TERMS OF CREDIT
This Agreement sets out the terms of:
(a) credit granted by Kiwi Fuelcards to the Customer; and
(b) the creation and operation of the Customer’s Account with Kiwi Fuelcards for the purchase of Products from the Outlets by the Customer. Use of the Account is to constitute acceptance of
these terms and conditions even if this Agreement has not been signed by the Customer.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
(a) “Account” means the Customer’s account with Kiwi Fuelcards for the purchase of Products, and for which Cards are to be issued in accordance with this Agreement.
(b) “Applicable Fuel Companies” means Mobil Oil New Zealand Limited, BP Oil New Zealand Limited, Z Energy Limited or any other fuel supplier and includes their successors and assigns.
(c) “Business Day” means a day on which trading banks are open for commercial business in Auckland, New Zealand.
(d) “Card” means the credit card(s) issued by Kiwi Fuelcards to the Cardholder(s) for use at, and the purchase from, the Outlets.
(e) “Cardholder” means the person whose name is imprinted by Kiwi Fuelcards on the Card or, in the case of a Card issued in respect of a vehicle, the driver of the vehicle, the registration number of which is imprinted by Kiwi Fuelcards on the Card;
(f) “Charge” means the amount incurred during the Charge Period by the Customer and each Cardholder for the purchase of Products using the Card.
(g) “Charge Period” means the recurring period aligned to the payment frequency for the Customer (as determined by Kiwi Fuelcards at its discretion from time to time) during which Charges may be incurred by the Customer or a Cardholder.
(h) “Credit Voucher” means a voucher, or the procedure in the case of an Electronic Transaction, prescribed by Kiwi Fuelcards to enable credit to be granted to the Cardholder.
(i) “Customer” means a person who, by applying for a Card or Cards, has entered into an agreement with Kiwi Fuelcards by which the Customer has a right to nominate Cardholders
(j) “ECM Network” means the electronic transfer at point of sales network used by applicable fuel companies at the Outlets.
(k) “Electronic Transfer” means a Card transaction effected through the ECM Network.
(l) “Kiwi Fuelcards” means Kiwi Fuelcards Limited and includes its successors and assigns and, where not repugnant to the context, the contractors, consultants, employees and agents of Kiwi Fuelcards.
(m) “Floor Limit” means $100.00 or any other amount notified by Kiwi
Fuelcards from time to time.
(n) “Outlets” means the service stations, dealerships, depots and fuel dispensing facilities owned or operated by applicable fuel companies and/or their agents or franchises where the Card can be used.
(o) “Petroleum Products” means any motor spirit, diesel, fuel oil, kerosene, detergents and solvents, lubricants (including all automotive and industrial lubricants and greases) provided (directly or indirectly) for sale or supply to the Customer or Cardholder.
(p) “PIN” stands for the personal identification number selected by,
the Cardholder in relation to a Card.
(I) “Products” means Petroleum Products and non-fuel items available from Outlets.
(q) “Sales Voucher” means a voucher in the form prescribed by Kiwi Fuelcards or applicable fuel companies for use in connection with purchases by the Cardholder.
(r) “Special Conditions” means any terms and conditions relating to Cards and/or Accounts, other than those specified in these terms and conditions, which Kiwi Fuelcards and the Customer have agreed to in writing.
1.2 ln this Agreement, unless the context otherwise requires or specifically
(a) if any party comprises more than one person, each of those persons’ liability is joint and several;
(b) reference to a party or person includes any form of entity and their respective successors, assignees and representatives;
(c) amounts are in New Zealand dollars and New Zealand law applies;
(d) the singular includes the plural and vice versa;
(e) time is of the essence.
1.3 These terms prevail over any other terms and conditions, or other form of contract, despite any indication to the contrary by any person acting or apparently acting on behalf of Kiwi Fuelcards, unless agreed in writing by a duly authorised officer of Kiwi Fuelcards.
2. OWNERSHIP OF CARD
2.1 Kiwi Fuelcards retains ownership of any Card issued to a Cardholder.
3. THE CARD
3.1 The Cardholder must sign the Card with the Cardholder’s usual signature immediately upon receipt of it for identification and prevention of unauthorised or fraudulent use by any other person.
3.2 The Cardholder must keep the Card in a safe place at all times and ensure no-one else has access to it or uses it.
3.3 The Cardholder is to keep their PIN confidential and must not allow, intentionally or unintentionally, it to be disclosed to any other person.
