These General Terms and Conditions are intended to enable Z and a User to ensure that the TGP Supply is made on appropriate commercial terms and consistently with the Terminal Gate Pricing regime under the FI Act (where applicable), for the benefit of both the User and Z.
Nothing in the General Terms and Conditions alters any rights or obligations of either Z or the User to the extent that they cannot be altered under the FI Act and FI Regulations.
Z and the User acknowledge each have legal obligations with which they must comply (which includes the FI Act and FI Regulations, amongst others) relating to specified aspects of the fuel supply.
11. Risk and Title
21. Notice of Claims
23. Force Majeure
1.1 Product Request Form
A User acknowledges that TGP Supply will be governed by a Product Request Form and these General Terms and Conditions.
1.2 Pre-condition to uplift
Prior to Product uplift by the User, the User must:
(a) have received written confirmation from Z that the User has been Provisionally Certified or Certified; and
(b) continue to meet all conditions of that Provisional Certification or Certification.
1.3 Provisionally Certified
Z will notify the User that a Provisional Certification has been granted when Z is satisfied in Z’s sole discretion:
(a) that the User can comply with the HSSE requirements set out in these General Terms and Conditions;
(b) with the result of the credit checks carried out in respect of the User; and
(c) that each driver has completed the terminal and site inductions set out in the Terminal Access Guide and the User has demonstrated that the User’s road tanker(s) comply with Terminal requirements.
1.4 Conditions of uplift under Provisional Certification
While Provisionally Certified, a driver must only conduct fuel loading under the supervision of an experienced driver trainer approved by Z (acting reasonably). A minimum of three (3) supervised loads must be completed before a Z loading assessment will be undertaken.
Certification will be granted to a driver following a successful assessment of the User’s driver’s loading process by a Z terminal staff member.
At all times while Provisionally Certified or Certified, and to remain Certified, Users must:
(a) follow the Product Request process when making requests for Products;
(b) continue at all times to have insurance in place that meets the requirements set out in these General Terms and Conditions;
(c) continue at all times to comply with the HSSE requirements set out in these General Terms and Conditions;
(d) continue at all times to comply with all payment conditions set out in these General Terms and Conditions plus any other conditions Z puts in place as part of Pre-certification;
(e) continue at all times to comply with the Terminal Access Guide;
(f) provide updates to Z of any changes of circumstance relevant to the User’s Certification status including changes in financial position, HSSE incidents, new vehicles that need approval, and new drivers that need onboarding; and
(g) comply with any further conditions Z requires as a result of any notified changes.
Z, or its authorised representative may at any time inspect, observe and make enquiries in relation to the User’s business and operations for the purpose of determining the User's compliance with the conditions of Certification set out in clause 2.1. The User agrees to cooperate and require that its employees, agents and contractors cooperate with Z for this purpose.
If Z considers (acting reasonably) that the User may not comply or is not complying with any of the conditions of Certification, upon Z’s request, the User will arrange for:
(a) Z’s concerns to be escalated to the appropriate persons within the User’s organisation; and/or
(b) those appropriate persons to meet with Z to discuss on what basis it may be appropriate for the User to continue being permitted to uplift Product.
4.2 Suspension and revocation
(a) If Z considers (acting reasonably) that the User has breached (or is likely to breach) any of the conditions of Certification Z may, by giving notice to the User, either suspend or revoke the User’s Certified or Provisionally Certified status.
(b) If Z has suspended the User’s Certified or Provisionally Certified status, Z will notify the User of the steps that Z requires the User to take to resolve the matters giving rise to the suspension. When the matter giving rise to the suspension is resolved to Z’s satisfaction (acting reasonably), Z will notify the User that the suspension has ended.
(c) If Z has revoked the User’s Certified or Provisionally Certified status and the User wishes to uplift Product from Z in future, Z will require the User to reapply for Pre-certification.
5.1 Renewal of Pre-certification
The User must update its Certification with Z by completing Pre-certification:
(a) Three yearly on or immediately prior to the anniversary of the date Z most recently confirmed the User as Certified for gantry loading (as referred to in the Terminal Access Guide);
(b) Two yearly on or immediately prior to the anniversary of the date Z most recently confirmed the User as Certified for both terminal and site inductions (as referred to in the Terminal Access Guide);
(c) In relation to credit checks, when reasonably requested by Z; and
(d) on the occurrence of any issue that, in Z’s reasonable opinion, would cause Z to stop being satisfied that the User meets the conditions of Certification.
5.2 Failure to renew
If the User does not renew its Certification in accordance with clause 5.1 above, the User will not be permitted to uplift Product from Storage Facilities until the renewal of the Certification is completed and Z confirms that the User is Certified.
6.1 Product Request process
Users may make a Product Request as follows:
(a) User must submit a Product Request Form or contact Z using the contact details set out on https://z.co.nz/keeping-business-on-the-move/fuels/terminal-gate-pricing to make a Product Request;
(b) User must make Product Requests on the day uplift is required between 9am-5pm;
(c) User must indicate its desired uplift time to Z in its request for TGP Supply.
