AGREEMENT FOR THE PROVISION OF GOODS AND/OR … · Name on Credit Card: I, _____, hereby authorise...

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Eagle Petroleum (WA) Pty Ltd as trustee for The Eagle Petroleum (WA) Unit Trust

ACN 140 957 231 ABN 97 890 451 556 Postal Address: 136 West Kalgoorlie Road, WEST KALGOORLIE WA 6430

PO Box 10358, KALGOORLIE WA 6433 Phone: (08) 9022 7711 Fax: (08) 9022 7306

Email: [email protected]

AGREEMENT FOR THE PROVISION OF GOODS AND/OR SERVICES, FUEL CARD AND/OR HIRE OF EQUIPMENT ON CREDIT

Between: Eagle Petroleum (WA) Pty Ltd atf Eagle Petroleum (WA) Unit Trust t/as

Eagle Petroleum ABN 97 890 451 556 PO Box 10358, Kalgoorlie WA 6430. (“the Supplier”) And: Name: ...................................................................................................................................................................................... (“the Customer”) Of: And: Name: ...................................................................................................................................................................................... ..................................................................................................................................................................... (“the Guarantors”) Of: ...................................................................................................................................................................................... Agreement

1. The Customer wishes to: (a) obtain the supply of Goods and/or services from the Supplier on credit; (b) obtain and use an Eagle Card and Eagle Card credit account; and/or (c) hire Equipment from the Supplier on credit.

2. The Customer has submitted the information and financial particulars as set out in the First Schedule (Particulars)

and warrants the Particulars are true and correct and complete in all respects. 3. In reliance on the Particulars, the Supplier has agreed to:

(a) supply Goods and/or Services to the Customer on credit; (b) issue the Customer one or more Eagle Cards; and/or (c) hire Equipment to the Customer

on the terms and conditions set out in the Second Schedule, and to provide to the Customer credit facilities on the terms of this Agreement including the Terms and Conditions as set out in the Second Schedule, and the Customer hereby:

(d) accepts such facilities on such terms; and (e) agrees to pay for any Goods and Services supplied and Equipment hired and otherwise to comply with the

Terms and Conditions. 4. The Customer warrants that it has the power to enter into this agreement and has obtained all necessary

authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

5. The Customer may accept the terms of this Agreement by conduct by:

(a) using a Fuel Card issued by the Supplier to the Customer; (b) requesting the provision of Goods and/or Services; or (c) taking possession of hired Equipment

following this document being provided to the Customer. 6. The Guarantor agrees to guarantee the performance by the Customer of its obligations under this Agreement.

mailto:[email protected]

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Execution by Customer

I the undersigned on behalf of the Customer declare and certify that: (a) the information in the First Schedule of this form is true and correct; (b) I am authorised to execute this Agreement; (c) I have read and understand the Terms and Conditions as stated in the Second Schedule of this form and agree to be

bound by these conditions; and (d) Without limiting the above, I have read and understood the sections of the Terms and Conditions dealing with

Privacy, and agree to be bound by those provisions. Signature: ___________________________________ Name: ___________________________________ Position: ___________________________________ Date: ___________________________________ Execution by Guarantors

I/We the undersigned as guarantors for the Customer certify that the information in the First Schedule of this form is true and correct and that I/we have read and understand the Terms and Conditions as stated in the Second Schedule of this Agreement and I/we agree to guarantee the performance by the Customer of its obligations under this Agreement I/we agreed to be bound by these Terms and Conditions in so far as they relate to me/us as guarantors. Signature: ___________________________________ Name: ___________________________________ Position: ___________________________________ Signature: ___________________________________ Name: ___________________________________ Position: ___________________________________ Execution by Supplier

Executed for and on behalf of Eagle Petroleum (WA) Pty Ltd ACN 140 957 231 atf Eagle Petroleum (WA) Unit Trust: Signature: ___________________________________ Name: ___________________________________

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FIRST SCHEDULE

Section 1 – Account Trading Terms: COD, 7 days nett, 21 days EOM Are you a: (please tick only one box) Company Individual Trust Sole Trader Partnership What account product options do you require? (Please tick relevant box/s) Bulk Fuel Eagle Card Tank Hire Oils & Lubricants Retail/Shop What will be your primary locations of purchase? Kalgoorlie Northern Goldfields Esperance Perth Surrounding Areas Section 2 – The Applicant

Individual or Trading Name:

Company Name:

ABN ACN

Type of Business: No. of years established:

Trust and Trustee Details Does this Applicant or Directors act as a Trustee or Trustees for a trust? If so, please complete the details below.

Name of Trustee:

Name of Trust:

Type of Trust: (Discretionary Family Trust/Unit Trust)

Section 3 – General Contact Details

Contact Name: Position:

Business Address:

State Postcode

Postal Address:

State Postcode

Phone: ( ) Fax: ( ) Mobile Phone:

Email: Driver’s Licence No:

Section 3A – Accounts and Dispatch Contact Details

Contact name for account authorisation:

Phone: ( ) Fax: ( ) Email:

Please nominate a person to contact for account queries and follow-up:

Phone: ( ) Fax: ( ) Email:

Contact name for order/dispatch:

Phone: ( ) Fax: ( ) Mobile Phone:

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Section 4 – Directors/Owners Details

Surname First Name Residential Address State Date of Birth

Has the company or individuals, including any Company Directors, been bankrupt or associated with an insolvent company, or made agreements with creditors? No Yes If yes, please provide details below.

Section 5 – Trade references for companies or employment references for individuals

We require three trade references for both businesses and individuals.

Reference 1

Contact Name:

Company Name:

Business Type: Supplier Account No:

Phone: ( ) Fax No: ( )

Reference 2

Contact Name:

Company Name:



Reference 3

Contact Name:

Company Name:



Section 6 – Details of purchase requirements

Do you require a purchase order? Yes No Estimated total monthly account spend? (your credit limit will be determined from this estimate) $_____________ Estimated delivery drop size per month: Less than 5000L 5k – 10k 10k – 20k 20k – 30k over 30k Invoicing: Mail Fax Email Note: Statements will be sent via email at the end of each month.

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Section 7 – Direct Debit Request

Request and Authority to debit the account name to pay: Eagle Petroleum (WA) Pty Ltd Insert your Name in full:

I/We (Surname or Company Business Name):

Given Name or ARBN/ABN:

Request and authorise Eagle Petroleum to arrange, through its own financial institution, a debit to my nominated account any amount Eagle Petroleum, has deemed payable by me. Note: this debit or charge will be made through the Bulk Electronic Clearing System (BECS) from your account held at the financial institution you have nominated below and will be subject to the terms and conditions of clause 6 and this Agreement generally.

