You should read these Terms and Conditions carefully. By accepting and/ or using the Card, or signing an application form for the Card, the Cardmaster agrees with Cardlink Systems Ltd to be bound by these terms and conditions and any future amendments from time to time made in accordance with clause 2.
In these terms and conditions unless the context otherwise requires, the following expressions shall have the following meanings:
“Account” means the account opened by Cardlink in the name of the Cardmaster in respect of which transactions are debited, and payments made by the Cardmaster are credited, in the operation of the account. “Application Form” means the application for an Account submitted to Cardlink.
“Business Day” means a day on which trading banks are open for commercial business in Auckland, New Zealand.
“Card” means any card issued at the Cardmaster’s request in respect of the Account, as agreed to by Cardlink at the relevant time.
“Cardlink” means Cardlink Systems Ltd and its successors or assigns.
“Cardmaster” means a person, company, corporation, firm or association who or which, by applying for a Card, has entered into an agreement with Cardlink by which the Cardmaster has a right to nominate Card Users.
“Card User” means each person nominated by the Cardmaster to use a Card.
“Charge” means the amount incurred during the Charge Period by the Cardmaster and the Card User for the purchase of Supplies using the Card at the Supply Price, whether or not a Sales Voucher is actually completed or signed in connection with such charge and includes the relevant Fee.
“Charge Period” means the recurring period determined by Cardlink at its discretion from time to time during which Charges may be incurred by the Cardmaster and the Card User.
“Credit Limit” means any limit imposed by Cardlink from time to time on the value of Supplies which may be purchased using the Account or any Card during a Charge Period.
“Discount” means any discount or rebate, however described, offered or provided by Cardlink to the Cardmaster from time to time in connection with any Charge.
“Fee” means such sum from time to time determined and charged by Cardlink in connection with an Account and/or the Card including running costs and levies and those fees and charges posted on Cardlink’s website or otherwise notified to the Cardmaster from time to time.
“includes” and “including” mean including without limitation to the generality of the foregoing. “Personal Identification Number” means any unique number or code assigned to the Card for security purposes.
“Petroleum Products” means any motor spirit, diesel, fuel oil, kerosene, detergents and solvents, lubricants (including all automotive and industrial lubricants and greases) provided (directly or indirectly) for sale or supply to the Cardmaster or the Card User.
“Online Purchases” means internet purchases of Supplies by the Cardmaster or Card Users from the websites of Suppliers.
“Related Companies” has the meaning given to it in section 2(3) of the Companies Act 1993. “Sales Voucher” means a voucher or receipt in the form from time to time provided by Cardlink or a Supplier for use of the Card.
“Sales Voucher Purchases” means purchases of Supplies from Suppliers made by the Cardmaster or Card Users using Sales Vouchers.
“Special Conditions” means any terms and conditions relating to Cards, other than those specified in these terms and conditions, which Cardlink and the Cardmaster have agreed to in writing.
“Statement” means the consolidated tax invoice produced by Cardlink for each Charge Period that details all Charges owing to Cardlink by the Cardmaster.
“Supplier” means a person, company, corporation, firm or association appointed by Cardlink to (directly or indirectly) provide or sell Supplies to the Cardmaster or the Card User.
“Supplies” means goods and services sold or supplied by a Supplier nominated by Cardlink from time to time.
“Supply Price” means a price for the purchase of the Supplies as determined by Cardlink (from time to time) by reference to a range of factors, including prevailing market conditions.
“Vehicle” means a vehicle or equipment in respect of which particulars have been notified to Cardlink by the Cardmaster for use by a Card User or a vehicle or equipment hired by a Card User using the Card.
Cardlink reserves the right to vary these terms and conditions (including the Fees, Discounts and Special Conditions) at any time either by notice in writing to the Cardmaster via post or email, or by publishing the new or amended terms and conditions (including Fees and Discounts) on its website at www.cardlink.co.nz. Any of these notices shall be deemed to be notice to the Cardmaster. Notice shall be deemed to have been received by the Cardmaster on the second Business Day after the day on which notice is posted to the last known address of the Cardmaster, or posted to the website or via email. The Cardmaster is bound by any such amendment unless all issued Cards are cut in half and returned to Cardlink within 5 Business Days of receipt of the notice as set out above. Use of Card after the notice will be deemed to be acceptance of the new or amended terms and conditions (including Fees and Discounts).