(d) on receiving the User’s Supply Request, provided that the User is Provisionally Certified or Certified, where applicable Z will email the User a Product Request Form to complete, which:
(i) will require the User to provide the information set out in regulations 6(3) and 6(4) of the FI Regulations; and
(ii) will require that the User orders volumes that comply with the Minimum Purchase Amount; and
(e) the User may withdraw the Product Request and Product Request Form at any time prior to Z accepting the Product Request under clause 6.1(f); and
(f) Z will review the Product Request Form and will confirm either:
(i) that the User’s Product Request has been accepted; or
(ii) that some or all of the User’s Product Request has been declined on the basis of the reasonable grounds to refuse supply set out in the FI Act.
(g) Z’s acceptance of the Product Request will be subject to:
(i) the User remaining Provisionally Certified or Certified;
(ii) the User complying with the conditions of the Provisional Certification or Certification; and
(iii) no event occurring that results in Z’s belief that the User would be unable or unlikely to receive or transport the requested amount in accordance with health and safety requirements that apply in relation to the User, the fuel or the terminal resulting in it being unsafe, in Z’s opinion, to supply fuel from the terminal,
in each case, until the uplift of the Products commences, and in the case of compliance with the conditions of the Provisional Certification or Certification, until uplift of Products is complete.
6.2 Declining Product Request
In the event that a User’s Product Request is declined as set out in clause 6.1(f)(ii), Z will:
(a) if the request is declined only in part, prior to issuing that declination, Z will endeavour to discuss with the User whether the User wishes to proceed with the part of the Product Request that Z is able to accept, and will issue the final Product Request Form once confirmed; and
(b) comply with the notice requirements set out in the FI Act, FI Regulations, and any other applicable regulations.
7.1 Form of request for supply
Z will accept requests for supply only once the Product Request process in 6.1(a) to (e) has been followed.
7.2 Obligation to supply
Z will only refuse TGP Supply to a Provisionally Certified or Certified User who makes a Product Request where Z has reasonable grounds to refuse TGP Supply under the FI Act and the FI Regulations.
8.1 Minimum requirement
If a Prescribed Minimum Supply Amount applies, Z will make the Prescribed Minimum Supply Amount available to Users who are Independent Resellers for TGP Supply at the Locations.
8.2 No commitment (except for any minimum requirement)
The User acknowledges and agrees that, except to the extent that Z must make available any Prescribed Minimum Supply Amount to Users who are Independent Resellers for TGP Supply in accordance with clause 8.1:
(a) Z provides no commitment to have any volume of Product available for TGP Supply at any one time at the Storage Facilities; and
(b) Z will not have any liability whatsoever to a User if any Storage Facilities do not have adequate supplies of Products at any time for TGP Supply.
When accessing any Storage Facilities, the User undertakes:
(a) not to delay road tankers or allow them to be delayed while at the Storage Facilities, except for that which might usually occur while using the loading gantries;
(b) to facilitate safe and prompt passage for road tankers between the Storage Facilities and the public road;
(c) to use all reasonable care to avoid damage to the Storage Facilities and associated gantry or gantries; and
(d) to comply at all times with:
(i) the Terminal Access Guide;
(ii) the requirements of the Terminal Operator advised to the User; and
(iii) all HSSE obligations set out in:
(aa) these Terms and Conditions; and
(bb) the Terminal Access Guide.
(a) use meters to measure the volume of Products supplied to each User;
(b) ensure that the meters comply with all relevant statutory requirements; and
(c) detail Z’s measurements taken in accordance with sub-clause (a) above in the Bill of Lading and invoice on that basis.
10.2 User checks
A User or its representative may be present at the point of uplift to check weights and measurements. Any complaint in respect of uplift must be noted on the Bill of Lading for that delivery and provided to Z within 10 Business Days of uplift of Product.
10.3 Inaccurate meters
If a User considers, acting reasonably, that the relevant meters are operating outside the accepted margin of error (as specified in the Weights and Measures Regulations 1991), a User may request Z to provide, and if so, Z will provide, a calibration certificate for the relevant meters. If the User still considers, acting reasonably, that the meters are operating outside the accepted margin of error, the User may request that the relevant meters are checked, and Z will arrange for such checks to occur.
10.4 Check of meters
If the relevant meters are found to be operating:
(a) outside the accepted margin of error, Z will:
(i) bear the cost of checking the meters;
(ii) take all reasonable steps to ensure the meters are operating within the accepted margin of error;
(iii) adjust the Bill of Lading accordingly in respect of the most recent uplift by the User that was measured by the inaccurate meters; and
(iv) also consider, acting as a Reasonable and Prudent Operator, any reasonable reconciliation records supplied by the User that demonstrates that previous Bills of Loading for uplifts measured with the inaccurate meters were likely to be inaccurate; or
(b) within the accepted margin of error, the User will bear the cost of checking the meters.
10.5 Bill of Lading states final volume
Each volume of Product supplied by Z to a User will be as detailed in the Bill of Lading provided to that User or to that User’s representative on completion of lading at the Storage Facilities. It will be the User’s responsibility to check that the volume loaded is consistent with the Bill of Lading prior to the load leaving the Storage Facilities. Nothing in this clause 10.5 affects the operation of clause 24 (Dispute Resolution).
