1.1 These are the terms and conditions on which Elgas Limited agrees to supply Gas and Equipment to You.
1.2 The effective date of these terms and conditions is the earlier of the delivery date of Your first Gas cylinder or of Your first Gas supply.
1.3 Definitions used for the purposes of these terms and conditions of supply:
“Agreement” means these Terms and Conditions;
“Equipment” means the Gas cylinder(s) and any other Gas supply equipment supplied to You by Us;
“Gas” means Liquefied Petroleum Gas supplied to You by Us;
“We”, “Us” or “Our” means Elgas Limited;
“Property” means the property to which We will deliver Gas and Equipment under this Agreement;
“You” and “Your” means the customer party to this Agreement.
1.4 We may make changes to this Agreement (including to pricing) at any time and from time to time. We will notify You of any changes by writing to You at least two weeks before changes come into effect (You acknowledge and agree that such written notice may be included in an invoice sent to You under Clause 6.2 of this Agreement).
1.5 Notices and invoices under this Agreement will be delivered to your Property or mailed or sent to your last known physical or postal address.
2.1 We will deliver the Equipment to You and You will pay Us for rental for the use of the Equipment. The rental is an annual sum payable in advance
at the beginning of each 12-month period of this Agreement.
2.2 The Equipment will remain Our property at all times. You may not sell, rent, charge, transfer or part with possession of the Equipment or create a security interest in the Equipment under the Personal Property Securities Act 1999 (NZ) without Our prior written consent.
2.3 You will keep the Equipment safe, in good condition and on the Property. You will notify Us of any damage to the Equipment and will not undertake any work on the Equipment except where authorised by Us. Subject to Clause 7.2, You will pay Us the full replacement or repair cost in respect of any lost or damaged Equipment (except where We have caused the loss or damage).
2.4 We may come into the Property to inspect the Equipment at any time, provided We give reasonable notice. Normally We will only access Your
Property during business hours. However in the case of an emergency You will need to allow Us immediate access if required.
2.5 Except as allowed under Clause 2.6 You will not refill or allow the refilling of the Equipment or let the Equipment be used otherwise than for storage, transport or use of Gas placed in the Equipment by Us.
2.6 If We are unable to supply Gas, You may use the Equipment for handling Gas obtained from another source, provided that You notify Us in advance. We will have no liability whatever in relation to any such supply and You will indemnify US against all claims, costs, expenses or liabilities resulting from such supply.
3. Gas Supply
3.1 We will supply such Gas as You reasonably require into the Equipment. You agree to buy all your requirements of Gas for Your Property from Us.
3.2 You will not hold Us liable for any loss or damage if We are unable to supply Gas to You for a reason beyond Our control. We may ration Our available supplies of Gas if there is likely to be a supply shortage of Gas.
3.3 We will supply Gas into Your owned gas cylinders and storage vessels considered suitable by Us only by special arrangement with You. Such supply is subject to gas cylinder and storage vessel examination and testing when necessary in accordance with Our procedures and applicable statutory requirements at Your cost.
3.4 You will not use the Equipment to decant Gas into other containers, and will not on-sell, distribute or otherwise transfer any Gas supplied by Us.
4.1 You will Use the Gas and Equipment in a manner which complies at all times with any relevant laws and regulations and with any instructions and Material Safety Data Sheets provided by Us. We may suspend delivery of Gas at any time, and will not be liable to You in any way for doing so, if We think that the Property is unsafe or if We consider the delivery conditions at the Property represent a hazard to Our delivery drivers.
4.2 You will ensure that Your current Gas installation has been certified by a registered Gasfitter in accordance with regulations under the Gas Act 1992 (and provide Us with reasonable proof of this if requested by Us). If You store more than 100kgs of Gas (for example have more than the standard two 45kg cylinders) on the Property, You must obtain a current site location certificate in accordance with the Hazardous Substances and New Organisms Act 1996 and associated regulations.
