Lowes Petroleum Services Terms and Conditions of Sale
1. Terms of this agreement
The terms of this agreement cannot be amended, reduced or modified and shall govern any contradictory term contained in any other document, unless a Director of LOWES shall have expressly stated in writing to the contrary.
2. Payments
2.1. Unless otherwise agreed to by LOWES in writing all amounts payable hereunder shall be due to LOWES within twentyone (21) days of the invoice date. Late payments shall incur interest at the rate of 1.75% per month, or any part thereof.
2.2. The Customer shall pay all costs and expenses incurred by LOWES on an indemnity basis in connection with LOWES attempt to obtain payment of any outstanding amounts, including fees charged by a collection agency or Solicitor, whether or not formal proceedings are brought to remedy the Customer’s breach of this agreement or to collect any amount due.
2.3. The Customer agrees to deliver written notice of any error in any invoice or statement of account to LOWES within three (3) days after the day that the invoice or statement of account is dated. The invoice or statement of account shall be deemed to be correct and accepted as rendered, unless LOWES has received the Customer’s written notice to the contrary within the above time period. All sums owing to LOWES by the Customer shall be paid in accordance with the terms and conditions expressed on any written quotation signed by LOWES or on a LOWES invoice. Whether or not expressed in a quotation or invoice, all amounts not paid when due shall bear interest pursuant to clause 2.1.
3. True and Accurate
3.1. By completion of the Application for Credit the Customer permits LOWES to validate the Customer’s credit background and to contact all of the Customer’s credit references and sources. The Customer states and certifies that the information contained in this application is true and correct and that LOWES may justifiably rely on the information provided by the client when considering whether to extend credit to the customer.
3.2. Purchases products or services from LOWES on other terms, the Customer agrees to pay any or all invoices, charges, fees and costs. Unless the Customer notifies LOWES in writing within seven (7) days of being invoiced for any unauthorised use of the Customer’s credit or account, the Customer agrees that such use is authorised and the Customer shall be responsible for all such charges and use.
4. Liability
4.1. The liability of LOWES for any of the matters referred to in this clause 4.1 shall be limited to the lesser of:
a. The minimum required by The Trade Practices Act (Cth) 1974;
b. $100.00 (one hundred dollars).
This limitation of liability applies:
4.1.1 To any personal injury, or loss of, damage to, or delay in relation to any goods or in relation to any services provided under any circumstances whatsoever;
4.1.2 To any negligent or wrongful act or deliberate act or default on the part of contractors of LOWES, its agents, servants or subcontractors;
4.1.3 To any misdelivery, delay or nondelivery (whether any specific time for delivery has been agreed or not);
4.1.4 To any breach of contract or tortious duty;
4.1.5 To any consequential loss for whatever reason and under any circumstances;
4.1.6 To any loss of or damage to or deterioration in or contamination of goods while the goods are in the possession, custody or control of the Customer;
4.1.7 To any claim for delay or damage, to the amount of LOWES charges to the company for or in relation to the goods;
4.1.8 For any failure or delay in performance hereunder due in whole or in part to strikes, work stoppages, fire, acts of terrorism, accidents, wars, rebellions, civil commotion, public strife, acts of any government, whether legal or otherwise, acts of public enemies, forces majeure, or qualified labour, or any other causes beyond the reasonable control of LOWES;
4.1.9 For any delays or inabilities to obtain product because of the actions of a supplier to LOWES.
4.2. In entering into this contract, LOWES, to the extent of these provisions, does so not only on its behalf but as agent and trustee for such contractors, servants, sub contractors and agents.
4.3. The Customer shall defend, indemnify and hold harmless LOWES from and against all claims, costs and demands whatsoever and by whosoever made in relation to or arising out of the goods and services provided, in excess of the liability of LOWES under the terms of these conditions and without prejudice to the generality of this clause, this indemnity shall cover all claims, costs and demands arising from or in connection with the negligence or wrongful or deliberate acts of LOWES, its contractors, servants, sub–contractors and agents.