10.6 Invoice based on Bill of Lading
Pending resolution of any dispute about volume, the User must pay each invoice in full in accordance with clause 14 (payment) based on the volume stated in the Bill of Lading.
11.1 Passing of risk and title
As between Z and a User, the risk in, and the title to, any Product will pass to the User when Product passes the hose connection to the User’s apparatus at the gantry of the relevant Storage Facilities.
11.2 Risk of loss etc
A User accepts responsibility for any loss, leakage or contamination of Product which occurs after risk has passed to the User unless the loss, leakage or contamination is caused by Z’s terminal operation at or before the point of title and risk transfer.
12.1 Product grade
Any Product supplied by Z pursuant to a Product Request will meet the applicable requirements under the Engine Fuel Specifications. All warranties or conditions as to suitability for other purposes are specifically excluded.
A User agrees that Z need not consider any claim the User makes in relation to the quality of any Product unless the User:
(a) gives Z notice in writing of the User’s claim, specifying fully the facts on which the claim is based, within three Business Days of the alleged defect coming to the User’s attention;
(b) uses best endeavours to minimise loss and damage arising from the alleged defect; and
(c) gives Z reasonable opportunity to take samples of, and inspect and test, the Product in respect of which the claim is made.
12.3 No misrepresentation
A User must not:
(a) pass off or represent products not supplied to it by Z under a Product Request as being the Products; or
(b) misrepresent the specification of the Products.
12.4 Mixing of Products
If a User adulterates or otherwise mixes or contaminates any Product (which, to avoid doubt, includes treating a Product with additives) the User does so at its own risk, and Z has no liability to the User in relation to such adulteration, mixing or contamination of Products (provided that nothing in this clause excludes Z’s liability for its obligation to supply Product in accordance with clause 12.1).
13.1 Product price
The price for any Product uplifted at the Storage Facilities under a Product Request will be the Terminal Gate Price at the time the Product Request was made by the User.
Z will issue an invoice that meets the requirements of a tax invoice as set out in the GST Act for the total price of the Products uplifted in the relevant period.
(a) a User must pay for all Products uplifted from the Storage Facilities during the 7-day invoicing cycle, by electronic funds transfer to Z’s designated bank account not later than 7 Calendar Days after the date of the invoice from Z, unless agreed otherwise between the parties;
(b) if a User fails to pay by the due date and remains in default after having been given two Business Days’ written notice to pay, Z may, without prejudice to its rights against the User, whether under these General Terms and Conditions or at law, suspend the User’s Provisionally Certified or Certified status until such time as the User has paid all amounts owing to Z, or revoke the User’s Provisionally Certified or Certified status;
(c) Z may charge interest on all overdue amounts on a daily basis at the Reserve Bank of New Zealand 90 day bank bill rate plus 2 per cent per annum;
(d) all payments to be made by the User for TGP Supply must be made in New Zealand dollars on the due date in such manner as Z may require free of any deduction, withholding, restriction or condition; and
(e) neither Z nor a User may retain any money owed to it by the other nor deduct or set off from any payment due to the other.
15.1 Compliance with all applicable law
Each of Z and a User must, at its own cost, comply, and ensure that its respective Personnel comply, to the extent applicable to each of Z and a User, with all applicable laws, regulations, and recognised industry codes of practice relating to:
(a) storage or receipt of, or transport for, the Product;
(b) the Product; and
(c) access to, or use of, the Storage Facilities.
15.2 Required certificates
A User must, and a User will procure that the User’s Personnel that access or uses any Storage Facility must:
(a) obtain all necessary site and operator certificates that relate to hazardous substances or the handling of hazardous substances; and
(b) ensure that at all times such certificates remain current.
16.1 General principle
Without limiting any other obligations in these Terms and Conditions, the conditions of Provisional Certification or Certification, a Product Request Form, or at law, a User must, and will procure that the User’s Personnel must, so far as is reasonably practicable, uplift Products from any Storage Facilities in a safe manner.
16.2 Compliance with site safety procedures
Without limiting clause the User’s general obligation to uplift in a safe manner set out in clause 16.1:
(a) Z (or its authorised agent) will provide a site specific induction for the User and/or its Personnel during Pre-certification. Z (or its authorised agent) will undertake an assessment of competency of use of site equipment, after which Z (or its authorised agent) will confirm competency (or not, in which case, the relevant Personnel must undertake further training and re-perform the competency assessment); and
(b) as a requirement of Pre-certification and to remain Certified, a User must, or procure that the User’s Personnel must, as applicable, complete the site induction, the competency assessment, obtain competency confirmation from Z (or its authorised agent), and also comply with all safety policies and procedures notified by Z or its authorised agent to the User from time to time in respect of any Storage Facilities, including any health and safety obligations of an operator of a Storage Facility not operated by Z. Specifically, a User agrees that, unless approved by Z’s site manager (or nominee) or as otherwise set out in a final Product Request Form:
(i) it will not:
(aa) bring any products or additives that are not already available at the Storage Facilities into the Storage Facilities;
(bb) perform blending at the Storage Facilities, other than at existing blending facilities at the Storage Facilities; and
(ii) its road tankers will be emptied and drained prior to each uplift; and
(iii) in relation to any products that a User brings into the Storage Facilities, it will ensure that those products meet any applicable regulations.
