) Where PGUK Equipment is on a monthly payment frequency, rental is payable for each calendar month or part of a calendar month during which the PGUK Equipment is hired. Where PGUK Equipment is on a yearly or longer payment frequency, the period covered by the first rental payment for the PGUK Equipment is calculated from the beginning of the calendar month in which the PGUK Equipment is first hired to the Customer.
(r) If the Customer returns PGUK Equipment which is subject to an annual rental period without taking replacements before the rental period paid for expires, a pro rata refund will be made for any whole month(s) unexpired.
(s) All amounts due shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding whatsoever.
(t) PGUK shall be entitled to invoice the Customer for the Services on or at any time after performance of the Services, save that where the full performance of the Services is delayed or prevented for a reason which is not principally caused by PGUK, PGUK shall be entitled to invoice the Customer for the Services performed to date including any costs and expenses incurred or committed to by PGUK at that date.
7. Liability, Warranties And Exclusions
(a) Save as set out in this Condition 7 and Condition 16 (if applicable), PGUK shall have no liability, howsoever arising. Notwithstanding any other provision of this Agreement, but subject to Condition 7(b), PGUK shall have no liability arising out of or in connection with this Agreement, the Gas, the PGUK Equipment, the Goods or the Services, howsoever arising, for any:
(i) loss of or damage to revenue, profits, savings, use, contracts, goodwill or business (whether direct or indirect); or
(ii) consequential or indirect loss or damage. When used or referred to in this Condition 7 the term “howsoever arising” shall cover all causes and actions giving rise to liability whether in contract, tort (including negligence), restitution, for breach of statutory duty, misrepresentation or otherwise.
(b) Nothing in this Agreement limits or excludes PGUK’s liability:
(i) for death or personal injury to the extent that it results from PGUK’s negligence.
(ii) for fraud or fraudulent misrepresentation, or
(iii) to the extent not permitted by law.
(c) PGUK accepts liability for physical damage to the Customer’s property to the extent that it results from breach of contract or PGUK’s negligence in connection with the performance of this Agreement subject to a limit of £1,000,000 (one million pounds) per claim or series of claims arising out of the same event or circumstances
(d) PGUK accepts liability, to the extent that it results from breach of contract or PGUK’s negligence in connection with the performance of this Agreement, for losses, costs, expenses or damage:
(i) caused by PGUK supplying any defective Gas, PGUK Equipment or Goods up to a limit of £2,500 or, if greater, 15% of PGUK’s anticipated monthly revenue generated under this Agreement at that time, for any one incident or series of incidents arising from the same event;
(ii) arising from delay or failure by PGUK in delivery of any Gas, PGUK Equipment or Goods up to a limit of an amount equal to PGUK’s price for the Gas, PGUK Equipment or Goods that PGUK has failed to deliver or, if greater, 15% of PGUK’s anticipated monthly revenue generated under this Agreement at that time, for any one incident or series of incidents arising from the same event; and
(iii) resulting from the provision of Services (including technical advice) by PGUK or their associates in return for a specific fee up to a limit of the amount of the fee received for such Services for any one incident or series of incidents arising from the same event.
(e) PGUK warrants that at the time of delivery the Gas is to the purity set out in the relevant PGUK specification, which unless previously provided by PGUK to the Customer, is either set out in the relevant PGUK MSDS sheet at www.progasesuk.com or failing that, available on request.
(f) PGUK warrants that:
(i) to the extent that the PGUK Equipment is utilised for the storage and/or use of Gas, it will be suitable for such storage and/or use; and
(ii) the Services (if any) will be provided with reasonable care and skill. PGUK’s warranty in relation to Goods is set out in Condition 16.
(g) PGUK shall not be liable for any shortage, loss, damage or discrepancy in Gas, PGUK Equipment or, Goods or failure to perform the Services unless notified to PGUK in writing within 5 Business Days of completion of the Services or receipt of the relevant Gas, PGUK Equipment or Goods by the Customer. This exclusion of liability shall not apply if the Customer proves that it was not reasonably possible to notify PGUK within this time period, and such notification was given as soon as was practicable and in any event within 5 Business Days after the Customer became aware, or could reasonably be expected to have become aware, of the claim. If acceptance tests are provided in this Agreement for Gas, PGUK Equipment, Goods or Services this Condition 7(g) shall not apply to such Gas, PGUK Equipment, Goods or Services and the Customer shall be deemed to have accepted the Gas, PGUK Equipment, Goods or Services upon successful completion of those tests.
