TERMS AND CONDITIONS OF SELLER’s WEBSITE & SERVICES USAGE AGREEMENT

2022 Edition 

 

Definition

  1. 1

“Affiliate” means, in relation to any Party, a company which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with that Party; 

For this purpose: 

a company is directly controlled by another company or companies if that latter company or companies, either individually or together: 

a. beneficially own fifty-one (51) per cent or more of the voting rights attached to the issued share capital of the first-mentioned company; or 

b. possess directly the power or ability to direct or cause the direction of the management and policies of the first-mentioned company, whether through the ownership of voting rights, by contract or otherwise; and 

c. a company is indirectly controlled by another company if a series of companies can be specified, beginning with that latter company and ending with the first-mentioned company, so related that each company of the series (except the latter company or companies) is directly controlled by one or more of the companies earlier in the series. 

  1. 2

“Agreement” means this GTC together with the Terms and Conditions of Seller’s Website & Services Usage Agreement and any Special Terms and Conditions made applicable for sale of the Product.  

  1. 3

“ASTM” means American Society for Testing and Materials. 

  1. 4

“Buyer” means the person who or which has been assigned a unique buyer registration number obtained through the due registration procedure, as prescribed in the Procedure, and who is named as the buyer in the relevant Confirmed Order. 

  1. 5

“Confirmed Order” has the meaning specified in the Procedure.  

  1. 6

“Confirmed Order Date” means the date provided in the Confirmed Order by the Seller, as the date of its issuance, subsequent to receipt of payment towards LPG Order Quantity by the Seller from the Buyer. 

  1. 7

“Day” means a calendar day, unless otherwise expressly specified. 

  1. 8

“Delivery Date” means the date as stated in the Confirmed Order, as the date on which the Product would be delivered by the Seller to the Buyer, or such other date, as may be mutually agreed in writing between the Seller and the Buyer subsequently, as the date on which the Product would be delivered by the Seller to the Buyer, such that such revised date of delivery shall always fall within the Delivery Period.   

  1. 9

“Delivery Point” has the meaning specified in clause 6.1 of the GTC. 

  1. 10

“Delivery Period” means the period commencing from the Confirmed Order Date and ending on the tenth (10th) day following such Confirmed Order Date.   

  1. 11

“LPG Truck(s)” means LPG truck(s) or other vehicle(s) or other carriage and transportation mode of any type whatsoever of the Buyer (including as designated by an agent of the Buyer), which is wholly or mainly, constructed, fabricated or adapted for the carriage of bulk LPG as cargo. 

  1. 12

“GTC” means these general terms and conditions, including any amendment(s) thereto from time to time, for the sale of bulk LPG ‘ex-works’ at Seller’s Facility in Kwale or at any other location (s) as determined by the Seller from time to time. 

  1. 13

“LPG Order Quantity” means the mutually agreed, as between the Buyer and the Seller, quantity of Product to be off taken by the Buyer from the Seller as set out in the Confirmed Order.  

  1. 14

“Liquefied Petroleum Gas” or “LPG” means liquefied petroleum gas mixture mainly comprising of Butane and Propane, and other hydrocarbons, as applicable. 

  1. 15

“Metric ton” or “MT” mean a metric unit of mass equal to one thousand (1,000) kilograms.  

  1. 16

“Order Summary” has the meaning specified in the Registration, Order Booking and Delivery Procedure. 

  1. 17

“Party” means a party to this GTC, which is either the Buyer or the Seller (including their respective successors and/or assignees), and the term “Parties” shall be construed accordingly to mean both the Buyer and the Seller (including their respective successors and/or assignees). 

  1. 18

“Product” has the meaning specified to it in clause 4.1 of the GTC hereunder.  

  1. 19

“Privacy Policy” means the relevant privacy policy of KHNL as amended from time to time and available on the Seller’s Website or Software.  

