2.1 The Customer agrees that it is not entitled to any credit facilities until it receives notice in writing from the Supplier stating that credit facilities have been given. Any credit facility granted is subject to these Terms. Until the Customer receives notice in writing from the Supplier any goods that are supplied by the Supplier to the Customer shall be on the basis of cash upon delivery. 

2.2 The parties agree that in the event of the Supplier prior to approving credit granting to the Customer time to pay for any goods supplied then such supply shall not amount to a waiver by the Supplier of any of these Terms nor be construed or taken to be either directly or by implication as a granting by the Supplier of credit facilities to the Customer and no credit facilities shall be granted unless so stated in the notice (as set out in clause 2.1). 

2.3 The Supplier reserves the right to impose a credit limit which may be altered at the Supplier’s discretion with effect from the date of notification to the Customer. 

3.1    In the event of the Supplier granting credit facilities to the Customer then the following shall apply: 

(a)  The Customer will pay the Supplier in full the amount specified on each invoice on or before the specified payment date by direct debit, or such other method approved by Supplier in writing;

(b)  The Supplier may at its sole discretion apply any payments it receives from the Customer towards the satisfaction of any indebtedness of the Customer and it shall not be bound by any terms or qualifications that the Customer may make in relation to payments made under this or any other contract with the Supplier; 

(c)  Should the Customer default in the payment of monies under these Terms when due then all monies due to the Supplier shall immediately become due and payable and shall be paid by the Customer within SEVEN (7) days of the date of demand and the Supplier shall be entitled to charge interest at a rate then applicable to a bank overdraft on businesses of the same kind as the Supplier’s plus a margin of 2% per calendar month (accruing monthly and compounding) on all overdue accounts from the date of due payment until the date of actual payment; 

(d)  Any expenses, costs or disbursements incurred by the Supplier in the collection of any overdue moneys including debt collection agency fees and/or legal fees (on a solicitor/ agent/client basis), shall be recoverable from the Customer;

 (e)  If any amounts payable by the Customer to the Supplier are overdue the Customer gives to the Supplier the irrevocable right or licence by its agents, servants and employees to enter the premises of the Customer or any other premises where the goods are situated (including any premises, land and buildings that the Customer may enter upon) without being liable in any way to the Customer, and the Customer shall indemnify the Supplier upon demand for all claims by any third party for any losses resulting from the Supplier effecting repossession. 

(f)  If the Customer fails to make any payment for the goods when such payment is due the Supplier may at its discretion defer deliveries until such breach is remedied by the Customer, or treat such as a repudiation of any supply agreement or arrangement. 

3.2   In the case of the Customer tendering payment by a cheque, payment shall not have been made until the cheque is honoured on presentment and the moneys payable under it are received in the Supplier’s bank account in cleared funds. Until such time receipt of the cheque shall not prejudice or affect the Supplier’s rights or remedies against the Customer or the goods. 

4.1 All orders are subject to and are not binding until their acceptance by the Supplier. Notwithstanding any arrangement granting credit to the Customer, the Supplier reserves the right to accept or decline acceptance of any order in its absolute discretion. 

4.2 Any acceptance of an order shall only be conditional acceptance and be subject to the Supplier considering the Customer’s credit status with the Supplier. If the Supplier considers the creditworthiness of the Customer unsatisfactory, it shall be entitled to cancel any order without in any way being liable to the Customer. 

4.3 The Customer must notify the Supplier of any changes or cancellations in writing to fuel@ mcfall.co.nz and / or by phone to 0800 623 255.

5.1 The price of the goods and services shall be the standard price charged by the Supplier prevailing at the date of acceptance of the Customer’s order plus any Goods and Services Tax (GST) thereon (except to the extent GST is expressly included). 

5.2 Any increases in the cost of supply of the goods (including without limitation increases in the price of goods) between the date of acceptance of the order and the date of delivery of the goods shall be borne by the Customer.