3. AUTHORISED CARD USER
The Cardmaster shall notify Cardlink of the name of each person authorised by the Cardmaster to use a Card, and if authorised only for a Vehicle, the registration details of that Vehicle by completing and returning an Application Form to Cardlink.
4. COMPLIANCE BY CARD USER
4.1 The Cardmaster shall issue the Card to the Card User and the Cardmaster shall ensure that the Card User complies with these terms and conditions and any other instructions on the use of the Card as may be given by Cardlink to the Cardmaster from time to time, including keeping any Personal Identification Number secure and not exceeding any Credit Limit.
4.2 The Cardmaster agrees and acknowledges that any act or omission of the Card User in connection with the Card will be deemed an act or omission of the Without limiting the foregoing, the Cardmaster shall be liable to Cardlink for all acts and omissions of the Card User.
5. LOSS OF CARD
5.1 If the Card is lost or stolen or otherwise ceases to be in the possession of the Cardmaster or the Card User, the Cardmaster shall immediately notify Cardlink giving all available information as to the circumstanc- es of such loss or theft, confirming all such information to Cardlink in writing and taking all reasonable steps that Cardlink may require to assist Cardlink to recover the Card.
5.2 The Cardmaster shall be liable for all purchases made prior to receipt of such initial notification (including any purchases in excess of the Credit Limit) by Cardlink but shall have no liability for purchases made with the Card by parties other than the Cardmaster or the Card User after such receipt.
6. WITHDRAWAL OF CARD
6.1 Upon a Card User ceasing for any reason to be authorised by the Cardmaster to use the Card, or any Vehicle ceasing to be a Vehicle operated by the Cardmaster, then the Cardmaster shall immediately notify Cardlink and return the Card previously issued to the Card User to Cardlink. The Cardmaster shall be liable for all purchases made prior to receipt by Cardlink of the Card.
6.2 Cardlink reserves the right to change or withdraw any Discounts or Fees charged to the Cardmaster at any time and will, other than where such change or withdrawal is due to a breach of these terms by the Cardmaster or a failure to maintain an acceptable credit rating, provide prior notice to the Cardmaster of such receipt.
The Cardmaster shall indemnify Cardlink and its Related Companies (“Indemnified Persons”) and hold the Indemnified Persons harmless in respect of all claims, costs, expenses, losses, liabilities, damages proceedings and legal fees (on a solicitor-client basis) of whatsoever kind made against, suffered or incurred by the Indemnified Persons in connection with:
7.1 the loss, theft or fraudulent or other misuse of the Card by the Card User or any other person, which occur prior to initial notification by the Cardmaster under clause 5 above or receipt of the Card by Cardlink pursuant to clause 6 above; or
7.2 as a result of the breach by the Cardmaster of these terms and conditions; or
7.3 the supply or non-supply of the Supplies. This clause 7 is for the benefit of and intended to be enforceable by each of the Indemnified Persons for the purposes of Subpart 1 of Part 2 of the Contract and Commercial Law Act 2017,
8. RETURN OF THE CARD
The Card is at all times the property of Cardlink and shall be returned by the Cardmaster to Cardlink immedi- ately upon the request of Cardlink at any time for any reason without obligation on Cardlink to reissue the Card.
9. SUSPENSION OR CANCELLATION
9.1 Cardlink may suspend any Card or Account, or restrict the use of any Card or Account immediately and without notice to the Cardmaster where Cardlink has reason to suspect an existing or anticipated breach of these terms and conditions, or for any other reason, in its absolute discretion.
9.2 Cardlink may upon the, loss, theft or destruction of the Card, or for any other reason whatsoever, give such notice as it thinks fit that the Card is no longer valid. The Card will be cancelled from the date of the notice but without releasing the Cardmaster from any liability or obligation under these terms and conditions.
9.3 Cardlink shall be entitled to disclose to any Supplier or any other person the reason for the suspension, restriction, cancellation or invalidity of the Card or Account. The Cardmaster waives and, if required by Cardlink, shall procure that each Card User shall waive all rights of action against Cardlink in relation to disclosure, whether given negligently or otherwise and irrespective of whether the disclosure is false, misleading or otherwise in error.
9.4 Cardlink may at any time disclose to any third party information concerning the Account as may be necessary for the operation of the Account or the Card (or both).