Name of Financial Institution where Account is held:

Address of Financial Institution where Account is held:

P/Code:

Option 1: Request for Direct Debiting Bank Accounts Name of Account which is to be debited:

BSB Number: Account Number:

By signing and/or providing us with a valid instruction in respect to your Direct Debit Request, you have understood and agreed to the terms and conditions governing the debit arrangements between you and Eagle Petroleum (WA) Pty Ltd as set out in this Request and in the terms and conditions of clause 6 and this Agreement generally.

Customer Signature(s) (if joint account all signatures will be required)

Signature Signature

If signing for a company, sign and print full name and capacity for signing. eg: Director


Address Address

Date: _____/_____/_____ Date: _____/_____/_____

Note: Direct debiting is not available on the full range of accounts, if in doubt, please refer to your Financial Institution.

Option 2: Request for Direct Debiting Credit Cards Type of Credit Card: Visa MasterCard

Credit Card Number:

Expiry Date: CCV:

Name on Credit Card:

I, ______________________________________________, hereby authorise Eagle Petroleum (WA) Pty Ltd, to charge my credit card for the amounts invoiced.

Your completion of this authorisation form helps us to protect you, our valued customers, from credit card fraud. Eagle Petroleum (WA) Pty Ltd will keep all information entered on this form strictly confidential.

By signing and/or providing us with a valid instruction in respect to your Direct Debit Request, you have understood and agreed to the terms and conditions governing the debit arrangements between you and Eagle Petroleum (WA) Pty Ltd as set out in this Request and in the terms and conditions of clause 6 and this Agreement generally.

Customer Signature(s) (if joint account all signatures will be required) Signature Signature



Address Address

Date: _____/_____/_____ Date: _____/_____/_____

Note: Direct debiting is not available on the full range of accounts, if in doubt, please refer to your Financial Institution.

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SECOND SCHEDULE: TERMS AND CONDITIONS These terms and conditions are set out in the following manner. Part A – Clauses 1 to 32 Common Clauses (applicable to all dealings with Eagle Petroleum) Part B – Clauses 33 to 43 Fuel Card Clauses (applicable to the issue of Fuel Cards only) Part C – Clauses 44 to 57 Equipment Hire Clauses (applicable to the hire of Equipment only)

PART A - COMMON CLAUSES The following clauses are common to all Customers in respect of all Goods and Services provided including the provision of Fuel Cards and hire of Equipment.

1. Definitions 1.1 In these Terms and Conditions unless the context otherwise requires:

(a) “Agreement” means the agreement for the provision of Goods and/or Services and/or Fuel Card and/or Equipment on a credit arrangement or otherwise, of which these Terms and Conditions form part, and includes all schedules attached or incorporated into it.

(b) “Authorised User” means a person authorised by the Customer to use a Fuel Card issued to the Customer, as named in the Card Request Form under the heading “Authorised User/Driver” (or subsequently nominated by the Customer in writing), and is deemed to be an agent of the Customer.

(c) “Card Request Form” means the application form entitled “Eagle Card Request Form” and signed by both parties. (d) “Charges” means charges payable by the Customer to the Supplier in respect of the hire of Equipment pursuant to this Agreement, including the Hire Charge,

Insurance Charge, Mobilisation and Demobilisation Fee and the cost of the provision of any Services required by the Supplier or the Customer in respect of the Equipment.

(e) “Customer” means the partnership, firm, body corporate or other person obtaining the Goods and/or Services and/or Fuel Card and/or Equipment on credit or otherwise pursuant to this Agreement, as specified in any invoice, document or order, and if there is more than one Customer, a reference to the Customer is a reference to each Customer jointly and severally.

(f) “Due Date” means the due date for payment of an invoice, being 21 days from the date of that invoice unless otherwise stated in Section 1 of the First Schedule. (g) “Equipment” means the equipment specified in a Hire Request Form to be hired by the Customer from the Supplier pursuant to these Terms and Conditions. (h) “First Schedule” means the first schedule to this Agreement. (i) “Fuel Card” means a fuel card issued to a Customer by the Supplier (including, without limitation, an Eagle Card or a Motorpass Card) to enable an Authorised

User to purchase Products on credit in accordance with this Agreement. (j) “Goods” means all goods supplied or to be supplied by the Supplier to the Customer at the Customer’s request from time to time. (k) “Guarantors” means the guarantor or guarantors named in the First Schedule, and if there is more than one Guarantor, a reference to the Guarantor is a

reference to each Guarantor jointly and severally. (l) “Hire Charge” means the sum specified as such in the Hire Request Form. (m) “Hire Period” means the period of the hire detailed in the Hire Request Form plus any period of extension subsequently agreement between the Supplier and

the Customer. (n) “Hire Request Form” means the application form entitled “Eagle Petroleum Hire Request Form” (as amended from time to time) and signed by the parties, or

any other Purchase Order detailing the particulars of the agreement between the parties for the hire of Equipment.

(o) “Insurance Charge” means the sum specified as such in the Hire Request Form. (p) “Interest Rate” means 18% per annum. (q) “Mobilisation and Demobilisation Fee” or “MDF” means the sum specified as such in the Hire Request Form. (r) “Motor Fuels” means all unleaded fuels, diesel fuel and LPG, together with other motor fuels nominated by the Supplier as available on the Customer’s Fuel

Card at Nominated Premises. (s) “Nominated Premises” means premises nominated by the Supplier from time to time as Fuel Card merchants. (t) “Nominated Vehicle” means a vehicle nominated by the Customer in the Card Request Form (or subsequently by the Customer in writing) as being a vehicle for

which an Authorised User is authorised to purchase Motor Fuels using a Fuel Card. (u) “Personal Information” has the meaning given in the Privacy Act 1988 (Cth). (v) “PIN” means personal identification number. (w) “PPSA” means the Personal Properties Security Act 2009 (Cth) as amended from time to time. (x) “Price” means the price payable by the Customer to the Supplier from time to time pursuant to this Agreement, as set out below:

(i) in respect of a supply of bulk quantities of fuel, oils and/or other lubricants, the price for that given supply shall be: (a) any price agreed in any Purchase Order, or (b) in the absence of such agreement, a reasonable price determined by the Supplier with reference to (without limitation):

(I) the terminal gate price or other relevant wholesale price; (II) freight costs; and (III) a reasonable margin for the Supplier;

(ii) in respect of supply of Goods via Fuel Cards, the price shall be the GST inclusive pump price payable for fuel, and the GST inclusive retail price payable for other Products, at the relevant Nominated Premises at the time of the relevant transaction; and/or

(iii) in connection with the Hire of Equipment, the price shall be: (a) calculated with reference to the Charges; and (b) to the extent relevant Charges have not been agreed, a reasonable price determined by the Supplier.

