Terms and conditions

1. When these Terms and Conditions Apply

1.1 These Terms and Conditions apply whenever Allied Petroleum Limited (“Allied”) supplies fuel, lubricants, and or any other goods (the “Product”) to the Customer.

1.2 These Terms and Conditions can only be changed:
a. By Allied giving written notice to the Customer in which case the changes will only apply to orders placed after the notice; or b. By written agreement between Allied and the Customer.

1.3 Where Allied has entered into any other agreement with the Customer, such as an Allied Petroleum Limited Specific Product Order Agreement, Allied Petroleum Equipment Supply Agreement, Allied Fuel Card Agreement, or Allied Merchant Agreement, those agreements apply as well.

1.4 However, where Allied has entered into more than one agreement with the Customer, and there is a conflict between them, Allied may determine which agreement prevails.

2. Definitions

2.1 The following definitions apply in these Terms and Conditions:
Account means the Customer’s credit account with Allied for purchases of Products.
Allied means Allied Petroleum Limited.
Card means Allied Fuel Plus/Mobilcard issued to the Cardholder for the purchase of Products from Allied.
Cardholder means the person(s) named in the application to be issued a Card or any person authorised by the Customer to use a Card. Customer means the person who purchases Products from Allied.
Guarantor means the person who has provided a personal guarantee in favour of Allied, guaranteeing payment by the Customer to Allied and performance by the Customer of its obligations to Allied.
PIN stands for Personal Identification Number selected by the Cardholder for use on the Card.
Product has the meaning at clause 1.1.
PSP means the payment system provider that Allied uses to process transactions for purchases of Products made using the Card.

3. Ordering

3.1 The Customer may order the Product by sending a written order to Allied or by using another order method accepted by Allied.

3.2 Allied does not have to accept an order. A change to an order will not have any effect either unless Allied agrees to it.

3.3 Allied may, at any time, correct any error in an order, quote, invoice, statement or related document.

4. Price

4.1 The price for the Product will be Allied’s price applying for the Customer at the time of delivery (plus GST).

4.2 Allied may review its prices for the Customer from time to time.

5. Payment

5.1 The Customer must pay for the Product at the time agreed in writing by Allied and the Customer. If there is no written agreement about that then payment is due on the 20th of the month after delivery.

5.2 The Customer must pay for the Product by direct debit unless Allied directs another method of payment.

5.3 The Customer cannot deduct any sum from amounts which must be paid to Allied, except where the Customer believes on reasonable grounds that Allied has incorrectly charged or invoiced the Customer. The Customer must promptly notify Allied of any dispute regarding the price charged and give Allied sufficient details to be able to respond.

5.4 On default of a direct debit payment an administration charge may be applicable. The Customer will be notified within 3 working days of a default and administration charge to be applied to account.

6. Allied Fuel Plus/Mobilcard Terms and Conditions

6.1 This clause 6 applies to the extent that a Customer and its Cardholders purchase Products using a Card.

6.2 The Customer agrees that any person the Customer authorises to be a Cardholder will be supplied with a copy of these Terms and Conditions and by using or signing the Card the Cardholder will be bound by those clauses in these Terms and Conditions that relate to the use of the Card.

6.3 Cards will only be issued to persons authorised by the Customer and the Customer will be liable for all obligations of any Cardholder relating to purchases on the Card. The Customer acknowledges that the Cardholder is acting as their agent using the Card.

6.4 The Card cannot be used to obtain cash, purchase gift or fuel vouchers, stamps, phone vouchers or phonecards.

6.5 The Cardholder will only use the Card to make purchases as identified on the Card.

Suspension or Cancellation

6.6 Allied may suspend or cancel any Account or Card at any time without notice.

6.7 The Customer may suspend or cancel its Card or Account at any time by providing written notice to Allied’s head office. Suspension or cancellation of the Customer’s Card or Account will take effect upon Allied providing written acknowledgement to the Customer.

6.8 The Customer is liable for any purchases on the Card until Allied has provided its written acknowledgement of suspension or cancellation in accordance with clause 6.7. If the Customer or Cardholder lose their Card or believe it has been stolen, the Customer must notify Allied in writing immediately and call Allied on 0800 383 566.