10. PURCHASE OF SUPPLIES
10.1 The Cardmaster shall ensure that the Card User obtains a Sales Voucher in respect of Sales Voucher The Cardmaster must procure that the Card User signs each Sales Voucher at the time of purchase of the Supplies. The signature by the Card User on a Sales Voucher shall constitute a purchase by the Cardmaster from the Supplier of all Supplies to which that Sales Voucher relates. The Cardmaster shall have no right to dispute the amount of any Sales Voucher or the authority of the Card User to purchase those Supplies.
10.2 All amounts debited to a Card as the result of an On-line Purchase, shall constitute a purchase by the The Cardmaster shall have no right to dispute the amount of any On-line Purchase or the authority of the Card User to purchase those Supplies.
10.3 Cardlink shall not be liable to the Cardmaster for any loss, damage, costs or expenses suffered by the Cardmaster or the Card User arising directly or indirectly from failure by the Supplier to accept a Card or failure by the Supplier to charge the appropriate price for Supplies notwithstanding that such failure may constitute a breach of any contract or agreement between the Supplier and Cardlink.
10.4 Cardlink shall not be liable for any act or omission of any Supplier, or any defect or deficiency in any Supplies acquired by use of the Card. The Cardmaster will be solely responsible for any claim against or dispute with any Supplier and the existence of such claim or dispute shall not relieve the Cardmaster of the obligation to pay the amount of all Charges due to Cardlink as set out in the Statement.
11. WARRANTY BY CARDMASTER
Signature by a Card User on a Sales Voucher in conjunction with the use of the Card and use of a Card for an On-line Purchase shall constitute a warranty by the Cardmaster to Cardlink that:
11.1 All statements, amounts and other information contained in the Sales Voucher or provided to the Supplier’s website on the internet are true and correct in all respects and reflect a genuine commercial transaction between the Supplier and the Cardmaster or Card User and there are no collateral contracts or other representations in existence affecting the sale of the Supplies to which the Sales Voucher relates;
11.2 In the case of a Sales Voucher Purchase, after its completion and signature the Sales Voucher has not been altered or added to; The Cardmaster has no right to dispute or withhold payment to Cardlink in respect of the whole or any part of the amounts shown on the Sales Voucher;
11.3 The transaction complies in all respects with the requirements of any relevant law or regulation; and
11. 4The benefit of the transaction has not been assigned, pledged or dealt with by the Card User in any manner or in favour of any person other than the Cardmaster.
12. PROPERTY IN THE SUPPLIES
12.1 Cardlink acknowledges that the Cardmaster shall, subject to clauses 12.2 and 12.3, have the property in the Supplies and shall be entitled to the benefit of all terms and warranties relating to the Card.
12.2 Except where Cardlink gives the Cardmaster written notice to the contrary and not withstanding any period of credit, legal and beneficial ownership of the Supplies (except Petroleum Products) shall vestin Cardlink until payment of all the Charges is made in full to Cardlink by the Cardmaster. If payment is overdue Cardlink may recover and sell the Supplies (including Petroleum Products).
12.3 For the period until payment of the Charges and all other monies owing by the Cardmaster to Cardlink have been made in full, the Cardmaster grants to Cardlink a purchase money security interest in all of the Supplies (including Petroleum Products) and their proceeds and Cardlink may register that purchase money security interest on the Personal Properties Security Register and, where necessary, amend that registration. The Cardmaster acknowledges that these terms and conditions constitute a security agreement.
13. CARDLINK AND SUPPLIER LIABILITY
13.1 To the extent permitted by law, Cardlink, nor the Suppliers shall be liable to the Cardmaster or the Card User for any defects in the Supplies purchased or any Supplies improperly made or supplied, or for any mechanical failure of a vehicle resulting from such defects, nor for any loss, damage or claim whatsoever arising from such defects, whether directly or indirectly caused and whether suffered by the Cardmaster, the Card User or any third This clause 13.1 is also for the benefit of and intended to be enforceable by each of the Suppliers for the purposes of Subpart 1 of Part 2 of the Contract and Commercial Law Act 2017,
13.2 The parties acknowledge and agree that the goods and services supplied by Cardlink to the Cardmaster and the Card User, and the Supplies acquired by the Cardmaster and the Card User using the Card are all “supplied and acquired in trade” within the meaning of the Fair Trading Act 1986 and the Consumer Guarantees Act 1993, and that the Consumer Guarantees Act 1993 and sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to these terms and conditions and that it is fair and reasonable to exclude their application.
