Commerical LPG terms and conditions

  • Terms
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  • Commercial LPG terms

1. Supply and Purchase

1.1 Genesis Energy agrees to supply, and the Customer agrees to purchase, LPG at the Sites for the term of this Agreement and all such supply shall be subject to the terms of this Agreement.

1.2 During the term of this Agreement the Customer will take and purchase the LPG for its own consumption only, unless Genesis Energy expressly agrees otherwise in writing.

1.3 The Customer will purchase all of its LPG needs at the Sites from Genesis Energy exclusively, unless and to the extent that Genesis Energy is unable to meet the Customer's requirements.

2. Sites

2.1 Genesis Energy will supply LPG to the Sites. Subject to clause 2.2, Genesis Energy shall have no obligation to supply LPG to any other site of the Customer.

2.2 The Customer may, at any time, give 30 days’ written notice to Genesis Energy requesting that:

(a) a Site be added to the Site Schedule; or

(b) a Site be removed from the Site Schedule because the Customer no longer owns, or carries on business at, that Site.

2.3 Where Genesis Energy approves any such request in writing (such approval not to be unreasonably withheld), the relevant site will be added to, or the relevant Site will be removed from, the Site Schedule (as applicable), subject to any necessary removal of any Supplied Equipment by Genesis Energy and the payment by the Customer of all removal costs. For the avoidance of doubt, the removal of a Site will not affect the Customer's other obligations under this Agreement (including under clause 4). The fees or Charges payable for any additional Site will be provided to the Customer by Genesis Energy in a Price Schedule specific to the additional Site.

3. Term

3.1 This Agreement shall commence on the Start Date and will continue until the Expiry Date, unless terminated earlier in accordance with the terms of this Agreement.

3.2 Genesis Energy shall not be obliged to provide LPG at the rates set out in the Price Schedule until the later of:

(a) the Start Date; and

(b) the date on which the conditions (if any) specified in the Special Terms Schedule or any credit conditions required by Genesis Energy (together the “Conditions”) are satisfied.

3.3 Until such time as Genesis Energy has received the signed Agreement from the Customer and the Customer has satisfied the Conditions, the Charges payable by the Customer in respect of LPG and other Services shall be at the Uncontracted LPG Rates.

3.4 Genesis Energy may waive any of the Conditions at any time by giving written notice to the Customer.

3.5 If any Condition is not satisfied or waived by the date 30 days after the Start Date, then this Agreement shall be voidable by written notice given by Genesis Energy and, if so avoided, this Agreement shall be of no further force or effect and both parties shall be released from their obligations under this Agreement.

Notwithstanding the foregoing, in the event that this Agreement is so avoided, the Customer shall be required to pay:

(a) any Installation Charges that have been incurred by Genesis Energy prior to the avoidance of this Agreement; and

(b) an amount to compensate Genesis Energy or the Distribution Company for the decrease in value of the Supplied Equipment that has occurred as a result of the installation of that equipment.

3.6 Nothing in clause 3.5 shall affect Genesis Energy’s (or the Distribution Company's) rights in relation to the Supplied Equipment under this Agreement or at law.  

4. Quantity of LPG to be Purchased

4.1 Notwithstanding any other clause of this Agreement, the Customer agrees to take and purchase from Genesis Energy the Minimum LPG Quantity across the total number of Sites during each Year, and where there is a part Year during the term of this Agreement, the Customer agrees to take and purchase the relevant proportion of the Minimum LPG Quantity across the total number of Sites for that part Year (and all references to "Year" in this clause 4 shall be interpreted so as to give effect to this intention).

4.2 Where this Agreement expires or is terminated for any reason other than the default of Genesis Energy (as set out in clause 17.1), then, without limiting any other remedies which Genesis Energy may have against the Customer, the Customer will pay to Genesis Energy an Adjustment Amount calculated as follows:

Adjustment Amount = the aggregate of ((Minimum LPG Quantity less LPG Used) x Price) for each Year plus all Charges that would apply for the period between the date of expiration or termination of this Agreement and the Expiry Date.

Where:
LPG Used = the total Litres of LPG delivered at all Sites and paid for by the Customer during the relevant Year; and Price = the Price per Litre of LPG as stated in the Price Schedule (plus GST).

4.3 The Customer will pay any Adjustment Amount calculated under clause 4.2 within 10 Business Days of Genesis Energy making demand in writing for that payment, which must set out the basis for the calculation.

4.4 For the avoidance of doubt, where the LPG Used in any Year is greater than the Minimum LPG Quantity for that Year, then for the purposes of the formula in clause 4.2, the Minimum LPG Quantity less LPG Used for that Year is 0.

4.5 The following worked example of the adjustment amount is included only as a guide and does not affect the interpretation of clause 4.2:

An Agreement has a Start Date of 1 October 2014, an Expiry Date of 30 September 2017 and a Minimum LPG Quantity of 100 Litres (l) of LPG. If the Customer terminates the Agreement on 31 March 2016 (i.e. 18 months into the term) and the Customer used 120 Litres of LPG between 1 October 2014 and 30 September 2015 and 50 Litres (l) of LPG between 1 October 2015 and 31 March 2016, the adjustment amount payable by the Customer would be:

(a) For the Year 1 October 2014 to 30 September 2015: (100 - 120) x Price = 0
(b) For the Year 1 October 2015 to 30 September 2016: (100 - 50) x Price
(c) For the Year 1 October 2016 to 30 September 2017: (100 - 0) x Price
(d) For the period 31 March 2016 to 30 September 2017: the applicable Charges over this period.

The total Adjustment Amount payable by the Customer would be the aggregate of (a), (b), (c) and (d) above.

4.6 The Customer acknowledges that the amount payable under clause 4.2 represents a genuine pre-estimate of the minimum losses and costs that Genesis Energy expects to incur or suffer arising from the Customer’s failure to purchase the Minimum LPG Quantity in each Year during the term of this Agreement, and the Customer confirms that it considers that this amount is fair and reasonable.