16.3 Mutual HSSE obligations
Each Party will:
(a) have, and apply adequate resources and diligence to, an adequate operational risk management system and processes in place to ensure it can comply with its HSSE obligations under law and any contract between the parties (HSSE System); and
(b) without limiting a Party’s other obligations in this clause 8.2, co-operate, consult and co-ordinate with the other Party and, where any other PCBU is involved in relation to the TGP Supply, the Parties will agree how to ensure that those other PCBUs co-operate, consult and co-ordinate with the Parties and each other.
16.4 Specified Item supplied
If any Specified Item is supplied (including being made available for use) by either Party, the supplying Party acknowledges that it has obligations under HSSE law relating to its provision of the Specified Item and will comply with those obligations.
16.5 Authorised Purposes
If any Specified Item is supplied (including being made available for Use) under a Product Request and the supplying Party advises the other Party of the intended use and purpose for which the Specified Item is supplied, then that use and the purpose advised are defined as the Authorised Purposes.
16.6 Recipient’s obligations
The Party that is supplied (including being permitted to Use) a Specified Item will:
(a) (and will ensure its Personnel will) Use the Specified Item only for the Authorised Purposes in accordance with the reasonable instructions of the supplying Party given from time to time; and
(b) give the supplying Party immediate notice on the becoming aware of any loss of, defect in, maintenance required to, or damage to the Specified Item (as applicable).
The User will monitor and keep adequate records of the User’s compliance with its HSSE obligations in relation to TGP Supply, to the extent relevant to the User’s activities and undertakings relating to TGP Supply.
At Z’s reasonable request, the User will confirm to Z (to Z’s satisfaction (acting reasonably)) that the User has complied with its HSSE obligations relating to TGP Supply.
Where Z considers (acting reasonably) that the User has breached (or is likely to breach) its HSSE obligations relating to TGP Supply, or is likely to cause a serious risk to the health and safety of any person, then, upon 5 Business Days’ prior written notice, Z (or its appointed representative) (Inspector) may investigate the User’s activities and/or equipment used in connection with TGP Supply, to ensure that the User is complying and can comply with its HSSE obligations. The User (at its cost) will provide all cooperation and assistance that the Inspector reasonably requests in relation to that inspection, including giving the Inspector access to relevant User premises and/or equipment, User’s Personnel, and information. Z will comply (and will ensure that its Inspector complies) with the User’s HSSE policy while at a User’s Workplace. Z’s inspection or non-exercise of any right to inspect (whether under this clause or otherwise) will not affect or limit the User’s obligations relating to TGP Supply.
16.10 Notifiable Event management
For each Notifiable Event that occurs under or in relation to TGP Supply, (and specifically to the extent relevant to the User’s activities and undertakings relating to TGP Supply), the User will:
(a) inform the site manager at the Storage Facility and Z promptly after the time the Notifiable Event occurs;
(b) take all reasonable steps to mitigate the effects of the Notifiable Event and prevent or minimise further health and safety issues;
(c) with the level of Z’s involvement that Z reasonably requests, investigate each Notifiable Event for the purpose of understanding the cause of the Notifiable Event and (so far as is reasonably practicable) preventing the same or a related Notifiable Event occurring in future;
(d) if requested by Z, and with the level of Z’s involvement that Z reasonably requests, create a document that may include the following: identification of actions that the User will take to prevent (so far as is reasonably practicable) a similar or related Notifiable Event occurring in the future, timeframes for completing those action items, and identification of who is accountable for ensuring the completion of those the action items (a Notifiable Event Document);
(e) submit each Notifiable Event Document to Z within the timeframes Z reasonably requests;
(f) perform and close the action items described in a Notifiable Event Document or any other action item reasonably requested by Z (each an Action item);
(g) at the times reasonably requested by Z, report to Z on the User’s performance compared to the Action Items.
16.11 Interactions with the regulator
To the extent permitted by law, in relation to a request for information or a meeting from the Regulator to the User that relates to the User’s Personnel accessing Z’s Workplace, the User will:
(a) notify Z of the date on which the User will comply with that request and the information that the User will provide to the Regulator;
(b) if permitted, keep Z updated promptly of any communication with the Regulator including allowing Z or its representatives to attend the meeting with the regulator as an observer; and
(c) not make any admission or compromise for or on behalf of Z.
17.1 Confidentiality obligation
Subject to clause 17.2, neither Z nor a User will disclose to any other person any Confidential Information obtained by either of them concerning the uplift of Products or any refusal by Z to supply Products pursuant to a Product Request Form and these General Terms and Conditions except:
(a) as expressly authorised by the other party; or
(b) as permitted or required by law (including, but not limited to, the FI Act and FI Regulations) or the rules of any recognised stock exchange.
17.2 Other permitted disclosure
Each of Z and a User may disclose Confidential Information to its Personnel or its advisers, provided that:
(a) disclosure is on a ‘need to know’ basis; and
(b) the disclosing party uses best endeavours to ensure that any such party to whom Confidential Information is disclosed is aware of and complies with the confidentiality obligations imposed by this clause.