(h) Subject to the other terms of this Agreement (and in particular Condition 16), where any shortage, loss, damage or discrepancy in Gas, PGUK Equipment or Goods and/or failure to perform the Services is notified to PGUK in accordance with Condition 7(g), PGUK shall at its option rectify the shortage, loss, damage or discrepancy in the Gas, PGUK Equipment or Goods free of charge, re-perform the Services or refund or forego an appropriate proportion of the price for the Gas, PGUK Equipment, Goods or Services. If PGUK complies with this obligation it shall have no further liability in respect of, or arising from the relevant Gas, PGUK Equipment, Goods or Services under this Condition 7(h).
(i) If PGUK’s performance of any contract obligation by its normal means is prevented, hindered or delayed due to any cause beyond PGUK’s reasonable control, that contract obligation shall be suspended during the period PGUK is affected by such cause.
(j) In the event of PGUK’s supply of Gas from the Product Source being interrupted under Condition 7(i) and for the duration of the period PGUK is affected by such cause either:
(i) PGUK may obtain Gas from another source, in which case PGUK reserves the right to vary the price for the duration of the affected period to recover its additional costs, such additional costs to be notified to the Customer in advance, or:
(ii) bulk liquid Containers may be used for handling equivalent Gas obtained from a third party for the duration of the event provided that the Customer notifies PGUK in advance. PGUK shall have no liability whatsoever in relation to any such supply and the Customer hereby indemnifies PGUK against all claims, demands, liability, loss, damages, costs (including legal costs on a full indemnity basis) and expenses incurred by PGUK arising out of or in connection with such supply.
(k) All warranties and conditions which arise from statute and relate to the supply of goods and services are excluded from this Agreement except to the extent that such exclusion is prevented by law.
(l) The Customer shall indemnify PGUK against all claims, demands, liability, loss, damages, costs (including legal costs on a full indemnity basis) and expenses incurred by PGUK arising out of or in connection with PGUK’s or its contractors’ presence on the Customer’s or its nominee’s site except to the extent caused by the negligence of PGUK or its contractors.
(m) Advice supplied to the Customer by PGUK shall be prepared or delivered in good faith, in the context of the law in force as at the date of its preparation and based on the matters and information disclosed by the Customer to PGUK. PGUK accepts no responsibility for subsequent changes in law which may affect the conclusions of and/or recommendations in advice or training or for any loss or damage incurred or suffered by the Customer arising out of a failure by the Customer to disclose facts or circumstances necessary for the preparation of advice or training.
(n) Return of Gas and Goods which are not defective shall be governed by the terms of the PGUK Returns Policy.
(o) The Customer and PGUK both recognise that it is open to either party to consider insuring against the risks apportioned in this Condition 7.
8. Recovery of PGUK Equipment
PGUK may recover PGUK Equipment if:
(i) payment becomes overdue.
(ii) the Customer is in breach of any of its obligations relating to the Gas or PGUK Equipment (including, without limitation, any obligations under Condition 4(b)).
(iii) PGUK exercises any right to suspend or terminate this Agreement.
(iv) PGUK reasonably determines that the Customer’s use of any Gas or PGUK Equipment poses a risk to health and safety; or
(v) any event referred to in Condition 9(a)(i) occurs; PGUK shall be entitled upon demand to the immediate return of all or any Gas, PGUK Equipment and any gas owned by the Customer stored in the PGUK Equipment. The Customer irrevocably authorises PGUK to recover such Gas, PGUK Equipment and Customer owned gas and any documentation relating thereto and for that purpose, to enter any sites, vehicle or other location of, or under the control of, the Customer. Where PGUK Equipment contains any gas owned by the Customer credit will only be given for such unused Gas at PGUK’s discretion. The Customer shall take all reasonable steps to help PGUK to recover the Gas or PGUK Equipment. Demand for, or recovery of, Gas or PGUK Equipment shall not of itself discharge the Customer’s liability to pay the whole of the price or any other rights of PGUK under this Agreement. The Customer will pay all costs of removal of Gas or PGUK Equipment.