4.7 Genesis Energy shall have no obligation to make delivery of any quantity of LPG in respect of which an Adjustment Amount is payable under clause 4.2.

4.8 Nothing in this clause 4 shall affect Genesis Energy’s ability to exercise any of its other rights under this Agreement or at law (including seeking compensation from the Customer in respect of any repudiation or breach of this Agreement).  

5. Forecasts

5.1 The Customer will provide to Genesis Energy such information as Genesis Energy reasonably requests in relation to the Customer’s likely future requirements for the supply of LPG at each of the Sites.

6. LPG Equipment and Safety

 6.1 Genesis Energy or the Distribution Company will provide the Supplied Equipment (if any) to the Customer. Any accessories, parts or replacements which may be supplied with or subsequently attached to the Supplied Equipment shall be deemed to have become part of the Supplied Equipment.

6.2 The Customer will, if applicable, pay to Genesis Energy the monthly Equipment Rental Charge set out in the Price Schedule.

6.3 The Customer will also be liable for any Installation Charge associated with the delivery and installation of the Supplied Equipment to the applicable Site(s), as set out in the Price Schedule.

6.4 Genesis Energy or the Distribution Company will deliver and install the Supplied Equipment in a mutually acceptable location on the applicable Site, within a reasonable time of the signing of this Agreement. The Customer must provide (at the Customer's expense) sufficient information to enable Genesis Energy or the Distribution Company to proceed with the installation of the Supplied Equipment and any electrical power, water supply, telemetry and fire protection equipment necessary for such installation.

6.5 Subject to clause 6.6, title in the Supplied Equipment will remain with Genesis Energy or the Distribution Company at all times during the term of the Agreement.

6.6 Where Supplied Equipment has been made available to the Customer on a "rent to own" basis, as specified in the Special Terms Schedule ("Rent to own Equipment"), title in that Rent to own Equipment will pass to the Customer on the Title Transfer Date. On and from the Title Transfer Date, the Rent to own Equipment shall be deemed to be Customer Equipment, for the purposes of this Agreement.

6.7 The Customer undertakes to provide Genesis Energy with the written consent to the installation of the Supplied Equipment of every person (including the Customer itself) who has or obtains any legal or equitable interest in the Site(s) at which the Supplied Equipment is installed and the written acknowledgement of every such person that, unless the Main Terms provide otherwise:

(a) the Supplied Equipment is the property of Genesis Energy (or the Distribution Company, as applicable);
(b) the Supplied Equipment is and shall remain a chattel throughout the term of this Agreement; and
(c) following the expiry or termination of this Agreement for any reason the Supplied Equipment may be removed by Genesis Energy or the Distribution Company at any time. The Customer will indemnify Genesis Energy and the Distribution Company for any loss resulting (in whole or in part) from the Customer's failure to obtain any such consent or acknowledgement.

6.8 The parties expressly agree that this Agreement will terminate immediately if the Customer's right to occupy any Site at which Supplied Equipment has been installed ceases.

6.9 If the Customer wishes to relocate the Supplied Equipment or to replace the Supplied Equipment with equipment of a different type or capacity, all costs of doing so shall be met by the Customer. In no event shall the Customer remove the Supplied Equipment from the Site on which it is installed or relocate the Supplied Equipment within that Site, without Genesis Energy’s prior written consent.

6.10 Genesis Energy or the Distribution Company will carry out all repairs and maintenance on the LPG Equipment necessary to keep the LPG Equipment in reasonable working order and shall arrange for periodic maintenance and inspections of the LPG Equipment.

6.11 Where specified in the Main Terms, notwithstanding clause 6.10, the Customer will be responsible for all costs associated with the operation, maintenance and upkeep of all LPG Equipment, including any costs associated with ensuring that the LPG Equipment meets all requirements set out by any Regulatory Authority.

6.12 The Customer shall:

(a) obtain all consents (including resource consents), approvals and certificates that are necessary to enable the installation and continued operation of the LPG Equipment;
(b) ensure that the LPG Equipment and the surrounding area are kept in a neat and tidy condition and clear of any obstructions;
(c) ensure that their LPG installation downstream of the regulator or Point of Supply has been certified by a registered gas fitter in accordance with regulations under the Gas Act 1992. If the Customer stores more than 100 Litres (l) of LPG at a Site the Customer must obtain a current site location certificate in accordance with the Hazardous Substances and New Organisms Act 1996 and associated regulations;
(d) ensure that all LPG Equipment is used in a safe and prudent manner. In particular, the Customer must inspect any LPG cylinders before connection to any other equipment and must notify Genesis Energy immediately upon becoming aware of any defect in the cylinders;
(e) ensure it has a health and safety plan in relation to the LPG Equipment which includes. among other things, emergency signage, contact details, and hazard designation identification;
(f) allow Genesis Energy or the Distribution Company access to the Sites between the hours of 7 am to 7 pm on all Business Days for the installation, connection, testing, inspection, maintenance, repair, replacement, discontinuation or removal of any LPG Equipment;
(g) allow Genesis Energy or the Distribution Company access to the Sites at all times, where Genesis Energy or the Distribution Company considers that such access is necessary to respond to (or prevent) an emergency;
(h) not tamper or interfere with any LPG Equipment, and must not allow anybody to do so, except to the extent that it may be required to protect the health and safety of any person or to prevent damage to property;
(i) exercise due care in attending to and protecting the LPG Equipment at all times. The Customer agrees to reimburse Genesis Energy or the Distribution Company (as the case may be) for costs associated with the repair or replacement of LPG Equipment necessitated necessitated by any cause other than normal wear and tear;
(j) where specified in the Main Terms, at its cost, keep the Supplied Equipment insured at all times during the term of this Agreement for full insurable value against loss or damage by fire, earthquake, accident, theft and such other risks as Genesis Energy may require. Genesis Energy must pre-approve the insurer. The Customer will be liable for all costs associated with such insurance. If Genesis Energy so requests, the Customer will promptly provide Genesis Energy with evidence of payment of insurance premiums. Any such insurance policy must record Genesis Energy’s interest in the Supplied Equipment;
(k) not permit the LPG Equipment to be used or worked by any person other than Genesis Energy, the Distribution Company, the Customer and their respective Representatives;
(l) not make any alteration to the LPG Equipment or allow any attachment to be affixed or used in the operation of the LPG Equipment without the prior written consent of Genesis Energy;
(m) not remove any trademarks or signs of Genesis Energy that are on the LPG Equipment;
(n) not use the LPG Equipment for any purpose other than the storage or otherwise use of LPG provided by Genesis Energy for use in the Customer's business;
(o) comply with the requirements of all laws and Regulatory Authorities in relation to the operation and use of the LPG Equipment;
(p) not use the LPG Equipment if it appears to be unsafe or otherwise not in good working order; and
(q) notify Genesis Energy or the Distribution Company if they become aware of or suspect there to be any defects in any LPG Equipment.