  1. 20

“Registration, Order Booking & Delivery Procedure” or “Procedure” means the registration, order booking & delivery procedure as amended from time to time and available on the Seller’s Website or Software. 

  1. 21

“Seller” means Kwale Hydrocarbon Nigeria Limited  or any of its Affiliate(s) (“KHNL” or “Company”), a company incorporated in Nigeria, having its registered office at 10, Maryland Business Plaza, Ikorodu Road, Lagos, Nigeria, and a business office at No.247A, Muri Okunola Street, Victoria Island, Lagos, Nigeria. 

  1. 22

“Seller’s Facility” has the meaning specified in clause 5 of the GTC.  

  1. 23

“Selling Price” means the price of the Product per MT as set out in the Confirmed Order.  

  1. 24

“Seller’s Website” means websites including but not limited to www.khnl-ng.com and all sub-domains thereof, and such other websites or sub-domains as may be determined and specified by KHNL for this purpose from time to time.   

  1. 25

“Services” means the technology platform that enables users of KHNL’s software application(s) including any mobile application or other software or websites or any of the means of electronic communication or interface, to arrange for, schedule, place orders for, pay for, manage deliveries, perform trade in or perform associated activities in respect of LPG and the Product. For the removal of doubts, the meaning of this term shall include Seller’s Website and Software. 

  1. 26

“Software” means any software including software applications and mobile applications, if any, made available by KHNL. 

        1.27 

“Special Terms and Conditions” means any special terms, if any, as provided in the Order Summary and as mutually agreed by the Seller and the Buyer, in addition to and/or in variance with this GTC. 

2

Applicability and Interpretation:  

       2.1

Unless otherwise expressly agreed in writing by the Seller and the Buyer, Terms and Conditions of Seller’s Website & Services Usage Agreement, these GTC including Annexure, Exhibit(s) thereto, together with any amendments therein from time to time, shall apply to all contracts and/or agreements entered into between the Buyer and the Seller, Order Summaries and Confirmed Orders for the sale of Product in bulk by or on behalf of Seller or any of its Affiliate(s) to the Buyer ex-works at a Seller’s Facility.  

       2.2

Further, the date of commencement of supplies to a Buyer covered under this GTC shall be as notified by the Seller based on readiness of the Seller’s Facility. 

       2.3

The Agreement contains the entire agreement between the Seller and the Buyer and supersedes all representations, prior agreements or arrangements, oral or written, in connection with the matters which are or are related to the subject matter of this Agreement. 

       2.4

In case of any conflict between the Special Terms and Conditions, if any, and this GTC, the Special Terms and Conditions shall prevail over the GTC to the extent of such conflict. 

       2.5

All clauses, articles and headings used in the Agreement are for convenience only and shall not affect the construction or interpretation of any of the terms and/or conditions of the Agreement. 

       2.6

Any words following the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 

3

Supply and Purchase of Product: 

       3.1

Seller agrees to sell and supply to the Buyer and the Buyer agrees to buy and pay for the Product as per the terms and conditions of this GTC. 

       3.2

Buyer shall register itself and then book or place an order by following the due procedure prescribed in the Procedure.  

       3.3

Subject to clause 7 of the GTC, Seller shall supply the Product to the Buyer on the Delivery Date. 

        3.4

On the Delivery Date, the Seller shall deliver LPG into the LPG Truck(s) at the Delivery Point on ‘ex-works basis’ at the relevant Seller’s Facility as per the Loading and Operational Procedures set out in the Procedure. 

        3.5

The Seller may employ third party service providers to facilitate the sale or delivery of the Product, or to provide any related services on Seller’s behalf.  

4

Product: 

       4.1

LPG mixture in conformity with specifications approved by Standards Organisation of Nigeria (SON) NIS 555 standards applicable for “LPG Gas mixture” as is being offered by the Seller to the Buyer for bulk sale (“Product”)

5

Seller’s Facility: 

       5.1

LPG related facilities operated and maintained by the Seller in Kwale, Nigeria, or at any other location(s), as may be determined by the Seller from time to time; such facilities may include production, processing, blending, storage, supply, transportation, distribution, dispensation or any other facilities related to LPG (“Seller’s Facility”). 