9. Breach And Termination
(a) Without affecting any other rights or remedies that it may have:
(i) either party may terminate this Agreement immediately at any time by written notice to the other party if the other party has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any material portion of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the other party is incorporated, resident or carries on business; or
(ii) PGUK may terminate this Agreement immediately at any time by written notice to the Customer if the Customer fails to make any payment due to PGUK.
(b) Without prejudice to either party’s other rights and remedies either party may terminate this Agreement by written notice at any time if the other party is in material breach of this Agreement and (in the case of a remediable breach) the breach is not remedied within 28 days of receipt of a notice specifying the breach and requiring it to be remedied.
(c) Without prejudice to its other rights or remedies (including its rights of termination) PGUK may elect to suspend performance of all or any of its obligations under this Agreement by written notice to the Customer upon the occurrence of any of the events specified in Conditions 9 (a)(i), (a)(ii) or (b). In the case of a remediable breach referred to in Condition 9(b) PGUK may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 day period referred to in Condition 9(b) has expired.
(d) Termination shall be without prejudice to any accrued rights of either party.
(e) If this Agreement is terminated and any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of this Agreement.
(f) On suspension, termination or expiry of this Agreement or any Schedule for any reason (unless replaced by a new agreement with PGUK), PGUK may recover possession of any Gas, PGUK Equipment and Goods belonging to or provided by it (including, where relevant, any of the Customer’s Gas in PGUK Equipment) under that Schedule or this Agreement as relevant. The Customer agrees to grant PGUK adequate facilities and irrevocably authorises PGUK to enter its premises, sites, vehicles or other location of or under the control of the Customer for this purpose. PGUK will charge and the Customer will pay all costs of the removal of PGUK Equipment. Credit will only be given for unused Gas at PGUK’s discretion. The Customer shall take all reasonable steps to help PGUK to recover the Gas, Goods and/or PGUK Equipment. Demand for, or recovery of, Gas, Goods and/or PGUK Equipment shall not of itself discharge the Customer’s liability to pay the whole of the price or any other rights of PGUK under this Agreement.
(g) If PGUK’s removal of any PGUK Equipment is delayed for a period of more than 3 months following termination or expiry of this Agreement (and PGUK is not responsible for the delay), the Customer shall pay the relevant Facility Charge and/or rental charges from the date 3 months following termination or expiry of this Agreement until the date that the removal of such PGUK Equipment is completed by PGUK.
10. Intellectual Property And Confidentiality
(a) PGUK’s trademarks and names shall not be used otherwise than as applied by PGUK to PGUK Equipment, Goods and Services.
(b) No right or licence is granted under this Agreement to the Customer under any patent, trademark, copyright, registered design or other intellectual property right, except the right to use or re-sell the Gas and/or Goods as permitted under this Agreement. No warranty is given as to whether that use, or re-sale will infringe the rights of any third party.
(c) Any know how, information, pricing or documents disclosed at any time by either party shall be treated by the other party as confidential and shall not for a period of 3 years from the date of disclosure be disclosed to any third party or used for any purpose other than for the purpose of this Agreement without the prior written consent of the disclosing party, unless and until the same is public knowledge other than through default of the receiving party, is independently developed by the receiving party, or comes into the receiving party’s possession bona fide from a third party.
(d) PGUK retains all intellectual property rights in its drawings, specifications, data and all other information and documents prepared by PGUK for the Customer in whatever medium.
(a) Any notices under this Agreement shall be in writing and signed by or on behalf of the party giving it.
(b) Subject to the remainder of this clause, any such notice may be served by delivering it personally, by sending it by email (in the case of notices to PGUK, to email@example.com) or by sending it by pre-paid post to the address shown above of the relevant party or any other address which it may from time to time notify in writing to the other party. All termination notices must be served by pre-paid recorded delivery post, and in the case of those sent to PGUK must be marked for the attention of the company director or general manager and copied via email to firstname.lastname@example.org.
(c) Any such notice shall be deemed delivered:
(i) if served personally, when delivered (or, if delivered otherwise than between 9.00am and 5.00pm on a Business Day, at 9.00am on the next Business Day).