6.13 LPG is a dangerous product when it is handled. The Customer must ensure that everyone who uses the LPG Equipment (other than Genesis Energy or the Distribution Company or their respective Representatives):

(a) is adequately warned and instructed as to the known dangerous qualities of LPG and its safe handling procedures;
(b) is fully trained to do so in a proper manner; and
(c) understands all of the appropriate regulatory requirements.

6.14 Genesis Energy and the Distribution Company will give the Customer reasonable notice before entering onto any Site for any of the reasons set out in clause 6.12(f). Notwithstanding the foregoing, in the case of an emergency Genesis Energy or the Distribution Company may enter onto any Site(s) on which Supplied Equipment is located without giving the Customer any prior notice.

6.15 Only the employees and contractors of Genesis Energy and the Distribution Company may fill any Supplied Equipment provided to the Customer under this Agreement.  

7. Security Interest

7.1 The Customer grants a security interest to Genesis Energy in each and every part of the LPG as security for payment for that part and of each other part or parts of the LPG. To the extent that the rental of the Supplied Equipment described in clause 6.1 constitutes a lease for a term of more than 1 Year, the Customer also grants a security interest to Genesis Energy in the Supplied Equipment.

7.2 The Customer agrees to:

(a) do anything that Genesis Energy reasonably requires in order to ensure that Genesis Energy has a continuously perfected security interest in each part of the LPG and the Supplied Equipment; and
(b) reimburse Genesis Energy for all costs and/or expenses incurred or payable by Genesis Energy in relation to registering, maintaining or releasing any financing statement in connection with this Agreement.

7.3 Genesis Energy may allocate amounts received from the Customer in any manner that Genesis Energy determines, including in any manner required to preserve any purchase money security interest it has in any LPG or Supplied Equipment.

7.4 Genesis Energy and the Customer acknowledge that it is the intention of the parties that Part 9 of the PPSA shall not apply to these conditions. However, if at law this is not the case:

(a) the Customer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Agreement;
(b) the Customer waives its rights to:
    (i) receive notice of Genesis Energy’s proposal to retain any secured property under section 120(2) of the PPSA or object to any such proposal under section 121 of the PPSA;
    (ii) not have goods damaged, should Genesis Energy remove an accession under section 125 of the PPSA;
    (iii) be reimbursed for damage caused when Genesis Energy removes an accession under section 126 of the PPSA;
    (iv) refuse permission to remove an accession under section 127 of the PPSA;
    (v) receive notice of the removal of an accession under section 129 of the PPSA;
    (vi) apply to the Court for an order concerning the removal of an accession under section 131 of the PPSA; and
    (vii) receive a copy of the verification statement under section 148 of the PPSA confirming registration of a financing statement or a financing change statement relating to the security interest created by this Agreement.

7.5 In addition to Genesis Energy’s other rights of termination under this Agreement, Genesis Energy may terminate this Agreement upon three days' written notice if an LPG Event of Default occurs.

7.6 At any time after a LPG Event of Default occurs, Genesis Energy may (whether or not Genesis Energy has exercised any other right) appoint any person to be a receiver of all or any of the LPG or Supplied Equipment. In addition to, and without limiting or affecting any other powers and authorities conferred on a receiver (whether under the Receiverships Act 1993 or at law or otherwise), a receiver has the power to do all things in relation to the LPG or Supplied Equipment as if the receiver has absolute ownership of the LPG or Supplied Equipment.  

8. Delivery

8.1 Genesis Energy shall not be required to make any delivery of LPG in quantities less than the Minimum Delivery Quantity.

8.2 The Customer must advise Genesis Energy when LPG is required.

8.3 Genesis Energy and the Distribution Company will use reasonable endeavours to deliver the required LPG in accordance with the time frames in the Price Schedule.

8.4 Deliveries will be made within normal business hours unless the parties agree otherwise, and the Customer must provide safe and slip-free access to all employees or contractors of Genesis Energy or the Distribution Company during these hours. If the Customer does not provide such access then they may be charged additional fees relating to non-delivery.

8.5 If the Customer requires an urgent delivery within 48 hours Genesis Energy will consider all requests and any urgent deliveries will incur a fee, in accordance with the Price Schedule.

8.6 Delivery of LPG to the Customer is deemed to be made upon the LPG passing into the permanent hose connection at the filling point of the LPG Equipment (or any LPG storage facility approved by Genesis Energy or the Distribution Company), or when any LPG cylinder is unloaded at the Site ("Point of Supply").

8.7 The Customer is responsible for any pipes and equipment between the Point of Supply and the LPG appliances on the Site.

8.8 Genesis Energy will supply LPG into your LPG cylinders and storage vessels considered suitable by Genesis Energy only by special arrangement. Such supply is subject to LPG cylinder and storage examination and testing in accordance with Genesis Energy’s policies and any applicable statutory requirements. Such testing will be undertaken at the Customer's cost.

8.9 If either Genesis Energy or the Distribution Company, or any of their employees, have any concern about the safety of any LPG Equipment or Site that is used by the Customer then then Genesis Energy and the Distribution Company reserve the right to refuse delivery until such safety concerns have been remedied.

