1. Acceptance of Terms and Conditions
The Accountholder acknowledges acceptance of these Terms and Conditions upon first use of any Shell Card, or the use of any Shell Card previously issued to the Accountholder, following the Accountholder being notified of these Terms and Conditions. In the event of any inconsistency between the terms of an executed agreement between Viva Energy and the Accountholder and these Terms and Conditions, the terms of the executed agreement shall prevail to the extent of the inconsistency.
2. Definitions and Interpretation
In these Terms and Conditions unless the context otherwise requires:
“Accountholder” means the partnership, firm, body corporate or other person named in an Application made for a Shell Card.
“Application” means the application form and any related documentation signed by or on behalf of the Accountholder.
“Authorised User” means a person authorised by the Accountholder to use the Accountholder’s Shell Cards and is deemed to be an agent of the Accountholder.
“Business Day” means any day other than a Saturday, Sunday or public holiday in Melbourne, Victoria.
“Late Payment Fee” means the fee set out in clause 17 that may be charged to an Accountholder if any amounts due to Viva Energy under these Terms and Conditions are not paid by the invoice Due Date.
“Motor Fuels” means unleaded, unleaded E10, Unleaded 95, premium unleaded, V-Power, liquefied natural gas (LNG) and diesel fuel (on-road use only), together with other motor fuels nominated by Viva Energy from time to time as available on the Accountholder’s Shell Card at Nominated Premises.
“Nominated Premises” means premises nominated by Viva Energy from time to time as Shell Card merchants.
“Nominated Vehicle” means a vehicle nominated by the Accountholder for a Shell Card in the card order form in the Application or by the Accountholder in writing.
“Nominated Vehicle Shell Card” means a Shell Card for use with a Nominated Vehicle, the Vehicle Identification Number of which is recorded on the Shell Card, together with the Accountholder’s name and the Viva Energy identifying number.
“Non-Shell LPG” means automotive LPG, other than Shell LPG.
“Other Goods and Services” means products and services other than Motor Fuels, Shell LPG and Non-Shell LPG nominated by Viva Energy from time to time as available on the Accountholder’s Shell Card at Nominated Premises.
“Personal Information” has the meaning given in the Privacy Act 1988 (Cth).
“Personal Shell Card” means a Shell Card for use by a specified Authorised User, whose name is recorded on the Shell Card, together with the Accountholder’s name and the Viva Energy identifying number.
“PIN” means a 4-digit personal identification number.
“Product” means Motor Fuels, Shell LPG, Non-Shell LPG and Other Goods and Services.
“Shell Card” means all Shell Cards (including, without limitation, Nominated Vehicle Shell Cards and Personal Shell Cards) issued to the Accountholder by or on behalf of Viva Energy.
“Shell Card Website Facility” means the Shell Card Online website and any website facility which replaces Shell Card Online, as notified by Viva Energy.
“Shell LPG” means automotive LPG sold at the Nominated Premises under the Shell “AutoGas” brand.
“Terms and Conditions” means these Shell Card Terms and Conditions as amended from time to time and the Accountholder’s Application, together with any other terms relating to the Shell Card scheme or the Accountholder’s Shell Card account contained in written correspondence from Viva Energy.
“Vehicle Identification Number” means the vehicle registration number or any other number requested by the Accountholder and agreed to by Viva Energy.
“Viva Energy” means Viva Energy Australia Pty Ltd (ABN 46 004 610 459).
Unless the context requires otherwise singular words include plural and vice versa, person includes a company and vice versa. Headings are for convenience only. All references to money are to Australian currency.
3. Shell Card
If Viva Energy accepts the Accountholder’s Application, Viva Energy may issue a Shell Card to the Accountholder for each:
(a) Nominated Vehicle; or
(b) Authorised User,
to obtain Product at Nominated Premises. However Viva Energy may elect, at any time in its absolute discretion, not to issue a Shell Card or a particular type of Shell Card for a Nominated Vehicle or Authorised User.
4. Supply of Product
(a) If a valid Shell Card is presented, supplies of Product will be made to the Accountholder at Nominated Premises, subject to any transaction limits set by Viva Energy from time to time. To the extent permitted by law, Viva Energy will not be liable in respect of any loss or damage suffered by the Accountholder howsoever arising under or pursuant to these Terms and Conditions (whether by negligence or otherwise), including arising out of or associated with the supply of Products, and in respect of any liability which cannot be excluded such liability shall be discharged by Viva Energy either:
(i) re-supplying the Product; or
(ii) supplying an equivalent Product,or paying for the costs thereof, where this is permitted by law.