(ii) if sent by email, at the time of transmission (or, if transmitted otherwise than entirely between 9.00am and 5.00pm on a Business Day, at 9.00am on the next Business Day); and (iii) if sent by pre-paid post or pre-paid recorded delivery post, 2 Business Days after posting. (d) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
(a) PGUK shall be entitled to assign, novate, charge or hold on trust for another all or any of its rights and obligations under this Agreement on giving written notice to the Customer, but without any further consent of the Customer being requested. PGUK shall be entitled to sub-contract any of its obligations under the Agreement provided that PGUK shall remain liable for the acts and/or omissions of its sub-contractors.
(b) The Customer shall not without the prior written consent of PGUK assign, novate, charge or hold on trust any of its rights or sub-contract any of its obligations under this Agreement in whole or in part to any third party.
13. Data Protection
(a) When you are acting as a consumer and you provide us with Personal Data or Personal Data is obtained by us, or on our behalf, from you in connection with the Agreement, we will handle this in accordance with our Privacy Statement a copy of which is available at www.progasesuk.com or which we may provide to you by another method depending on the way that you are contracting with us. Please ensure that you read our Privacy Statement before you provide us with your Personal Data.
(b) When you are acting other than as a consumer and you provide us with Personal Data or Personal Data is obtained by us, or on our behalf, from you (including from your employees, agents and other representatives) in connection with the Agreement (“Shared Personal Data”): (i) you warrant and undertake that you will be responsible for ensuring that there is a lawful basis on which the Shared Personal Data can be processed, including in respect of the disclosure of Shared Personal Data to us and processing of Shared Personal Data by us in connection with the Processing Purpose and performance of our obligations under the Agreement,
(ii) you warrant and undertake that you will be responsible for ensuring that appropriate privacy notices and/or policies, are communicated to the relevant Data Subjects which explain how the Shared Personal Data will be processed, including the fact that the Shared Data may be disclosed to us in connection with the Processing Purposes and performance of our obligations under the Agreement,
(iii) we and you each agree not to do or permit anything to be done through act or omission which would cause the other to incur any liability under DP Laws; and
(iv) we and you each agree to always comply with DP Laws in respect of the processing of the Shared Personal Data.
(a) If by arrangement with the Customer, Gas, PGUK Equipment, Goods, or Services are supplied to any person who is not a party to this Agreement, the Customer shall procure that such person agrees to be bound by the terms of this Agreement as though a party to this Agreement The Customer shall indemnify PGUK against any consequences (including any claim made by such person which he could not make if a party to this Agreement) of the Customer failing to do so or of such person not fulfilling the obligations applicable to it under this Agreement. Any order from or supply to such person shall be on behalf of the Customer and is made pursuant to the terms of this Agreement. Nothing in this Condition 14 shall relieve the Customer of any of its obligations under this Agreement, without limitation, payment of any Charges and any liability in relation to PGUK Equipment.
(b) Save as provided by Condition 14(a), no term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
(c) Except as set out elsewhere in this Agreement, any variation or waiver of this Agreement must be expressly agreed in writing by both parties. A failure to enforce or delay in enforcing a right or remedy in this Agreement does not constitute a waiver of that right or remedy.
(d) If the Customer is not a company and not covered by any of the exception under the Consumer Credit Act 1974 the hire of Containers and equipment will be governed by the terms of a separate regulated Consumer Hire Agreement.
(e) If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any way under any law, it shall to the extent of such invalidity, illegality or unenforceability be deemed severable and the remaining provisions of this Agreement and the remainder of such provision shall continue in full force and effect.
(f) This Agreement constitutes the whole and only agreement between the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding between the parties relating to the supply of Gas, PGUK Equipment, Goods and/or Services by PGUK to the Customer. Unless otherwise agreed in writing by PGUK, no terms or conditions endorsed upon, delivered with or contained in the Customer’s acceptance or acknowledgement of this Agreement, purchase order(s), specifications or similar documents will amend or vary the provisions of this Agreement and the Customer waives any right which it might otherwise have to rely on such terms and conditions.
(g) The Customer acknowledges and agrees that:
(i) in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made), or understanding of any person (whether party to the Agreement or not) which is not expressly set out in these terms and/or the Agreement; and
(ii) the only remedy available to it for breach of any statement, representation or other term that is expressly set out in the Agreement shall be for breach of contract under the terms of this Agreement. Nothing in this Condition 14(g) shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
(h) This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by English law and the parties agree that the courts of England and Wales shall have exclusive jurisdiction.