8.10 Genesis Energy and the Distribution Company also reserve the right to refuse the supply of LPG to any LPG storage facility that does not comply with any regulatory requirements.

8.11 Genesis Energy will not be required to deliver LPG to the Customer where the Customer or its Related Companies are in default of any obligation under this Agreement or or any Related Agreements (including payment of any amounts owing by the Customer or its Related Companies to the Genesis Energy Group).

8.12 Where Genesis Energy or the Distribution Company is unable or refuses to supply LPG to to the Customer as a result of anything in this clause 8, neither Genesis Energy nor the Distribution Company will be liable for any losses, costs, expenses or damage suffered or incurred by the Customer as a result of or arising out of that failure to supply LPG.  

9. Passing of Title and Risk

9.1 The Customer bears all risk of loss or damage arising out of or in any way connected to the LPG once the LPG has been delivered to the Customer in accordance with clause 8.6.

9.2 Legal ownership of LPG shall remain with Genesis Energy until payment in full for that LPG (including payment of all related Charges) is received by Genesis Energy. In determining whether payment has been made, any payments made by the Customer shall be attributed to LPG in the order in which it was delivered. In determining to which delivery of LPG any LPG remaining in an LPG installation relates, the first-in-first-out method of calculation shall be used. The Customer agrees to accept possession of LPG as bailee until such time as that LPG has been paid for in full.

9.3 Genesis Energy or the Distribution Company may repossess LPG at any time up until legal ownership has passed to the Customer, provided reasonable notice of the intention to do so is provided to the Customer.

9.4 The Customer agrees not to attempt to confer any legal title in LPG to a third party, or create or grant or suffer the creation of any lien, charge or other encumbrance over LPG until legal ownership of the LPG has passed to the Customer.

9.5 Risk in the Supplied Equipment will pass back to Genesis Energy when Genesis Energy collects that Supplied Equipment.  

10. Supply of LPG

10.1 Where Genesis Energy’s ability to supply LPG is affected by factors beyond its reasonable control, Genesis Energy reserves the right to ration the supply of LPG in any way it sees fit.

10.2 Genesis Energy:

(a) will use reasonable endeavours to give the Customer reasonable notice of any constraint in the supply of LPG of which Genesis Energy is aware; and
(b) where the quantity of LPG that Genesis Energy is able to supply to its Customers (including the Customer) is constrained for any reason, Genesis Energy will not be liable for any losses, costs, expenses or damage suffered or incurred by the Customer as a result of or arising out of that interruption, suspension or constraint.  

11. Charges

11.1 The Customer will pay Genesis Energy the Charges for the LPG and Services supplied under this Agreement.

11.2 Genesis Energy’s records of weights and measurements will be conclusive evidence of the amount of LPG delivered to the Customer and any Charges for the supply of LPG will be based on these measurements.

11.3 If Genesis Energy supplies Services to the Customer, the Customer will pay the appropriate Charge for such Services in accordance with the Price Schedule, or if no such charge is specified, in accordance with Genesis Energy’s Standard Pricing List from time to time.

11.4 The Charges specified in the Price Schedule, relating to the supply of LPG, the Supplied Equipment (if any) and any Services provided by Genesis Energy or the Distribution Company, are exclusive of GST, which will be added to and payable in respect of each invoice supplied.

11.5 If, as a result of the action of any Regulatory Authority:

(a) any Varied Tax is imposed on the Genesis Energy Group in respect of the supply of LPG; or
(b) the Genesis Energy Group incurs any Varied Mandatory Costs in respect of the supply of LPG, then Genesis Energy shall, as soon as practicable after receiving notice of such Varied Tax or Varied Mandatory Cost, notify the Customer of the details of any such Varied Tax or Varied Mandatory Cost and the Charges may be increased or decreased by Genesis Energy by the Permitted Amount with effect from the date that such Varied Tax or Varied Mandatory Cost is charged to Genesis Energy. For the purposes of this clause, “Permitted Amount” means an amount which, so far as reasonably practicable, would leave Genesis Energy, in its sole discretion (but acting reasonably), no better and no worse off than if the relevant Varied Tax or Varied Mandatory Cost had not been imposed or incurred.

11.6 Genesis Energy shall use reasonable endeavours to ensure that any Supply Charges on the Customer’s invoices are accurate.  

12. Invoice and Payment

12.1 Genesis Energy will send the Customer an invoice for the Charges due and payable for each Billing Month (and, where relevant, any Charges which have become due and payable for previous Billing Months). The Customer will pay the full amount set out in the invoice on the due date set out in that invoice, using the payment method set out in the Special Terms Schedule or as otherwise agreed by Genesis Energy in writing.

12.2 The Customer will make payments to Genesis Energy pursuant to this Agreement in full without deduction by way of set off, counterclaim or otherwise.

12.3 If the Customer fails to pay the full amount of any invoice by the due date for payment, then, without limiting any of Genesis Energy’s rights, the Customer will pay default interest on the amount outstanding at the Default Rate, calculated from the due date until the date of payment (inclusive).

12.4 If the Customer disputes any amount payable under an invoice, then the Customer must must give Genesis Energy notice within 10 Business Days of the date of the invoice identifying the amount in dispute and giving full reasons for the dispute. Genesis Energy will investigate the Customer’s dispute as quickly as possible. In the event the parties are unable to resolve the dispute, the matter will be resolved in accordance with clause 18. Notwithstanding the dispute, the Customer must pay in full the undisputed amount of the invoice on the due date set out in the invoice. If the Customer fails to pay the undisputed amount by the due date then Genesis Energy may discontinue the supply of LPG until payment is received.

12.5 If a dispute under clause 12.4 is resolved to the effect that the Customer has overpaid Genesis Energy, Genesis Energy shall repay the amount of such excess to the Customer.

