Johnston Fuelcards Terms & Conditions
Please read carefully: these terms and conditions create legally binding rights and obligations. In particular, we draw your attention to the exclusion clauses in clause 3.2 and clause 7.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires the following words and phrases shall have the following meanings:
“Account” the nominal account which the Company maintains which nominally tracks the amount of Fuel and Other Items obtained using Cards allocated to the Customer and sums received by way of payment;
“Application” the application for the Services, which can be made by completing an application form issued by the Company, on the Website or over the telephone;
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Company” Johnston Fuelcards Ltd a company registered in Scotland with company number SC 518487 whose registered office is situated at Standhill, Bathgate, West Lothian, EH48 2HR
“Contract” has the meaning given to it in clause 2.1;
“Customer” the person, firm or company identified in the Application;
“Card(s)” personalised plastic card(s) authorised by the Company which allows Users to obtain Fuel and/or Other Items at the Sites;
“Force Majeure” shall include act of God, flood, fire, tempest, war, civil commotion, riot, shortage of materials, enactment of legislation by Government or municipal authorities, industrial disputes or any other cause (whether or not of the same nature as the foregoing) which is beyond the reasonable
control of the party affected;
“Fuel” any form of fuel intended for use in a road vehicle which is purchased using your Card;
“Insolvency Event” if the Customer goes into liquidation or a winding up petition is presented in respect of it (other than for the purpose of a solvent bona fide reconstruction) and such petition is
not discharged within 7 days of its presentation or an order is made for the appointment of an
administrator or documents are filed for the appointment of an administrator or notice of intention to appoint an administrator is given by such party, its directors or a qualifying floating charge holder, or a receiver or administrative receiver is appointed over the whole or any part of the assets of such
company or it proposes to enter or makes any arrangement or composition with its creditors or makes an application to a court for the protection of its creditors in any way, is otherwise unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or is the subject of any similar event in any jurisdiction;
“Other Item(s)” any items which are available for purchase at any of the Sites using the Card other than Fuel;
“Per Card Fee” the per card fee as notified to the Customer (and which will be made available by the Company on request from the Customer);
“Price” the prices for Fuel, Other Items and other goods and services as published by the Company or notified to the Customer from time to time (and the Company shall make the prices available to the Customer on request);
“Services” the Account and Card service(s) the Customer has chosen as detailed in these Terms and Conditions and the Website and as specified on the Application;
“Site(s)” any participating site specified by the Company from time to time on the Website (and the Company shall confirm the participating sites on request by the Customer);
“Terms and Conditions” these terms and conditions (as updated by the Company from time to time in accordance with clause 2.6);
“User” any agent, employee, contractor or officer of the Customer permitted by the Customer to
use a Card;
“Website” the website at www.befuelcards.co.uk;
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having
separate legal personality).
1.3 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
1.4 A reference to a party includes its personal representatives, successors or permitted assigns.
1.5 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate
legislation made under that statute or statutory provision, as amended or re-enacted.
1.6 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
1.7 A reference to writing or written includes faxes and e-mails.
2. Terms & Conditions
2.1 The Services shall be provided by the Company to the Customer subject to these Terms and Conditions and to the exclusion of all other terms and conditions which the Customer purports to apply under any purchase order, acceptance of quotation or other document. 2.2 The Customer shall be deemed to have accepted these Terms and Conditions on the earlier to occur of: (a) the Customer signing the reverse of the Card; or (b) the Customer’s first use of the Card. (the “Contract”)
2.3 The only circumstances in which the Customer will not be bound by these Terms and Conditions is if the Customer immediately returns the Card to the Company on receipt of the Card and before the Card is signed or used.
2.4 The Customer warrants, represents and undertakes to the Company that all information provided by the Customer including information submitted in connection with the Application shall be true, accurate and complete and the Customer shall immediately notify the Company if any information becomes untrue, inaccurate,incomplete or misleading. The Customer acknowledges that the Company has been induced to enter into the Contract in reliance on the information provided by
2.5 The Company may require the Customer to provide
documentation which the Company requires in relation to the operation of the Account from time to time including the Customer’s latest set of accounts.
2.6 The Company may change these Terms and Conditions from time to time and it shall notify the Customer of any changes and use of the Card by the Customer after the date of such changes shall constitute the Customer’s deemed acceptance of the changes. In the event that the Customer does not wish to be bound by any changes to the Terms and Conditions, the Customer shall return all Cards to the Company and terminate the Contract pursuant to clause 6.3.