(y) “Product” means the Motor Fuels and other Goods and Services nominated by the Customer on the Card Request Form as being required for a Fuel Card. (z) “Purchase Order” means any written document (including email exchange) or verbal agreement pursuant to which the parties agree to particular Goods,

services or hired Equipment being provided from time to time on the terms and conditions of this Agreement. (aa) “Site” means the location at which the Equipment is to be situated during the Hire Period as specified in the Hire Request Form. (bb) “Second Schedule” means the second schedule to this Agreement, comprising these Terms and Conditions. (cc) “Services” means all services supplied or to be supplied by the Supplier to the Customer, at the Customer’s request from time to time or otherwise as required

by the Supplier pursuant to this Agreement. (dd) “Supplier” means Eagle Petroleum (WA) Pty Ltd atf Eagle Petroleum (WA) Unit Trust, its successors and assigns or any person acting on behalf of and with the

authority of Eagle Petroleum (WA) Pty Ltd atf Eagle Petroleum (WA) Unit Trust. (ee) “Terms and Conditions” means these terms and conditions as amended from time to time.

2. Changes to Customer 2.1 The Customer shall give the Supplier prior written notice of any proposed change of ownership (except for public listed companies) or directorship of the Customer

and shall notify the Supplier immediately of any other change in the Customer’s details (including changes in the Customer’s registered name, trading name, business entity, registered office or principal place of business, contact phone or fax number). The Customer shall remain liable for any Goods and/or Services, the Fuel Card and/or the Equipment supplied by the Supplier after such change, alteration or addition and shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.

2.2 Where additional partners, shareholders, directors or owners are added to the Customer, the Customer must advise the Supplier of this immediately upon such addition, and the Supplier may, without limiting the remainder of this agreement, require such person/s to become parties to this agreement by execution of a deed in terms satisfactory to the Supplier, or execute a deed of guarantee and indemnity in terms satisfactory to the Supplier, as the Supplier may direct.

3. Withdrawal of Credit 3.1 The Customer agrees that the Supplier may withdraw or suspend credit facilities at any time without being obliged to give any reason and whether the Customer is in

default under the terms of this Agreement or not. 3.2 Upon cancellation with or without notice all liabilities incurred by the Customer become immediately due and payable to the Supplier.

4. Agreement to Provide Goods and/or Services and/or Fuel Cards and/or Equipment

4.1 The Supplier will supply the Goods and/or Services and/or Fuel Cards and/or Equipment requested by the Customer from time to time in any Purchase Order acceptable to the Supplier.

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4.2 The Supplier will invoice the Customer for the Price in connection with any Goods and/or Services and/or Fuel Cards and/or Equipment provided pursuant to subclause 4.1.

4.3 Delivery of the Goods and/or Equipment shall be effected by the Supplier delivering the Goods to the premises specified by the Supplier as the site for delivery and in the event the Customer or a representative of the Customer is not present at the time of delivery, the Supplier shall leave the Goods at the Site. The Supplier’s proof of delivery docket shall be determinative as to the quantity of Goods delivered to the Customer.

4.4 If the Customer has any dispute arising out of or in connection with the delivery of any Goods, the Customer must set out in writing the dispute and the reasons therefore within 7 calendar days of the date of delivery, failing which the Goods shall be deemed acceptable to the Customer in all respects.

5. Payment

5.1 The Supplier will invoice the Customer for the Price of all Goods, Services and hired Equipment supplied to the Customer. 5.2 All invoices issued by the Supplier to the Customer are to be settled in full within 21 days (unless otherwise stated in Item 1 of the First Schedule) of the end of the

month in which the Supplier’s invoice is dated and shall be settled by direct debit arrangement in accordance with Clause 6 of this Agreement (unless otherwise stated in the First Schedule or agreed in writing by the Supplier and the Customer from time to time).

5.3 Time for payment for Goods and/or Services and/or Fuel Cards and/or Equipment is of the essence. 5.4 Unless otherwise stated the Price does not include GST. 5.5 If as a result of:

(a) any legislation becoming applicable to the subject matter of this Agreement; or (b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration; the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Customer, then the Customer must pay the Supplier these additional amounts on demand.

5.6 The Customer acknowledges and agrees that payments by the Customer will be applied by the Supplier as follows: (a) Firstly, in payment of any and all collection costs and legal costs pursuant to this Agreement; (b) Secondly, in payment of any interest incurred pursuant to this Agreement; and (c) Thirdly, in payment of the outstanding invoice(s).

5.7 The Supplier reserves the right to reallocate payments and the manner in which they have been applied at any time. 5.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold

payment of any invoice because part of that invoice is in dispute. All payments required to be made by the Customer to the Supplier under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding.

5.9 In the event the Customer believes that an incorrect or partially incorrect invoice had been rendered the Customer shall set out in writing the amount which it believes is incorrect and the reasons therefore within 7 calendar days of the date of receipt of the invoice in question, failing which the invoice shall be deemed acceptable to the Customer in all respects. Each party shall use their best endeavours to settle the dispute amicably within a further 30 calendar days failing which either party may litigate the issue.

6. Direct Debit Arrangement 6.1 Drawing Arrangements

(a) The Customer acknowledges that by completing Section 7 of the First Schedule to this Agreement, and signing this Agreement, all moneys due to the Supplier (being the relevant Price plus all other fees, taxes or other costs payable by the Customer from to time pursuant to this Agreement) will be drawn from that Customer’s nominated bank account or credit card. The Supplier will initiate a drawing on or after the Due Date.

(b) If the relevant nominated bank account has more than one signatory, the Customer must make sure that each signatory signs all paperwork reasonably requested by the Supplier to give effect to this Clause 6.

(c) If funds are not available in the Customer’s nominated bank account on the Due Date, the Supplier reserves the right to charge the Customer an unpaid direct debit fee in addition to any amounts payable under Clause 11.

(d) If the Due Date falls on a non-business day, the Supplier will draw the amount, and the amount will be due, on the first business day before the Due Date. (e) The Supplier will keep all information pertaining to the Customer’s nominated bank account or credit card private and confidential.

6.2 Customer’s rights (a) Subject to Clause 6.3:

(i) the Customer may terminate the drawing arrangements at any time by giving 60 days’ written notice to the Supplier; (ii) the Customer may stop payment of a particular drawing by giving 60 days’ written notice to the Supplier; and (iii) the Customer may request changes to the frequency of drawings by contacting the Supplier and advising of changes no less than 10 business days prior

to the Due Date. (b) Where the Customer considers that a drawing has been initiated incorrectly the Customer should take the matter up directly and immediately with the Supplier.

6.3 Supplier’s rights In the event the Customer cancels or terminates the direct debit arrangement referred to in Clause 6, or a direct debit payment is dishonoured, the relevant Price for all purchases made on a Fuel Card and not yet paid for (and all other amounts payable by the Customer in accordance with this Agreement) become immediately due and payable by the Customer to the Supplier and the Supplier shall in its discretion be at liberty to cancel the direct debit arrangement with the Customer and direct alternative payment arrangements or terminate this Agreement with immediate effect.