12.6 If the Customer’s invoice is incorrect Genesis Energy will refund any amount that it has overcharged, or the Customer will be required to pay any amount that the Customer has been undercharged, for the period for which the error relates, up to a maximum of 12 months preceding discovery of the error. Neither party will be liable to the other for any errors on invoices greater than 12 months from the date of the discovery of the error.  

13. Credit

13.1 If at any time Genesis Energy has reasonable concerns about the Customer’s creditworthiness, or its ability to comply with the terms of this Agreement, then Genesis Energy may require that the Customer do one or more of the following:

(a) Bond: provide Genesis Energy with an amount equal to two months’ estimated Charges (which will be repaid by Genesis Energy after 12 months if all of the Customer’s invoices have been paid in full by the due dates),
(b) Pre-payments: pay, for the next six months of the Agreement, its estimated monthly Charges in advance,
(c) Letter of credit: provide a letter of credit to Genesis Energy from a financial organisation approved by Genesis Energy,
(d) Financials: provide Genesis Energy with its most recent audited financial accounts, and such other financial information as Genesis Energy requests,
(e) Guarantee: provide a guarantee in support of the Customer’s obligations under this Agreement in a form and from an entity approved by Genesis Energy,
(f) Direct Debit: establish and maintain a direct debit payment to Genesis Energy equal to the outstanding balance of the Customer’s account,
(g) Trade references: provide trade references from two creditors approved by Genesis Energy, in which case the Customer must pay, provide or deliver the relevant items to Genesis Energy within 5 Business Days of Genesis Energy’s written request. The Customer's failure to pay, provide or deliver the relevant items to Genesis Energy within that time constitutes a breach of a material obligation for the purposes of this Agreement.  

14. Liability

14.1 If, as a direct result of Genesis Energy’s breach of any provision of this Agreement:

(a) the Customer’s property is physically damaged or
(b) the Customer suffers actual direct loss, Genesis Energy will, subject to the provisions of this clause 14:
(c) in the case of physical damage, pay the Customer the reasonable costs of repairing the damage to the Customer’s property, or, at Genesis Energy’s discretion, replace the damaged property; or
(d) in the case of actual direct loss suffered, pay money by way of damages to the Customer.

14.2 Subject to clause 14.1, none of the Genesis Energy Group will be liable to the Customer for:

(a) any loss of profit, economic loss, loss of revenue, loss of use, loss of contract or loss of goodwill of any person, including the Customer;
(b) any indirect or consequential loss;
(c) any loss resulting from the liability of the Customer to any other person; or
(d) any loss other than a form of loss referred to in clause 14.1, whether arising under this Agreement or in respect of any act or omission of anyone in the Genesis Energy Group in relation to the supply or non-supply of LPG (whether in contract, tort (including negligence), under an indemnity, by operation of law or otherwise arising from the relationship between the parties).

14.3 Notwithstanding any other provision in this Agreement, to the fullest extent allowed by law, the maximum aggregate liability of the Genesis Energy Group to the Customer under this Agreement or in respect of any act or omission of any of the Genesis Energy Group in relation to the supply or non-supply of LPG (whether in contract, tort (including negligence), under an indemnity, by operation of law or otherwise arising from the relationship between the parties) shall not exceed:

(a) $50,000 for any single event or any series of related events; and
(b) $100,000 in any 12 month period for all events or series of related events occurring in that 12 month period.

14.4 If the Customer wishes to make a claim against the Genesis Energy Group under or in connection with this Agreement the Customer must give notice in writing of its claim to Genesis Energy within 28 days of the relevant loss or damage occurring. To the fullest extent allowed by law, no one in the Genesis Energy Group shall be liable for any claims made after that time. Notice delivered under this clause 14.4 must set out full particulars of the claim, including the nature of the breach and evidence of the physical damage or the actual direct loss suffered by the Customer.

14.5 The Customer shall indemnify the Genesis Energy Group for all costs, losses, fines, penalties, claims and damages (including legal costs, agency fees and default interest, but excluding any consequential losses or loss of profits), that are incurred:

(a) in recovering amounts owed by the Customer under this Agreement;
(b) as a direct or indirect result of the Customer’s breach of this Agreement; or
(c) in connection with any damage or loss to any third party or injury sustained by any person from the LPG and/or LPG Equipment while they are in the Customer's possession.

14.6 For the purposes of clause 14.5, and for the avoidance of doubt, amounts owed by the Customer under this Agreement may include Charges, GST and any other taxes and or levies, and amounts payable under the Gas Act 1992 or any other applicable legislation or regulations, or imposed by any Regulatory Authority.

14.7 Each party agrees to take all reasonable steps to mitigate any loss or damage suffered by that party as a consequence of, or arising out of, a default by the other party of its obligations under this Agreement.  

15. Warranties

15.1 The Customer warrants that:

(a) it has the power and authority to enter into and comply with its obligations under this Agreement; and
(b) the person or persons executing this Agreement on behalf of the Customer are duly authorised by the Customer to bind the Customer in relation to the Customer’s obligations under this Agreement.

15.2 The Customer acknowledges that:

(a) it has made its own enquiries regarding the suitability of LPG for the Customer’s requirements and is not relying on Genesis Energy’s skill or judgment as to the suitability of LPG for the Customer’s requirements;
(b) LPG is to be used for business purposes and the Consumer Guarantees Act 1993 does not apply to the sale of LPG under this Agreement to the fullest extent permitted by law; and
(c) to the fullest extent permitted by law, both Genesis Energy and the Customer exclude any and all liability to the other under sections 9, 12A, 13 and/or 14(1) of the Fair Trading Act 1986.

15.3 All other express or implied warranties or guarantees (including those set out in the Sale of Goods Act 1908) are fully excluded to the fullest extent allowed by law.  

16. Force Majeure

16.1 For such time as either party is unable to carry out any of its obligations under this Agreement because of a Force Majeure ("Force Majeure Period"), this Agreement will remain in effect but, except as otherwise provided, that party’s obligations will be suspended without liability (other than an obligation to pay money) for the Force Majeure Period.