3.1 The Company shall provide the Services with reasonable care and skill, and in particular, the Company shall use reasonable endeavours to: (a) ensure that information which it makes available in connection with the Card and the Services (including records of Fuel and Other Items obtained using the Cards) is accurate and complete but the Company provides no warranty or representation that Information made available by the Company is accurate, up-to-date or complete (b) supply the Customer on request with the details of the balance of the Account
3.2 The Customer acknowledges and agrees that the Fuel and Other Items are made available by third parties and that the Sites are operated by third parties, and as such, the Company is not responsible or liable in any in connection with the Fuel, Other Items or Sites (and any issues, damage or loss
relating to any of them). Any dispute between the Customer and any third party regarding Fuel, Other Items and/or the Sites (and any issues connected with them) is the sole responsibility of the Customer and the relevant third party.
3.3 The Company reserves the right in its absolute discretion without giving notice to the Customer
to vary the Sites in any directory of Sites from time to time produced by the Company and also to exclude any one or more of the Sites.
4. Use of Card & Services
4.1The Company shall, subject to the Customer observing and performing all its obligations under the Contract, make available to the Customer such number of Cards as the Customer shall reasonably require to enable the Customer to obtain Fuel and/or Other Items from the Sites. The Company may in its absolute discretion from time to time set limits as to the amount of Fuel and/or Other Items the Customer is permitted to obtain and may also charge for the non-use of such Cards. The limits and charges applicable to the Card shall be as stated on the Application, the Website and will also be made available by the Company on request from the Customer.
4.2 The Cards: (a) shall at all times remain the property of the Company and shall be returned to the Company on demand and may be retained at any time by the Company or any person acting on the Company’s behalf; (b) shall not be used after its expiry date and the Customer shall, on the day after such expiry date, destroy the Card; (c)are not transferable or assignable in any way and shall only be used by the Customer and/or its Users; and (d)and the operation of the Account may be suspended, cancelled or their use withdrawn by the Company in its absolute discretion at any time.
4.3 The Customer shall at all times ensure that the Cards are not damaged or defaced.
4.4 If a Card is lost or stolen or the Customer believes that the security of a Card is or may be
compromised, the Customer shall immediately notify the Company of the same quoting the Card number (and if such notification is given orally it must be confirmed in writing as soon as is reasonably practicable and in any event within 3 days). In such event the Company shall cancel the Card so
notified and shall issue a new Card with a different number. The Company may elect to levy a fee
for the provision of replacement Cards and the fee will be notified to the Customer before the
replacement Cards are issued.
4.5 The Customer shall immediately notify the Company if at any time the Customer suspends
cancels or otherwise prohibits use of any Card by a User for any reason (and if such notification is given orally it shall be confirmed in writing as soon as is reasonably practicable and in any event within 3 days). Such notification shall include details of the User’s name and Card number.
4.6 In the event that a Card is cancelled and/or withdrawn from use for any reason the Customer shall destroy the Card in question and shall, if requested to do so, confirm in writing to the Company that the Card has been destroyed.
4.7 In either of the cases envisaged by clause 4.4 or clause 4.5 the Customer shall be liable for all Fuel and Other Items obtained from a Site using such a Card until, in the case of automated Sites capable of accepting stop list updates via electronic data transfer 1 Business Day after the Customer’s written notice under clause 4.4 or clause 4.5 in respect of that Card is received by the Company, or in the case of manual sites, 3 Business Days after such notice is given to and confirmed by the Company provided such notice is given before 2.30 pm during the course of a Business Day and any notice given outside such hours shall be deemed given at 9.00 am on the Business Day thereafter.
4.8 The Customer shall, if requested to do so, give the Company and any person acting on the Company’s behalf all assistance and information as to the circumstances of the loss, theft or possible or actual security compromise of the Card, and shall take all reasonable steps to assist the Company to recover the Card. The Customer consents to the disclosure to third parties of such information as is relevant concerning the User or use of the Card in connection with such loss, theft or possible or actual security compromise of the Card.
4.9 The Company may from time to time issue a list of stopped or invalid Cards and the Company shall not be liable for any loss or damage sustained by the Company in the event of any Card appearing on a list of stopped or invalid Cards (for whatever reason and including any Card being placed on a list of stopped or invalid Cards by an error of the Company or its employees agents or
otherwise) or if a Card is not accepted for any other reason.
4.10 The Customer shall ensure that Users: (a) keep all personal identification numbers provided for the Cards secret at all times; (b) present a valid Card prior to the commencement of the transaction at the Site; (c) allow the Card to be checked (including verification of the signature or the vehicle registration number on a Card) by the Company or any person authorised including the Site operator and its employees, agents or other persons authorised by the Site operator; (d) comply with the terms of this Contract insofar as they relate to the use of the Card.