6.4 Customer’s responsibilities It is the Customer’s responsibility to ensure that sufficient funds are available in the nominated bank account (or sufficient credit available on the nominated credit card) to meet a drawing on its Due Date and the Customer warrants it will do so. It is the Customer’s responsibility to ensure that: (a) the authorisation given to draw on the bank account or credit card as completed in the Agreement is identical to the account signing instructions held by the

financial institution where the account is based;

(b) the Supplier is advised if the bank account or credit card is transferred or closed; and (c) an alternate payment method satisfactory to the Supplier in all respects is arranged if the drawing arrangements are cancelled either by the Customer, the

nominated bank or the Supplier.

7. Title to and risk in Goods 7.1 Until the Customer pays in full the Price in respect of any given supply of Goods:

(a) the relevant Goods remain the property of the Supplier; (b) the Customer is bailee of the relevant Goods in its possession and must return the Goods to the Supplier on request; (c) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance

in the event of the Goods being lost, damaged or destroyed; (d) the Customer will be entitled to sell the Goods in the ordinary course of its business and for market value but must not otherwise dispose of or part with

possession of the Goods until ownership of the Goods has passed to the Customer in accordance with this Clause 7.1; (e) if the Customer does sell the Goods in the ordinary course of its business and for market value, or otherwise disposes or parts with possession of the Goods,

until full payment for the goods has been made to the Supplier, the Customer will sell as agent and bailee for the Supplier and the proceeds of sale of the Goods will be held by the Customer on trust for the Supplier absolutely and the Customer must pay or deliver the proceeds to the Supplier on demand; and

(f) the Supplier has an interest by way of security in the Goods, to the extent provided for in PPSA. 7.2 It is further agreed that:

(a) the Customer irrevocably authorises the Supplier and its employee/s, agent/s or contractor/s to, with or without prior notice to the Customer: (i) enter any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer)

and, if the Goods are kept at such premises, inspect or recover possession of the Goods; and (ii) recover possession of any Goods in transit at any time prior to ownership of the Goods passing to the Customer in accordance with Clause 7.1, and in

such case: (A) the Customer will be responsible for the Supplier’s costs and expenses in exercising its rights under this clause; and (B) such entry will not give rise to any action of trespass or similar action on the part of the Customer against the Supplier, its employees, servants

or agents; and

(b) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier.

7.3 The Customer agrees that where the Goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the Goods, and if necessary, sell the Goods with the trademark or name of the Customer on those Goods, and the Customer hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the Goods bearing the name or trademark of the Customer.

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7.4 Notwithstanding that title may not have passed, risk in the Goods passes immediately upon delivery. 7.5 The Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

8. Personal Property Securities Act 2009 8.1 The Customer grants to the Supplier and will co-operate with the Supplier to allow the Supplier to register, any security interest under the PPSA to protect the Supplier’s

interests in the Goods, the Products and/or the Equipment pursuant to this clause.

8.2 The Customer consents to the Supplier effecting a registration on the register established under the PPSA of any security interest the Supplier might have in respect of the Equipment (in any manner it considers appropriate) and agrees to provide all assistance reasonably required to facilitate this.

8.3 The Customer must assist the Supplier to obtain the highest level of security for its security interest, including at the Supplier’s request, signing such documents and providing such information that the Supplier reasonably requires for registering a financing statement or financing change statement.

8.4 The Customer waives the right to receive any notices they would otherwise be entitled to receive under the PPSA unless the notice is required by the PPSA and cannot be excluded.

8.5 A term used in this clause which is defined in the PPSA has the meaning given to it in the PPSA.

9. Security and Charge 9.1 In consideration of the Supplier agreeing to supply the Goods and/or Services and/or Fuel Card and/or Equipment, on credit or otherwise in accordance with this

Agreement, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty, personal property and other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

9.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a full indemnity basis incurred in exercising the Supplier’s rights under this clause.

9.3 The Customer irrevocably appoints as its duly constituted attorney the Supplier and each director of the Supplier from time to time to: (a) execute in the Customer's name and as the Customer's act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose

to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia; and (b) otherwise to perform all necessary acts to give effect to the provisions of this Clause 9 including, but not limited to, signing any document on the Customer’s

behalf even though the Customer may not have defaulted in carrying out its obligations hereunder.

9.4 Where the Customer has previously entered into an agreement with the Supplier by which the Customer has granted a charge, mortgage or other security over real or personal property, those charges, mortgages or other security interests will continue and co-exist with the obligations and security interests created in this Agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.

10. Lien 10.1 In addition to the entitlement of the Supplier to obtain payment of the Price pursuant to the terms of this Agreement, all monies (and any other property) received by

the Supplier and/or the Customer are subject to a lien in favour of the Supplier to allow it to be recompensed for any actual or contingent liability under this Agreement or any other liability incurred in acting for the benefit of the Customer. In addition to the entitlement of the Supplier to obtain payment pursuant to this Agreement, the Supplier also has a possessory lien over all assets and undertakings of the Customer which are in its possession or control.

11. Default and Consequences of Default 11.1 Interest on overdue invoices shall accrue daily from the Due Date, until the date of payment, at the Interest Rate (and at the Supplier’s sole discretion such interest

shall compound monthly at such a rate) after as well as before any judgment. The charging of interest by the Supplier on any amount outstanding after the Due Date will not be construed by the Customer as an option for payment over a longer period but as compensation to the Supplier for failure to pay on or before the Due Date.

11.2 The Customer will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including but not limited to internal administration fees, collection costs including the Supplier’s collection agency costs, debt recovery fees, legal costs on a full indemnity basis and bank dishonour fees. Such costs and disbursements will be due and payable by the Customer to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful. Such costs will constitute a debt to the Supplier and shall be payable by the Customer upon demand by the Supplier, failing which interest shall accrue in respect of them in accordance with the terms of Clause 11.1 from the date of demand until the date of payment.

11.3 Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms and Conditions the Supplier may suspend or terminate the supply of Goods and/or Services and/or Equipment or withdraw or suspend credit facilities to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.

11.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if: (a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for

the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

12. Security

12.1 If at any time the ability of the Customer to fulfil its obligations under this Agreement should, in the Supplier’s opinion, become impaired, then security satisfactory to the Supplier must be given by the Customer on demand.

13. Data Protection 13.1 Where the Supplier receives, collects or handles Personal Information in the course of entering into or giving effect to this Agreement, the Supplier 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.

13.2 All Personal Information collected by the Supplier will be treated in accordance with the Privacy Act 1988 (Cth) and the Supplier’s privacy policy as amended from time to time.