(b) Viva Energy will not be liable for a failure or delay in delivering Product or in complying with these Terms and Conditions, if that failure or delay is due to:
(i) a strike or other industrial action, compliance with a government request, a shortage of supply, or any event beyond its reasonable control; or
(ii) the inability or refusal of the operator of the Nominated Premises to supply the Product requirements of the Accountholder for any reason.
The supply of Motor Fuels, Shell LPG or Non-Shell LPG on Shell Card must be into the tank of the Nominated Vehicle (or road vehicle, in the case of a Personal Shell Card).
5. Accountholder’s Purchases
(a) When using a Shell Card the Accountholder is deemed to purchase the Products from Viva Energy.
Property in Motor Fuels, Shell LPG and Non-Shell LPG purchased on Shell Card will pass to the Accountholder immediately prior to the product passing into the storage tank of the relevant vehicle. Property in any other Product purchased on Shell Card will pass to the Accountholder upon the completion of the transaction processing the Shell Card at the Nominated Premises.
(b) It is a condition of use of a Shell Card that the Accountholder purchases Motor Fuels to the value of not less than $150 per month.
6. Card Use
Unless Viva Energy has received the Accountholder’s notification in writing of loss, theft or possible unauthorised use of a Shell Card, the Accountholder authorises Viva Energy to debit the Accountholder’s Shell Card account with every purchase of Products made by a person presenting a Shell Card at the Nominated Premises to whom the Products were supplied, including where a transaction exceeds any transaction limit set by Viva Energy or the Accountholder. It is the obligation of the Accountholder to collect and retain sales dockets issued at the time Products are purchased.
7. Nominated Vehicles
The Accountholder acknowledges that Nominated Vehicle Shell Cards are issued as a management tool and do not provide additional security. The Accountholder will be liable to Viva Energy for all transactions made with a Nominated Vehicle Shell Card, including where the transaction is in respect of a vehicle other than that identified on the Shell Card. It is the responsibility of the Accountholder to ensure that the Nominated Vehicle Shell Card presented by the person refuelling is valid for use by the person presenting the card and for use for the vehicle in question.
8. Authorised User
The Authorised User of a Personal Shell Card whose name appears on the Shell Card is the only person permitted to use that Personal Shell Card.
9. Unauthorised User
Except as otherwise expressly stated in these Terms and Conditions, the Accountholder will be liable to Viva Energy for all Shell Card transactions processed on the Accountholder’s Shell Card(s), including, without limitation, where, in respect of a Personal Shell Card, a transaction is processed in circumstances where the Authorised User is not the person presenting the Shell Card. The Accountholder shall ensure that Authorised User(s) complies with these Terms and Conditions.
If a PIN is issued with a Shell Card, the Authorised User must use the PIN when using the Shell Card at Nominated Premises. The Accountholder must ensure that the PIN is only used by Authorised Users and not disclosed directly or indirectly to any person not authorised to use the Shell Card.
All Shell Cards remain the property of Viva Energy. The Accountholder must immediately return all Shell Cards that are no longer used, or are expired, cancelled or otherwise invalid, to Viva Energy cut in half, unless otherwise agreed by the parties.
12. Lost, Stolen or Misused Cards
(a) If a Shell Card is lost, stolen or subject to unauthorised use, the Accountholder must immediately notify Viva Energy at:
Shell Card Customer Service Centre GPO Box 872K MELBOURNE 3001
Telephone 13 16 18, Facsimile 1300 134 472 Email : firstname.lastname@example.org
or at any other address Viva Energy may require.
(b) If notification of an unauthorised use, loss or theft of a Shell Card is given verbally it must be confirmed in writing within 3 days.
(c) The Accountholder will be liable for any use of a Shell Card by any person before notification in accordance with these Terms and Conditions.
(d) After Viva Energy has been notified and provided that this Clause 12 has been fully complied with, the Accountholder shall have no further liability for Shell Card transactions other than transactions made by a person who has ceased to be an Authorised User where the Accountholder has allowed the Shell Card to remain in the possession of that person.
(e) The Accountholder must provide Viva Energy with all the information that the Accountholder has in its possession or that it can reasonably obtain, regarding the unauthorised use, loss or theft of a Shell Card.
13. Cancellation of Shell Cards
(a) Viva Energy may either suspend, cancel or terminate any or all of the Accountholder’s Shell Cards or the Accountholder’s Shell Card account for any reason at any time without notice and without liability, including without limitation, for breach by the Accountholder of these Terms and Conditions, or for non-use of a Shell Card.
(b) The Accountholder must destroy or cut in half all cancelled Shell Cards immediately.
(c) Viva Energy will cancel an Accountholder’s Shell Card account if the Accountholder forwards to Viva Energy a written authorisation in a form approved by Viva Energy to cancel the Accountholder’s Shell Card account.
