Terms and Conditions of Trade

Untitled Document

In these terms and conditions of Trade unless the contract otherwise requires, the words 'we' 'us' 'our' shall mean and refer to Diesel Distributors Australia Pty Ltd ACN 106 775 928). The word 'you' shall refer to the person or company to whom the goods are sold or supplied. 'The goods' shall refer to the goods, merchandise and other items the subject of the sale transaction and where the context permits or requires includes services. 'GST' means the Goods and Services Tax assessable under the GST Law; 'GST Law' means A New Tax System (Goods and Services Tax) Act 1999, A New Tax System (Goods and Services Tax Transition) Act 1999 and all associated legislation, subordinate legislation and administrative rulings. Unless otherwise agreed in writing by us these terms and conditions apply to all sale contracts between you and us. We may from time to time alter these terms and conditions and such altered terms and conditions shall apply in respect of all transactions taking place after notification to you of such alterations.

1. GENERAL - These terms and conditions apply to the sale of the goods by us to you; where this document is part of a quotation then the terms and conditions shall have application, so far as the context permits, in respect of any transaction conducted following acceptance of the quotation or negotiated variation thereto. We may refuse to provide a quote or to sell goods to you without providing any reason for such refusal. Any variation of an order or cancellation of an order must be agreed to in writing by us.

2. PRECEDENCE - These conditions shall prevail over the provisions contained in any other document which may conflict with the provisions of these terms and conditions.

3. VALIDITY - Where this document forms part of a quotation:- (a) the quotation is not to be construed as an offer or obligation by us to sell and we reserve the right at our option to accept or reject any orders received; (b) our obligation to deliver the goods is subject to the availability of those goods at the date that delivery is required by you. Any delivery time quoted is an estimate only; (c) the quotation is, prior to receipt of acceptance, subject to alteration or withdrawal at any time by us in writing and unless otherwise advised by us in writing the quotation shall be valid for thirty (30) days from the date thereof; and (d) unless otherwise stated the prices quoted do not include GST. GST and any other government imposts or charges will be to your account.

4. SEVERANCE - If any provision or part of a provision of these terms and conditions is found to be invalid or unenforceable then that provision or part of a provision shall be severed and the remaining provisions shall continue to be binding and have full force and effect.

5. DELIVERY - Any delivery or completion date or times stated are estimates only and we shall not be held liable for any consequences whatsoever for any delay to such times. Where applicable delivery will be made in accordance with a written delivery schedule mutually agreed with you at the time of placing the order. Unless amendments to the delivery schedule are given by you in sufficient time to alter the production programme and such amendments have been agreed by us in writing we reserve the right to continue to deliver according to schedule. All charges relating to storage insurance and subsequent delivery to the site will be directly to your account. In the event of any happening in consequence of which we cannot effect delivery by the agreed time, we shall be entitled to suspend delivery or extend the delivery time of the goods for the period during which such cause of delay operates and, in the event of such suspension or extension, we shall not be liable for any damages whatsoever. We shall not be liable for any damage or loss (including consequential loss) for failure or delay in delivery. In no case shall we be liable for any amount payable by you to a third party as a result of a failure or delay in delivery by us due to any cause whatsoever. We reserve the right to refuse to deliver any goods under this contract if you have any monies outstanding beyond the date for payment on any account with us.

6. ACCESS - It is your responsibility to ensure that on delivery of the goods we have clear and uninterrupted access to enable us to deliver the goods to the location agreed in writing with you at the time of placing the order. If such access is not available, we may at our option either leave the goods at ground floor level (which shall be deemed to be deliver of the goods to you) or return the goods for storage and we shall not be liable for any damage or loss (including consequential loss) resulting either directly or indirectly for such action. If the goods are returned for storage the failure to provide access shall be a happening in consequence of which we cannot effect delivery and the provisions of Clause 5 shall apply. You will be responsible to pay to us any additional costs incurred by us resulting from your failure to provide access.