13.3 The Customer acknowledges that it consented to the use by the Supplier of its Personnel Information in accordance with the privacy declaration in the Agreement. 13.4 Where the Customer has obtained from the Supplier a Fuel Card, the Customer acknowledges that the Supplier may need to share their personal information with

partner companies or suppliers to deliver to the Customer the full range of options and services that are connected to the Fuel Card. 13.5 The Customer acknowledges that the Supplier may from time to time share their personal data with partner companies or suppliers to enable market research or

analysis or the research or delivery of relevant products or services to the Customer and/or their Authorised Users.

14. Taxes 14.1 The Supplier has the right to charge to the Customer any Government rates, taxes or charges which now are or which in the future may be imposed or charged in

relation to the supply by the Supplier to the Customer of Goods, Services, Fuel Card and/or Equipment, whether or not the Customer is primarily liable for the impost or charge.

15. Commissions The Customer acknowledges that the Supplier may give or receive commissions, volume discounts, fees and other benefits in connection with the supply of Goods and Services, Fuel Cards or Equipment to the Customer.

16. Account Enquiries 16.1 If the Customer wants to question or dispute the details of any transaction recorded on a Fuel Card transaction report, tax invoice or sales voucher, Clause 5.8 will

apply and the Customer will advise the Supplier in writing within 30 days of receiving the transaction report, tax invoice or sales voucher and will produce to the Supplier on request a copy of the relevant transaction report, tax invoice or sales voucher in respect of the transaction.

16.2 The Supplier will not be required to consider any question or dispute on the Customer’s account notified more than 30 days after the date of the Customer’s relevant Fuel Card transaction report, tax invoice or sales voucher.

16.3 The Supplier reserves the right to refer any Customer dispute to the operator of the Nominated Premises from whom the Products were purchased. 16.4 In the event of a pricing dispute relating to Products purchased and processed manually, the copy of the sales voucher retained by the Supplier will be prima facie

evidence of the transaction. 16.5 In the event of a pricing dispute relating to Products purchased and processed electronically, the details of the sales voucher will be prima facie evidence of the

transaction.

16.6 In accordance with Clause 5.8, the Customer must pay the amount shown on the tax invoice in full pending resolution of a dispute. Any adjustments consequent upon settlement of such disputes shall be made within 30 days following the settlement.

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17. Privacy Act 1988 17.1 The Customer agrees for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to

credit provided by the Supplier, and the Supplier may give personal information about the Customer to a credit reporting agency for the purpose of obtaining such a report.

17.2 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes: (a) to assess an application by the Customer; and/or (b) to notify other credit providers of a default by the Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of the Customer. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

17.3 The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 17.4 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other purposes as shall

be agreed between the Customer and Supplier or required by law from time to time): (a) the provision of Goods and/or Services and/or Fuel Cards and/or Equipment; and/or (b) the marketing of Goods and/or Services and/or Fuel Cards and/or Equipment by the Supplier, its agents or distributors; and/or (c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods and/or Services and/or Fuel Cards

and/or Equipment; and/or (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or (e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods and/or

Services and/or Fuel Cards and/or Equipment.

18. Guarantee and indemnity 18.1 In consideration of the Supplier extending or agreeing to extend credit or further credit to the Customer at the Guarantors’ request (testified by the Guarantors’

execution of this Agreement) for the provision of Goods and/or Services and/or Fuel Card and/or Equipment from time to time, the Guarantors guarantee payment to the Supplier of all money which is now or at any time in the future becomes due and payable to the Supplier by the Customer on any account or accounts whether now existing or which may in the future be opened or in any manner whatsoever.

18.2 The Guarantors agree to guarantee and indemnify the Supplier against all losses damages or expenses that the Supplier may suffer as a result, either directly or indirectly, of any failure by the Customer to make due payment of any money owing to the Supplier in respect of the provision of Goods and/or Services and/or Fuel Card and/or Equipment from time to time or to observe the terms of any agreement between the Customer and the Supplier, including costs on a full indemnity basis of any attempt or attempts to recover from the Customer or any Guarantor and whether successful or not or whether frustrated by the Customer or Guarantor or by operation of law and including costs ordered by a court to be paid by the Supplier to the Customer or to any Guarantor including the costs of lodging and withdrawing caveats and/or obtaining injunctions and enforcing any security over real and personal property given to the Supplier.

18.3 This guarantee and indemnity will be a continuing guarantee and indemnity and will not be considered as wholly or partially satisfied or discharged by any money which may at any time or times in the future be received or applied by the Supplier to the credit of any account of the Customer or the Guarantors, or deemed to be held on trust by the Customer for the Supplier.

18.4 The Supplier will have the right to proceed against the Guarantors under the Guarantee and Indemnity, irrespective of default of the Customer to pay and with or without notice to the Customer, as if the primary liability for any money owing was the Guarantors’ own. Further, the Suppliers will have the r ight to proceed against the Guarantors notwithstanding any other rights it may have in relation to the recovery of the amounts hereby guaranteed.

18.5 The Guarantors charge in favour of the Supplier all of their estate and interest in any real property that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged, such indebtedness to include all amounts referred to in Clauses 3 and 4.

18.6 The Guarantors charge in favour of the Supplier all of their estate and interest in any personal property that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged, such indebtedness to include all amounts referred to in Clauses 3 and 4.

18.7 For the avoidance of any doubt, the security interest(s) created by this instrument in favour of the Supplier constitutes security interests pursuant to the Personal Property Securities Act 2009 and the Guarantors waive any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.

19. Waiver 19.1 The failure of the Supplier 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 Customer. No waiver is effective unless it is in writing.

20. Jurisdiction

20.1 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, and are subject to the jurisdiction of the courts in that state.

21. Supplier’s rights 21.1 Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Customer by the Supplier. 21.2 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. 21.3 The Supplier may at any time and from time to time alter these Terms and Conditions and such altered Terms and Conditions will apply from the date on which the

Supplier notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Supplier to provide Goods and/or Services and/or Equipment to the Customer or a purchase is made on the Customer’s Fuel Card.

22. Trustee Capacity

22.1 If the Customer is the trustee of a trust (whether disclosed to the Supplier or not), the Customer warrants to the Supplier that: (a) the Customer enters into this Agreement in both its capacity as trustee and in its personal capacity, and as such the Customer acknowledges that the trustee

shall be personally liable for payment of the account if the assets of the trust are not sufficient to meet payment of the account; (b) the Customer has the right to be indemnified out of trust assets; (c) the Customer has the power under the trust deed to sign this Agreement; and (d) the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.

22.2 The Customer must give the Supplier a copy of the trust deed upon request.

23. Insolvency of Customer 23.1 If the Customer becomes insolvent, the Customer remains liable under this Agreement for payment of all liabilities incurred hereunder. The Customer remains liable

under this Agreement even if the Supplier receives a dividend or payment as a result of the Customer being insolvent.

