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Effective from: October 2020

 

1. Our contract with you

 

1.1. These Terms apply to all FILL’s retail and commercial customers and any Order We accept from you via the App, or any Commercial Order (including any Order that is changed under clause 4). These Terms will be applicable as the case may be depending on whether you are a retail or commercial customer(s). If you choose not to accept these Terms (e.g. by ticking the acceptance box when you set up your account), you will not be able to place an Order.

 

1.2. We may change the Terms from time to time and the current version as advertised in Our website will apply to each Order when you place it. We will notify you of changes to the Terms by email, notification via the App or alternatively you will be asked to accept the new terms when you place your next Order.

 

1.3. Please read these Terms carefully and make sure that you understand them before placing an Order. The Terms restrict our liability to you in certain circumstances (see clause 13).

 

1.4. If you need to contact Us at any time about an Order, you may do so as set out in clause 16.

 

2. Definitions

 

2.1. The following definitions apply in these Terms: App: means the FILL mobile phone and/or web application. Event Outside Our Control: means any occurrence or circumstances over which We have no control as described in clause 14.2 and including (without limitation) the unavailability of any Service Provider, key personnel or key materials without which We are unable to provide the Services. Order: means your order for the Services and includes Commercial Order. Commercial Order: means an order or recurring order for the supply of Services from Commercial Customers. Commercial Customer: means any customer not being a “Consumer” as defined in the Consumer Guarantees Act 1993 or equivalent legislation. Fuel: means petrol, diesel and any other petroleum products supplied by FILL from time to time to you. Services: means the supply and delivery of Fuel to you or your vehicle in accordance with your Order. Service Providers: means any third party with which we contract in order to assist us in providing the Services. Session: means a period of time devoted to providing the Services. Terms: means these terms and conditions as amended from time to time. Vouchers: means vouchers for Our Services of a monetary value. Vehicle includes vessels. Website: means www.fill.co.nz. We/Our/Us/FILL means Fill Limited (company number 6528434).

 

2.2. When we use the words “writing” or “written” in these Terms, this will include e-mail correspondence and notifications via the App.

 

2.3. Headings and subheadings have been inserted in these Terms for convenience only and will not affect the interpretation of these Terms.

 

2.4. Words Importing the singular numbers in these Terms include the plural and vice versa.

 

3. Placing an Order

 

3.1. Via the App:

 

3.1.1. Please ensure that you check the details of your Order(s) before submitting it/them as We will not be liable to you for any errors you make. For example, please check carefully that you correctly identify the Fuel type for your vehicle(s) (e.g. diesel, 91 petrol or 95 petrol or other grade), and the location. If you think that you may have made a mistake, you can make changes up until the start of your Session. Alternatively, please contact Us as set out in clause 16. Changes are also dealt with under clause 4.

 

3.1.2. Submission of an Order does not create a contract between us. The contract arises when We send you an email or notification via the App confirming acceptance of your Order. The email or notification will include your billing information.

 

3.1.3. If for any reason We are unable to fulfil your Order, We will let you know by email or notification via the App.

 

3.2. Commercial Orders:

 

3.2.1. As agreed between the parties in writing.

 

4. Changes to your Order

 

4.1. You may make changes to your Order at any time before your Session commences, or for Commercial Orders, the day before your order is due for completed by contacting our Customer Care team at customercare@fill.co.nz.

 

4.2. Where changes are made to an Order, We will re-issue the Order confirmation to you via email or a notification via the App.

 

5. Cancelling your Order

 

5.1. You may cancel your Order in the following circumstances:

 

5.1.1. at any time before your Session commences via the App; or

 

5.1.2. for Commercial Orders the day before your order is due by contacting our Customer Care team at customercare@fill.co.nz.