13.3 The parties also acknowledge and agree that any right, duty or liability that would arise under a contract of sale under Part 3 of the Contract and Commercial Law Act 2017 and the United Nations Convention on Contracts for the International Sale of Goods under Part 3, Subpart 7 of the Contract and Commercial Law Act 2017 are excluded from application to the purchase and provision of the Supplies to the fullest extent permitted by law.
13.4 Cardlink shall not under any circumstances be liable to the Cardmaster for any loss of profit, loss of opportunity or indirect or consequential losses resulting from any breach by Cardlink of its obligations under these terms and conditions.
13.5 To the extent permitted by law, Cardlink’s liability under these terms and conditions shall be limited to a sum which is equivalent to the aggregate Fees paid by the Cardmaster in the preceding 3 months.
14. PAYMENT FOR SUPPLIES
For Supplies purchased by the Card User using the Card in accordance with these terms and conditions, Cardlink shall pay the relevant Supplier the price agreed between Cardlink and the Supplier for those purchases.
15. CARDLINK CHARGES
15.1 Following the conclusion of each Charge Period the Cardmaster will be issued a Statement, which will set out the Charges for that Charge Period and the total amount owing to Cardlink (“Payment Amount”). The Cardmaster must pay the Payment Amount to Cardlink by the due date specified in the Statement in accordance with clause 16.
15.2 Cardlink reserves the right to change any Fees charged and to change or discontinue any Discounts offered or provided to the Cardmaster, without prior notice to the Cardmaster.
15.3 In respect of each Charge Period, the provision of Supplies and the provision of the Card and other services by Cardlink as set out in these terms and conditions during that Charge Period shall constitute a separate contract between Cardlink and the Cardmaster for that Charge Period. The agreed price for those Supplies, Cards and other services shall be the Payment Amount as set out on the Statement for that Charge Period.
16. PAYMENT BY THE CARDMASTER
16.1 The Cardmaster shall make payment to Cardlink of the Payment Amount referred to in clause 15, either by authorising its bankers to pay by direct debit initiated by Cardlink, or by credit card or direct credit if so authorised by CardLink.
16.2 Where the Payment Amount is not paid in full by the Cardmaster, any monies received by Cardlink from the Cardmaster shall be applied in such a way as Cardlink shall in its sole discretion determine.
16.3 Payment in full of the Payment Amount must be received by Cardlink no later than the due date for payment as specified on the Statement. Any payment made will not be deemed to have been received by Cardlink until the date on which such payment is actually credited to Cardlink’s account. If the due date falls on a weekend or a day other than a Business Day, payment should be received no later than the Business Day preceding the due date for payment.
16.4 If a payment is overdue or dishonoured, Cardlink will charge the Cardmaster overdue and administration fees as determined by Cardlink and as posted on Cardlink’s website from time to time, but without prejudice to the right of Cardlink to charge interest on the amount owing or any other rights and remedies available to Cardlink. If the Cardmaster or Card User continue to use a Card after a payment is due Cardlink will deem this to be a request for a credit extension, provided that such request and any consideration thereof shall not constitute a waiver of Cardlink’s rights under these terms and conditions. Such requests will be considered at Cardlink’s discretion, taking into consideration the Cardmaster’s account structure, payment history and any credit information Any request for a credit extension will be considered solely at Cardlink’s discretion and if the request is rejected, Cardlink has no liability to the Cardmaster in respect of any action to cease supply. If Cardlink agrees to grant the Cardmaster a credit extension the Cardmaster may be charged a credit extension fee, being a percentage of Charges, until the outstanding balance has been repaid. The Cardmaster will be liable for any outstanding amounts, as well as any losses, damages, costs and disbursements (including legal costs on a solicitor-client basis) incurred by Cardlink in recovering the outstanding amount, including interest.
16.5 Cardlink may at the time a Charge is incurred, agree (on request) to accept payments in respect of the Charge incurred by means of an arranged instalment Subject to the terms of that plan, and Cardlink’s approval, that Charge may then be repaid by instalments over a period agreed with Cardlink. If this is agreed, the Cardmaster must pay to Cardlink a finance charge as may be determined by Cardlink from time to time, calculated from the time the Charge is incurred until final payment is made to Cardlink.