24. Reservation

24.1 Nothing in these Terms and Conditions will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 or any relevant State or Federal Legislation) which by law cannot be excluded, restricted or modified.

25. Limitations and exclusions 25.1 To the extent permitted by law, in relation to the supply of goods, the Supplier’s liability is limited to:

(a) replacing the Goods or supplying similar goods; (b) repairing the Goods; (c) providing the cost for replacing the Goods or for acquiring equivalent goods; and (d) providing the cost for having the Goods repaired.

25.2 To the extent permitted by law, in relation to the supply of Services, the Supplier’s liability is limited to: (a) supplying the service again; or (b) providing for the cost of having the Services supplied again.

25.3 The Supplier shall be under no liability whatsoever to the Customer, whether claims are made or not, for any indirect and/or consequential loss and/or expense (including loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer) suffered by the Customer arising out of a breach by the Supplier of these Terms and Conditions.

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25.4 The Supplier is not liable for any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier's control.

26. Severance 26.1 If any provision of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provis ions shall not

be affected, prejudiced or impaired. Rather, if any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.

27. Variation 27.1 Any proposed variation to this Agreement by the Customer must be requested in writing. The Supplier may refuse any such request without providing reasons either

orally or in writing. No variation to this Agreement will be valid unless it is agreed in writing by all parties.

28. Entire agreement 28.1 This Agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings,

representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.

29. Assignment 29.1 These Terms and Conditions are personal to the Customer and the Customer shall not be entitled to assign, transfer, mortgage or charge any of its rights, benefits or

obligations under this Agreement. The Supplier, without the Customer’s consent, may assign any of its rights, benefits or obligations under this Agreement or these Terms and Conditions.

30. Joint and Several Liability

30.1 Where a Customer consists of two or more persons, the obligations of these persons shall be joint and several.

31. GST 31.1 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). 31.2 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 Customer or the

Supplier, the party which made the supply (“Supplying Party”) may in addition to the amount payable under these Terms and Conditions recover from the other party (“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).

31.3 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.

31.4 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.

32. Notices 32.1 A notice (including any notice under this agreement or the PPSA or any originating process) must be in writing except that if it is a notice from the Supplier it may be

given in a newspaper if that is not prohibited by law. The Supplier may: (a) deliver it personally to the Customer; or (b) leave it at, or send it by post, facsimile or email to the Customer’s address last advised to the Supplier in writing. Except in the case of notice by post, the notice shall be deemed given on the date it is sent by the Supplier. Notices sent by post shall be deemed to have been received on the 3rd day after posting.

32.2 In addition to giving notice to the Supplier in any other way permitted by law, the Customer must provide notice in writing and notice will not be effective until receipt by the Supplier at the address set out in this agreement or at any other address the Supplier may require.

PART B – FUEL CARD CLAUSES

33. Part B to apply and prevail 33.1 In addition to Part A of these Terms and Conditions, the following clauses in Part B apply to the grant by the Supplier and use by the Customer of a Fuel Card and to

the extent they are inconsistent with any of the clauses in Part A, the clauses in Part B shall prevail.

34. Issue of Fuel Card/s

34.1 The Customer warrants the contents of the Card Request Form are accurate, complete and not misleading in any respect and will advise the Supplier forthwith of any changes to the contents of the Card Request Form at any time following execution of this Agreement.

34.2 If the Supplier accepts the Customer’s Card Request Form in whole or in part, the Supplier may issue one or more Fuel Cards to the Customer. 34.3 Each Fuel Card issued to an Customer shall only:

(a) be for use by a single specified Authorised User and such Authorised User shall remain the only person permitted to use that Fuel Card and sign the sales voucher for that transaction until cancellation of that Fuel Card;

(b) allow the purchase at Nominated Premises of the Product specified for that Fuel Card in the Card Request Form; and (c) allow the purchase at Nominated Premises of Motor Fuels for the immediate refuelling of a Nominated Vehicle.

34.4 Each Fuel Card issued to an Authorised User shall be allocated a PIN by the Supplier which is as specified in the Card Request Form, or any other 4 digit number in the Supplier’s absolute discretion. The Authorised User must use the PIN when using the Fuel Card at Nominated Premises. The Customer must keep the PIN safe and secure and ensure that the PIN is only known and used by the Authorised User specified in the Card Request Form for that Fuel Card and is not disclosed directly or indirectly to any other person.

34.5 The Supplier may elect, at any time in its absolute discretion, not to issue a Fuel Card to an Authorised User.

35. Fuel Card Use

35.1 In the event of use of a Fuel Card by any Authorised User, the Customer is deemed to purchase the relevant Products from the Supplier. 35.2 Unless the Supplier has received the Customer’s notification in writing of loss, theft or possible unauthorised use of a Fuel Card, the Customer authorises the Supplier

to debit the Customer’s Fuel Card account with every purchase of Products made by a person presenting a Fuel Card at the Nominated Premises to whom the Products were supplied.

35.3 It is the obligation of the Customer to collect and retain any sales vouchers issued at the time Products are purchased.

36. Unauthorised Use 36.1 Except as otherwise expressly stated in these Terms and Conditions, the Customer will be liable to the Supplier for all Fuel Card transactions processed on the

Customer’s Fuel Card(s), including, without limitation, where a transaction is processed in circumstances where the Authorised User is not the person presenting the Fuel Card. The Customer shall ensure that all Authorised Users comply with these Terms and Conditions.

36.2 The Customer acknowledges that, other than where notification has been received under Clause 37.2, the Supplier will accept any Fuel Card presented to it by any person, and will not check identification of driver or vehicle. It is the sole responsibility of the Customer to ensure that Fuel Cards are not presented by unauthorised persons.

37. Lost, Stolen or Misused Cards 37.1 The Supplier is under no obligation to notify the Customer of any unusual activity on any Fuel Card and will not do so. 37.2 If a Fuel Card is lost, stolen or subject to unauthorised use, the Customer must immediately notify the Supplier by email to [email protected] or in

writing at the address specified in this agreement or at any other address the Supplier may require. 37.3 The Customer will be liable for any use of a Fuel Card by any person before notification in accordance with these Terms and Conditions, to the full extent of such use,

including (without limitation): (a) where Product is supplied to a person who is not an Authorised User; (b) where Motor Fuels are purchased for refuelling a vehicle which is not a Nominated Vehicle; (c) where Product is supplied that is not specified in the Card Request Form as being selected for a particular Fuel Card; and (d) where any approved credit limit for the Fuel Card is exceeded as a result of unauthorised use or otherwise and the Customer acknowledges that: (e) any approved credit limit for a Fuel Card; and

mailto:[email protected]

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(f) the obligations in Clause 34.3 bind the Customer only and do not in any way limit the permitted activities of the Supplier either in the ordinary course of use of the Fuel Card or in the event of loss, theft or misuse of a Fuel Card. The Customer should not rely on any approved credit limit as providing additional security. It is the responsibility of the Customer solely to ensure that any Fuel Card of the Customer which is presented by any person refuelling or purchasing other Goods and Services is valid for use by the person presenting the Fuel Card and for use for the vehicle in question and the Products purchased, and that any approved credit limit is not exceeded.