(i) In performing their obligations under this Agreement, PGUK and the Customer shall comply with all applicable laws, statutes, regulations from time to time in force.
(j) The Customer represents and warrants that its entry into and performance of this Agreement will not constitute any breach of or default under any other agreement binding on it; including without limitation any existing agreements with other gas suppliers.
(k) Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
15. Inspection And Maintenance Of Customer Owned Equipment
Where PGUK and their associates agrees to provide inspections and maintenance of Customer Equipment:
(a) PGUK or their associates will inspect the Customer Equipment at the Customer’s cost unless otherwise agreed prior to commencement of the inspection and maintenance service. This inspection will be conducted to assess the overall condition of the Customer Equipment with regards to maintenance, safety and legal requirements.
(b) The Customer will make available at such inspection all available drawings, test certificates and maintenance inspection reports and any other documents or information that PGUK or their associates requests applicable to the operation of the Customer Equipment.
(c) PGUK or their associates reserves the right to refuse to supply maintenance services if remedial work which PGUK or their associates considers is essential to the safe operation of the Customer Equipment is not carried out.
(d) Following the inspection and agreement of recommended remedial work, the parties will agree the items of Customer Equipment for which PGUK or their associates shall have inspection and maintenance responsibility and the frequency of inspections and maintenance. PGUK or their associates shall carry out inspections and preventative maintenance having regard to legal requirements and good safety practices and in accordance with BCGA Planned Preventative Maintenance Schedule(s). As evidence of inspection, PGUK or their associates shall provide an inspection certificate. This shall reflect the condition of the Customer Equipment at the time of inspection and shall not in any way be a warranty of, or render PGUK or their associates liable for, the condition or fitness for purpose of the Customer Equipment. On completion of maintenance PGUK or their associates will provide the Customer with a copy of the completed maintenance report detailing the maintenance carried out. The Customer shall be responsible for the safe retention of all inspection and maintenance documentation provided by PGUK or their associates.
(e) PGUK or their associates shall, having regard to other commitments and availability of suitably skilled staff, respond as soon as is reasonably practicable to any request by the Customer for work outside the scope of the Planned Preventative Maintenance Schedule. If no specific price or charging basis for such work is agreed in writing, the Customer shall pay for all materials and expenses at PGUK‘s or their associates then current list price and for time at PGUK‘s or their associates current labour rate including travel time to and from PGUK’s or their associates base.
(f) If PGUK or their associates requires to interrupt supply of Gas from or through Customer Equipment in order to carry out maintenance, inspection or testing this will be by prior arrangement with the Customer except in an emergency.
(g) The Customer shall report any unsatisfactory operation of the Customer Equipment and changes of layout or withdrawals from service of the Customer Equipment promptly to PGUK or their associates. Where an item of Customer Equipment is withdrawn from service by the Customer, the Customer, PGUK or their associates will agree an appropriate adjustment to the inspection and maintenance charges applicable during the remainder of the period of Services.
(h) The Customer shall make Customer Equipment available to PGUK or their associates for the inspection and maintenance services at the time agreed. If the Customer causes undue delay to the PGUK or their associates engineer ‘s work, then PGUK or their associates may charge for the time spent and where appropriate for travelling time, call time and expenses incurred.
(i) Maintenance charges do not include items of Customer Equipment in need of replacement or repair. PGUK or their associates shall notify the Customer of such items and should the Customer require such work to be carried out PGUK or their associates will charge in the manner described in Condition 15(e) above.
(j) PGUK or their associates reserves the right to delete any item of Customer Equipment from the scope of this Agreement if PGUK or their associates considers the Customer Equipment unserviceable for any reason, in which event PGUK or their associates will notify the Customer and agree an appropriate reduction in the maintenance charges applicable during the remainder of the period of maintenance Services.
(k) PGUK or their associates disclaims all responsibility for the proper functioning and maintenance of the Customer Equipment if the Customer has, without PGUK’s or their associates’ consent, allowed the Customer Equipment to be worked on or repaired, save in the course of proper operation, by anyone other than a BOC engineer.
