Lowes Petroleum Service
Terms and Conditions

Interpretation
In these Terms and Conditions and any associated documents, unless a contrary intention is stated:
“Agreement” means the Contract formed between the Customer and LOWES.
“Application Approval Letter” means the letter received by the Customer on acceptance by LOWES of the Credit Application.
“Business Day” means any day except Saturday or Sunday or a day that it a public or bank holiday in Brisbane, Queensland.
“Credit Application” means the form completed by the Customer for the purpose of placing an Order with LOWES for goods and/or services.
“Customer” means the person/entity specified as the customer on the Credit Application form.
“Customer information” means the information provided to LOWES by the Customer and/or Guarantor on the Credit Application.
“Date of Supply” means the date the customer has provided a direct debit authority to LOWES.
“LOWES” means Chippen Holdings Pty Ltd (ACN 054 492 474);
“Order” means where the Customer has requested goods and/or services from LOWES.
“Guarantors” means each of the persons who complete this form as guarantor.
“Invoice” means an itemised bill of goods and services provided by LOWES to the Customer.
“Contract” has the meaning as defined in clause 2 of these Terms and Conditions.
“GST” has the meaning given to that term by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Statement” means an overview of monies owing by the Customer to LOWES that is not an Invoice.
“Payment Due” means any amount owing by the Customer to LOWES in consideration for goods and/or services provided in relation to an Order.
“The Parties” means the Customer and LOWES.
Contract
The Customer and LOWES will be deemed to have entered into an agreement (the Contract) upon the communication by the Customer to LOWES of the Contractor’s acceptance of:
1. the Customer’s Credit Application; or
2. an Order placed by the Customer.
Terms and Conditions
The terms and conditions of the Contract are set out in:
1. these Terms and Conditions; and
2. the Application Approval Letter.
These Terms and Conditions prevail over any terms or conditions sought to be imposed by the Customer on LOWES.
General
1. Upon acceptance of the Credit Application by LOWES, LOWES may extend the Customer credit for the purchase of goods and services for use by the Customer for their business.
2. The Customer agrees and declares that any credit provided by LOWES is to be applied wholly or predominantly for business or investment purposes. The Customer is aware that by signing this agreement that the Customer may lose any protection afforded under the Consumer Credit Code.
3. The Customer agrees that LOWES may:
  1. withdraw or terminate the supply of goods at any time, without notice;
  2. withdraw the provision of credit facilities provided to the Customer.
4. The Customer holds LOWES harmless in relation to any loss, damage or injury (including negligence) resulting from such withdrawal or termination.
5. Unless otherwise agreed in writing by LOWES, any terms and conditions of the Customer’s Order deviating from these terms and conditions are expressly rejected by LOWES as are any variations to these terms and conditions.
6. LOWES may vary these terms and conditions by notice in writing to the Customer or by updating the terms and conditions available on LOWES’ website. The Customer agrees that the purchase of goods after amended terms are sent to the customer or available on the LOWES website will may constitute the Customer’s acceptance of such varied terms and conditions.
7. The Customer agrees to notify LOWES in writing of any changes to any information provided in the Credit Application.
Payment
1. LOWES may set off against any money owing to the Customer amounts owed by LOWES to the Customer on any account whatsoever. The Customer may not set off any amounts allegedly owing by LOWES to it against any account whatsoever.
2. Unless otherwise stated in an Invoice or Statement issued in writing by LOWES (or if LOWES elects to withdraw the Customer’s credit facilities), the Customer agrees to pay for all goods and services provided by LOWES to the Customer are payable at the earliest of:
  1. Twenty-one days of date of Invoice or Statement; or
  2. Seven (7) days from the Date of Supply.
3. The Customer agrees that any amounts owing by the Customer to LOWES become immediately due and payable if LOWES elects to withdraw credit facilities to the Customer, regardless of whether notice of that election has been communicated to the Customer.
4. Unless agreed by LOWES, the Customer agrees to make payments by cash, cheque, bank cheque, or electronic funds transfer without deduction. The Customer agrees to pay a 2% surcharge for processing any Payment Due in alternative means.
5. The parties agree that if a Payment Due to LOWES is not paid within the due date, the Customer must pay LOWES interest at the rate of 1.75% compounding per month on the largest amount payable (including interest and other charges payable pursuant to this agreement) during the preceding month.
6. The Customer acknowledges and agrees:
  1. To pay a dishonour fee of $50.00 for each cheque or direct debit payment dishonoured;
  2. To pay an account information fee of $15.00 per page for each request for printed account information, documentation or notices which have previously been provided to the Customer.