6

Delivery Point: 

       6.1

Delivery point shall be the flange connection between loading hose of the relevant Seller’s Facility (as may be determined and agreed between the Seller and Buyer from time to time) and the Buyer’s LPG Truck(s) (“Delivery Point”). 

7

Payment Terms:  

        7.1

Upon confirmation of Order Summary by the Buyer as per the Registration and Order Booking Procedure, the Seller shall issue a pro forma invoice and final invoice for the LPG Order Quantity.    

       7.2

a. The Buyer shall pay non-refundable Selling Price per MT for the LPG Order Quantity of Product and other amounts payable as per the stated pro-forma invoice upon receipt of the pro-forma invoice, by way of credit of the total amount payable as per such pro-forma invoice to the Seller’s designated bank account or other designated account by the Seller, prior to the lifting of the delivery of the Product by the Buyer from Seller’s Facility.  

b. All taxes, levies and duties including VAT, as applicable, related to such sale and purchase transaction of the Product, shall be borne by the Buyer. 

c. The amount payable as per this clause 7 hereinabove shall be in Nigerian official currency Naira (“NGN”) and such payment shall be effected by the Buyer to the Seller by way of transfer of the total amount payable to the Seller’s designated bank account or such other designated account as provided by the Seller.  

8

Cancellation: 

        8.1

The Buyer may cancel the Confirmed Order within the Delivery Period and before forty-eight (48) hours of the Delivery Date in accordance with the Procedure.  

       8.2

a. The Confirmed Order shall stand cancelled in case the Buyer fails to lift or offake the LPG Order Quantity within the Delivery Period, and thereupon Seller shall be absolved of all its obligations arising under this Agreement. 

b. Upon cancellation of the Confirmed Order as per clause 8.2(a) above, the Seller shall issue a credit note for the amount paid by the Buyer in respect of such Confirmed Order as per clause 7 above, within five (5) working days from the date of such cancellation.  

c. The Buyer can use such credit note only for the purpose of making payment for any new  purchase of the Product to be done from the Seller subsequently in the future, at the price for the Product applicable at such point in time when such new order for purchase is placed by the Buyer on the Seller.    

9

KYC (know your customer) Check:  

        9.1

The Seller reserves the rights to check and verify, from time to time, the documents and other material it would require to satisfactorily conduct the know your customer (“KYC”) verification of the Buyer.  

10

Transfer of Title in and Risk of or related to the Product: 

       10.1

Upon receipt of the full payment for the Product pursuant to clause 7 of the GTC and upon delivery of the Product at the Delivery Point, title including risk of loss in the Product, shall be transferred from the Seller to the Buyer. 

11

Date of Delivery: 

        11.1

The Seller shall commence supply of Product to the Buyer on the Delivery Date. 

12

Product Quality Assurance: 

       12.1

The certificate of quality issued at the loading bay of the Seller’s Facility, duly countersigned by the duly authorised officials of Seller’s Facility in accordance with the regulatory requirements, if any, except in case of manifest error, shall be a conclusive evidence of the quality and specifications of the Product supplied by the Seller to the Buyer under the Agreement. 

       12.2

The quality of the Product shall be determined at Seller’s Facility in line with plant and plant’s products specifications and the Department of Petroleum Resources (“DPR”) relevant guidelines or where none exists then in accordance with the latest ASTM International standards and Manual of Petroleum Measurement Standards (“MPMS”) of API. 

        12.3

Any complaint regarding variation in quality by the Buyer shall be admissible for further examination and verification only if a fully documented claim is presented to the Seller within three (3) calendar days after the date on which the delivery of the Product has been completed by the Seller to the Buyer at the relevant Seller’s Facility. 