17.3 Standard of care
In fulfilling its obligations under this clause each of Z and a User will use at least the same degree of care as it uses to protect its own Confidential Information.
18.1 User assignment or novation
A User must not assign or novate or agree to assign or novate its rights or interests under any accepted Product Request Form and these General Terms and Conditions, without first obtaining Z’s written consent (to be given in its sole discretion).
18.2 Z consent required to subcontract, appoint agent, or permit uplift by third parties under User’s account
A User must not:
(a) sub-contract any of its rights or obligations under an accepted Product Request Form; or
(b) appoint or permit any third party to act as a User’s agent or to uplift Product under an accepted Product Request Form,
(c) first obtaining Z’s written consent (not to be unreasonably withheld or delayed); or
(d) identifying the User’s sub-contractor and/or third party in that accepted Product Request Form, provided that the sub-contractor and/or third party has been Provisionally Certified or Certified as part of the User’s Pre-certification (in which case, that subcontractor or third party is deemed to be consented by Z once Z accepts the Product Request Form).
18.3 Primary liability
Any sub-contracting, appointment, or permission of third parties by a User to perform a User’s obligations or exercise any of the User’s rights under an accepted Product Request Form will not relieve the User of its obligations to Z under the Product Request Form or these General Terms and Conditions.
19.1 User indemnity
Subject to clause 20, and to the extent permitted by law, a User indemnifies and holds Z harmless against all Loss to the extent that Loss arises from an act or omission of the User or its Personnel, including such Loss arising from:
(a) injury, including fatal injury and disease, to any person;
(b) damage to the Storage Facilities caused by User or the User’s Personnel in relation to the User’s use of, or access to, the Storage Facilities;
(c) claims by a third party (excluding Z or its Personnel) against Z for loss or damage to that third party’s property arising from the User’s use of, or access to, the Storage Facilities (such loss to include direct loss of profits, revenue, or business interruption);
(d) the discharge of any contaminants (including from any asset owned by, or under the control of, the User or its Personnel) in relation to the User’s use of, or access to, the Storage Facilities; and
(e) in respect of any other infringement of a legal right or obligation in so far as any third party claims or liabilities arise out of or are connected with the use of Products after the same have been sold by the User.
19.2 Off-spec Product
The indemnity in clause 19.1(e) does not apply to the extent that the Product does not meet the standards set out in clause 12.1 immediately prior to the time that risk in the Product passes from Z to the User.
19.3 Z indemnity
Subject to clause 20 and to the extent permitted by law, Z indemnifies and holds a User harmless against Loss to the extent that Loss arises from an act or omission of Z or its Personnel, including such Loss arising from:
(a) injury, including fatal injury and disease to any person;
(b) damage to the User’s assets caused by Z or Z’s Personnel in relation to the User’s use of, and access to, the Storage Facilities;
(c) the discharge of any contaminants from any Storage Facilities (other than Loss for which the User indemnifies for under clause 19.1(d));
(d) in respect of any other infringement of a legal right or obligation in so far as any third-party claims or liabilities arise out of or are connected with the Products as provided at uplift.
20.1 Limitation of liability
Subject to the remainder of this clause 20:
(a) Z’s and any of Z’s affiliates’ total liability for:
(i) any claim arising out of or in connection with Z’s supply of Product that does not meet the specification set out in clause 12.1 (Off Spec Product Claim) under a Product Request Form between the Parties and these General Terms and Conditions, is limited to $1 million per event or series of related events; or
(ii) any claim arising out of or in connection with a Product Request Form between the Parties or these General Terms and Conditions (other than an Off Spec Product Claim), however such liability may arise (including under tort, equity or otherwise), will not exceed the purchase price of the Product uplifted or was to be uplifted that is the subject of the claim or was otherwise being uplifted when the circumstance giving rise the claim occurred.
Despite any other term of a Product Request Form or these General Terms and Conditions, only the User (and not any of the User’s Personnel) may make a claim against Z arising or in connection with the User’s Product Request Form and these General Terms and Conditions.
(b) The User’s total liability for any claim by Z arising out of or in connection with an accepted Product Request Form or these General Terms and Conditions, however such liability may arise (including under tort, equity or otherwise), will not exceed $20 million per event or series of related events.
Despite any other term of a Product Request Form or these General Terms and Conditions, only Z (and not any of Z’s Personnel) may make a claim against the User arising or in connection with the User’s Product Request Forms or these General Terms and Conditions.
20.2 Exclusion of liability
Neither Z nor a User will be liable to each other for any direct loss of profits, revenue, or business interruption, or any indirect or consequential loss arising out of or in connection with a Product Request Form or these General Terms and Conditions, howsoever caused.
20.3 No limit or exclusion
Nothing in a Product Request Form or these General Terms and Conditions limits a party’s liability under or in relation to the Product Request Form or these General Terms and Conditions for:
(a) the indemnity given by that party under clause 19.1(a) or 19.3(a) (as applicable);
(b) any amounts due and owing to Z under and in accordance with a Product Request Form or these General Terms and Conditions; or
(c) fraud or the willful misconduct by that party.