(d) The Accountholder will remain liable in respect of the use of any Shell Card up until:
(i) in the case of Viva Energy cancelling the Shell Card, the destruction of the Shell Card; and
(ii) in the case of the Accountholder cancelling the Shell Card, the date on which the Shell Card is cancelled by Viva Energy.
(e) On cancellation of all the Accountholder’s Shell Cards, the debit balance of the Accountholder’s Shell Card account becomes immediately due and payable to Viva Energy.
14. Effecting a Purchase of Products
14.1 Sales Docket
On completion of a Shell Card transaction processed electronically at a Nominated Premises the Authorised User will be given a sales docket at the time of purchase, which will include:
(a) Card number;
(b) Description of Product;
(c) Pump price of Product (if applicable);
(d) Quantity of Product;
(e) Total value of Product (based on the pump price, if applicable);
(f) Time and date of purchase;
(g) Odometer reading (if applicable and where provided);
(h) Name of Nominated Premises; and
(i) Address of Nominated Premises.
The Accountholder acknowledges that the sales docket is the only confirmation of the transaction issued to the Accountholder or Authorised User at the point of sale.
14.2 Manual Transactions
Where a Shell Card transaction is completed manually at a Nominated Premises, the Accountholder or Authorised User must sign the sales docket.
Unless otherwise agreed by the parties in writing, the Accountholder will be charged as follows:
15.1 Motor Fuels and Shell LPG
The GST inclusive price for Motor Fuels and Shell LPG is the GST inclusive pump price at the time the fuel is purchased from the Nominated Premises less any agreed discount (expressed on a GST inclusive basis).
15.2 Other Goods and Services
The GST inclusive price for Other Goods and Services is the GST inclusive retail price at the time the item is purchased from the Nominated Premises.
15.3 Non-Shell LPG
The GST inclusive price for Non-Shell LPG is the GST inclusive pump price at the time the Non-Shell LPG is purchased from the Nominated Premises
16. Charges for Use of Shell Card
For purchases made on the Accountholder’s Shell Card, Viva Energy will debit the Accountholder’s Shell Card account with:
(a) the price of the Products;
(b) fees, including but not limited to the fees in Viva Energy’s list of scheduled fees and charges revised from time to time;
(c) government taxes and charges; and
(d) reasonable enforcement expenses incurred by Viva Energy in enforcing these Terms and Conditions.
17. Shell Card Invoice and Statement
(a) Viva Energy will issue after the end of the month (“Billing Period”), a tax invoice detailing the Accountholder’s Shell Card purchases and any applicable charges.
(b) Subject to Clause 17(d), the Accountholder will pay the amount shown on the tax invoice no later than the 7th day following the end of the Billing Period, or by such other date as agreed in writing (the “Due Date”). The Accountholder must pay the amount shown on the tax invoice in full without asserting any set off, counter claim or right to withhold whatsoever.
(c) Payment will be made by means of an automatic bank debit by Viva Energy of the Accountholder’s bank account pursuant to the terms of Clause 18.
(d) If any amounts are not paid by the Due Date, then, on notification from Viva Energy, the balance of the Accountholder’s account (including purchases made in the current Billing Period) will become immediately payable and Late Payment Fee shall be payable in accordance with Clause 17(e).
(e) If any amounts due to Viva Energy under these Terms and Conditions are not paid by the Due Date, Viva Energy may charge the Accountholder a Late Payment Fee for each month (or any part thereof) that the amount remains unpaid. The Late Payment Fee will be applied in respect of the total, cumulative outstanding amount owing in each month (or part thereof). The Late Payment Fee rates are detailed in the following schedule:
The Late Payment Fee set out above will increase by $50 for every $1000 (or any part thereof) owing in excess of $4000. Any Late Payment Fee for a month will be invoiced to the Accountholder in the following calendar month.
18. Direct Debit
The Accountholder agrees that it will give to and/or maintain with Viva Energy a valid direct debit request for processing payment of amounts due to Viva Energy under these Terms and Conditions in a form acceptable to Viva Energy.
If at any time the ability of the Accountholder to fulfil its obligations under these Terms and Conditions should, in Viva Energy’s opinion, become impaired, then security satisfactory to Viva Energy shall be given by the Accountholder on demand.
20. Data Protection
(a) Where Viva Energy receives, collects or handles Personal Information in the course of processing and administering the Accountholders’ Shell Card, Viva Energy shall ensure that it has taken and continues to take all reasonable technical and organisational measures against unauthorised or unlawful processing or disclosure of the Personal Information.