16.2 A party claiming the benefit of clause 16.1 (the “Claiming Party”) must give the other party written notice of the event of Force Majeure as soon as practicable after that event or circumstance occurs specifying the cause and extent of its inability to perform any of its obligations under this Agreement and the likely duration of such non-performance.

16.3 Within 2 business days of receiving any notice under clause 16.2, the other party must notify the Claiming Party whether it accepts that a Force Majeure exists or whether it wishes to dispute the claim. Failure to give such notice will be deemed acceptance by the other party.

16.4 The Claiming Party must take all reasonable steps to remedy or limit the event of a Force Majeure. Performance of any obligation affected by a Force Majeure will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure.

16.5 If, by reason of a Force Majeure, Genesis Energy is unable to supply LPG or the Customer is unable to take supply of LPG for a continuous period of:

(a) 20 Business Days in any Year, the other party may cancel this Agreement immediately by giving written notice to the Claiming Party;
(b) 30 Business Days in any Year, the Claiming Party may cancel this Agreement immediately by giving written notice to the other party.

16.6 Cancellation of this Agreement under clause 16.5 will not prejudice the rights of either party against the other in respect of any matter or thing occurring under this Agreement before cancellation.

16.7 Nothing in this clause will require a party to settle any strike, lockout or other industrial disturbance.  

17. Termination

17.1 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:

(a) breaches, or fails properly or promptly to perform, any material obligation of that party under this Agreement and (if such failure can be remedied) fails to remedy the breach or perform the obligation within 10 Business Days after receiving written notice from the other party thereof;
(b) suspends or ceases its primary, or all of its, business activities for more than 10 consecutive Business Days unless for planned maintenance or temporary holiday shutdowns;
(c) is, becomes, or is deemed to be, insolvent or bankrupt;
(d) makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors;
(e) goes into receivership or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or
(f) has any resolution passed, or any proceeding commenced, for the winding up or liquidation of that party.

17.2 In addition to any other rights of termination it may have at law or under this Agreement, Genesis Energy may terminate this Agreement or discontinue the supply of LPG to any or all of the Sites (at Genesis Energy’s sole discretion) without terminating this Agreement at any time by giving written notice to the Customer, if:

(a) the Customer or its Related Companies fail to pay any amount owing under this Agreement or any Related Agreements by the due date for such payment;
(b) a Change of Control occurs in respect of the Customer; or
(c) Genesis Energy is concerned at any time (on reasonable grounds) about the Customer’s ability to pay its debts as they fall due.

17.3 On the expiry or termination of this Agreement for any reason:

(a) Genesis Energy, the Distribution Company or the Customer's replacement supplier of LPG ("Replacement Supplier") shall be entitled to immediately repossess the Supplied Equipment, or lock the Supplied Equipment to prevent the LPG from being consumed. To enable this repossession, Genesis Energy, the Distribution Company or the Replacement Supplier shall be entitled to enter onto the relevant Site(s) and to sever the Supplied Equipment (if necessary) from any other property. The Customer shall be responsible for all reasonable removal costs;
(b) Genesis Energy may remove the LPG from any LPG Equipment;
(c) Genesis Energy may discontinue the supply of LPG to any or all of the Sites, or continue the supply of LPG, in which event the Charges payable by the Customer in respect of LPG and other Services shall be at the Uncontracted LPG Rates;
(d) the Customer will reimburse Genesis Energy for the costs of such discontinuation; and
(e) the Customer will pay to Genesis Energy any amounts presently owing and any amounts payable in accordance with clause 4.2.

17.4 Termination of this Agreement will not operate as a waiver of any breach of this Agreement and will be without prejudice to any rights, liabilities or obligations of either party which have accrued up to the date of termination.

17.5 The provisions of this clause 17 together with clauses 6, 9, 11, 12, 14, 15, 16 and 18 to 22 will continue in effect after termination or expiry of this Agreement.  

18. Disputes

18.1 The parties intend that any difference between them concerning this Agreement ("Difference") will be resolved amicably by good faith discussion between operational staff.

18.2 If any Difference is not resolved by discussion between operational staff within 10 Business Days of the Difference arising, the matter will be referred to the Representative of each party for resolution ("Referral"). If the Difference is not resolved between the parties' Representatives within 10 Business Days of the Referral either party shall be entitled to seek to resolve the Difference through the courts.

18.3 Nothing in this clause will preclude either party from taking immediate steps to seek urgent injunctive or equitable relief before an appropriate court.

18.4 Genesis Energy is a member of the Electricity and Gas Complaints Commissioner Scheme. Nothing in this clause 18 will prevent the Customer from referring any Difference or other complaint to the free independent dispute resolution service provided by the Electricity and Gas Complaints Commission on 0800 22 33 40 or www.egcomplaints.co.nz.  

19. Confidentiality and Information

19.1 The Customer shall as soon as reasonably practicable provide such information as Genesis Energy reasonably requires to enable Genesis Energy to properly perform its obligations under this Agreement.

19.2 Each party shall at all times keep confidential, treat as privileged, and not directly or indirectly make any disclosure or use, or allow any disclosure or use to be made, of any provision of this Agreement or of any information relating to any provision, or the subject matter, of this Agreement, or any information directly or indirectly obtained from the other party under or in connection with this Agreement, except to the extent:

(a) required by law;
(b) necessary to satisfy the requirements of any applicable stock exchange;
(c) necessary to obtain the benefit of, or to carry out obligations under, this Agreement;
(d) that the information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this clause or at law;
(e) that such information is required to be passed by Genesis Energy to the Gas Industry Company or any other Regulatory Authority;
(f) in the case of Genesis Energy, disclosure is made in connection with any Offer of securities or Financial Products issued, and/or to be issued, by Genesis Energy, whether the Offer is by Genesis Energy, the Crown, or any other person; or
(g) disclosure is made to a lawyer or accountant for that party, or to any other adviser of that party, and in the case of Genesis Energy to any person (and their advisers) who may Offer securities or Financial Products issued, and/or to be issued, by Genesis Energy.  