6.9 The Customer indemnifies Allied from any costs, claims and expenses or losses whatsoever arising from the loss, theft or fraudulent use of the Card prior to receipt of Allied’s written acknowledgement of suspension or cancellation in accordance with clause 6.7.

6.10 If a Card or Account is suspended or canceled, the Customer must pay the outstanding balance immediately.

Card and PIN security

6.11 Cardholders must sign the Card as soon as they receive it to prevent unauthorised use.

6.12 Cardholders must keep the Card in a safe place at all times. In particular, it should not be left in an unlocked vehicle or left on the dashboard - heat and sun may damage the Card.

6.13 Cardholders must not disclose the PIN to unauthorised persons or write down the PIN on the Card. If the PIN needs to be provided to more than one driver, the Customer is responsible for ensuring the PIN is kept confidential and secure.

6.14 If a transaction is authorised via a valid PIN the Customer is liable for any purchases made until Allied has provided its written acknowledgement of cancellation in accordance with clause 6.7.

6.15 For security the Card uses a compulsory PIN. At outlets the PIN must be used and there is no option to sign for the purchase of Products.

6.16 The PIN is chosen for the first time a Card is used and retained in a triple encrypted format. Neither Allied nor the PSP are able to access your PIN.

6.17 In the rare occurrence that the PSP’s system is offline the Cardholder may be asked to sign for the Products. This option is only available if the PSP’s system is offline and is not at the discretion of the merchant. Use of a PIN is compulsory if the PSP system is online.

6.18 If the Cardholder forgets their PIN, Allied is able to reset it. To reset the PIN the Customer needs to notify Allied in writing. PINs are reset overnight.

6.19 If more than three incorrect attempts to enter the Cardholder’s PIN are made the Card is placed on hold and no purchases can be made either manually or electronically. The Cardholder will need to contact Allied to reactivate the Card.

Limits

6.20 Transaction maximums are set and each individual transaction cannot exceed the transaction maximum set for the Cardholder’s Card. More than one transaction can be made each day but the combined amount cannot exceed the daily limit set for that Card. These limits are set at Allied’s discretion and the Customer may obtain them by contacting Allied on 0800 383 566. Monthly credit limits may also be set.

Fees and Agreement to Purchase

6.21 Allied may charge a transaction fee and/or an annual fee as notified to the Customer from time to time. If the Card is lost or stolen a replacement fee will be charged.

6.22 When purchasing Products the Cardholder is responsible for checking the details of the transaction - in particular the transaction amount. By entering the Cardholder’s PIN or signing a sales voucher the Cardholder is authorising the transaction that will be charged to the Account. The Customer agrees that the entering of a valid PIN may be relied upon by Allied as valid approval for the amount to be charged to the Account.

Refunds and Disputes

6.23 The purchase of Products on the Card is between the Cardholder and the participating retailer. Any disputes relating to transactions approved by PIN or valid signature are between the Cardholder and the participating retailer. The Cardholder acknowledges that Allied has no liability beyond that required in law, in respect to purchases made on the Card other than at Allied directly owned outlets (where Allied is the participating retailer).

6.24 If the Cardholder purchases defective Products through an unattended outdoor payment terminal (for example a truck stop), the Cardholder must give Allied written notice of such purchases within 48 hours of the purchase. Allied will investigate and if Allied accepts that the Products are defective, and that defect existed prior to risk passing to the Customer under clause 8.2, Allied may, at its discretion, either replace the Products or credit the price for those Products to the Customer’s Account.

7. Delivery and Storage

7.1 If Allied agrees to deliver the Product by a certain time it will make reasonable efforts to ensure the Product is delivered within that time-frame.

7.2 Allied will deliver the Product to the site agreed by the Customer and Allied. If there is no agreement about that Allied will deliver the Product at the Customer’s usual delivery site. Delivery will occur when the Product is discharged or transferred from Allied’s delivery vehicle or other mechanism or installation at the delivery site. For packed Product, delivery will occur when it is delivered at the site.