4.3 You will use all Gas and Equipment in a safe and prudent manner, notify Us immediately if You suspect any defect in the Equipment and not relocate, remove or tamper or interfere with any Equipment.
5. Delivery, Risk and Title
5.1 We will use Our reasonable endeavours to deliver the Gas to You within 5 working days of receiving Your instructions. Deliveries will be made in
normal business hours unless otherwise agreed with You.
5.2 If urgent delivery is required within 24 hours or outside Our usual business hours, We will consider all requests and if We are able to deliver, We will
do so. You must pay Us a fee (in accordance with Our delivery rates) for any such urgent delivery or deliveries outside Our normal business hours.
5.3 You must provide Us with safe and easy access to the Property (including keeping any dog or other dangerous animals under control) to enable
delivery of Gas and Equipment. We may charge You an additional fee if delivery is delayed or impeded by unsafe or problematic access to the
5.4 Gas is deemed to have been delivered at the earlier of the time when the Gas Cylinders are unloaded at the Property or when the Gas passes into the hose connection at the filling point of the Equipment at the Property, and property and risk in the Gas passes from Us to You upon delivery.
5.5 Our weights, records and measurements will be accepted as prima facie evidence of the quantities of Gas and Equipment delivered to You. Our delivery note will be conclusive evidence as to the Gas and Equipment delivered.
5.6 We will be under no obligation to deliver Gas to You if and for so long as You are in default of any obligation under this Agreement (including payment of any amount owing by You to Us plus any interest charged).
5.7 Risk in the Equipment (including any Gas in any such Equipment) will pass back to Us when We collect the Equipment.
6. Prices/Fees and Payment
6.1 Unless We have agreed otherwise with You in writing, You will be charged for the Gas accordance with the price at the time of delivery notified from time to time by Us to You.
6.2 Each month, You will receive an invoice for Our charges for Gas unless, as at the date that such invoice would otherwise be issued, there has been no activity on Your account under this Agreement since the period covered by the previous tax invoice sent by Us to You under this Agreement.
6.3 All monies owing by You to Us must be paid in full without deduction or set off by the due date on Your invoice (being the 20th of the following month). These monies may include any rental for the Equipment invoiced pursuant to Clause 2.1 and any other fees invoiced and payable under this Agreement.
6.4 You will pay any costs incurred by Us (including debt collection fees and solicitors’ costs) in recovering or attempting to recovery any outstanding monies from You.
7. Liability and Exclusions
7.1 Except to the extent provided in the Consumers Guarantees Act 1993, We shall not be liable to You, or to anyone else for any breach of this Agreement for any expenses, losses or damage (whether foreseeable or not) to You, other persons or to any property. To the extent We are liable, Our liability will (to the extent permitted by law) be limited to the price paid by You for the Gas and Equipment supplied by Us which gave rise to the claim. We are not liable in any circumstances for consequential losses, indirect losses, loss of profits or similar claims.
7.2 To the extent permitted by law, We are not liable for any loss or damage arising from an event beyond Our control and which prevents Us from carrying out Our responsibilities under this Agreement.
7.3 You indemnify Us in respect of all claims, demands, actions, suits, proceedings, damages, losses and expenses of any nature, arising out of or in connection with any damage or loss to any third party from the Gas and/or Equipment while they are in Your possession.
8.1 You may terminate this Agreement at any time in writing or by contacting an Elgas branch.
8.2 We may terminate this Agreement at any time by giving You 7 days written notice. We may terminate this Agreement immediately and without
notice if You:
(a) fail to pay any money payable to Us under this Agreement by the due date for payment; or
(b) tamper or interfere with any Equipment or breach any terms of this Agreement.
8.3 You agree that upon termination of this Agreement You will not be entitled to any refund (in whole or in part) of the rental for the Equipment (unless You have punctually performed all Your obligations under this Agreement for a continuous period of more than one year) and that You will:
(a) pay Us for all amounts owing by You to Us under this Agreement;
(b) allow Us to immediately enter the Property and collect the Equipment.