3.4 Upon, termination, expiry, or the cancellation of an individual Card by the Customer or Kiwi Fuelcards, the Customer or Cardholder will immediately destroy the Card. All amounts outstanding and owing to Kiwi Fuelcards by the Customer shall become due and payable to Kiwi Fuelcards immediately whether or not demand is made. The Card shall not be used for any purchases after its cancellation, termination or expiry. The Customer shall remain liable for any use of the Card after its cancellation, termination or expiry.
4. USING THE CARD
4.1 Any Cardholder who is authorised by\ the Customer may use the Card for the purchase of Products from the Outlets.
4.2 In addition to this Agreement, use of any Card is subject to the Customer and each Cardholder complying with any specific terms of an Applicable Fuel Company notified by Kiwi Fuelcards to the Customer.
4.3 No purchase with a Card is complete until the Cardholder has properly completed either a Sales Voucher or an Electronic Transaction and the transaction has been validly authorised.
4.4 The Card may not be used to obtain cash from an Outlet or to purchase fuel company vouchers or any other gift or petrol vouchers which may be available at the Outlet.
4.5 No single transaction on a Card may exceed the Floor Limit as set from time to time by Kiwi Fuelcards. No transaction, or series of transactions shall exceed the applicable credit limit for the Card or the Account.
4.6 The Cardholder may not complete a purchase of Products (by Sales Voucher or Electronic Transaction) if they fail, after three attempts, to properly enter their PIN and have it accepted by the ECM Network.
4.7 The Customer and/or Cardholder shall immediately notify Kiwi Fuelcards upon their change of address (if any) during the term of this Agreement.
5.1 The price of the Products shall be the price set by Kiwi Fuelcards as at the date of supply.
5.2 Kiwi Fuelcards reserves the right to adjust its prices at any time and from time to time.
5.3 No discounts or concessionary rates shall apply to Accounts in respect of which there is any overdue money.
6.1 Unless notified otherwise by Kiwi Fuelcards in writing, the Customer will pay to Kiwi Fuelcards:
(a) an Account establishment fee of $10.00
(b) an initial card fee of $6.00 per Card
(c) an additional/replacement/renewal card fee of $6.00 per Card
(d) a transaction fee of $0.0050 cents per litre of diesel/petrol purchased;
(e) a $0.50 cents per transaction fee on the purchase of non fuel items;
(f) any government charges, taxes, duties or levies, including GST which may be applicable from time to time;
(g) any penalty interest payable under clause 9.1;
(h) any other fees charged by Kiwi Fuelcards;
(i) any debt collection costs and legal costs (including solicitor and client costs) incurred by Kiwi Fuelcards in seeking to recover any amount owing by the Customer under this Agreement.
6.2 Kiwi Fuelcards may post an updated fee schedule on its website at https://kiwifuelcards.wpengine.com/ from time to time which shall take effect following notice to the Customer as set out in, and otherwise in accordance with, clause 12.1.
7. LOSS AND UNAUTHORISED USE OF CARD
7.1 lf a Card is lost, stolen, mislaid or the PIN number disclosed or the Customer and/or Cardholder knows the Card is in the possession of another person (“Unauthorised Use”), the Customer or Cardholder shall:
(a) immediately notify the applicable fuel company of the Unauthorised Use by ringing Mobil customer service on 0800-732- 277, BP customer service on 0800-800-027, Caltex Customer service on 0800-733-835 (or such number as notified from time to time); and
(b) as soon as possible thereafter (and, in any event, no later than one Business Day after the Unauthorised Use) notify Kiwi Fuelcards of the Unauthorised Use and give Kiwi Fuelcards all relevant information.
7.2 If the Customer and/or Cardholder has not complied with clause 3 and/or clause 7.1 and there has been Unauthorised Use of the Card, the Customer shall be liable for the lesser of:
(a) the actual loss at the time the Customer and/or the Card holder notified the applicable fuel company;
(b) a sum equivalent to the maximum amount of Products the Cardholder would have been able to purchase with the Card from the time the Unauthorised Use commenced to the time the applicable fuel company was notified under clause 7.1;
(c) the total credit available from the Account.
8. REPLACEMENT CARD
8.1 Kiwi Fuelcards will replace any lost, stolen or damaged Card, at the Customer’s request and on payment of any applicable fees. Any replacement Card will be subject to the terms and conditions of this Agreement (as amended from time to time) as if it were the original Card. Kiwi Fuelcards may, at any time, charge a fee for a replacement Card.