20.4 Only as permitted by law
Each of the exclusions, limitations and insurance obligations set out in a Product Request Form or these General Terms and Conditions apply only to the extent permitted by law. Z and a User agree that an indemnity, insurance obligation, limitation or exclusion of liability of either Z or the User under a Product Request Form or these General Terms and Conditions does not apply to any fine or infringement fee payable under the HSW Act.
Any claim by either Z or a User arising out of or in connection with a Product Request Form or these General Terms and Conditions will be provided to other by written notice setting forth fully the facts on which it is based immediately after the date when the facts were discovered or reasonably should have been discovered, but, in relation to Products uplifted from any Storage Facility and despite clause 12.2, must be no later than sixty (60) calendar days after the lifting date.
22.1 Insurance cover
The User warrants that it will maintain at all times, and at its cost, the insurances specified in the Application Form.
22.2 Acceptable insurer
All such insurance must be with insurers acceptable to Z and being at all times of at least A Minus Status,and must expressly name Z as being covered for any vicarious liability it may incur under, or as a result of, the User Agreement.
22.3 Primary insurance
All insurance referred to in clause 7.1 will be deemed primary, and any insurance maintained by Z will not contribute to any loss covered under a User’s insurance.
23.1 No liability for force majeure
Neither Z nor a User will be responsible for any failure to perform or comply with or any delay in performing or complying with any obligation under a Product Request Form or these General Terms and Conditions (other than the payment of money) if such failure or delay, despite all reasonable efforts on the part of the party affected, has been caused by:
(a) any circumstances whatsoever which are not reasonably within the control of the User, or Z, or Z's suppliers (whether actual or contemplated); or
(b) compliance with any order, demand, requirement, request or recommendation of any international, national, state, port, transportation, local or other authority or agency, governmental department or of any court, or of any person purporting to be or to act for such authority, agency, department or court; or
(c) any strike, labour or industrial dispute, whether or not Z or the User is party thereto or would be able to influence or procure the settlement thereof.
If any of the causes referred to in clause 23.1 arises, the party affected must promptly advise the other party of the particulars of the cause.
23.3 Relief requirements
A party must not claim the benefit of clause 23.1 unless that party immediately takes all reasonably practicable steps to remedy the situation and to resume performance of any affected Product Request Form or General Term or Condition provided however that the negotiation and settlement of strikes, labour and industrial disputes will be entirely within the discretion of the party involved who may make settlement thereof at such time and on such terms and conditions as that party may deem advisable, so long as that party has complied with industrial orders or awards.
24.1 DR process first
Where any dispute arises between Z and a User concerning TGP Supply, including under Pre-certification, any Product Request Form or these General Terms and Conditions or the circumstances, representations, or conduct giving rise to TGP Supply, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 24.2-24.6.
24.2 Resolution by agreement
The party initiating the dispute (“the First Party”) must provide written notice (“Dispute Notice”) of the dispute to the other party (“the Other Party”) and may nominate in that notice the First Party’s representative for the negotiations. The Other Party may within 5 Business Days of the date of the Dispute Notice give written notice to the First Party naming its representative for the negotiations. Each representative nominated must have authority to settle or resolve the dispute. If the dispute is unable to be resolved by agreement between the parties, the dispute must be referred to mediation.
24.3 Referral to mediation
Either Party may at any time refer make a written request for mediation to the other Party. The Party who receives the mediation request must, within 10 Business Days, reply to the mediation request in writing and:
(a) state whether the Party agrees to mediation; and
(b) if the Party does not agree to participate in mediation, state the reasons for declining the request.
24.4 Withdrawal of mediation request
The Party that makes a written request for mediation may withdraw that request at any time.
The following matters must be conducted in accordance with the procedure set out in the FI Regulations:
(a) appointment of the mediator;
(b) agreement of the procedure for the mediation;
(c) timing for beginning and completion of the mediation;
(d) if agreement (in whole or in part) is reached between the parties in the course of the mediation, the recording of a written settlement agreement; and
(e) division of mediation costs.
If the Parties are unable to resolve the dispute at mediation as set out in the FI Regulations, either party may refer the dispute to arbitration. The provisions of the Arbitration Act 1996 will apply to any arbitration of the dispute.
24.7 Continue to perform
Pending final settlement of any matter referred to mediation or arbitration, the parties must continue to perform their obligations under any final Product Request Form or these General Terms and Conditions as far as possible as if no dispute had arisen.
24.8 Urgent or equitable relief
Nothing in this clause 24 will preclude either party from taking immediate steps to seek urgent interlocutory or equitable relief before a New Zealand Court.
Each notice, agreement and other communication (each a "communication") to be given, delivered or made under these General Terms and Conditions and/or any Product Request Form is to be in writing but may be sent by email, personal delivery or post. The initial contact by the User to Z for Product Requests may also be made by phone. The User’s contact details are as set out in the relevant Product Request Form. Z’s contact details are as set out on Z’s website.