17. TERM AND TERMINATION
17.1 The term of this agreement shall be for a period from the date on which Cardlink accepts the completed Application Form of the Cardmaster and shall continue thereafter unless terminated by 30 Business Days’ notice by either Cardlink or the Cardmaster, or such lesser period as determined by Cardlink if a Supplier terminates its arrangement with Cardlink.
17.2 Notwithstanding any prior waiver of its rights, Cardlink may without notice immediately terminate this agreement in respect of the Cardmaster in any of the following circumstances:
(a) Failure for three Business Days by the Cardmaster to pay any monies due under these terms and conditions.
(b) Breach by the Cardmaster or a Card User of these terms and conditions which in the reasonable opinion of Cardlink cannot be remedied, or where a breach can be remedied, but is not remedied after three Business Days’ notice specifying the default has been given by CardLink.
(c) The Cardmaster becoming insolvent, ceasing or threatening to cease business or having a receiver appointed for execution or distress levied upon any of its assets or a meeting being called of the Cardmaster’s creditors or any of them for the purposes of financial rescheduling or the payment of money due.
(d) The Cardmaster entering into or attempting to enter into a compromise with creditors or (in the case of a limited liability company) going into liquidation except a voluntary liquidation for the purposes of amalgamation or solvent reconstruction of the Cardmaster.
17.3 The termination of this agreement shall not affect the rights or liabilities of any party against the other to the date of such termination.
17.4 The outstanding balance on the Account shall immediately become due and payable on the termination of this agreement and the Cardmaster shall immediately return all Cards to CardLink.
18. OTHER LIABILITY
The Cardmaster is liable for all Charges made with or incurred by the use of the Cards issued to the Cardmaster and any Charges made with or incurred by the Card User.
19. FORCE MAJEURE
Neither Cardlink, nor any Supplier shall be under any liability to the Cardmaster or any Card User for failure to perform any obligation if that failure is due to an event beyond the reasonable control of Cardlink or the Supplier or their respective agents, subcontractors or employees.
Any neglect, forbearance or indulgence on the part of Cardlink relating to its strict rights under these terms and conditions shall not be deemed to be an express or implied waiver of such rights.
The Cardmaster shall not assign, subcontract or otherwise deal with its rights or obligations (or both) under these terms and conditions.
23.1 All communications between the parties to these terms and conditions shall be given in writing and be deemed to have been given to the addressee at the time stated below provided that the notice is addressed to the last known business address of the other party. (a) By mail – 2 days after despatch (b) By email or other electronic means of written communication – 6 hours after despatch during business hours or if despatched outside of business hours, then the next Business Day.
23.2 Clause 23.1 does not apply to a notice given under clause 5 or clause 6 of these terms and condi- Notice under clauses 5 and 6 is given when Cardlink actually receives the notice.
24. FURTHER ASSURANCES
Unless otherwise specified in these terms and conditions the Cardmaster will, and will procure that the Card users will, when requested by Cardlink, promptly do, sign and deliver everything reasonably required to give full effect to these terms and conditions and the transactions contemplated by these terms and conditions.
Should any part or provision of these terms and conditions be held invalid or unenforceable, then that invalid or unenforceable part or provision will be deemed severed from these terms and conditions and will not affect the validity or enforceability of the remainder of these terms and conditions.
Without limiting the clauses that will survive termination of this agreement, the following clauses will survive termination (irrespective of the basis for the termination): Clause 6 Withdrawal of Card; Clause 7 Indemnity; Clause 8 Return of Card; Clause 9 Cancellation; Clause 10 Purchase of Supplies; Clause 11 Warranty by Cardmaster; Clause 12 Property in the Supplies; Clause 13 Cardlink and Supplier Liability; Clause 15 Cardlink Charges; Clause 16 Payment by the Cardmaster; Clauses 17.3 and 17.4 Termination; Clause 18 Other Liability; Clause 19 Force Majeure; Clause 20 Waiver; Clause 21 Assignment; Clause 22 Privacy; Clause 23 Notices; Clause 25 Severance; and this Clause 26 Survival.
27. SPECIAL CONDITIONS
Special Conditions (if any) are part of and incorporated into these terms and conditions. If there is any inconsistency between these terms and conditions and the Special Conditions, the Special Conditions will prevail to the extent of the inconsistency.