8.4 If You move house or leave the Property permanently, You must give Us at least three weeks written notice prior to vacating the Property. This time allows Us to either make arrangements with You in respect to Your new property and with the new owner of the Property or to terminate this Agreement. If You do not give Us three weeks notice, You will be liable to pay for Gas used at the Property and any damage to, or loss of, the Equipment until such time as this Agreement is terminated.
8.5 If the new occupier of the Property does not immediately enter into an Agreement with Us, We will collect the Equipment from the Property as soon as reasonably practical (but will not be liable to You for any delay in collecting the Equipment).
9. Privacy Act
2.1 The Equipment means all Liquefied Petroleum Gas (LPG) storage or associated equipment lent by Elgas to Customer from time to time and includes all LPG Cylinders. The number of items of Equipment lent by Elgas to Customer is, as at the commencement of this Agreement as set forth in the Schedule and is thereafter the number as taken from time to time from Elgas’ computer onto Elgas’ invoice for a service charge, which Customer accepts as correct (but not necessarily as complete), if Customer does not dispute that number in writing to Elgas within 14 days after Elgas sends Customer that invoice.
2.2 The Premises are referred to in the Schedule and any attachment hereto. Where the Premises include more than one address, there is a separate agreement between Elgas and Customer for each of those addresses, on the same terms and conditions as set forth in this Agreement, save as varied by the written consent of Elgas and Customer.
3. LPG PURCHASES, PRICE, EQUIPMENT SERVICE CHARGE, PAYMENT
3.1 Subject to this Agreement, Customer must purchase and Elgas must supply all of Customer’s requirements of LPG at the Premises. Elgas shall deliver that LPG (Elgas LPG) in Cylinders or such other method as agreed.
3.2 The Price for Elgas LPG sold to Customer shall be that applicable as at the time of delivery and shall be in accordance with the Schedule and shall vary to be the amount as notified from time to time by Elgas to Customer. Such notification may be by supply of Elgas’ delivery docket or invoice to the Premises or by postal notification. Price variations may be based on a number of factors, including variations in the world LPG pricing (presently being Saudi Aramco contract price), exchange rate fluctuations, haulage and transport costs, changes in the law, costs of taxes (including carbon taxes) or emissions trading and other commercial considerations. Their application may vary in timing & magnitude.
3.3 The Equipment Service Charge shall be in accordance with the Schedule and shall vary to be the amount as notified from time to time by Elgas to Customer. Such notification may be as provided in clause 3.2 hereof. Customer must pay Elgas for any Equipment Service Charge (plus any GST) without deduction within twenty one days after the date of Elgas’ invoice.
3.4 Subject to the following, Customer must pay Elgas for Elgas LPG and GST thereon without deduction by the twenty-first day of the month immediately following its delivery, provided that if Elgas so notifies Customer, such amounts are payable before delivery. Ownership of Elgas LPG delivered in a Cylinder will only pass from Elgas to Customer upon payment by Customer for all that Elgas LPG in that Cylinder and until such payment, all the Elgas LPG in that Cylinder, being owned by Elgas, may be repossessed by Elgas as provided herein. Customer’s consumption of LPG in Cylinders occurs first from Cylinders in which the Elgas LPG is owned by Customer. If Customer does not pay any money due to Elgas or if Customer intimates that Customer will not or cannot pay any money yet to become due to Elgas, Elgas is not thereafter obliged to deliver Elgas LPG to Customer and Elgas may repossess the Elgas LPG owned by Elgas and the Cylinders containing such Elgas LPG.
3.5 Elgas retains ownership of all Equipment supplied by Elgas to the customer until the Customer has paid for them and has paid all other outstanding amounts due and payable to Elgas. For the Purpose of this provision the “PPSA” means the Personal Property Securities Act 1999 as amended from time to time. Until ownership of the Equipment passes, under the PPSA the customer must not:
(a) give to Elgas a written demand, or allow any other person to give to Elgas a written demand, requiring Elgas to register a financing change statement; or
(b) lodge a change demand or allow any other person to lodge a change demand. In each case relation to a financing statement registered by Elgas under the PPSA; or
(c) enter into or accept, or allow any other person to enter into or accept, a financing statement registered by reference to it under the PPSA; or
(d) consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the Equipment (whether in accession or otherwise) which ranks in priority to Elgas’s rights as first ranking security holder; or
(e) sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Equipment or any interest in them (or purport or attempt to purport to do such thing) or permit any lien over the goods assign Elgas rights under these terms and conditions.