4.11 A Card shall not be valid unless the signature strip on the reverse of the Card has been completed by the Customer or the Authorised Cardholder in accordance with the instructions issued by the Company from time to time.
4.12 The Customer shall ensure that all details relating to the Card and the Services are kept confidential at all times including the PIN number for each Card and any user names and/or passwords which are provided to the Customer in connection with the Website. The Customer shall notify the Company immediately if it becomes aware of or suspects any loss or unauthorised use of or disclosure of such information.
5. Price and Payment
5.1 The Customer shall pay the Company the Per Card Fee per annum for each Card issued. The Per Card Fee is non refundable.
5.2 The Company shall invoice the Customer at intervals notified by the Company to the Customer from time to time for all Fuel and Other Items obtained using the Card at the Price applicable at the time of such items were obtained using the Card and all other fees and payments due to the Company in connection with the Contract.
5.3 The Customer shall pay such invoices in full within the timeframe and in the manner notified by the Company to the Customer from time to time. All fees and payments referred to in these Terms and Conditions are exclusive of Value Added Tax which, where applicable, shall be added to the
5.4 Where the Customer is required to make payment to the Company by direct debit, the Customer shall ensure that it has sufficient cleared funds available to enable the direct debit payment to be made.
5.5 Where payment by direct debit falls due on a non-business day, the company reserves the right to collect the payment on the previous business day.
5.6 No payments shall be deemed to have been received until the Company has received payment in full in cleared funds.
5.7 The Company reserves the right in its absolute discretion to levy an administration fee and/or any other charges on the drawings on an invoice(s) and/or invoices for any reason including to reflect any variation in the market or economy or the rejection or cancellation of any direct debit.
5.8 The Company may set a credit limit for the Customer, the level of which will be at the Company’s discretion and the Company will notify the Customer of its assigned credit rating after receipt of the Application. The Company may change the credit rating from time to time in its absolute discretion. Should the sums due to the Company exceed or look likely to exceed the Customer’s assigned credit limit, the Company may suspend the Account with or without notice which means no more Fuel and/or Other Items may be obtained using the Cards until further notice.
5.9 The Customer shall make all payments due under the Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
5.10 If the Customer fails to pay to the Company any sums due to the Company under the Contract: (a) the Customer will be liable to pay the full amount due together with interest from the due date for
payment at the rate prescribed by law, accruing on a daily basis until payment is made, whether before or after judgment; (b) the Company may terminate the contract for breach under clause 6.4(a); (c) the Company may increase Prices and other fees and payments due under this Contract and/or reduce the payment period for invoices and/or require the payment of a deposit or the provision of additional security arrangements to cover the increased trade risk; (d) the Company may suspend the Card(s) and/or Account and the Customer shall not be entitled to draw Fuel from the Sites and/or
purchase Other Items or from otherwise use the Card;(e) the Company may withdraw rebates or other allowances given to the Customer and such additional resulting sums shall become due to the Company immediately; and/or (f) the Customer shall pay all the Company’s reasonable costs incurred in the course of recovering any overdue debt, including any credit card payments. in each case,
such rights and remedies shall be exercisable at the discretion of the Company.
5.11 The Company may at any time require the Customer to provide a payment by way of deposit as a condition of providing the Services including in circumstances where the Company believes that there is a risk of the Customer experiencing an Insolvency Event or otherwise defaulting on its
obligations pursuant to this Contract. In the event that the Customer breaches the Terms and Conditions, the Company shall be entitled to forfeit the deposit.
6.1 The Contract shall continue in full force and effect until terminated in accordance with this clause 6.
6.2 The Company shall be entitled to terminate the Contract at any time by giving notice in writing to the Customer.
6.3 The Customer shall be entitled to terminate the Contract by giving at least 90 Business Days notice in writing to the Company.
6.4 The Company shall be entitled to terminate the Contract immediately in whole or in part (or
suspend the provision of the Services temporarily or indefinitely), if: (a) the Customer is in breach of any of its obligations under the Contract (regardless of whether such breach is trivial, material or
repudiatory); (b) there is a change of control of the Customer (within the meaning section 1124 of the Corporation Tax Act 2010); (c) the Customer suffers an Insolvency Event; (d) the Company, acting
reasonably, believes the Company is at risk of suffering an Insolvency Event; or (e) the Customer fails to comply with a request made by the Company under clauses 2.5, 4.8, 5.4 or 5.10.
6.5 Upon termination of the Contract for whatever reason the Customer shall return to the Company each Card and pay all sums due to the Company in accordance with the terms of the Contract.
6.6 Termination of the Contract shall be without prejudice to the rights and remedies which have accrued as at termination.