37.4 After the Supplier has been notified and provided that this Clause 36 has been fully complied with, the Customer shall have no further liability for Fuel Card transactions on the Fuel Card reported.

37.5 The Customer must provide the Supplier with all the information that the Customer has in its possession or that it can reasonably obtain, regarding the unauthorised use, loss or theft of a Fuel Card.

38. Liability 38.1 If a valid Fuel Card is presented, supplies of Product will be made to the Customer at a Nominated Premises. To the extent permitted by law, the Supplier will not be

liable in respect of any loss or damage suffered by the Customer 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 the Supplier either: (a) re-supplying the Product; or (b) supplying an equivalent Product, or paying for the costs thereof (at the Supplier’s option).

38.2 The Supplier will not be liable for a failure or delay in delivering the Product or in complying with these Terms and Conditions, if that failure or delay is due to: (a) a strike or other industrial action, compliance with a government request, any actions taken by the Supplier or its employees, agents or contractors in response

to public health concerns (including health epidemics or pandemics), a shortage of supply, or any event beyond its reasonable control; or (b) the inability or refusal of the operator of the Nominated Premises to supply the Product requirements of the Customer for any reason.

39. Property

39.1 All Fuel Cards remain the property of the Supplier. The Customer must immediately return all Fuel Cards that are no longer used, or are expired, cancelled or otherwise invalid, to the Supplier cut in half, unless otherwise agreed by the parties. The Customer will be liable for a fee, as advised by the Supplier, for each unreturned Fuel Card.

40. Cancellation of Fuel Cards 40.1 The Supplier may either suspend, cancel or terminate any or all of the Customer’s Fuel Cards or the Customer’s Fuel Card account for any reason at any time without

notice and without liability. 40.2 The Customer must destroy or cut in half all cancelled Fuel Cards immediately. 40.3 The Supplier will cancel a specific Fuel Card or a Customer’s Fuel Card account if the Customer forwards to the Supplier a written authorisation in a form approved by

the Supplier to do so.

40.4 The Customer will remain liable in respect of the use of any Fuel Card up until the cancellation by the Supplier and destruction of all Fuel Cards issued to the Customer. 40.5 On cancellation of all the Customer’s Fuel Cards, the Price of any Goods supplied via the Fuel Card becomes immediately due and payable to the Supplier and the

Customer’s nominated bank account or credit card shall be immediately debited by the Supplier in accordance with Clause 6.

41. Effecting a Purchase of Products 41.1 Sales Voucher

On completion of a Fuel Card transaction processed electronically at a Nominated Premises, the Authorised User will be given a sales voucher at the time of purchase, which can include: (a) Card number; (b) Description of Product; (c) Total value of Product; (d) Pump price of Product (if applicable); (e) Quantity of Product; (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 Customer acknowledges that the sales voucher is the only confirmation of the transaction issued to the Customer or Authorised User.

41.2 Manual Transactions Where a Fuel Card transaction is completed manually at a Nominated Premises, the Customer or Authorised User must sign the sales voucher. The Supplier will not be liable to the Customer for any loss suffered if the Fuel Card is presented by an unauthorised person, and the Customer wil l be liable to pay the Supplier for all Products supplied in such circumstances.

42. Charges for Use of a Fuel Card 42.1 For purchases made on the Customer’s Fuel Cards, the Supplier will debit the Customer’s Fuel Card account with:

(a) the relevant Price; (b) fees, including but not limited to the fees in the Supplier’s list of scheduled fees and charges revised from time to time; (c) Government taxes and charges; and (d) reasonable enforcement expenses incurred by the Supplier in enforcing these Terms and Conditions.

43. Fuel Card Invoice and Statement

43.1 The Supplier will issue after the end of the month or other agreed period (“Billing Period”), a transaction report of the Customer’s Fuel Card account, detailing the Customer’s Fuel Card purchases and the applicable Price, together with a tax invoice.

43.2 The Customer will pay the amount shown on the tax invoice by the Due Date, in full without asserting any set off, counter claim or right to withhold whatsoever. 43.3 Payment will be made by means of an automatic bank debit by the Supplier of the Customer’s bank account pursuant to the terms of Clause 6.

PART C – EQUIPMENT HIRE CLAUSES

44. Part C to prevail 44.1 In addition to the Part A of these Terms and Conditions, the following clauses in Part C apply to the hire of Equipment by the Supplier to the Customer and to the extent

they are inconsistent with any of the clauses in Part A, the clauses in Part C shall prevail.

45. Supply and Delivery of Equipment 45.1 The Supplier must supply the Equipment to the Customer in good working order and comprehensively insured. 45.2 Irrespective of which party effects the delivery of the Equipment to the Site, the cost of delivery shall be at the sole cost of the Customer in all respects. 45.3 If the Supplier has agreed to deliver the Equipment to the Site at the cost of the Customer, it must do so on or before the commencement of the Hire Period (subject

to Clause 45.4) or within 14 days of the payment of the MDF, whichever is later. 45.4 Travelling time to and from the Site shall be included in the Hire Period.

46. Charges 46.1 The full amount of the MDF will be included in the first invoice issued to the Customer. 46.2 Where the Supplier has not agreed to extend credit to the Customer, all Charges are payable prior to supply of the Equipment to the Customer. 46.3 Where the Supplier has agreed to extend credit to the Customer:

(a) the Supplier shall invoice the Customer in respect of the portion of the Charges then outstanding at the end of each calendar month; (b) the Customer must pay each invoice to the Supplier in the manner specified by the Supplier by the Due Date, and payment shall be made by direct debit in

accordance with Clause 6 unless otherwise stated in the First Schedule or agreed in writing by the parties.

47. Use and care of Equipment by Customer 47.1 Subject to this Agreement, the Customer will be entitled to use the Equipment at the Site for the Hire Period and for any agreed extension of the Hire Period. 47.2 The Hire Period may be extended by written, verbal or implied agreement in which case these terms and conditions shall continue to apply during the period of such

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47.3 Subject to the following paragraph, the Customer must use and store the Equipment in a skilful and proper manner and at its own expense keep the Equipment in substantially the same condition as it was in at the commencement of the Hire Period (fair wear and tear excepted).