25.2 Effect for Product Request Form communications
A communication under any Product Request Form will only be effective:
(a) if sent by personal or courier delivery, at the time and date that the notice is handed to a representative of the recipient;
(b) if sent by electronic mail, on the day and time of transmission if received after 9.00am and before 5.00pm (Product Request Period), and otherwise during the next Product Request Period, unless a notice of non-delivery is received by the sender;
(c) if by pre-paid mail from within New Zealand, 3 Business Days from the day of posting;
(d) if by pre-paid mail from outside New Zealand, on the day of receipt; and
(e) in the case of initial contact by the User to Z for Product Requests, if made by phone during the Product Request Period, and otherwise during the next Product Request Period.
25.3 Effect for all other communications
A communication under these General Terms and Conditions will only be effective:
(a) if sent by personal or courier delivery, at the time and date that the notice is handed to a representative of the recipient;
(b) if sent by electronic mail, on the day and time of transmission if received before 5.00pm on a Business Day, and otherwise on the next Business Day, unless a notice of non-delivery is received by the sender;
(c) if by pre-paid mail from within New Zealand, 3 Business Days from the day of posting; and
(d) if by pre-paid mail from outside New Zealand, on the day of receipt or if that day is not a Business Day, on the next Business Day.
26.1 Z may immediately change the terms of these General Terms and Conditions as it sees fit, provided such changes comply with law. Z will post the latest version of these General Terms and Conditions on its website. The updated General Terms and Conditions will apply to all Product Requests made after the date of update.
In the event of any conflict between these General Terms and Conditions and an approved Product Request Form, the Product Request Form will prevail.
27.2 Excluded terms
All terms and conditions relating to a Product Request Form or these General Terms and Conditions that are implied by law or custom are excluded to the maximum extent permitted by law.
27.3 Consumer Guarantees
Nothing in the Consumer Guarantees Act 1993 is to apply to the provision of any Product or services under a Product Request Form or these General Terms and Conditions. Each User represents and warrants that the provision of any Product or services under a Product Request Form or these General Terms and Conditions is solely for business purposes.
27.4 No joint venture or partnership
It is not the intention of the parties to a Product Request Form or these General Terms and Conditions to create, nor shall a Product Request Form or these General Terms and Conditions be construed as creating, a trust, joint venture or partnership.
27.5 Not joint and several
The rights, obligations, and liabilities of Z and the Users shall be individual and not joint and several or collective.
28.1 Contract privity
Except as specifically provided in a Product Request Form, the provisions of a Product Request Form and these General Terms and Conditions shall not and are not intended to confer any benefit on, or create any obligation enforceable at the suit of, any person not subject to the Product Request Form or these General Terms and Conditions. If any provisions do confer any benefit on, or create any obligation enforceable at the suit of, any person not subject to the Product Request Form or these General Terms and Conditions, then those provisions may be varied in accordance with clause 26 or any other provision that permits Z to amend a provision, in each case without any need to obtain the consent of such person.
If any provision of a Product Request Form or these General Terms and Conditions is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, it will be either:
(a) read down so as to be valid and enforceable, provided the reading down does not materially affect the purpose of or frustrate the Product Request Form or these General Terms and Conditions; or
(b) if it cannot be so read down, severed from the Product Request Form or these General Terms and Conditions,
and any such determination will not impair the enforceability of the remaining parts of the Product Request Form or these General Terms and Conditions.
A waiver by Z of any breach or non-observance by the User of any of the provisions of the Product Request Form or these General Terms and Conditions will not be effective unless made in writing. A waiver will not be construed as a general waiver and will relate only to the particular breach or non-observance in respect of which it was made.
28.4 Entire agreement
In respect of Z and a User, all final Product Request Forms, these General Terms and Conditions, and the Pre-certification process between them, constitute the entire agreement between Z and that User with regard to the subject matter and there have not been and there are no agreements, representations or warranties between the parties other than those set out in the Product Request Form, these General Terms and Conditions, and the Pre-certification process.
28.5 Governing law and jurisdiction
A Product Request Form and these General Terms and Conditions will be governed by and construed in accordance with New Zealand law. Each User and Z irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand for the purpose of hearing and determining any disputes or proceedings arising out of or in connection with a Product Request Form or these General Terms and Conditions.
In these General Terms and Conditions, the following words have the following meanings:
- Application Form means the application form to be completed by a User as part of the Pre-certification process.
- A Minus Status means, in respect of an insurer, an insurer financial enhancement rate by Standard & Poor’s of A – for that insurer.
- Bill of Lading means a document containing the type of Product uplifted by User, the volume uplifted, the price to be paid and any other information as specified by Z.
- Business Day means a day other than a Saturday, Sunday or statutory holiday, on which registered banks are open in Wellington.
- Certified means that a User has completed the Pre-certification process to Z’s satisfaction, and the User is approved to make Product Requests.
- Confidential Information means any information which is not public knowledge (other than public knowledge resulting from a breach of an approved Product Request Form or these General Terms and Conditions) and which is obtained from the other party in the course of negotiating or implementing a Product Request Form or these General Terms and Conditions.
- Engine Fuel Specifications means the Engine Fuel Specifications Regulations 2011.
- FI Act means the Fuel Industry Act 2020.
- FI Regulations means the Fuel Industry Regulations 2021, and any other applicable regulations made under the FI Act.
- General Terms and Conditions means these TGP general terms and conditions (as amended from time to time).
- GST means goods and services tax chargeable pursuant to the GST Act.