9. DEFAULT BY CUSTOMER
9.1 If the Customer is late in payment or any payment by the Customer is dishonoured, then the Customer will pay to Kiwi Fuelcards interest at a rate of 2% per month (calculated and compounded daily) from the date the amount is due until full payment is received by Kiwi Fuelcards. In addition, Kiwi Fuelcards may in its sole discretion charge overdue and administration fees as determined by Kiwi Fuelcards and as posted on its website from time to time.
9.2 All credit and any other amounts payable under this Agreement shall become immediately due and payable to Kiwi Fuelcards (even if the due date has not yet arrived):
(a) if the Customer fails to make payment of any money on the due date for payment or is otherwise in breach of this Agreement; or
(b) if the Customer (in the case of an individual) commits an act of bankruptcy or on the appointment of a liquidator or receiver of the Customer (in the case of a company),
(each of (a) or (b) being an ”Event of Default”); or
(c) upon the termination of this Agreement by either party.
9.3 If an Event of Default occurs, Kiwi Fuelcards may terminate this
10. PAYMENT OF ACCOUNT
10.1 Kiwi Fuelcards will render invoices to the Customer for the amount outstanding on the Card and any other costs payable under clause 6. Invoices will be rendered in accordance with the terms specified on the Cardholder Application Form, subject to acceptance by Kiwi Fuelcards. The balance shown in the invoice is to be paid to Kiwi Fuelcards by direct debit from the Customers bank account. In the case of a fortnightly customer, the direct debit is to occur on the nearest 14th & 28th calendar day following the date of the invoice. ln the case of a monthly customer, the direct debit is to occur on the 20th calendar day of the month following the date of the invoice. Where the due date for payment falls on a day that is not a Business Day, payment should be received no later than the next Business Day following the due date for payment.
10.2 Payments by the Customer will be applied first in reduction of any interest and costs due, and the balance in reduction of other amounts due.
10.3 Kiwi Fuelcards reserves the right to unilaterally change the credit
terms from time to time.
11. TERM OF AGREEMENT
11.1 This Agreement shall commence when the Customer is notified by Kiwi Fuelcards that they have authority to use the Card and end upon termination by either party in accordance with this Agreement.
11.2 In respect of each Charge Period, the provision of the Card and other services by Kiwi Fuelcards as set out in this Agreement constitute a separate contract between Kiwi Fuelcards and the Customer for that Charge Period.
11.3 The Customer may terminate this Agreement by giving Kiwi Fuelcards 14 days’ prior written notice of such termination PROVIDED it is not in breach of this Agreement.
11.4 Kiwi Fuelcards may terminate this Agreement at any time without
notice to the Customer.
11.5 On termination of this Agreement, the Cardholder will destroy the Card in such a way as to render it unusable or, if required by Kiwi Fuelcards, cut the Card in
two and return both pieces of the Card to Kiwi Fuelcards.
11.6 The Customer will remain liable for any transaction made using the Account and any other liability or obligation under this agreement.
12. AMENDMENTS AND ERRORS
12.1 Kiwi Fuelcards may vary any or all of the terms of this Agreement (including any limits, costs, fees and discounts) at any time. If the variation materially increases the obligations or liabilities of the Customer or is an update to the fee schedule, Kiwi Fuelcards is to give the Customer 5 days’ prior written notice of such variation. Notice may be given in accordance with clause 14. The Customer is bound by any such amendment unless the Customer gives written notice of rejection of the amendment to Kiwi Fuelcards within 5 Business Days of receipt of the notice as set out above. Use of Card after the notice will be deemed to be acceptance of the new or amended terms and conditions (including limits, costs, fees and discounts).
12.2 Kiwi Fuelcards may at any time correct any error relating to a transaction on a Card, whether or not the correction is in the Customer’s favour.
13.1 To the extent permitted by law, neither Kiwi Fuelcards nor any of the Applicable Fuel Companies shall have any liability to the Customer or any Cardholder for any defects in the Products purchased, or improperly made or supplied, or for any mechanical failure of a vehicle resulting from such defects nor for any loss, damage or claim whatsoever arising from such defects, whether directly or indirectly caused and whether suffered by the Customer, the Cardholder or any third party. This clause 13.1 is also for the benefit of and intended to be enforceable by each of the Applicable Fuel Companies for the purposes of Subpart 1 of Part 2 of the Contract and Commercial Law Act 2017.
13.2 Any difficulties, the Customer may experience with Products purchased with the Card remain the sole responsibility of the Outlet, from which they were purchased, without, to the extent permitted by law, recourse to Kiwi Fuelcards.