 

6. Our rights to cancel your Order

 

6.1. We may cancel your Order and the contract between you and Us in the following circumstances:

 

6.1.1. as a result of an Event Outside Our Control;

 

6.1.2. if We consider that We are not able to safely complete your Order including due to the location of, or access to your vehicle(s), your vehicle has been moved, or the fuel cap has not been popped; or

 

6.1.3. as determined by us in our absolute discretion provided, we give you no less than 24 hours notice.

 

6.2. If we cancel your Order we will contact you by phone, email or notification via the App.

 

7. Re- scheduling

 

7.1. Subject to clause 14, We will use reasonable endeavours to perform the Services specified in the Order but we cannot guarantee to do so. We will use reasonable endeavours to communicate any delay to you by phone, email or notification via the App.

 

7.2. If We are unable to perform the Services, We will contact you by phone, or email and notification to reschedule delivery at your convenience.

 

7.3. FILL will not be liable for any loss or liability suffered by you as a consequence of any delay or failure to deliver any Fuel under these Terms.

 

8. Supply and delivery (Commercial Orders ONLY)

 

8.1. FILL will deliver Fuel to the delivery site(s) specified in your Order(s). Delivery of Fuel will be deemed to be completed at the point at which the Fuel passes the inlet of the relevant Fuel tank(s) of the vehicle(s) and/or tank(s) at the relevant delivery site(s) or if the Fuel is in a container, when the container is delivered. FILL will issue a delivery docket and invoices recording the quantity, Fuel type and delivery site. FILL’s determination of Fuel delivered shall be conclusive.

 

8.2. You will provide FILL (its employees, agents and contractors) with access to the delivery site at such time as may be necessary for FILL to complete its Services.

 

8.3. If at any time there is a shortage of Fuel FILL may at its discretion allocate supply between you and FILL’s other customers.

 

9. Service standards

 

9.1. We will provide the Services with reasonable care and skill in accordance with good industry practice and use reasonable endeavours to deliver the Services as you order them in accordance with our delivery schedule.

 

9.2. We will not be liable for any delay or non-performance of our Services where you have failed to provide accurate information in your Order, for example (and without limitation) if an address is incomplete or inaccurate, you fail to pop your fuel cap, your vehicle is not at your nominated address(es), or you order the wrong Fuel.

 

9.3. We may contact you by phone or email if we consider it necessary to perform the Services, including, but not limited to:

 

9.3.1. locating your vehicle(s);

 

9.3.2. popping your fuel cap(s); or

 

9.3.3. moving your vehicle(s).

 

10. Your obligations

 

10.1. Please ensure that your vehicle(s) is parked in a location which allows us to safely access your vehicle(s). Note that if your vehicle(s) is parked on the road We may not be able to safely access your vehicle(s).

 

10.2. Pop your fuel cap(s)! If you don’t pop your fuel cap(s), we won’t be able to fill your vehicle(s). You may wish to partially close your fuel cap(s) so that it is/they are not obviously open.

 

10.3. You are responsible for ensuring that your Fuel tank is fit for its purpose.

 

10.4. You are solely responsible for specifying your Fuel type – diesel, 91 petrol, 95 petrol or other.

 

10.5. You are responsible for complying with any legal requirements relating to the storage of Fuel following delivery.

 

10.6. You warrant that the vehicle can safely receive Fuel and ensure that the vehicle has all the certificates required to comply with all relevant regulations relating to delivery of Fuel at the place of delivery.

 

10.7. Please note:

 

10.7.1. Stored petrol must always be held in approved containers. Portable containers have a maximum capacity of 25 litres. Containers must be fitted with a screw-cap or closure to prevent leakage of liquid or vapour.

 

10.7.2. If you wish to store more than 50 litres of petrol for more than 24 hours, you will need to engage a compliance certifier to approve the storage location. The compliance certifier will confirm that the petrol is stored safely, consistent with the hazardous substances’ legislation. Visit https://worksafe.govt.nz/topic-and-industry/hazardoussubstances/guidance/substances/petrol/ for more information.