- GST Act means the Goods and Services Tax Act 1985.
- HSSE means health, safety, security and the environment.
- HSW Act means the Health and Safety at Work Act 2015.
- Independent Reseller has the meaning set out in the FI Act.
- Location means each location defined in regulation 10(2) of the FI Regulations.
- Loss means all losses, liabilities, claims, costs and expenses arising out of or in connection with a User’s approved Product Request Form and these General Terms and Conditions.
- Minimum Purchase Amount means the minimum purchase amount for any Product specified in the FI Regulations.
- Notifiable Event includes:
(a) any event or incident for which the User is required to notify a regulator under HSSE Law;
(b) any near-miss of such an event or incident; and
any event or incident for which the User is required to notify the site manager of the relevant Storage Facilities, as set out in any safety policies and procedures notified to the User in accordance with clause 12.2 of these General Terms and Conditions.
- Party means Z or a User.
- PCBU has the meaning set out in the HSW Act.
- Personnel means, in respect of each party, the employees, agents, representatives, contractors, or invitees (including a contractor’s employees, agents, representatives, or contractors or invitees), employed, appointed, or permitted by that party to perform any or all of that party’s obligations or to exercise any or all of that party’s rights relating to TGP Supply, including under Pre-certification, any Product Request Form or these General Terms and Conditions but, to avoid doubt, in the case of Z, does not include the User or its Personnel.
- Pre-certification means the process that Users must complete to Z’s satisfaction to be Provisionally Certified and Certified by Z.
- Provisionally Certified means that the User has completed the initial steps of the Pre-certification process to Z’s satisfaction, and the User is approved to make Product Requests, subject to complying with the Provisionally Certified User conditions of uplift, as specified in the Pre-certification process.
- Prescribed Minimum Supply Amount means the minimum supply amount for each Product that Z is required to make available for TGP Supply to Independent Resellers at each Storage Facility as set out in the FI Act, the FI Regulations and any other applicable regulations.
- Products means those products that Z has a right to draw at a Storage Facility that are “specified engine fuel” under the FI Act
- Product Request means a request to Z for TGP Supply.
- Product Request Form means a document between Z and a User pursuant to which that User agrees to uplift Product in accordance with these General Terms and Conditions and the terms of that form.
- Reasonable and Prudent Operator means, in relation to the performance of obligations and the exercise of rights (including the performance of actions taken following the exercise of rights) relating to TGP Supply, including under Pre-certification, any Product Request Form or these General Terms and Conditions, an operator whose standard of performance and decision making is equal to or better than that generally recognised by companies operating nationally or internationally in industries offering or using (as appropriate) motor fuels supply, sale, storage, as applied to the circumstances prevailing in New Zealand (in relation to companies operating internationally).
- Regulator has the meaning set out in the HSW Act.
- Spot User Agreement means an agreement between a customer and Z where the contract type is described as a “Spot” contract.
- Storage Facilities means, in respect of a User, each bulk storage facility as defined in the FI Act at which a member of the Z Group has the right to draw Product.
- Terminal Access Guide means the access guide for each Storage Facility that sets out the terms of access for that Storage Facility.
- Terminal Gate Price means, on any day, the price set by Z in accordance with section 9 of the FI Act as the “Terminal Gate Price” and posted on Z’s website in accordance with the FI Regulations.
- Terminal Operator means the operator of the applicable Storage Facility, which may be Z or may be a third party.
- Term User Agreement means an agreement between a customer and Z where the contract type is described as a “Term” contract.
- TGP Supply means same-day sale of Products to a User from Storage Facilities at the Terminal Gate Price.
- Use includes use, handle, store, assemble, construct, inspect, clean, maintain, repair, decommission, dismantle, demolish, disposal, or any other reasonably foreseeable activity, as appropriate, whether actioned or to be actioned.
- User means any person who uplifts Products from Storage Facilities pursuant to a Purchase Request Form and these General Terms and Conditions, and that person’s successors and permitted assignees and transferees.
- Workplace means any premises owned or controlled by or on behalf of a Party, on which the other Party may or is to access under or in relation to any Purchase Request Form or these General Terms and Conditions.
30.1 In these General Terms and Conditions except where the context otherwise requires:
(a) a word denoting the singular includes the plural and vice versa;
(b) the word “person” includes partnerships and corporations;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have the corresponding meanings;
(d) a reference to:
(i) $ or dollars is a reference to New Zealand currency;
(ii) including and similar words do not imply any limitation; and
(iii) a statute or regulations includes references to regulations, orders or notices made under or in connection with the statute or regulations, as it may be amended or replaced from time to time;
(e) a reference to a clause is a reference to a clause in these General Terms and Conditions.
30.2 In these General Terms and Conditions, reference to any act or omission by the User:
(a) includes the permitting or allowing by the User of such an act or omission; and
(b) includes an act or omission of any Personnel of the User.
30.3 The headings and reference to Parts of these General Terms and Conditions are for convenience only and do not affect the interpretation of these General Terms and Conditions.
30.4 Unless otherwise specified, where a consent is required to be given that consent may be given or withheld at the discretion of the party required to give the consent and may be given subject to conditions.