13.3 The Customer acknowledges that the Products are Applicable Fuel Company brand petroleum products and that the Applicable Fuel Companies claim these meet standards set out on “Product Data Sheets”. The Customer further acknowledges, however, that Kiwi Fuelcards is, to the extent permitted by law, not to be liable for any loss, damage or injury of any kind whatsoever suffered by the Customer , any Cardholder or any third party (arising directly or indirectly);
(a) if the Products do not meet such standards;
(b) from any negligence on the part of Kiwi Fuelcards; or
(c) for any loss, damage or injury caused to the Customer’s servants, agents, contractors, customers, tenants, trespassers or other persons due to the reasons set out in paragraphs (a) and (b). Without limiting this, Kiwi Fuelcards will not be liable for any claim for loss or compensation or other remedy (of any nature, including under contract or in negligence) by the Customer or any other person including without limitation any claim relating to or arising from:
(i) any condition, warranty, description, representation, condition as to fitness or suitability for any purpose, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or
(ii) any representation, warranty, or agreement made by any agent or representative which is not expressly confirmed by Kiwi Fuelcards in writing.
13.4 lf, despite this clause 13, Kiwi Fuelcards is held to be liable to the Customer under these terms for loss of any nature (including under any contract and in negligence) Kiwi Fuelcards’s total liability will not exceed the price of the Products in relation to which that liability was incurred.
13.5 The Customer is to procure all its Cardholders to comply with this Agreement. Any action or inaction by any Cardholder is deemed to be the action or inaction of the Customer. Accordingly, the Customer is responsible for any failure by any Cardholder to comply with this Agreement. The Customer indemnities, and agrees to keep indemnified, Kiwi Fuelcards for any loss, action, damage, costs suffered or incurred whatsoever as a result (directly or indirectly) of such breach by any Cardholder.
14.1 All communications between the parties to this agreement shall be given in writing and be deemed to have been given to the addressee at the time stated below provided that the notice is addressed to the last known address of the other party. (a) By mail – 2 days after despatch (b) By email or other electronic means of written communication – 6 hours after despatch during business hours or if despatched outside of business hours, then the next Business Day.
14.2 Clause 14.1 does not apply to a notice given under clause 7 of these terms and conditions. Notice under clause 7 is given when Cardlink actually receives the notice
15. VALIDITY OF TERMS
15.1 The illegality, invalidity or unenforceability of any term of this Agreement shall not affect the legality, validity or enforceability of any other term.
16. NO ASSIGNMENT
16.1 The Customer must not transfer its interest in this Agreement to any other person without Kiwi Fuelcards prior written consent.
17. NO AGENCY
17.1 The Customer acknowledges that Kiwi Fuelcards is not an agent of any fuel company and no acts or omissions by the fuel companies are to be treated as acts or omissions by Kiwi Fuelcards, or vice versa.
18. PRIVACY ACT 2020
18.2 Any information received and held by Kiwi Fuelcards is available to the Customer to see and correct if necessary under the provisions of the Privacy Act 2020 (the “Privacy Act”), upon written request to Kiwi Fuelcards.
18.3 By entering into this Agreement, the Cardholder also authorises Kiwi
(a) use the information for the general purpose of establishing and maintaining a relationship between the Customer, Cardholder,
Kiwi Fuelcards and the Applicable Fuel Companies, including the provision of any products or services which Kiwi Fuelcards considers may be of interest to the Customer;
(b) disclose the information to other persons only in the following circumstances:
(i) where disclosure is required or permitted by law;
(ii) where disclosure is to a reputable market research organisation subject to a strict confidentiality agreement, to assist Kiwi Fuelcards in seeking its customers’ views on its existing and proposed services;
(iii) where disclosure is to a reputable credit or other agency in response to a request regarding the Customer’s creditworthiness;
(v) where disclosure in any other circumstances is authorised by the Customer.
18.4 Any party requested by Kiwi Fuelcards to provide such information is authorised to disclose that information.
19.1 lf Kiwi Fuelcards exercises or fails to exercise any right or remedy available to it, this will not prejudice its rights in exercising that or any other right or remedy.
19.2 Any waiver of any term of this Agreement into which these terms are incorporated must be specified in writing and signed by an authorised officer of Kiwi Fuelcards.
20. SPECIAL CONDITIONS
20.1 Special Conditions (if any) are part of and incorporated into these terms and conditions. If there is any inconsistency between these terms and conditions and the Special Conditions, the Special Conditions will prevail to the extent of the inconsistency.
TERMS OF CREDIT