6.1 Safety and Pollution: Each party shall comply with all laws, regulations and orders applicable to the handling, transportation and delivery of products. To the extent that products include lubricating oils, the Customer acknowledges the importance of managing the life cycle of lubricating oils and once any lubricating oils have fulfilled their use as supplied, the Customer shall dispose of them through a government approved means. 

6.2 Use: The Customer agrees not to sell the goods or products under the Supplier’s trade mark or by reference to the Supplier’s name. 

6.3 Temperature Correction: Adjustment in volume owing to difference in temperature shall be made, where applicable, in accordance with tables published by ASTM D1250 as supplemented or amended from time to time. 

6.4 Non-Performance: Neither party shall be deemed to be in default of nor shall be liable for the non-performance of any covenant, agreement or obligation under these Terms, except the Customer’s obligation to pay for products delivered, if such default or non-performance arises from any cause beyond the reasonable control of such party. Lack of funds is not a cause beyond the control of a party. The Supplier is under no obligation to make delivery when in the Supplier’s sole judgement the making of a delivery might cause a strike to be called against it, or cause its properties to be picketed. 

7.1   Where the Consumer Guarantees Act 1993 (“CGA”) applies, the Customer shall have the benefit of all the guarantees and rights and remedies provided under the CGA, but no others. Where the Customer acquires, or holds themselves out as acquiring, the goods for business purposes, the CGA shall not apply.

8.1 The Customer irrevocably authorises any person or company to provide the Supplier with such information as the Supplier may require in response to its credit enquiries. The Customer further irrevocably authorises the Supplier to furnish to any third party details of this Credit Application and these Terms and subsequent dealings that the Customer may have with the Supplier as a result of this Credit Application and these Terms being actioned by the Supplier. Such authorisation being required to ensure compliance with the Privacy Act 2020. 

8.2 The Customer may at any time access and correct its personal information held by the Supplier

9.1 The Customer indemnifies the Supplier, its officers, employees and agents against any claims or losses incurred by the Supplier arising out of or in connection with the supply of goods (other than by reason of the Supplier’s negligence).

10.1 To the extent permitted by law, the Supplier shall not be liable for any special or consequential damages arising, whether directly or indirectly out of the supply of goods or the performance or non-performance by the Supplier of any obligation under these Terms.

11.1 Property in all goods shall pass to the Customer when the goods are paid for in cleared funds and all risk of any loss or damage or deterioration in respect of the goods shall pass to the Customer upon delivery to the Customer. 

11.2 The Customer grants a security interest over all present and after-acquired goods supplied by the

12.1   Demand may be made of, or notice given to, the Customer by the Supplier delivering, posting, faxing or emailing a letter, invoice or notice to the Customer at the Customer’s nominated address set out in the Credit Application or at such other address as the Customer may designate in writing to the Supplier. 

13.1   The Customer will provide such information and do such acts and execute such further documents as in the opinion of the Supplier may be necessary or desirable to enable the Supplier to perfect under the Personal Property Securities Act 1999 (“PPSA”) the security interest created by these terms as a first priority interest or with such other priority as the Supplier may agree in writing. 

13.2   The Supplier may do all things which it thinks desirable to remedy any default by the Customer or otherwise protect the goods or the security interest created by these Terms. 

13.3   The Customer irrevocably appoints the Supplier to be the Customer’s attorney to do anything which the Customer agrees to do under these Terms and anything which the attorney thinks desirable to protect the Supplier’s interests under these Terms and the Customer ratifies anything done by an attorney under this clause 13. The Customer agrees sections 114(1)(a), 133 and 134 of the PPSA shall not apply to these Terms or the security under these Terms. 

13.4   The Customer waives the Customer’s right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these Terms. 

13.5   The Customer agrees that none of the Customer’s rights as debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA shall apply to these Terms. 

13.6   The Customer also agrees, where the Supplier has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply. 

13.7   The Customer must not change the Customer’s name without first notifying the Supplier of the new name not less than 7 days before the change takes effect.