(l) If damage, maloperation or breakdown of Customer Equipment serviced or repaired by PGUK or their associates is due to failure on PGUK’s or their associates’ part to carry out such work correctly, PGUK or their associates shall, at PGUK’s or their associates option:
(i) repay a proportionate amount of the maintenance charge appropriate to the items of Customer Equipment concerned; or
(ii) at PGUK’s or their associate’s discretion, and at no cost to the Customer for materials or labour, either rectify the damage, maloperation or breakdown or replace the item of Customer Equipment concerned.
(m) PGUK or their associates or the Customer may terminate the Customer maintenance service at any time on or after the date 6 (six) months from the commencement of those maintenance services by giving not less than six months written notice to the other, such notice to expire on or at any time after the initial twelve-month period only. PGUK or their associates reserves the right to carry out servicing of Customer Equipment within the 6 (six) months-notice period and charge accordingly or make an appropriate reduction in the maintenance charge remaining due.
16. Warranty For The Sale Of Goods
(a) PGUK or their associates undertakes to repair or, at its option, replace Goods of its own manufacture or parts thereof which fail (fair wear and tear excepted) as a result of a defect in PGUK or their associates materials or workmanship, arising within 12 months of the sale of the Goods to the Customer (or within such other period as may be specified by PGUK or their associates in this Agreement having regard to the nature and properties of the Goods concerned), and occurring under normal conditions and subject to proper storage, use and maintenance, provided that:
(i) the Customer notifies PGUK or their associates promptly in writing with details of any alleged defects or malfunction.
(ii) the Customer gives PGUK or their associates the opportunity to inspect the Goods and, if PGUK or their associates so requests, the Goods are returned promptly carriage paid (and details of carriage notified in writing to PGUK or their associates in advance); and
(iii) the Goods have not been repaired, tampered with, modified or altered by anyone other than PGUK or their associates.
(b) In the case of Goods not of PGUK or their associates manufacture, the Customer shall be entitled (subject to compliance with Condition 16(a) above) only to the benefit of any guarantee PGUK or their associates may have from the supplier or manufacturer provided that subsequent purchasers are entitled to the benefit of that guarantee.
(c) If Goods sold by PGUK or their associates are found to be defective, PGUK or their associates undertakes to refund the Customer’s reasonable expenses incurred in returning the Goods to PGUK or their associates.
(d) PGUK or their associates may at its option elect to refund or forego the contract price for the defective Goods and take back the Goods sold in full satisfaction of any liability or obligation under Condition 16(a) and (b) above.
17. Export Contracts
If the Customer is located outside the United Kingdom, the following additional provisions shall apply, unless otherwise agreed:
(a) all Gas and/or Goods shall be supplied ex-works as defined in accordance with Incoterms as in force on the date of this Agreement and PGUK shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
(b) the Customer shall be responsible for complying with any legislation or regulations governing the export of the Gas and/or Goods from the UK and import into the country of destination and for the payment of any duties or other fees.
(c) the Customer may at its cost inspect the Gas and/or Goods at PGUK’s works before shipment, at a time to be agreed, and PGUK shall rectify any defects notified by the Customer during such inspection. PGUK shall not be liable for any defect discovered after shipment from PGUK’s works which would have been apparent on inspection (whether or not carried out), or any claim in respect of damage during transit.
(d) in the event of a claim under the warranty in Condition 16(a) the Customer shall arrange and pay for transport of defective Gas and/or Goods to PGUK and replacement Gas and/or replacement or repaired Goods shall be supplied to the Customer ex-works.
(e) payment shall be made by means of an irrevocable letter of credit in a form agreed by PGUK and confirmed by a bank in the United Kingdom acceptable to PGUK and
(f) the obligation to supply Gas and/or Goods is conditional on all required export licences being granted, whether applied for by PGUK or the Customer.
18. Conditions Applying To Online Orders Only
(a) The technical steps required to create the contract between you and us are as follows:
(i) You place the order for the Gas, PGUK Equipment, Goods and Services on our site by pressing the confirm button at the end of the checkout process. Our process allows you to check and amend any errors before submitting your order to us, PGUK urge you to do this:
(ii) Your order will be accepted and the contract between you and PGUK will be formed when: in respect of Goods, PGUK dispatches the Goods; in respect of Gas and PGUK Equipment, when they are delivered or collected; and in respect of Services when the supply of the Service begins. Where an order includes more than one of the above components the contract shall be deemed to be formed at the earliest of the above events.