13

Quantity Measurement and Assurance: 

       13.1

The quantity of Product under the Agreement shall be determined by mechanical measurement in a duly calibrated weighbridge at the Seller’s facility, immediately before and after Buyer’s LPG Truck(s) are loaded. 

       13.2

The Seller assures the Buyer that the Product supplied by the Seller at the loading bay of the Seller’s Facility shall always match with the quantity for which invoice is prepared by the Seller.   

       13.3

The certificate of quantity (or other equivalent documents) issued as per the weighbridge measurement at the loading bay shall be final and binding on both the Parties and shall be conclusive evidence for the quantity supplied and invoiced under this Agreement.   

14

Insurance: 

     14.1

The Buyer undertakes to procure and pay for insurance to cover: 

a. all risks attributable to the LPG Truck(s); 

b. all risks related to in-transit stock for the full value of the Product delivered at the Delivery Point; and 

c. any third-party risks and all other risks directly or indirectly associated with the property or assets of the Seller due to Buyer’s offtake of the Product. 

15

Obligations of the Buyer and Limitations to Seller’s Liability: 

      15.1

The Buyer shall ensure all necessary approvals, permits, authorisations and consents from all applicable governmental and regulatory authorities, including but not limited to the Department of Petroleum Resources (DPR), Nigeria, for transportation of Product from the Seller’s Facility by LPG Truck(s) under this Agreement have been obtained.   

      15.2

Notwithstanding anything to the contrary contained in this Agreement, the Buyer shall continue to remain solely and directly responsible for compliance with all statutory obligations with respect to the business activities (including but not limited to transportation, storage and delivery of the Product) of the Buyer, and the Seller will not be held responsible and/or liable for the same in any manner whatsoever.  

      15.3

More particularly, the Buyer assumes all the risks and liabilities for the use of the Product purchased from the Seller under this Agreement, whether used singly or in combination with other substances; and for any loss, damage, or injury (including injuries to a natural person resulting in death or disablement) to other persons or property of the Buyer or of  any other person arising after the Delivery Point of the Product.  

       15.4

Buyer shall assume all risks and liabilities for any loss, damage or injury to persons or property arising out of its possession, usage, or resale of the Product either singly or in combination with other substances, and shall indemnify the Seller for any costs, losses or damages incurred by the Seller, if any, in relation to the same. 

       15.5

The Seller shall not be liable in contract or in tort or otherwise for any special, consequential or indirect loss or damage of any kind arising out of or in any way connected with the performance or failure to perform any part or parts of the Agreement, including but not limited to such special, consequential or indirect loss or damage of any kind, caused by any negligent act or omission on the part of the Seller or its Affiliate(s) and/or agents and/or servants of the Seller or its Affiliate(s), nor shall the Seller be liable for any prospective or speculative profit.  

       15.6

The claim of the Buyer, in respect of the quality or quantity of the Product, shall not exceed the total value in respect of the total Selling Price paid by the Seller to the Buyer for the relevant Confirmed Order of such Product as per this Agreement.  

       15.7

There are no guarantees, conditions, warranties or representations, express or implied, given by the Seller in relation to the quality, merchantability, fitness or suitability of the Product, for any particular purpose or otherwise, which extend beyond the description of the Product and any relevant specifications contained in the Agreement. 

       15.8

The provisions of this clause 15 shall continue to apply notwithstanding the termination or expiry of the Agreement for any reason whatsoever. 

16

Dispute Resolution: 

      16.1

The Parties shall use reasonable efforts and endeavours for resolving any disputes arising out of this Agreement. If the Parties are unable to resolve such dispute by discussions between them, then either Party may serve on the other a notice of arbitration under the Arbitration and Conciliation Act, Cap A18 Laws of the Federation of Nigeria, 2004 and Rules thereon. The entire proceedings of the arbitration shall be in the English language. The venue of the arbitration shall be Lagos or any other city within Nigeria as the Parties may mutually agree in writing. 