13.8   The Customer must not allow or permit the creation of a lien over any of the goods supplied by the Supplier. (“Lien” means the Customer allowing or giving another person or party the right to retain or to have a charge over goods supplied by the Supplier as security for a debt and/or satisfaction of an obligation owed by the Customer to that other person or party). 

14.1   The Customer will upon demand pay all the Supplier’s expenses and legal costs (on a solicitor/agent/client basis) of or in connection with the registration of a financing statement or financing change statement relating to the security interest created by these Terms or obtaining an order under section 167 of the PPSA or the collection of overdue moneys or the exercise, enforcement or preservation of any right or interest under these Terms or any other contract with the Customer. 

15.1   New Zealand law governs these Terms and New Zealand Courts have non-exclusive jurisdiction. 

15.2   The rights, powers and remedies provided in these Terms are cumulative and do not prejudice or exclude any rights, powers and remedies provided by law. 

15.3   The failure or delay of the Supplier to enforce any provision of these Terms shall not be treated as a waiver of any provision, nor shall it affect the Supplier’s rights to subsequently enforce any provision. If any provision of these Terms is, or becomes invalid or unenforceable, that invalidity or unenforceability shall not affect the provisions of these Terms all which shall remain in full force and effect to the extent permitted by law, subject to any modification made necessary by the deletion of the invalid or unenforceable provision of these Terms

17.1   Purchase of products with the Fuelcard will be charged by the Supplier to the Customer’s Fuelcard account. The Customer may also be required to pay: 

(a) 3% on any non-fuel products; 

(b) Any Government duty or tax.

17.2   The Supplier will debit the Customer’s nominated bank account with the amount payable under the Fuelcard account, not earlier than the 20th day of the following month. It is the Customer’s responsibility to ensure that its bank account has sufficient funds. If any debit from the Customer’s bank account is dishonoured, if arrangement cannot be made direct with the Customer, the monies will be retaken without notice until payment is made. The Supplier has the authority to put a hold on Fuelcard(s) until outstanding balances are cleared. The Customer will be responsible for any legal fees (on a solicitor/agent/client basis) or collection fees incurred by the Supplier in recovery of any outstanding amounts, in accordance with clause 3.1(d) above.

18.1   The Supplier will provide the Customer with a monthly invoice/statement recording all Fuelcard transactions.

19.1   Any purchase of products on the Fuelcard is between the Customer and the participating retailer. The Customer acknowledges that the Supplier has no liability to the extent permitted by law, directly or indirectly, in respect of any products purchased by the Customer or Authorised User on the Fuelcard. 

19.2   The Supplier is not liable for the actions of any participating retailer or any product sold by any participating retailer. The Supplier is not liable for any fault in the Fuelcard or any automatic facility. 

19.3   If the Customer or Authorised User notifies the Supplier of any defective product from an automatic facility within 48 hours of delivery, the Supplier will issue a credit to the Customer which will be recorded against the Customer’s Fuelcard account, or the Supplier will replace  the product. Prior to the Supplier issuing a credit or a replacement for any defective product the Supplier must first be satisfied that the subject product is in fact defective and for this purpose the Supplier reserves its right to request proof of the defect and/or to investigate the purported defective product. 

20.1   The Customer may cancel any Fuelcard it no longer requires by returning the Fuelcard (cut in half) to the Supplier. The Customer’s Fuelcard account will be charged with any product purchases made up to the time the Supplier receives the cancelled card. The Customer’s Fuelcard account will remain active for all other Fuelcards issued to the Customer (if any) not returned to the Supplier. 

20.2   The Customer may close its Fuelcard account by giving the Supplier fourteen (14) days written notice and returning all Fuelcards (cut in half) issued by the Supplier to the Customer and/or any Authorised User.

21.1   If any Fuelcard is lost, stolen or misused, the Customer or Authorised User must notify the Supplier immediately by telephone and confirm the notification in writing or by email within 24 hours of the Fuelcard being lost, stolen or misused. 

21.2   The Customer will be not liable for any unauthorised transactions on the Fuelcard made after written notification of cancellation (due to loss or theft or misuse) is received by the Supplier.