20. Notices

20.1 Notices under this Agreement will be given in the form reasonably specified by Genesis Energy from time to time.

20.2 Subject to clause 20.1, any notice or other communication to be given under this Agreement must be in writing addressed to the recipient at the address, email or facsimile number set out in the Parties and Term Schedule, or as otherwise notified by that party in writing to the other party from time to time.

20.3 Delivery may be effected by hand, by post with postage prepaid, email or by facsimile. A notice or other communication will be deemed to have been received:

(a) in the case of hand delivery, at the time of actual delivery to the recipient’s address;
(b) in the case of delivery by pre-paid post, on the third Business Day after posting;
(c) in the case of email, at the time the email was specified as sent to the email address of the recipient;
(d) in the case of delivery by facsimile, at the time of transmission specified in a transmission report from the sending machine which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient.

20.4 If a notice or other communication is received or deemed to have been received after 5pm on a Business Day in the place to which it is sent, or on a day which is not a Business Day in that place, it will be deemed not to have been received until the next Business Day in that place.  

21. General

21.1 This Agreement constitutes the entire Agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this Agreement and supersedes and cancels any previous Agreement understanding and arrangement relating thereto whether written or oral.

21.2 The Customer may not assign, transfer or otherwise dispose of any of its rights or interest under this Agreement without the prior written consent of Genesis Energy, which may be withheld in the absolute discretion of Genesis Energy.

21.3 No amendment to this Agreement will be effective unless it is in writing and signed by both parties.

21.4 Each of the parties agrees to execute and deliver any documents and to do all things as may reasonably be required by the other party to obtain the full benefit of this Agreement according according to its true intent.

21.5 Nothing in this Agreement shall create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party shall not have the authority to act for, or to incur any obligation on behalf of, the other party, except as expressly provided for in this Agreement.

21.6 A waiver of any provision of this Agreement will not be effective unless given in writing, and then it will be effective only to the extent that it is expressly stated to be given. A failure, delay or indulgence by any party in exercising any power or right will not operate as a waiver of that power or right. A single exercise or partial exercise of any power or right will not preclude further exercises of that power or right or the exercise of any other power or right.

21.7 Each party shall pay its own costs of, and incidental to, the negotiation, preparation, and execution of this Agreement.

21.8 This Agreement may be executed in any number of counterparts (including facsimile copies) and, provided that each party has executed a counterpart, the counterparts together shall constitute a binding and enforceable Agreement between the parties.

21.9 If any provision of this Agreement is, or becomes, unenforceable, illegal or invalid for any reason it shall be deemed to be severed from this Agreement without affecting the validity of the remainder of this Agreement and shall not affect the enforceability, legality, validity or application of any other provision of this Agreement.

21.10 This Agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of this Agreement.  

22. Definitions and Interpretations

Agreement means this Agreement, including the Main Terms and these Commercial LPG Terms and Conditions.

Billing Month means the days during any month for which Genesis Energy invoices the Customer in accordance with clause 12.1.

Business Day means any day other than a Saturday, Sunday or public holiday in Wellington or Auckland.

Change of Control means any direct or indirect change in control, or direct or indirect change in the legal or beneficial ownership, of more than 50% of the Customer, whether by a single event or a series of events, over any period of time.

Charges means the fees or Charges payable in respect of the LPG and Services provided pursuant to this Agreement, as set out in the Price Schedule, and including:

(a) the Price per Litre of LPG;
(b) any Supply Charges;
(c) any Equipment Rental Charges;
(d) any Installation Charges;
(e) GST and any other taxes;
(f) any third party payment Charges (including credit card fees); and
(g) any other amounts owing to Genesis Energy under this Agreement.

Commercial LPG Terms and Conditions means these terms and conditions.

Customer or you means the person or entity to be supplied with LPG, as listed in the Parties and Term Schedule.

Customer Equipment means any equipment located at the Sites that is owned by the Customer or another third party and that is applied in the storage or otherwise use of LPG. 

Default Rate means the then current 90 bank bill buy rate (expressed as a percentage) as quoted by Genesis Energy’s principal bankers on the first Business Day of the period in which default interest is payable plus 2% per annum compounded monthly.

Distribution Company means any person that contracts with Genesis Energy to supply LPG to any Customer. 

Equipment Rental Charge means any Charges payable to Genesis Energy or the Distribution Company for the rental of the Supplied Equipment being provided to the Customer, as set out in the Price Schedule.

Expiry Date means the date specified as such in the Parties and Term Schedule.

Financial Product has the meaning given to that term in section 7 of the Financial Markets Conduct Act 2013.

Force Majeure means an event or circumstance which is beyond the reasonable control of a party and which results in or causes the failure of that party to perform any of its obligations under this Agreement, and in the case of Genesis Energy includes:

(a) faults or problems in equipment involved in the supply of LPG;
(b) acts or omissions by any Distribution Company;
(c) problems with the production of LPG; and
(d) any other things which Genesis Energy does not have control over, provided that lack of funds will be deemed not to be a matter beyond the reasonable control of a party.

Genesis Energy means Genesis Energy Limited.

Genesis Energy Group means Genesis Energy, its related companies (as defined in the Companies Act 1993), their officers, directors, employees, contractors, agents and any person under Genesis Energy’s control.

GST means goods and Services tax under the Goods and Services Tax Act 1985.

Installation Charge means any Charges relating to the installation of Supplied Equipment at a Site, as set out in the Price Schedule.

Litre means 1.88 kilograms of LPG.

LPG means liquid petroleum gas as defined in New Zealand Standard 5435 or any substituted standard.

LPG Equipment means the Supplied Equipment and the Customer Equipment.