7. RISK AND STORAGE - All risk of or for loss or damage with respect to the goods passes to you on delivery of the goods to you, your servants, agents, customers or to any carrier. If the goods are returned for storage in accordance with Clause 7, the risk of such goods passes to you at the time that the decision is made by us to return the goods for storage or if delivery is delayed for any reason beyond our reasonable control for a period of fourteen (14) days after the date on which you are notified that the contract goods or any completed items forming part thereof are ready for delivery, the risk of such goods shall pass to you upon the expiration of the said fourteen (14) days and we shall be entitled to present invoices to you for payment in accordance with Clause 11. We may at our option arrange suitable storage of such goods at our premises or elsewhere and all costs of or incidental to such storage shall be borne by you. You shall, on demand, pay to us all costs of storage, insurance, handling and other charges incidental to such storage.

8. DAMAGE OR LOSS IN TRANSIT - Unless otherwise agreed in writing you shall take delivery of the goods at our address notified to you or set out in the contract documents and the cost of transport to your premises shall be borne by you and we will not be responsible for any loss or damage of the goods after delivery thereof to your carrier notwithstanding that we may have arranged the carrier at your request. If the transport of the goods is our responsibility we shall repair or at our option replace free of charge any of the goods lost or damaged in transit to the contractual point of delivery provided that we are given written notice of such loss or damage within two (2) days of delivery or within such shorter time as will enable us to comply with the carrier's conditions of carriage affecting loss or damage in transit.

9. GST AND GOVERNMENT IMPOSTS - Any government imposts and charges which may be incurred or become payable in respect of the goods will be to your account. If a government impost or charge for the transaction relating to the goods between you and us is claimed against us then we will be entitled to add the amount to your account with us and to recover the amount from you on demand. If a GST is imposed or payable in respect of the goods or the supply by us of the goods under or in connection with this agreement is regarded as a taxable supply, then the following apply:- (a) you must pay to us the amount of GST payable in respect of the goods or for the taxable supply in addition to any amount or consideration otherwise payable for the goods; (b) provided we deliver a tax invoice to you in respect of the supply of the goods by us the amount of GST payable in respect of the goods is payable by you to us on demand.

10. TERMS OF PAYMENT - Unless stated otherwise in the quotation or agreed in writing, all prices quoted are strictly nett and payment in full shall be by the 20th day of the month following invoice. We reserve the right to deliver and invoice any item or items comprising the whole or part of any order or to proceed in accordance with Clause 8 hereof prior to any delivery time quoted by us. Should payment due to us not be received by the 20th day of the month following invoice then we shall have the right in addition to all other rights to which we are entitled at Law to charge interest on the overdue amount at the rate of 2.5 per cent per month calculated from that date being the 21st day of the month following invoice to the actual date of full and final payment. Any payment made by you will be credited first against interest accrued. We may at any time in our sole discretion combine the amount payable to us for the goods with any other account between you and us or otherwise effect any set-off without notice and no agreement to the contrary shall arise by implication only.

11. WARRANTY - We will make good by repair or at our option by the supply of a replacement, defects which under proper use appear in the goods within the period as is specified in the manufacturer's warranty (which period commences after the goods have been despatched) and which defects arise solely from faulty design, workmanship or materials, PROVIDED always that the defective parts are returned by you free to our address on the delivery documents or invoice unless otherwise arranged. Our warranty will not apply to any defect which arises by excessive wear, misuse, neglect, accident or incorrect installation, including installation close to heat sources. Except as specifically provided in these terms and conditions, there are no other conditions or warranties expressed or implied provided however that nothing in the conditions shall restrict, exclude or modify any condition or warranty implied by any legislation which both implies conditions or warranties and provides that such conditions or warranties may not be excluded where and to the extent that such legislation is applicable.

12. LIABILITY OF SUPPLIER - Where the goods have been ordered or obtained by us for you at your request from a nominated third party supplier or by description from another supplier then, provided the goods are returned to us by you, we will return the goods to the nominated supplier or source of the goods for credit (which will be passed on to you if and when received by us) or alternatively for repair or replacement (at our option). We will not be required to return the goods for credit or for repair or replacement if the nominated third party supplier or source of the goods is under external administration, bankruptcy or is no longer carrying on business at the time of the return of the goods to us by you. You accept our obligation to you in the first sentence of this clause (subject to the second sentence) in full satisfaction of your rights against us in respect of the goods.