21.3   The Supplier will not be liable for any transactions on the Fuelcard effected prior to the day (being a usual working day) that the Supplier receives the Customer’s written notification requesting cancellation (due to loss or theft or misuse). 

23.1  During the period in which the Customer is in possession of the Tanks and Equipment: 

(a) when any repairs or maintenance to the Tanks and Equipment is required the Customer will advise the Supplier and provide details of the repairs or maintenance required. The Supplier will at its discretion and where appropriate direct who will carry out any maintenance or repairs; 

(b) in the absence of any direction by the Supplier, the Customer shall immediately arrange for any required repairs or maintenance to be carried out in a proper and workmanlike manner;

(c) the Supplier may require the Customer to arrange for any agreed repairs to be carried out as directed and pay the associated costs; 

(d) the Supplier may, at its sole discretion, attend to or arrange for any repairs and maintenance to be carried out. The Customer will be liable to the Supplier for any cost and expenses reasonably incurred in repairing or maintaining the Tanks and Equipment; 

(e) The Supplier may inspect and service the Tanks and Equipment from time to time, [the cost of which is recoverable from the Customer]. 23.2  Upon return of the Tanks and Equipment to the Supplier, whether due to termination of the agreement contained in these Terms or on repossession by the Supplier, without limitation, the Customer accepts liability for payment of all costs of and associated with repair, refurbishment, and/or maintenance of the Tanks and Equipment if the Tanks and Equipment are returned to the Supplier in a condition deemed by the Supplier, at its sole discretion, to be an unacceptable state of repair having regard to what is reasonably considered “fair wear and tear”.  In determining that is “fair wear and tear” the Supplier will assess the Tanks and Equipment on a case by case basis and give consideration to the Tanks and Equipment’s age, operating hours and overall condition, including without limitation, its general appearance, structural and mechanical condition and, in relation to trailer tanks, the condition of the trailer.

24.1 Whilst in possession of the Tanks and Equipment the Customer will, at its own expense, keep the Tanks and Equipment insured at a full replacement value, such value to be determined by the Supplier and notified to the Customer. On request by the Supplier the Customer will provide a copy of the requisite insurance policy.

24.2  Without limiting the liability of the Customer under these Terms, whilst in possession of the Tanks and Equipment the Customer will, at its own expense, keep in force a public liability insurance policy indemnifying the Customer and the Supplier against all claims in respect of damage to property or death or bodily injuries arising in connection in anyway with the Tanks and Equipment, with a recognised insurer approved by the Supplier for an amount not less than $1,000,000. The Customer will provide the Supplier with a copy of its public liability policy upon request.

25.1  Whilst in possession of the Tanks and Equipment and where the Tanks and Equipment are mounted on a road trailer: 

(a) the Supplier will register the Tanks and Equipment and license them under the Land Transport Act 1998. The Supplier will retain at all times the Certificate of Registration of the Tanks and Equipment; 

(b) the Supplier will ensure at the commencement of the agreement contained in these Terms that there is a current Certificate/Warrant of Fitness for the Tanks and Equipment (if applicable); 

(c) the Customer shall thereafter ensure that any Certificate/Warrant of Fitness is kept current and pay for the same whilst in possession of the Tanks and Equipment; 

(d) the Customer will, not later than the date of expiry of each Certificate/Warrant of Fitness, send to the Supplier notice in writing that the Certificate/Warrant of Fitness has been renewed for the ensuing period. 

25.2  The Customer shall be responsible for the security, storage and proper use of the Tanks and Equipment whilst in possession of the Tanks and Equipment.

25.3  The Customer acknowledges that it is possessing the Tanks and Equipment for the express and exclusive purpose of storing, distributing and/or transporting for consumption in the Customer’s own business the brand of fuel supplied by the Supplier. 

25.4  Whilst in possession of the Tanks and Equipment the Customer will not use the Tanks and Equipment for storing, distributing or transporting any other brand of fuel, diesel, product, liquid, slurry or any material other than the that supplied by the Supplier. 