The Customer waives it rights under the PPSA to:
(a) receive a copy of any verification statement
(b) receive a copy of any financing change statement
(c) receive any notice that Elgas intends to sell its Equipment or retain the Equipment on enforcement of the security interest (as defined in the PPSA) granted to Elgas under these terms;
(d) object to Elgas proposal to retain the Equipment in satisfaction of any obligation owed by the Customer to Elgas;
(e) receive a statement of account on sale of the Equipment;
(f) redeem the Equipment;
(g) where any Equipment becomes an accession, as defined in the PPSA, not apply to the court for an order concerning the removal of the accession, receive notice of removal of the accession and not have any Equipment damaged when Elgas removes the accession.
(h) You agree that you receive value as at the date of first delivery of the goods and agree that we have not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to Elgas under these terms and conditions.
The Customer agrees to:
(a) do anything that Elgas reasonably requires to ensure that at all times Elgas has a continuously perfected security interest over all of its Equipment;
(b) reimburse Elgas for all costs and/or expenses incurred or payable by Elgas in relation to registering, maintaining or releasing any financing stated under this Agreement
3.6 If there is or is likely to be a shortage of Elgas LPG or delivery facilities, Elgas may ration its available supply of Elgas LPG reasonably among its customers and is not obliged to replace any affected source of supply or delivery facilities, if it involves additional expense.
3.7 Customer must pay Elgas any Goods and Services Tax (GST) payable in respect of a supply under this Agreement. A company Customer which fails to pay an amount overdue hereunder for Elgas LPG and GST thereon shall pay Elgas interest on the unpaid balance of that amount at the overdue interest rate then published by Elgasaccruing as from the issue of a notice by Elgas to Customer.
3.8 The Customer shall reimburse to Elgas all costs incurred by Elgas in collecting any payment which is overdue by the Customer (including all legal and solicitor/client basis costs as well as all collection agency costs incurred)
3.9 In no case will Elgas be liable to Customer or any other person for indirect or consequential loss (including without limitation loss of use of goods and services, loss of income or profits and loss or damage to persons or property) or damage of any kind arising out of or attributable to any breach or negligence by Elgas or any act or omission by Elgas. Elgas shall have no liability to Customer for events beyond the direct control of Elgas. Regardless of the legal basis of any claim made against Elgas in no case shall the extent of Elgas’ liability under that claim exceed the original contract price supplied by Elgas which gave rise to the claim. Customer shall indemnify Elgas from any claim made by any third party in respect of any damage or loss to any third party caused by the actions of Customer from the LPG or the equipment while they are in the possession of Customer.All Elgas LPG in the Equipment is at Customer’s risk.
4. EQUIPMENT AND PREMISES
4.1 The Equipment remains at all times the sole property of Elgas. Customer must not purport to sell, encumber, part with possession of, or otherwise do anything prejudicial to Elgas’ title to the Equipment. Customer must keep legible and visible all trademarks and signs of Elgas on the Equipment. Customer must not remove the Equipment from the Premises during the currency of this Agreement
4.2 Customer must hire the Equipment from Elgas for the entire currency of this Agreement. Customer must only use the Equipment to store and consume Elgas LPG.
4.3 Customer must account to Elgas for all items of Equipment lent to Customer. Customer must pay to Elgas the replacement cost of any item of Equipment which is rendered unusable or unsafe by damage or is lost, stolen or removed from the Premises.
4.4 Elgas is irrevocably authorised to enter the Premises at all reasonable times to exercise any of its rights or perform any of its obligations under this Agreement or to do any act ancillary thereto.