Default
The parties agree that the following are Acts of Default for the purposes of this agreement:
1. If there is any default or failure by the Customer in making full and punctual payment to LOWES of any Payment Due by the Customer;
2. If a direct debit request processed by LOWES fails;
3. If the Customer (or one of its agents) provides a cheque to LOWES which is not paid upon presentation;
4. If an administrator, liquidator, controller, receiver or provisional liquidator is appointed in respect of the Customer;
5. If the Customer becomes bankrupt or is wound up;
6. LOWES deems the Customer insolvent;
7. If the Customer becomes, or it admits in writing that it is, unable to pay its debts as and when they fall due;
8. If the Customer refuses to receive a shipment; or
9. If the Customer breaches these terms and conditions.
  
  The parties agree that upon an Act of Default occurring that LOWES may:
10. Elect (without notice to the Customer) for all monies payable by the Customer to LOWES to become immediately due and payable notwithstanding that the due date for payment may not otherwise have expired;
11. Place a stop on any credit facilities which have been extended to the Customer;
12. Take immediate possession of the goods;
13. Withdraw any credit facilities which have been extended to the Customer;
14. Retain all monies paid by the Customer on account as liquidated damages; and/or
15. Withhold further deliveries to the Customer.
Costs on Default
1. The Customer indemnifies LOWES for any costs and expenses (on a full indemnity basis) in connection with attempts to obtain payment of any Payment Due, 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. In the event that indemnity costs are not enforceable, the Customer agrees to pay LOWES costs and expenses by reference to 150% of the Supreme Court of Queensland scale to be assessed by a registered Queensland costs assessor selected by LOWES at its sole discretion.
2. The Customer acknowledges and agrees:
  1. To pay a minimum fee of $500.00 in the event that the Customer is outside the payment terms required by this Agreement and Lowes instructs solicitors to send a letter of demand to the Customer with such $500.00 to cover the costs of instructing solicitors to demand payment together with the costs associated with any consequent negotiations;
  2. To pay a minimum of $1,500.00 to LOWES in the event that LOWES commences legal proceedings to cover recover monies owed by the Customer to cover such fees borne by LOWES in instructing lawyers and supervising the legal process;
  3. That the liquidated sums in the preceding paragraphs are a genuine pre-estimate of loss suffered by LOWES in the event that the Customer defaults under this agreement.
3. The Customer agrees to pay all stamp duties, any bank charges, or other charges incidental to the performance or enforcement of, or litigation on these terms and conditions or any documents signed by the Customer or any guarantor together with any other collection costs.
4. LOWES is entitled to settle for any amount owed by the Customer or any of the Customer’s related entities against any amount payable to LOWES in connection with any Payment Due to LOWES.
5. A waiver by LOWES of any breach of this Agreement does not constitute a waiver of any subsequent breach or default.
Invoice or Statement Dispute Procedure
1. The Customer acknowledges and agrees:
  1. To notify LOWES within three (3) days of LOWES rendering an Invoice or Statement of any dispute that it may wish to raise to that Invoice or Statement ;
  2. That if LOWES does not receive notice of a dispute within three (3) days of LOWES rendering an Invoice or Statement then the Customer agrees it has accepted the goods and must pay the full amount of that Invoice or Statement before it can raise a dispute to the amount sought, or claim for a set-off, or raise a counter-claim against LOWES.
2. The Customer agrees that it has accepted the goods if the goods are used or otherwise placed in commercial operation.
Use of Personal Information
1. The Customer permits LOWES to disclose the Customer’s information to credit reporting agencies, its solicitors, debt collection agencies, and in order to contact the Customer’s credit references and sources.
2. The Customer certifies that the Customer’s information contained in this application is true and correct and that LOWES may rely on the information provided by the client when considering whether to extend credit to the Customer.
3. All personal information collected by LOWES will be treated in accordance with LOWES’ privacy policy available at www.lowespetrol.com.au as amended from time to time.
Limitation of Liability
1. The Customer agrees that the liability of LOWES for any claim by the Customer or the Guarantors (including for negligence, howsoever caused) is limited to the minimum required by law.
2. This limitation of liability applies to:
  1. Any negligent or wrongful act or deliberate act or default on the part of contractors of LOWES, its agents, servants or subcontractors;
  2. Any mis-delivery, delay or non-delivery (whether any specific time for delivery has been agreed or not);
  3. Any breach of contract or tortuous duty;
  4. Any consequential loss for whatever reason and under any circumstances;
  5. 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;
  6. Any claim for delay or damage, to the amount of LOWES charges to the company for or in relation to the goods;
  7. 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;
  8. Any delays or inabilities to obtain product because of the actions of a supplier to LOWES; and
  9. Any matter or claim that is not brought to the attention of LOWES in writing within seven (7) days of the Customer becoming aware of any such matter or claim.
3. The Customer agrees that LOWES enters this Agreement not only on its behalf but also as agent and trustee for such contractors, servants, sub contractors and agents as it may appoint from time to time.
4. The Customer must 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. The Customer expressly discharges LOWES from all liability unless:
  1. The Customer provides LOWES notice of any alleged loss or damage 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; and
  2. A suit is brought in the appropriate form and written notice is received by LOWES within seven (7) days of the date of delivery of the goods.