LPG Event of Default means:

(a) any of the LPG or Supplied Equipment is "at risk" (as that term is defined in section 109(2) of the PPSA);
(b) any of the LPG or Supplied Equipment is destroyed or lost (including lawful confiscation) or damaged beyond repair (as determined by Genesis Energy);
(c) the Customer enables a third party to be entitled to put forward any claim or lien on the LPG or Supplied Equipment or any part of it (whether for repairs or otherwise);
(d) the Customer sells, leases, bails, mortgages, pledges, creates or permits to subsist any security interest (other than any security interest in favour of Genesis Energy or the Distribution Company) over, or otherwise disposes of or parts with possession or control of, any of the LPG or Supplied Equipment; or(e) the Customer allows the LPG or Supplied Equipment (or any part of it) to become an accession to any property or to be affixed to land.

Main Terms means, collectively, the Parties and Term Schedule, the Site Schedule, the Price Schedule, the Special Terms Schedule and the Signatures Schedule.

Minimum LPG Quantity means the minimum amount of LPG that the Customer must take and in any event purchase in any Year at all Sites, reduced on a pro rata basis for any Year which is less than 12 months, as specified in the Site Schedule.

Minimum Delivery Quantity means the Minimum Delivery Quantity for each Site, as specified in the Price Schedule. Offer, in respect of an offer of:

(a) securities under the Securities Act 1978, has the meaning given to it in section 2(1) of the Securities Act 1978; and
(b) Financial Products, has the meaning given to it in section 6(1) of the Financial Markets Conduct Act 2013.

Parties and Term Schedule means Section 1 of the Main Terms.

PPSA means the Personal Property Securities Act 1999.

Price means the amount to be charged by Genesis Energy per Litre of LPG, as set out in the Price Schedule.

Price Schedule means Section 3 of the Main Terms.

Regulatory Authority means the government or any governmental or semi-governmental agency or other Regulatory Authority (including but not limited to any agency administering relevant industry standards on the basis of voluntary association by industry participants where Genesis Energy is subject to those standards).

Related Agreement means any Agreement (other than this Agreement) between the Customer or any of its Related Companies and any member of the Genesis Energy Group.

Related Company has the meaning given to it in section 2(3) of the Companies Act 1993 as if “company” includes a company or other body corporate incorporated or constituted in New Zealand or any other jurisdiction.

Rent to own Equipment has the meaning given to it in clause 6.6.

Representative in relation to a party means a person who has sufficient delegated authority to negotiate in relation to this Agreement on behalf of that party, as specified in the Parties and Term Schedule.

Service Charges means any Charges related to the provision of Services to the Customer by Genesis Energy or the Distribution Company.

Services means any Services provided to the Customer by Genesis Energy or the Distribution Company.

Signatures Schedule means Section 5 of the Main Terms.

Sites means the Sites specified in the Site Schedule.

Site Schedule means Section 2 of the Main Terms.

Special Terms Schedule means Section 4 of the Main Terms.

Standard Pricing List means the pricing list made available by Genesis Energy through its website, as amended from time to time.

Start Date means the date specified as such in the Parties and Term Schedule.

Supplied Equipment means any equipment that is supplied by Genesis Energy and/or the Distribution Company to the Customer that is applied in the storage or otherwise use of LPG, as set out in the Site Schedule, as well as any accessories, parts or replacements which may be supplied with or subsequently attached to such equipment. For the avoidance of doubt, this definition extends to any LPG cylinders provided by Genesis Energy or the Distribution Company to the Customer.

Supply Charges means the Charges invoiced or levied on Genesis Energy by the Distribution Company for the supply of LPG to the Customer and includes any costs that Genesis Energy may incur in relation to the supply of LPG.

Title Transfer Date means, in respect of any Rent to own Equipment, the date on which full payment of all Equipment Rental Charges has been made by the Customer to Genesis Energy, or, if later, the date on which all other amounts owing by the Customer or its Related Companies under this Agreement or any Related Agreements have been paid.

Uncontracted LPG Rates means the rates specified in the Price Schedule for uncontracted LPG and related Services.

Varied Mandatory Costs means any increase or decrease in the costs the Genesis Energy Group incurs in respect of the supply of LPG to the Customer arising directly as a result of either:

(a) the Genesis Energy Group or a supplier of goods and Services to the Genesis Energy Group (including any ultimate supplier who supplies goods and Services to any supplier of the Genesis Energy Group) bearing any Varied Tax;
(b) any Distribution Company increasing or decreasing the Charges payable by the Genesis Energy Group for the supply of LPG; and/or
(c) any Regulatory Authority (which, for the avoidance of doubt, includes the Gas Industry Company Limited and any successor or replacements entities) increasing or decreasing the Charges or levies payable by the Genesis Energy Group in respect of the supply of LPG.

Varied Tax means any tax, levy, duty, increase in royalty rate, impost or any other charge, including any tax, levy or charge imposed by any person on LPG, the production of LPG, or sales of LPG under this Agreement (other than in respect of CO2 emissions or other greenhouse gases), or an increase in the general rate of the existing tax on all income or profits and local authority rates and taxes applied to businesses generally.

Year means any period of 12 months from the Start Date to the Expiry Date.22.2 In this Agreement, unless the context otherwise requires:

(a) the singular includes the plural and vice versa;
(b) references to including and other similar words are not to be treated as words of limitation;
(c) references to a person includes a reference to an individual, body corporate, authority, government body, partnership, joint venture or other unincorporated body of persons;
(d) references to either of the parties includes a reference to that party’s successors and permitted assigns, employees, agents, contractors, successors, receivers, managers, liquidators or other Representatives;
(e) headings are for convenience only and will not affect interpretation;
(f) references to ‘day’ mean a consecutive period of 24 hours beginning and ending at midnight;
(g) a reference to any legislation or to any provision of any legislation (including regulations and orders) includes that legislation or provision as from time to time amended, reenacted or substituted and any statutory instruments, regulations and orders issued under any such legislation or provision; and
(h) The terms “after-acquired property”, “at risk”, “default”, “inventory”, “lease”, “perfected”, “proceeds”, “purchase money security interest”, “rights”, “security interest” and “sell” have the respective meanings given to them under, or in the context of, the PPSA.