5.1 In respect of Elgas LPG and the Equipment, Customer must:
(a) inspect the Cylinders before connection to vehicles or other equipment and notify Elgas by telephone immediately upon becoming aware of any defect in them;
(b) ensure that all persons who handle Elgas LPG or use the Equipment are fully trained to do so in a safe and proper manner and are informed of and fully understand all relevant laws and statutory regulations and instructions of Elgas relating thereto;
(c) handle them only in a safe manner;
(d) comply with all laws, including the Hazardous Substances and New Organisms Act 1996 and with Elgas’ reasonable instructions relating to handling or storage;
(e) not use or repair the Equipment, if it is not, or appears to Customer not to be, in good working order;
(f) maintain a location test certificate for the Equipment and permit only Elgas or persons authorised by Elgas to fill LPG into the Equipment; and
(g) exercise every care in handling the Equipment and afford it all reasonable protection from misuse and damage (fair wear & tear excepted).
5.2 Customer must indemnify Elgas for all losses claims and demands arising in respect of a breach of clause 5.1 hereof.
6. PERIOD, CONTINUATION AND TERMINATION
6.1 Subject to the following, this Agreement is for the Initial Period and continues thereafter until terminated by either party giving at least three months notice in writing to the other, ending on or at any time after the end of the Initial Period.
6.2 Elgas may terminate this Agreement by notice to Customer forthwith if:
(a) Customer fails to perform an obligation in clause 3.1, 3.3, 3.4, 4.1, 5.1(b), 5.1(c) or 5.1(d) of this Agreement and fails to rectify that non performance within seven (7) days of notice thereof by Elgas to Customer, or
(b) Customer breaches Clause 4.2 or its undertaking in clause 1 of this Agreement.
6.3 On termination of this Agreement whether by expiry of time or otherwise and without limiting Elgas’ right to claim damages, Elgas shall be immediately entitled to possession of the Equipment together with any Elgas LPG owned by Elgas, and:
Customer must make the Equipment together with any Elgas LPG owned by Elgas, available for collection by Elgas at the Premises; and
Customer must pay to Elgas the then current replacement cost of such of the Equipment as is not so madeavailable for collection by Elgas.
6.4 To repossess the Equipment and any Elgas LPG owned by Elgas, Elgas may enter upon the Premises or any other premises on which Elgas reasonably believes the Equipment or that LPG to be and to effect any such entry or repossession may remove or open any obstruction or entrance and sever detach and dismantle the Equipment from the Premises or any vehicles land or property to which the Equipment may have become affixed. Upon repossession of the Equipment, Elgas shall pay or credit to Customers’ account the value of Customer’s LPG in the Equipment.
6.5 Customer’s business at the Premises includes the rights granted to Customer under this Agreement. Customer must assign this Agreement to any new operator of the Customer’s business at the Premises. Customer must immediately notify Elgas of any impending sale or transfer of ownership of the Customer’s business. Any invalidity of a provision hereof shall not affect the validity of any other provision. A waiver of an obligation is not a continuing waiver.
7.1 Elgas is authorised by each of the Customer, and the proprietors, partners or directors of the Customer (each an Applicant) to:
(a) collect retain and use information about the Customer and Applicant from such sources (including credit references agencies and other credit service providers) as Elgas may require for the purposes of administrating the Customer’s Account, assessing the Applicant’s credit worthiness, enforcing any rights or marketing any goods and services provided by Elgas and to use the information in any dealings with the Customer or Applicant and authorises any person to provide Elgas such information about the Customer or Applicant as Elgas may require in response to its queries and for any of the purposes set out above; and
(b) disclose any information about the Customer or Applicant to credit reference agencies, or credit and service providers, or enforcement agencies.
(c) loading of any defaults against customers who do not comply with Elgas payment terms set out in clause 3.4
7.2 The Customer or the Applicant has the right of access to, and correction of their personal information held by Elgas.
7.3 The Customer confirms that the above Privacy Act clause has been read and understood.