7.3 The Customer must ensure Allied’s delivery vehicle has suitable access to the delivery site (in all weather conditions). Allied may refuse delivery if it or its driver does not think the site or the access to it is safe. If this happens or the Customer refuses to accept or is unable to or otherwise does not accept delivery, the Customer must, on demand, pay Allied, its delivery costs and expenses.

7.4 The Customer must keep the storage equipment for the Product in good condition. It must also ensure the storage equipment (and any related equipment) meets all laws and industry requirements and guidelines. Allied may refuse delivery if it or its driver does not think the storage equipment (or any related equipment) complies with this or is safe.

7.5 The Customer must comply with all laws and industry requirements and guidelines in connection with the storage and handling of the Product. Without limiting that obligation, the Customer must take all proper steps to prevent Product spills and carry out regular physical reconciliations to detect Product loss. If a spill or loss of greater than 5 litres occurs the Customer must notify Allied immediately.

8. Ownership (Title) and Risk

8.1 Title to the Product passes to the Customer when all amounts payable (from time to time) by the Customer under these Terms and Conditions have been paid. Until then:

a. The Customer will, where practicable, keep the Product on its premises and separate from other goods in a way which makes the Product easily identifiable as Allied’s property; and

b. Where the Customer uses or resells the Product, Allied will be deemed to have retained title to the proceeds of sale and all other Product previously paid for by the Customer which is still in the Customer’s possession or control, up to a value equal to the amount for which payment has not yet been made.

8.2 If the Customer pays for the Product to be freighted, risk passes to the Customer at the time the Product is received by the carrier. Otherwise risk in the Product passes to the Customer on delivery.

9. Personal Property Securities Act

9.1 These Terms and Conditions create a security interest in all present and after acquired personal property of the Customer (including the Product and its proceeds) under the Personal Property Securities Act 1999 (the “PPSA”) as security for payment of all amounts payable (from time to time) under these Terms and Conditions and the Customer’s performance of this agreement. The security interest will (despite any payment or anything else) continue until Allied gives the Customer a written release of it.

9.2 The Customer acknowledges that Allied has the right to register a financing statement against the Customer to perfect that security interest.

9.3 The Customer must, at its cost, at Allied’s request, sign all documents and do all other things Allied reasonably requests to perfect Allied’s security interest, obtain the priority required by Allied, or register (or renew) a financing statement for the security interest.

9.4 The Customer (and the Guarantor) also waives its right to receive a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement.

9.5 The Customer (and the Guarantor) will give Allied prior written notice of a proposed change of its name or address.

10. Termination

10.1 Unless otherwise agreed in writing Allied or the Customer may terminate these Terms and Conditions by giving the other at least 3 days written notice of termination.

10.2 If these Terms and Conditions are terminated:
a. All the money payable under these Terms and Conditions will be due immediately (despite any agreed period of credit under these Terms and Conditions or otherwise); and

b. Any undelivered order will be treated as canceled unless Allied and the Customer agree otherwise.

10.3 Termination of these Terms and Conditions will not release Allied or the Customer (or any Guarantor) from any accrued liability under these Terms and Conditions or from any obligations under these Terms and Conditions which (expressly or impliedly) deal with obligations after termination.

11. Force Majeure
11.1 Neither party will be obliged to perform, nor liable for any failure to perform an obligation under these terms if it is not able to do so because of anything beyond its reasonable control, such as an act of God, industrial disturbance, war, Government action, pandemic, transport delay, shortage, or breakdown.

12. Customer Default etc.

12.1 If the Customer fails to pay Allied any money when it is due Allied may (without prejudice to its other rights and remedies) require the Customer to pay interest at 18% pa (compounding on the dates determined by Allied) on the overdue money from when payment was due until payment (with interest under this clause) is made, except insofar as the amount due and payable by the Customer has been disputed in accordance with clause 5.3.

12.2 If the Customer fails to pay any money under these Terms and Conditions when it is due or otherwise breaches this agreement, then Allied may(without prejudice to its other rights and remedies):

a. Require the Customer to pay all of Allied’s costs (including legal costs on a solicitor/own client basis) in connection with the enforcement or attempted enforcement of Allied’s rights and remedies against the Customer and any Guarantor; and

b. Stop delivery of any Product to the Customer; and

c. Enter the Customer’s premises and take possession of any Product Allied is entitled to in which case Allied will have no liability to the Customer or any other person.