(b) If PGUK are unable to supply you with the Gas, PGUK Equipment, Goods and/or Services, for example because that Gas, PGUK Equipment and/or Goods are not in stock or no longer available or because of an error in the price on our site, PGUK will inform you of this by e-mail and PGUK will not process your order. In the unlikely event that you have already paid for the Gas, PGUK Equipment, Goods and/or Services, PGUK will refund you the full amount as soon as possible.
(c) These terms, and any contract between us, are only in the English language. PGUK will not file a copy of the contract between us, PGUK recommend you print a copy of this Agreement or save it to your computer for future reference.
(d) The images on our site are for illustrative purposes only. Although PGUK have made every effort to display the colours accurately, PGUK cannot guarantee that your computer‘s display of the colours accurately reflect the colour of the products. Your Goods may vary slightly from those images.
(e) Whilst PGUK has made every effort to ensure that details and information given on this site are accurate, full technical specifications are not necessarily included. Any drawings, samples, photographs, descriptive matter or advertising produced by PGUK and any descriptions or illustrations contained in any PGUK produced material are produced for the sole purpose of giving an approximate idea of the goods described in them and shall not form part of any contract between PGUK and the Customer or have any contractual force. Furthermore, PGUK‘s policy is one of continuous improvement and the right is reserved to alter details and information as the need arises. Accordingly, you should check any details and information you wish to rely on with PGUK at the time of purchase.
(f) Unless otherwise agreed, prices for Gas, PGUK Equipment, Goods and Services may change from time to time, but changes will not affect any order which PGUK have accepted in accordance with Condition 18(a) above.
(g) Where applicable to you, the price is subject to VAT at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, PGUK will adjust the VAT you pay, unless you have already paid in full before the change in VAT takes effect.
(h) Our site contains a large number of products and Services. It is always possible that, despite our reasonable efforts, some of the products on our site may be incorrectly priced. If PGUK discover an error in the price of the products you have ordered PGUK will inform you of this error and PGUK will give you the option of continuing to purchase the product at the correct price or cancelling your order. PGUK will not process your order until PGUK have your instructions. If PGUK are unable to contact you using the contact details you provided during the order process, PGUK will treat the order as cancelled and notify you in writing. Please note that if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, PGUK do not have to provide the products to you at the incorrect (lower) price.
(i) The price of a Gas, PGUK Equipment and Goods does not include delivery charges. Our delivery charges are as set out on our site from time to time.
19. Conditions Applying To Consumer Customers Only
(a) Condition 6(j) shall not apply to Consumers. However, PGUK reserves the right to apply a late payment fee to recoup our debt recovery costs where PGUK are not paid according to agreed credit terms.
(b) PGUK’s warranty contained in condition 16 is in addition to any legal rights the Customer may have as a Consumer.
(c) In addition to your rights where the Gas, PGUK Equipment, Goods and/or Services are faulty you may change your mind and cancel an order for Gas, PGUK Equipment and/or Goods within 14 days of its delivery or collection, or any time up until supply of a Service has begun. In this case you will be responsible for the costs of returning the Gas, PGUK Equipment and Goods to PGUK. Further details about this can be found in the PGUK Returns Policy.
(d) Condition 14(h) shall apply but the courts of England and Wales will have non-exclusive jurisdiction, meaning that if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland, you may also bring proceedings in Scotland.
(e) If you are a Consumer, PGUK only supplies the Gas, PGUK Equipment, Goods and Services for domestic and private use. The Customer agrees not to use the Gas, PGUK Equipment, Goods and Services for any commercial, business or re-sale purpose.
(f) Nothing in these PGUK General Conditions of Sale should be seen as limiting your legal rights as a Consumer.
(g) Complaints should be sent by post to Pro Gases (UK) Ltd at 28 Forth Street, Bootle, Liverpool, Merseyside, L20 8JW or emailed to email@example.com in accordance with condition 11 above. You may also be able to refer a dispute to the European Online Dispute Resolution (“ODR”) platform at http://ec.europa.eu/odr. The ODR platform is a web-based platform which is designed to help consumers who have bought goods or services online. It provides access to independent alternative dispute resolution services which are usually free for you to use.