 

11. If there is a problem with the Services

 

11.1. If there is any problem with the Services please contact our Customer Care team by email at customercare@fill.co.nz or using the 0800 number and tell Us what the problem is as soon as reasonably possible.

 

11.2. If you have a complaint about the Services, we will deal with it in accordance with these Terms. 11.3. Complaints should be notified to Us within 24 hours of delivery.

 

12. Price and payment

 

12.1. The prices for the Fuel are those as advised by us from time to time on Our website or via the App. Our prices include GST unless stated otherwise.

 

12.2. Retail customers ONLY:

 

12.2.1. We will notify you by email or notification via the App of the fuel price for the Services before your Session commences.

 

12.2.2. Upon placing an Order(s) we capture your payment but we do not directly charge your card, although some banks will show it as a recent transaction. We process payments following completing your Order and will send you an email or notification via the App.

 

12.2.3. We will take payment from the debit or credit card of which details were supplied with your Order or direct debit. If for any reason we are unable to take payment you will become liable to Us for the sum due plus interest at the rate 3% a year above the base lending rate of Our bank at that time. Interest will accrue on a daily basis from due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay Us interest together with any overdue amount.

 

12.2.4. We reserve the right to charge a minimum amount of up to $30.00 for orders for less than $30.00 of Fuel plus any delivery fee or other charges that may be applicable. For more information about this minimum payment, please contact customercare@fill.co.nz.

 

12.3. Commercial Orders ONLY:

 

12.3.1. We will invoice you for Commercial Order(s) following delivery. Payment is due on the 10th of the month following delivery by direct debit unless agreed otherwise in writing. You must pay Us in full the amount specified in each invoice on or before the due date of payment.

 

12.3.2. We may charge interest on overdue accounts at the rate of 14% per annum or 3% above the current base lending rate from time to time set by Our bankers (plus GST, if any) - whichever is the greater, from the date when payment is due until the date when payment is actually made and all expenses and costs (including legal costs as between solicitor and client) incurred by Us in connection with recovering or attempting to recover any overdue amount.

 

13. Bunkering Services – for vessels only

 

13.1. You warrant that the vessel can safely receive Fuel, and will ensure that the vessel has all certificates required to comply with all relevant regulations relating to delivery of Fuel at the port or place of delivery.

 

13.2. Prior to delivery of Fuel You will:

 

13.2.1. Confirm the maximum quantity of Fuel to be supplied;

 

13.2.2. Inform the maximum allowable pumping rate and pressure that the vessel requires and agree on communication and emergency shutdown procedures; and

 

13.2.3. Advise of any special conditions, difficulties, peculiarities, deficiencies or defects in respect of, and particular to, the vessel and which might adversely affect the delivery of Fuel.

 

13.3. You shall be responsible for all connections and disconnections between the delivery hose(s) and the vessel’s manifold and shall require the hose(s) to be properly secured and connected to the vessel’s manifold prior to the commencement of delivery of Fuel. If in our opinion the vessel cannot safely receive Fuel, then We may at our option either suspend delivery until, in Our opinion, the vessel can safely do so or terminate the delivery.

 

13.4. We will not be responsible for on-board safety or storage failures that may affect the delivery and shall have the right to recover from You any resulting cost incurred.

 

13.5. If a spill occurs during supply, you promptly take all action reasonably necessary to remove the spillage and mitigate its effect. If you fail to promptly take such action, We may, at Our option, take such measures We consider to be necessary or desirable in connection with the removal of the spillage and the mitigation of its effects by employing Our own resources or contracting with others. Without prejudice to the first sentence of this clause, We will indemnify you against all liability, costs and expenses arising from any spillage to the extent that such spillage has been caused or contributed to by Our negligence or failure of or defect in Our equipment. You will indemnify Us against all liability, costs and expenses arising from any spillage except to the extent that such spillage has been caused or contributed to by Our negligence or failure of or defect in Our equipment. You will promptly provide Us with any requested documents and information regarding a spill including the vessel’s spill contingency plan or any other applicable programme for the prevention or mitigation of pollution as required by any applicable laws or regulations.