13. Product Information

13.1 Allied may give the Customer some information about the Product and what it might be used for. If Allied does this, it will be passing on information it has received from other people. Allied does not carry out any tests or independently verify that information to see if it is correct. Therefore, Allied does not accept liability for any inaccuracy or omissions in the information.

13.2 This means the Customer uses the Product at its own risk. If the Customer wishes to check that the Product is suitable for it or anyone else to use it should check with the vehicle or equipment supplier or manufacturer.

13.3 The Customer acknowledges that copyright in any documents about the Product (or otherwise) Allied gives the Customer remains with the owner.

14. Warranties

14.1 Allied warrants that it will (subject to part 6 (Ownership) and part 7 (Personal Property Securities Act)) give the Customer full ownership of the Product and that the Product meets the NZ standards required by law.

14.2 Allied will stand by those warranties but does not give any other warranties, conditions, or guarantees, or make any other representations about the Product.

14.3 Therefore, all the implied warranties, conditions and guarantees in the Part 3 of the Contract and Commercial Law Act 2017or any other legislation are excluded to the extent allowed by law.

14.4 The Customer acknowledges that the Product is being purchased for business purposes. The Customer agrees that the provisions of the Consumer Guarantees Act 1993 are excluded and acknowledges that Part 3A of the Credit Contracts and Consumer Finance Act 2003 does not apply.

15. Allied’s Liability

15.1 The Customer agrees that the following limitations of liability apply. The Customer acknowledges that Allied takes them into account when determining the price of the Product.

15.2 Allied’s total liability, in the aggregate, for all claims for any loss, damage, liability, or costs that the Customer or anyone else suffers or incurs in connection with the Product (including delivery of it) is limited to, five times the price paid by the Customer for the Product in the preceding 12 months from the date of the breach in question, up to a maximum of $100,000.

15.3 This limitation of liability applies regardless of how the claims arise including a breach of this agreement, breach of any legislation, or for any tort such as negligence.

15.4 However, where Allied is insured for a claim, the limitations of liability in this part do not apply to the extent that Allied is indemnified and receives payment in respect of the claim under Allied’s own insurance policy (to the intent that Allied’s entire liability will then be equal to the amount it receives under its insurance policy).

16. Credit Information

16.1 The Customer, the Guarantor and any Customer representatives named above authorise:

a. Any person (including a company) to provide Allied at any time with whatever information Allied reasonably requires about the Customer, the Guarantor and any Customer representatives named above for the purposes of Allied’s credit enquiries and authorise that person to list any information Allied may give them about the Customer, the Guarantor and/or any Customer representative named above on their system, use it for credit reporting services, and supply it to their customers when they use the credit reporting services. The provision of information to Allied may include using monitoring services to receive updates if any of the information changes; and

b. Allied to collect, retain, use and disclose that information and other business information for the purposes of Allied’s business.

16.2 Allied acknowledges that the Customer, its directors, shareholders, and Guarantor may, under the Privacy Act 1993, access and correct their personal information held by Allied.

17. Security

17.1 To better secure the amounts payable (from time to time) by the Customer under these Terms and Conditions each of the Customer and Guarantor agrees to mortgage its existing and future land (including improvements on it) to Allied.

17.2 The terms of the mortgage will be those in the most recent Auckland District Law Society all obligations Memorandum of Mortgage form.

17.3 Each of the Customer and the Guarantor irrevocably appoints Allied and each of Allied’s directors (from time to time) to be its attorney for the purposes of executing the mortgage and doing all things Allied requires for the mortgage to be registered. Each of the Customer and the Guarantor agrees that this power of attorney will not be restrictively interpreted.

18. Miscellaneous

18.1 A waiver of a party’s right under these Terms and Conditions will not be effective unless it is in writing.

18.2 Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party (such consent not to be unreasonably withheld).

18.3 These Terms and Conditions are governed by the laws of New Zealand.