      16.2

Jurisdiction and Applicable Law: 

      16.3

This Agreement is governed by the laws of the Federal Republic of Nigeria and shall be construed and interpreted in accordance therewith and will be subject to the jurisdiction of the relevant and competent Nigerian Courts.  

17

Insolvency:  

        17.1

Notwithstanding anything to the contrary contained in this Agreement, a Party shall be deemed to be in default for the purpose of provisions related to insolvency in this Agreement, if such Party inter alia: 

  1. Files a petition or otherwise, commences or authorises the commencement of a proceeding under any bankruptcy, insolvency, reorganisation, or similar law or has any such petition filed or proceeding commenced against it; or has a liquidator, administrator, receiver, trustee or office with similar powers appointed with respect to it or any substantial portion of its property or assets. 

  1. Otherwise becomes insolvent (however evidenced) or is unable to pay its debts as they become due. 

In the event that either Party is in such default (the “Defaulting Party”), the other Party (the “Non-Defaulting Party”) at its sole discretion, shall be entitled, after serving notice of ten calendar days to the Defaulting Party, to suspend and/or terminate its obligations under this Agreement.  

18

Assignment: 

      18.1

Without the prior written consent of the other Party, which consent shall not be unreasonably withheld, neither Party may assign any of its rights or obligations under this Agreement either in full or in part, except that the Seller and/or its nominee may assign all or any part of their rights to receive and obtain any payments due under this Agreement for the purpose of securing any finance or in connection with any financing arrangement.  

19

Default and Waiver: 

       19.1

The failure of either Party at any time to require performance by the other Party of any provision of the Agreement shall in no way affect the right of that Party to require performance which may be due thereafter pursuant to such provision, and the waiver by either Party of any breach of any provisions of this Agreement shall not be construed or held to be waiver of any subsequent breach of such provision.  

20

Code of Business Conduct: 

      20.1

Both the Parties hereto hereby agree to recognise and respect each other’s internal policies regarding dealing with government agencies, Buyers and/or suppliers, especially but not limited to, fairness, honesty and transparency, and strict compliance with contractual undertakings and applicable laws and regulations.  

21

Notices: 

        21.1

        a. All notices and other communications given under the Agreement shall be in writing and unless otherwise specified in the Agreement shall be deemed to have been given and delivered when       despatched, provided the notice is despatched within business hours, by telex, cable or telefax to the Seller at its address at either: 

Kwale Hydrocarbon Nigeria Limited  

No.247A, Muri Okunola Street,  

Victoria Island, Lagos, Nigeria. 

and to the Buyer at its address specified at the time of registration as per the relevant provisions in the Procedure. 

 

       b. Any change of address by a given Party must be notified to the other Party in writing atleast five working days in advance before it has to take effect, unless otherwise agreed in writing by the Parties. 

22

Termination:   

       22.1 

These GTCs are applicable for the purchase of the Product duly ordered by the Buyer and accepted by the Seller, as inter-alia substantiated by the Confirmed Order. The Seller reserves the right to not to extend the whole or any part of the terms and conditions of this GTC and/or the applicable Special Terms and Conditions to the Buyer for further supplies of the Product in the future, in case, in the sole opinion of the Seller, the Buyer is not likely to comply with the provisions of this Agreement including the continued compliance with KYC norms and requirements of the Seller. 