 

14. Our liability to you

 

14.1. We are not liable to you for any special, indirect or consequential loss including (without limitation) loss of profit, loss of business, business interruption, or loss of business opportunity.

 

14.2. The Consumer Guarantees Act 1993, the Fair-Trading Act 1986 and other statues may imply warranties or conditions on US which cannot by law (or which can only to a limited extend by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Us, Our liability shall, where it is allowed, be excluded or if unable to be excluded only apply to the minimum extent required by the relevant statues.

 

14.3. We shall not be responsible for any claim arising from commingling of Fuel delivered by Us with other fuel(s).

 

14.4. To the fullest extent permitted by law, the maximum amount that FILL, including its employees, contractors or anyone else for whom it is responsible, will have to pay to the Customer, including its employees, contractors shall be limited to $1,000 for any event or for any series of events or a total of $1,000 in aggregate in any 12 month period.

 

15. Events Outside Our Control

 

15.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under these Terms that is caused by an Event Outside Our Control.

 

15.2. An Event Outside Our Control means any act or event beyond Our reasonable control, or the reasonable control of any of our Service Providers including (without limitation) strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or closure or failure of public infrastructure or public or private telecommunications networks.

 

15.3. If an Event Outside Our Control takes place that affects the performance of Our obligations under these Terms:

 

15.3.1. We will contact you as soon as reasonably possible to notify you; and

 

15.3.2. Our obligations under these Terms will be suspended and the time for performance of Our obligations will be extended for the duration of the Event Outside Our Control; or

 

15.3.3. You may cancel your Order under clause 5.1 or We may cancel it under clause 6.1.

 

16. Information about us and how to contact us

 

16.1. If you have any questions or if you have any complaints, please contact Us. You can contact Us by e-mailing Us at customercare@fill.co.nz, or sending a request via the App.

 

16.2. If you wish to contact Us in writing, or if any clause in these Terms requires you to give Us notice in writing, you can send this to Us by e-mail at customercare@fill.co.nz. We will confirm receipt of this notice by email. If We have to contact you or give you notice in writing, We will do so by notification via the App or by email to the address you provide to Us in the Order.

 

17. Privacy policy

 

17.1. You acknowledge that, when we process any Orders, we may collect “Personal Information” about you. “Personal Information” is defined in the Privacy Act 1993 as “Information about an identifiable individual”.

 

17.2. We may collect, store and use such information for purposes connected with Our business and/or your Order to:

 

17.2.1. provide the Services;

 

17.2.2. process your payment for the Services or administering your account; and

 

17.2.3. inform you about similar products or services that We provide, unless you indicate that you do not wish to receive such communications by clicking the ‘Unsubscribe’ link at the bottom of any FILL promotional email communication.

 

17.3. We will not give your personal data to any third party other than any Service Providers for the purpose of facilitating the provision of the Services.

 

18. Consumer Guarantees Act

 

18.1. If the acquisition of Fuel pursuant to these Terms is for the purposes of a business (e.g. Commercial Orders) you acknowledge and agree that the provisions of the Consumers Guarantees Act do not apply.

 

19. General

 

19.1. You shall not be permitted to assign or transfer any of your rights or obligations under these Terms without Our prior written consent. We may transfer Our rights and obligations under these Terms to another organisation, and will notify you in writing if this happens.

 

19.2. We will not be deemed to have waived any right under these Terms unless the waiver is given in writing by Us.

 

19.3. Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.

 

19.4. These Terms (together with the trade account application form, if applicable) constitute the entire agreement and understanding between you and Us relating to the matters dealt with in these Terms and supersedes and extinguishes any previous agreement (whether oral or written) between you and Us in relation to such matters.

 

19.5. These Terms are governed by New Zealand law and will be subject to the exclusive jurisdiction of the New Zealand courts.

 

Last Updated: October 2020

 

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