Delivery/Title/Risk of Loss/Insurance
1. Any times quoted for delivery are estimates only and the Customer agrees that LOWES is not liable for any delays or failure in delivery.
2. The risk or loss of goods passes from LOWES to the Customer when the goods or component parts are dispatched from LOWES’ premises.
3. The Customer must provide insurance to be for no less than the total amount owing to LOWES with loss first payable to LOWES.
Warranty
1. LOWES warrants that the goods will conform to the description contained on the invoice, and the Customer agrees that no further warranty is to be implied.
2. To the extent permitted by law, LOWES disclaims any implied warranty of merchantability or fitness for a particular purpose. The Customer agrees that LOWES have made no representations or warranties except as confirmed in writing by a director of LOWES.
3. The Customer holds LOWES harmless and indemnifies and defends 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 or otherwise provided by LOWES to the Customer.
Returns and Cancelling Orders
1. The Customer agrees that LOWES may require prior written consent prior to accepting any returned goods, and that such returns may result in handling, inspection, restocking, and invoicing charges which are to be paid by the Customer.
2. The Customer agrees to pay for shipping of all returns to LOWES and to ensure that the returns are in excellent re-sale condition.
3. Goods made to a Customer’s specification are not returnable.
4. Upon receipt of written notice from the Customer, LOWES may cancel any Orders as requested by the Customer subject to LOWES (or its sub-contractors) 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.
5. The Customer is responsible for all costs associated with the cancellation and/or the completion of the processing and/or delivery of the goods.
Amendments, Representations and Assignment
1. LOWES may assign its rights and obligations under these terms and conditions. If the Customer changes its corporate status, then the Customer acknowledges and agrees that both the Customer and its successors continue to be bound by these terms and conditions of sale.
2. The Customer agrees no prior representation, affirmation, or agreement can be enforceable unless set forth herein.
3. The terms of this agreement cannot be amended, reduced or modified and govern any contradictory term contained in any other document, unless a Director of LOWES has expressly stated in writing to the contrary.
Choice of Law
1. All of the parties agree:
  1. that this agreement is governed by the laws of the State of Queensland, Australia.
  2. to submit to the exclusive jurisdiction of the Courts of the State of Queensland; and
  3. that proceedings are to be filed and trialled in the Court registry located at Brisbane (including the Magistrates, District and Supreme Courts at Brisbane).
Severability
1. These terms and conditions are to be interpreted and construed so far as possible to not to be invalid, illegal or unenforceable in any respect.
2. The parties agree that if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
  1. that provision is to be read down to the extent that it is 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
  2. if the provision or part of it cannot effectively be read down, that provision or part of it is to be deemed void and severable and the remaining provisions of this Agreement are not, in any way, to be affected or impaired and are to continue notwithstanding that illegality, invalidity or unenforceability.
Prices
Survival
The parties acknowledge and agree that clauses 5.1, 5.5, 6.3, 9, 14, 15, 18, 19 and 20 continue after termination of this agreement.
Guarantee
Each of the Guarantors jointly and severally guarantees to LOWES to do everything that the Customer is required to do and that the Guarantor will not do anything the Customer is required not to do under this agreement. The Guarantor will separately and continually indemnify LOWES against any loss and damage that LOWES suffers because the Customer breaches this Agreement. The Guarantors agree that LOWES is entitled to enforce this agreement against each Guarantor solely due to the Customer’s breach of any terms herein after a demand is made on the Guarantor in the manner set out in clause 18 of this agreement.
Power of Attorney and Charging Clause
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):
  1. to do all things which the Customer is required to do under this agreement; and
  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.
Notices
The parties agree that notices (including the service of legal proceedings and originating process) to the Customer or any of the Guarantors or may be sent by:
1. regular pre-paid post to the address provided by the Customer or Guarantors;
2. facsimile to any facsimile number provided by the Customer or Guarantors; and/or
3. email to any email address provided by the Customer or Guarantors.
The Customer and Guarantor agrees to provide LOWES with updated customer information should their contact details change.
Security of Debt
To better secure the payment of all monies which the Customer or Guarantors may become liable to pay LOWES under this agreement, and as an essential condition of this agreement, the Guarantor and the Customer charges all of his interest in real property, both present and future and wheresoever situated with the amount of the Customer and/or Guarantor’s indebtedness to LOWES on account whatsoever from time to time. The Customer and Guarantors agree to provide, upon demand by LOWES, signed documents and do all things that LOWES reasonably requires to further secure to LOWES the amount of indebtedness owed by the Customer to LOWES from time to time. The parties acknowledge and agree that this includes but without being limited to, such mortgage or mortgage(s) over any real property (whether acquired before or after the date of this agreement) containing such covenants as required by LOWES. Each Guarantor and Customer authorises, and undertakes not to challenge, caveats lodged by LOWES over any real property held by the Customer or Guarantor.

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Lowes Petroleum Service Terms and Conditions

Lowes Petroleum Service
Terms and Conditions