(c) The Accountholder acknowledges that it consented to this use by Viva Energy of its Personal Information in accordance with the Viva Energy Privacy Act Declaration in the Application.
21. Account Enquiries
If the Accountholder wants to question or dispute the details of any transaction recorded on a Shell Card transaction report, tax invoice or sales docket, the Accountholder will advise Viva Energy in writing within 30 days of receiving the transaction report, tax invoice or sales docket and will produce to Viva Energy on request a copy of the relevant transaction report, tax invoice or sales docket in respect of the transaction.
22. Change in Terms and Conditions
Viva Energy has the right to vary, delete or supplement these Terms and Conditions (or any other term contained in written correspondence from Viva Energy), including but not restricted to the amount of any charges referred to in Clause 16, by written notice. Any change takes effect from the earlier of:
(a) the first use of an Accountholder’s Shell Card after notice is deemed to be received; and
(b) 14 days after notice is deemed to be received.
23. Accountholder’s Details
The Accountholder shall notify Viva Energy immediately of any change in the Accountholder’s registered name, trading name, ownership, business entity, registered office or principal place of business and directorship. Any address nominated by the Accountholder or an Authorised User for delivery of a Shell Card or other communication which differs from the address stated on the Application must be confirmed by the Accountholder via the Shell Card Website Facility. Viva Energy may require proof of trading from such alternative address.
(a) Viva Energy may give a notice by:
(i) delivering it personally to the Accountholder; or
(ii) leaving it at, or sending it by post, facsimile or email to the Accountholder’s address last advised to Viva Energy in writing.
Except in the case of notice by post, the notice shall be deemed given on the date it is sent by Viva Energy. Notices sent by post shall be deemed to have been received on the 3rd day after posting.
(b) In addition to giving notice to Viva Energy in any other way permitted by law, the Accountholder must provide notice in writing and notice will not be effective until receipt by Viva Energy at:
Shell Card Customer Service Centre GPO Box 872K MELBOURNE 3001
Facsimile: 1300 134 472
25.1 Government Charges
Viva Energy has the right to charge the Accountholder’s Shell Card account with Government rates, taxes or charges which now are or which in the future may be imposed or charged upon the Accountholder’s Shell Card transactions, whether or not the Accountholder is primarily liable for the impost or charge.
(a) Except where a Taxable Supply is expressly stated to be inclusive of GST, if a Taxable Supply is made under these Terms and Conditions by either the Accountholder or Viva Energy, the party which made the supply (the “Supplying Party”) may in addition to the amount payable under these
Terms and Conditions recover from the other party (the “Receiving Party”) an additional amount on account of GST, calculated by multiplying the amount payable by the GST Rate (within the meaning of the GST Law, being 10% currently).
(b) Where a Taxable Supply is made under these Terms and Conditions the Supplying Party shall issue to the Receiving Party a Tax Invoice or an Adjustment Note, as applicable, in accordance with the GST Law.
(c) If there is a change in the GST Rate, then any amount payable which is stated to be inclusive of GST shall be increased or decreased by an appropriate amount so that the Supplying Party receives the same amount (after remittance of GST) as it would have received at the GST Rate prevailing before the change.
(d) In these Terms and Conditions, “GST”, “GST Law”, “GST Rate”, “Taxable Supply”, “Tax Invoice” and “Adjustment Note” have the meanings given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth).
The failure of Viva Energy to insist upon strict performance of any of the provisions of these Terms and Conditions will not be deemed a waiver of any subsequent breach of or default in these Terms and Conditions by the Accountholder. No waiver is effective unless it is in writing.
These Terms and Conditions are personal to the Accountholder and the Accountholder shall not be entitled to assign, transfer, mortgage or charge any of its rights or obligations under these Terms and Conditions. Viva Energy, without the Accountholder’s consent, may assign or transfer by novation any of its rights or obligations under these Terms and Conditions.
If any term of these Terms and Conditions or any part thereof is or becomes or is declared illegal, invalid or unenforceable for any reason whatsoever in any jurisdiction and such term or part is severable, it is deemed deleted from these Terms and Conditions in the relevant jurisdiction.
The Accountholder acknowledges that Viva Energy may give or receive commissions, volume discounts, fees and other benefits in connection with the supply of Products to the Accountholder.
30. Joint and Several Liability
Where the Accountholder consists of two or more persons, the obligations of these persons shall be joint and several.
If the Accountholder carries on business as a trustee, the Accountholder is bound by these Terms and Conditions both as trustee and in its own capacity.
32. Governing Law
These Terms and Conditions shall be governed by and interpreted in accordance with the laws in force in the State of Victoria, and any proceedings arising out of these Terms and Conditions shall be determined by a court of competent jurisdiction in that State