5. Amount of Compensation
5.1. LOWES shall be discharged from all liability unless:
5.1.1. Notice of any alleged loss or damage is given to LOWES immediately or (if lawful damage is not immediately apparent) within seven (7) days of the goods being collected by or delivered to the Customer at the conclusion of the services;
5.1.2. A suit is brought in the appropriate form and written notice thereof is received by LOWES within seven (7) days after the date of delivery of the goods or the date upon which the goods should have been delivered.
5.2. LOWES shall be under no obligation to take any steps for or on behalf of the Customer for the purpose of extending or preserving the liability of any contract or third party and may (according to the extent of liability) obtain services in relation to goods at the lowest possible cost.
5.3. To the extent that any clause or any part of any clause above would (due to the circumstances of particular case) be declared void under the Trade Practices Act 1974, such clause or clauses (or relevant parts thereof) shall be read as restricting the Customer’s entitlement only to the extent of limiting LOWES liability to the greatest extent permitted by law in the applicable circumstances. In particular, in such circumstances such clauses shall be read only as limiting the liability of the company in accordance with Section 68A of that Act, where permissible.
6. Title/Risk of Loss/Insurance
The risk or loss of goods shall pass from LOWES to the Customer when the goods or component parts, whether manufactured by LOWES or another supplier, are placed in the possession of the carrier for shipment to the Customer. The Customer shall provide all necessary insurance to be for no less than the total amount owing to LOWES with loss first payable to LOWES.
7. Acceptance of Goods
The Customer shall inspect or test all goods upon receipt. The Customer shall be deemed to have accepted final acceptance of the goods within three (3) days from the date of initial shipment, unless written notice is received by LOWES within such period. In any case, the goods will be deemed accepted on the date when used or otherwise placed in commercial operation.
8. Warranty
8.1. LOWES warrants that title to the goods shall be free from any encumbrance, and will conform to the description contained on the invoice.
8.2. LOWES disclaims that any implied warranty of merchantability or fitness for a particular purpose. There are no representations or warranties except as provided in writing and as signed by a Director of LOWES.
8.3. The Customer is responsible for the designation and selection of products sold by LOWES. The Customer shall hold LOWES harmless and indemnify and defend LOWES (including its Directors, officers, employers, agents and representatives) for any claims arising out of or relating to the design, specification or use of product(s) sold by LOWES to the Customer.
9. Returns
Returned goods will be accepted only if LOWES has given prior written consent. Handling, inspection, restocking and invoicing charges also may be assessed against the Customer. All returns must be shipped at the Customer’s expense and must be in excellent resale condition. Goods made to a Customer’s specification are not returnable.
10. Defaults
In the event of the Customer’s refusal to accept a shipment or other default, LOWES, at its discretion and option shall be entitled to retain all monies paid by the Customer on accounts as liquidated damages. If the Customer fails to make any payments when due, or if there is a breach of any covenant or agreement by the Customer, or if LOWES deems itself insecure, then the Customer shall be deemed in default and LOWES shall have, at its option, the right to take immediate possession of the goods, and or declare all unpaid amounts immediately due and payable and or suspend shipments to the Customer. LOWES shall be entitled to settle for any amount owed by the Customer or any of the Customers related entities against any amount payable to LOWES in connection with any unpaid monies due to LOWES. A waiver by LOWES of any breach or default shall not constitute a waiver of any subsequent breach or default.
11. Cancellation
Upon receipt of written notice from the Customer, LOWES shall cancel any orders as instructed subject to LOWES (or its subcontractors) rights to continue processing and or delivering material to the point at which processing or delivery can be halted with the least disruption and cost to LOWES. The Customer shall be responsible for all costs associated with the cancellation and/or the completion of the processing and or delivery of the goods.
12. Acceptance
These terms and conditions shall be deemed binding on the Customer by its purchase of products from LOWES.