6.7 Clauses 1, 4.4, 4.5, 4.7, 4.8, 4.10. 4.11, 5.8, 5.10, 6.5, 6.6, 7, 8.2, 8.3 and 8.12 shall survive
termination and shall continue in full force and effect.
7. Limitation of Liability and Indemnity
7.1 Subject to clause 7.4, all conditions, warranties or other terms which might be implied or
incorporated into the Contract or any collateral contract, whether by statute, common law or
otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care and statements and representations made by the Company’s employees and/or agents shall not be
binding upon the Company and the Customer is advised to ask for such statements and representations to be confirmed in writing by the Company. In addition, the Company makes no warranty that Sites, Fuel and/or Other Items will be available nor that Sites will accept or honour the Card or that Account data will be accurate, up-to-date or complete.
7.2 Subject to clause 7.4, the Company shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever arising, which fall within any of the
following categories: (a) loss of profits; (b) loss of anticipated savings; (c) loss of business opportunity or contracts; (d) damage to goodwill or reputation; (e) third party claims; and/or (f) loss of production.
7.3 Subject to clause 7.2 and 7.4, the total liability of the Company, whether in contract, tort (including negligence) or otherwise howsoever arising and whether in connection with the Contract or any
collateral contract shall in no circumstances exceed a sum equal to £150 in aggregate.
7.4 The exclusions in the Contract shall apply to the fullest extent permissible at law, but the Company does not exclude liability for death or personal injury caused by the negligence of the Company, its officers, employees, contractors or agents, for fraud or fraudulent misrepresentation, for breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982, or for any other liability which may not be excluded by law.
7.5 The Customer shall indemnify the Company in full and on demand against all loss damage action claims expenses and costs including but not limited to financial loss and the fees of the Company’s legal advisers whatsoever and howsoever arising directly or indirectly out of or in connection with:
(a) any breach by the Customer of its obligations contained herein; (b) use of a Card after the Customer has confirmed such Card as destroyed, stolen or damaged, subject to clause 4.7; (c) the use of a Card or the Website by anyone other than a User.
8.1 Neither party shall be under liability whatsoever to the other for failure or delay in the performance of any of its obligations hereunder if and for so long as such performance becomes impracticable by reason of Force Majeure, except that the Customer shall still be liable to pay any sums which have become payable by the Customer under the Contract. The party which is prevented from performing its obligations hereunder by Force Majeure shall advise the other party as soon as practicable of its inability to meet its obligations specifying the cause of the force majeure and shall advise the other party when such difficulty ceases.
8.2 Any dispute relating to this Contract shall be notified in writing to the Company within 14 days from the earlier of the date of the statement or invoice to which the dispute relates or the date on which the Customer became aware (or ought to have been aware) of the dispute. Thereafter, all statements and invoices shall be deemed to be final and conclusive and the Customer waives its right to dispute such statements and invoices.
8.3 Each right or remedy of the parties under the Contract shall not effect any other right or remedy of the parties whether under the Contract, at law, in equity or otherwise.
8.4 Any purported waiver by the Company of any breach of any of the conditions herein shall not be deemed a waiver unless and until confirmed by the Company in writing and such purported or
confirmed waiver shall not be construed as a waiver of any earlier or later default of a like nature.
8.5 In the event of the invalidity or unenforceability of any part or provision of the Contract such
invalidity or unenforceability shall be deemed omitted or as the case may be reduced in size or
duration to the extent necessary to render such provision or part enforceable but it shall not affect the validity or enforceability of any other part or provision which shall remain in full force and effect.
8.6 Nothing in the Contract shall be deemed to create a partnership or relationship of agent and
principal or relationship of employer and employee between the Company and the Customer.
8.7 Where the Customer consists of two or more persons acting in partnership or otherwise such expression throughout shall mean and include such two or more persons and each or any of them and all obligations and liability on the part of such a Customer shall be joint and several.
8.8 Any notice served hereunder pursuant to the Contract shall be in writing and shall be deemed to have been properly served on the addressee if delivered by hand sent by facsimile transmission or sent by pre-paid first class ordinary or registered or recorded delivery post to the addressee at its address set out above in the case of the Company and set out in the Application in the case of the Customer or at such other address as shall have later been notified to the sender in writing and such notice shall, subject to clause 4.7, be deemed to have been given at the time of delivery if delivered by hand or facsimile transmission or 48 hours after despatch of it posted as aforesaid.
8.9 The Company may assign, transfer, charge or deal with the Contract or any part of it. The Customer may not assign, transfer, charge or deal with the Contract or any part of it.
8.10 A person who is not a party to the Contract shall not have any rights under or in connection with it pursuant to the Contract (Rights of Third Parties Act) 1999.
8.11 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other
than as expressly set out in the Contract.
8.12 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.