13. TERMINATION OF CONTRACT - We shall be entitled to immediately terminate this contract if:- (a) you are in breach of any of the conditions; (b) execution is levied on your property; (c) you make any arrangement or composition with your creditors or commit any act of bankruptcy or proceedings in bankruptcy are commenced against you or, if you are a company, any resolution or application to wind up is passed or presented against you or a receiver and manager or receiver or administrator is appointed; In these terms and conditions 'act of bankruptcy' shall be deemed to include entering into a composition and the execution of a Deed of Assignment or Deed of Arrangement.

14. CLAIMS - (a) No claim in relation to damaged goods or goods not according to specifications or quantity will be considered unless notified in writing within seven (7) days of delivery. (b) No claim will be considered with respect to the supply of goods which vary from the goods ordered unless such variation is material. (c) No claim levied against us in relation to loss or damage will be considered unless all amounts owing by you to us have been paid in full. (d) If no notice is received by us in accordance with clause 15(a) you will be deemed to have accepted the goods and you shall lose any right to reject the goods or claim any warranty (including damages) against us.

15. PROPERTY IN AND TITLE TO GOODS - (a) The property in and title to the goods included in an invoice shall not pass to you until the whole of the purchase monies for the goods referred to in the invoice and any other invoices with respect to the goods or their supply has been paid in full to us and the property in the goods shall remain solely with us until such payment is made; (b) If a cheque is tendered in payment then payment shall not be deemed to have been made until such cheque has been paid by the drawer's bank; (c) Until payment in full for the goods and of all sums due and owing by you to us on any account:- (i) the goods you hold are held as trustee for us; (ii) you shall not mortgage or pledge the goods to any person or company; (iii) the goods shall be at your risk in all respects. (d) In the event of default if your obligations under these terms and conditions or if any event occurs by which we shall be entitled to determine this contract, then without prejudice to any rights which we may have at Law or hereunder:- (i) we or our agents may without notice to you enter the premises where the goods are located, by force if necessary, for the purpose of recovering the goods; (ii) we may recover and resell the goods and apply the proceeds in reduction of any indebtedness you may owe to us; (iii) if the goods are used in the manufacture of other goods or are mixed or affixed to other goods or products or become a constituent of other goods or products we will be given possession of and have a lien over such other goods and products as security for full payment of the goods by you; to facilitate possession hereunder such goods or products may be taken and the same rights and liabilities apply as if they were goods under the preceding clauses (i) and (ii) hereof; (iv) we shall have a right to any claim or claims you may have against third parties emanating from the sale of the goods or other goods or products into which the goods may have become incorporated; in the event of sales of the goods by you we shall have the right to trace the proceeds thereof.

16. PERSONAL GUARANTEE OF COMPANY DIRECTORS Where the Applicant is a Company each of the Directors of the Company as noted on and who have signed this Application is requesting that the Application be accepted and credit be granted to the Applicant at each Director's request and in consideration each Director agrees to personally guarantee and be jointly and severally liable for the due and punctual performance by the Company of all of the Company's obligations and liabilities under or arising out of the Terms and Conditions including in particular payment by the Directors as principal debtors of all accounts when they become due and payable and each Director indemnifies us against non-payment by the Applicant and acknowledges that their liability as guarantors is a continuing unconditional liability and that this guarantee shall not be affected by any time or indulgence which may be extended to the Company.

17. You consent to us using any information obtained by us from you and any guarantor in a manner consistent with the terms of the Privacy Notice set out below.

PRIVACY NOTICE: We are committed to protecting your privacy, and in handling personal information in compliance with the National Privacy Principles for the fair handling of personal information, as set out in the Privacy Act 1988. Individuals will be given access to their personal information on request. If you have any questions or concerns about your privacy please contact us. We use the types of personal information collected for the purpose of assessing applications for credit for the purchase of our product range which may include obtaining information about your personal and commercial credit arrangements from credit providers not only named in your application for credit; but also from credit providers who may be named in any personal or commercial credit report issued to us by a credit reporting agency. We also use personal information for the purposes of managing your account, assessing your financial position and collecting our debts (if you fail to make payments as required) and providing updates on our range of products and services. The information you provide may be disclosed to our related companies, contractors, credit providers and, if necessary, our risk insurer, debt collectors and any other credit reporting agencies. This statement is in addition to the consents obtained by us under Part IIIA of the Privacy Act 1988.