13. General
LOWES may assign its rights and obligations under these terms and conditions. If the Customer changes its corporate status, both Customer and its successors continue to be bound by these terms and conditions of sale, but LOWES reserves its rights pursuant to clause 11. No prior representation, affirmation, or agreement shall be enforceable unless set forth herein. If the Customer sells part or all of its business to another entity, and that other entity purchases any goods from LOWES, then that purchase shall confirm that the new entity has agreed to be bound by the same Terms and Conditions set out herein.
14. Choice of Law
14.1. This contract shall be governed by the laws of Queensland. LOWES and the Customer hereby agree:
14.1.1. to submit to the exclusive jurisdiction of the Courts of Queensland; and
14.1.2. that proceedings are to be filed and trialled in the Court registry at Brisbane (including the Magistrates Court AND District Courts at Brisbane) at the sole discretion of LOWES.
15. Severability
15.1. If these terms and conditions shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
15.1.1. that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
15.1.2. if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.
16. Goods and Services Tax (GST)
In the event of supply made under these terms and conditions by LOWES or the Customer, the supplying party may in addition to those charges payable by the Customer, but subject to the issuing of a valid tax invoice, recover from the Customer an additional amount equal to that of the GST in accordance amended.
17. Price
17.1. All quotations are exclusive of GST. GST will have the meaning of a tax, impost or duty on goods, services or other things introduced by a Government Authority either before, on, or after the quotation has been given.
17.2. All quotations are provided as an estimation only and should only be relied upon as a guide. The price provided for within the quotation will not include any incidental charges that may not have been made aware to LOWES and or by a LOWES supplier.
18. Termination
LOWES may at any time without prior notice or explanation to the Customer withdraw or terminate the supply of goods or the provision of credit facilities granted to the Customer pursuant to the terms and conditions included in this document. LOWES disclaims all liability to the Customer for any loss, damage or injury resulting from such withdrawal or termination.
19. Privacy
19.1. By completing this Application for Credit, the Customer consents to LOWES receiving and disclosing Personal Information from a credit reporting agency for the continued assessment of the Customer’s credit worthiness.
19.2. All personal information collected by LOWES will be treated in accordance with LOWES Privacy Policy set out at www.lowespetrol.com.au as amended from time to time.
20. Guarantee
The person (the “Guarantor”) who undersigned the purchase docket on behalf of the Customer guarantees to LOWES that he or she will do everything that the Customer is required to do under these Trading Terms. The Guarantor will separately continually indemnify LOWES against any loss and damage that LOWES suffers because the Customer fails to comply with the Trading Terms. The Guarantor is jointly or severally liable to perform the terms contained herein with the Customer. LOWES is entitled to enforce these Trading Terms against the Guarantor solely due to the Customer’s breach of any terms herein.
21. Enduring Power of Attorney
21.1. The Customer irrevocably appoints LOWES and each and every one of LOWES’s directors to be the true and lawful attorney of the Customer to act at any time after the Customer breaches any terms herein. The attorney is empowered (but not limited):
21.1.1. to do all things which the Customer is required to do under these Trading Terms; and
21.1.2. to execute and register (if necessary) any document to effect a bill of sale or mortgage, over the Customer’s assets or properties for the amount of debt owing.
21.2 The Customer acknowledges and agrees that whilst there is any alleged monies owing to LOWES, LOWES may register a caveat over any real property held by the Customer until the monies are paid, or until the Court so orders.
22. Charges
22.1. The Customer agrees to pay the following charges in addition to the payments for the Goods purchased and the interest payable:
22.1.1. Credit Card Payment Fee of no more than two per cent (2%) on payments made by the Customer;
22.1.2. A Dishonour Fee of $50.00 for each cheque or direct debit payment dishonoured; and
22.2. An Account Information Fee of $15.00 per page is payable for each request for printed account information, documentation or notices which have previously been provided to the Customer.
22.3. If LOWES commences legal proceedings to recover monies owed, then the Customer agrees to pay a further fee of $1,500.00 (one thousand five hundred dollars) to LOWES to cover the costs borne by LOWES in instructing lawyers, and supervising the legal process.