23

Force Majeure: 

      23.1

a. Neither the Buyer nor the Seller shall be liable for damages or otherwise for any failure or delay in performance of any obligation under this Agreement, other than any obligation to make any payments due, where such failure or delay is caused by force majeure.  

b. Such force majeure being any event or occurrence or circumstances beyond the reasonable control of that particular Party, including but without prejudice to the generality of the foregoing, failure or delay caused by or resulting from the acts of god, strikes, fires, floods, wars (whether declared or undeclared), pandemic, riots, destruction of property or product, embargoes, accidents, prohibitions and/or restrictions imposed by any governmental or regulatory authority (including but not limited to allocations, priorities, requisitions, quotas. embargoes and price control); which materially adversely affects the concerned Party from performing its obligations under this Agreement. 

c. The Party whose performance is so materially adversely affected by such force majeure event shall notify the other Party hereto indicating the nature of such cause and, to the extent possible, inform the other Party of the expected duration of the force majeure event.  

d. The time available for the Seller and/or the Buyer, that is the Party that has thus been materially adversely affected by the force majeure event, to perform their respective obligations under the Agreement (other than the obligations to pay any amounts due) shall be extended during any period during which these obligations are prevented, hindered, curtailed or delayed by the reason of any force majeure event up to cumulative period of thirty (30) calendar days starting from the date of commencement of the force majeure event. On the expiry of such thirty (30) calendar days, either Party may terminate this Agreement with respect to such delivery upon written notice to the other Party, unless both the Parties agree in writing to allow for extension of such period of thirty (30) days. If either of the Parties has received any benefits (without providing suitable consideration in exchange for the same to the other Party) under this Agreement, before its termination as per provisions of this clause 23, then it shall restitute such benefits to the other Party within thirty (30) days of termination of this Agreement under this clause 23.    

e. The Party which is adversely affected by the force majeure event shall make all reasonable efforts to eliminate any circumstance resulting in or causing such failure and to mitigate the resulting damage. It is being agreed and understood that the settlement of strikes or boycotts or lockouts or industrial disturbances is entirely at the discretion of the Party suffering from the same and that such Party shall not by reason of these obligations as stated in this paragraph be compelled to accede to the demands being made by such persons indulging in or causing such strikes or industrial disturbances.  

24

Confidentiality: 

      24.1

Each of the Parties expressly agrees to keep this Agreement and any related information and documents strictly confidential. 

      24.2

The Buyer understands, acknowledges and agrees that any disclosure, use or misappropriation of any Information, trade secret in violation of this Agreement and any unfair trade practice deployed  or attempt to deployed by the Buyer with or without connivance of any other person whatsoever, would cause the Seller irreparable harm and the Seller shall be entitled to ask for damages and/or seek equitable relief, including temporary restraining orders and preliminary and permanent injunctions against the Buyer or its representatives (either actual or threatened) and that the Buyer shall not oppose the granting of such relief. 

25

No Agency: 

       25.1

This Agreement does not create any right for a Party to act as an agent, partner or legal representative of the other Party for any purposes whatsoever, and neither Party shall have any express or implied right or authority to assume or to create any obligations or responsibilities on behalf of or in the name of the other Party. The only exception being when a Party, through an express and duly executed power of attorney in writing, authorises the other Party to act on its behalf for any specific purpose(s).  

26

Third Party Rights: 

       26.1

Save as otherwise expressly provided in this Agreement, no person that is not a Party to this Agreement shall have any right to rely upon, or make any claim, or otherwise seek to enforce any terms of this Agreement. 

27

General: 

27.1

a. If any of the provisions of the GTC should be determined to be illegal, invalid or otherwise unenforceable then to the extent of such illegality, invalidity or unenforceability, such provisions shall be deemed to be severed from this Agreement. The remaining provisions of this Agreement, which have not been thus deemed to be severed, shall continue to survive, be in full force and effect, and such severance shall not affect the validity or operation of any other provisions of this Agreement. Any such severed provisions can also be suitably amended or replaced, with the consent of both the Parties in writing, to  be reinstated to this Agreement upon the removal of the reasons for the illegality, invalidity or unenforceability of the severed provision  

b. This GTC shall be deemed to have been electronically executed by the Seller and the Buyer, when the Buyer accepts it at the time of registration as per the Procedure and subsequently at the time of acceptance of Confirmed Order as per the Procedure.  

 

For questions regarding the terms of this Policy, contact: customer@khnl-ng.com .