25.5  The Customer will, prior to using the Tanks and Equipment for any purpose and whilst in possession of the Tanks and Equipment, obtain in the name of and at the cost of the Customer such license or licenses as shall be required in respect of such use under the provisions of the Hazardous Substances and New Organisms Act 1996, the Health and Safety at Work Act 2015, any Regulations made thereunder and any other Act, Regulation, by-law applicable to the Tanks and Equipment and its use by the Customer. 

25.6  The Customer will not move the Tanks and Equipment from the location where the Supplier and the Customer mutually agree the Tanks and Equipment is to be located without the prior consent of the Supplier. It is acknowledged that the Customer is able to move the Tanks and Equipment with an approved lifting apparatus for the purpose of their business. 

25.7  The Customer shall permit the servants and agents of the Supplier at all reasonable times and from time to time to have access to the Tanks and Equipment and to enter on any premises on which the Tanks and Equipment may be for any purpose whatsoever including the right to take samples of the contents of the Tanks and Equipment for testing or the recovery of the Tanks and Equipment in accordance with these Terms.

25.8  The Customer will ensure that all agents, servants, clients, customers, visitors or invitees of the Customer will:

(a) adhere to and perform all these Terms; 

(b) hold all licences required in respect of the Tanks and Equipment and/or their use; 

(c) comply with all applicable laws, regulations and bylaws including without limitation the provisions of the Hazardous Substances and New Organisms Act 1996, the Health and Safety at Work Act 2015, and any other Act or by-law applicable to the Equipment or its use; and 

(d) not commit or allow to be committed any breach of any such Act, Regulation, by-law or legal duty.

26.1  In addition to, not in substitution for, the Terms set out in clauses 9 and 10 above, during the period in which the Customer is in possession of the Tanks and Equipment the Customer indemnifies and will keep indemnified the Supplier from and against all actions, suits, claims, demands, costs, damages, fines and expenses in respect of which the Customer shall or may be liable in respect of breach of these Terms, loss of and/or damage to the Tanks and Equipment; misuse or neglect of the Tanks and Equipment including, without limitation, incorrect Fuel use; any contravention of or non-compliance with these Terms, any Act, Regulation or by-law applicable to the Tanks and Equipment or their use and operation, including any loss, damage, accident or injury sustained or occasioned in connection with the actions or omissions on the part of the Customer or those for whom the Customer is responsible, which give rise to any of the issues specified above. 

26.2  The Supplier will not be liable for any contamination of fuel in the Equipment.

27.1   In consideration of the Supplier agreeing to extend a credit facility to the Customer and agreeing to supply or continuing to supply the Customer with goods, in the event the Customer is a limited liability company, limited partnership, partnership, trust, incorporated society or any other entity other than an individual person, the undersigned jointly and severally (if more than one) HEREBY GUARANTEE to the Supplier (and its successors and assigns) the due and punctual payment of all moneys due and the performance of all obligations to the Supplier by the Customer and the undersigned agree to pay such moneys and perform such obligations on demand to the Supplier, and as between the (b)  Any alteration, modification, variation or Supplier and the undersigned, the undersigned shall be deemed to be principal debtor(s) of the Supplier. 

27.2   This guarantee shall be a continuing guarantee to the Supplier for all moneys and all obligations whatsoever owing by the Customer to the Supplier in respect of any goods supplied and shall remain in force until this guarantee is released by the Supplier in writing. This guarantee shall not be discharged by any settlement of account. The liability under this guarantee shall not be discharged, abrogated, prejudiced or affected by: 

(a)  The granting of time, credit or other indulgence or other concession by the Supplier to the Customer; 

(b)  Any alteration, modification, variation or addition to any agreement in respect of the supply of any goods; 

(c)  The liquidation, receivership, administration, bankruptcy, dissolution, compromise or scheme of arrangement, in respect of the Customer; 

(d)  Any other act, omission or event which but for this provision might operate to discharge, impair or otherwise affect any obligations under this guarantee or any of the rights, powers or remedies conferred by this guarantee or by law.