47.4 The Customer must not permit or effect any repairs to the Equipment without the prior written consent of the Supplier. Unless otherwise directed in writing by the Supplier, all repairs to the Equipment shall be Services undertaken by the Supplier or its nominated personnel, and all costs in relation to the repairs or any other Services (including if applicable the cost of personnel travelling to the Customer’s Site and any relevant freight costs) plus the Supplier’s margin shall be charged to the Customer and payable by the Customer in accordance with the terms of this Agreement, at a rate notified by the Supplier to the Customer.

47.5 The Customer will promptly notify the Supplier of any loss or damage to the Equipment including full particulars of the date, time, place and circumstances relating to that loss and damage and, in the case of loss, full details of all or any action taken to recover the Equipment.

47.6 The Customer agrees to comply fully with all written and verbal requirements of the Supplier in respect of the use of the Equipment, including without limitation any requirements as to safety, use and maintenance of the Equipment.

47.7 The Customer must ensure that routine maintenance, as directed by the Supplier, is performed on the Equipment at the cost of the Customer throughout the Hire Period, and that the Equipment is regularly inspected for damage including leaks.

47.8 The Customer is responsible for all costs, outgoings and expenses associated with the use or operation of the Equipment throughout the Hire Period. 47.9 Where the Equipment is unusable by the Customer by reason of it not being in good working order at the commencement of the Hire Period, the Supplier will, in its

sole discretion, either: (a) effect necessary repairs to the Equipment; or (b) replace the Equipment or part of it, as required, as soon as reasonably practicable and the Customer will have no further claim against the Supplier in respect

of any loss (including but not limited to downtime and Charges imposed under this agreement) arising as a result of such loss, failure or damage.

48. Insurance 48.1 Without limiting and in addition to any applicable Insurance Charges, prior to the commencement of the Hire Period, the Customer must take out and maintain

throughout the Hire Period: (a) replacement insurance in respect of accidental or negligent loss of or damage to the Equipment; (b) public liability insurance for an amount not less than $15 million per claim which covers use or misuse of the Equipment by the Customer, its employees or

agents; and

(c) any other form of insurance which the Supplier shall reasonably require.

49. Loss of or damage to Equipment 49.1 Subject to Clause 47.9, the Equipment is at the sole risk and expense of the Customer at all times during the Hire Period (including whilst in transit to or from the

Supplier’s Kalgoorlie premises) and the Customer will indemnify and keep indemnified the Supplier against all loss or damage to the Equipment from whatever cause sustained during the Hire Period or any extension thereof, and will indemnify the Supplier against all damages, claims, costs and charges arising from the relation to the loss of use, operation or keeping of the Equipment in such circumstances.

49.2 The amount of the indemnity payable by the Customer to the Supplier pursuant to the previous paragraph will include but not to be limited to: (a) in the case of loss of or irreparable damage to the Equipment, an amount equal to the current cost to replace and reinstate the Equipment in the hands of the

Supplier; or (b) in the case of other damage to the Equipment, the cost of all repairs including freight and other charges and expenses in the connection with repairing the

damage; and (c) any loss (including legal costs) incurred by the Supplier in connection with such loss or damage to the Equipment and any liability arising out of that loss or

damage and all such amounts are due and payable immediately upon demand by the Supplier.

49.3 Until the Customer has paid to the Supplier the full amount of all the loss or damage to the Equipment in accordance with the preceding paragraph, the Customer must continue to pay the Supplier the Charges payable under this agreement without deduction.

49.4 The Supplier will pursue a claim for any available insurance to the extent reasonably possible and, if successful, the Customer’s obligation to indemnify the Supplier in respect of such loss or damage shall be reduced accordingly.

50. Access to Equipment by Supplier 50.1 The Customer will at all reasonable times during the Hire Period permit the Supplier, its employees and agents or nominees (including any party from whom the

Supplier leases the Equipment) to have access to the Equipment for the purposes of inspecting and testing the Equipment, provided the Supplier must first notify the Customer of its intention to do so.

51. Cancellation of the Agreement by Supplier

51.1 The Supplier may cancel this Agreement and retake possession of the Equipment at any time during the Hire Period in any one of the following circumstances: (a) failure by the Customer to pay any monies owing under this Agreement by the due date; (b) if the Site is, in the opinion of the Supplier, in a condition unfit or unsafe for the proper use or storage of the Equipment; or (c) any other breach by the Customer of any provision of this Agreement, in which case the Customer shall pay to the Supplier upon demand the total amount of

the Hire Fees for such part of the Hire Period as had not expired at the date of such cancellation. The Customer acknowledges that this represents a genuine and reasonable pre-estimate of the losses likely to be suffered by the Supplier in connection with the early cancellation of this Agreement.

52. Cancellation of the agreement by the Customer 52.1 If the Customer no longer requires the use of the Equipment during the Hire Period the Customer may return the Equipment to the Supplier provided it pays to the

Supplier upon demand the total amount of the Hire Fees for such part of the Hire Period as had not expired at the date of such cancellation. The Customer acknowledges that this represents a genuine and reasonable pre-estimate of the losses likely to be suffered by the Supplier in connection with the early cancellation of this Agreement.

53. Liability to Third Parties 53.1 The Customer shall be responsible and accept liability for any loss, liability, claim or proceeding in respect of any injury or damage whatsoever to any real or personal

property insofar as such injury or damage arises in connection with the use of the Equipment by the Customer, its servants or agents, and the Customer shall indemnify and keep indemnified the Supplier against any such loss, liability, claim or proceeding.

54. End of Hire Period 54.1 At the expiration of the Hire Period the Customer will at its sole expense in all respects return the Equipment to the Supplier at its Kalgoorlie premises unless an MDF

has been paid, in which case the Supplier will demobilise the Equipment and the Customer must cooperate with and assist that process. 54.2 The Equipment must be returned by the Customer in a clean condition and in substantially the same condition as it was in at the commencement of the Hire Period

(fair wear and tear excepted). If the Equipment is returned in a dirty, un-serviced, damaged or otherwise neglected condition the Supplier will supply such Services as it considers necessary to rectify this breach and such costs shall be notified to the Customer and shall be payable to the Supplier by the Customer on demand by the Supplier.

55. Ownership of Equipment 55.1 The Customer acknowledges that as between the parties the Supplier retains title to the Equipment at all times and the Customer must not deal with the Equipment

other than in accordance with its obligations as a bailee.

56. Right of Supplier to Incur and Recover Expenses

56.1 The Supplier may at its election incur such costs or expenses as may be necessary to make good any failure by the Customer to satisfy any of its obligations under this Agreement or any other obligation incurred by the Customer in respect of the Equipment.

56.2 The Customer will pay to the Supplier upon demand: (a) Any money which the Supplier may have expended pursuant to the preceding paragraph; and (b) Any other moneys which the Supplier may have paid or expenses which the Supplier may have incurred in relation to the protection or enforcement of its rights

under this agreement.

57. Contamination 57.1 The Customer shall take all necessary steps to ensure that the Equipment does not contribute to contamination at the Site or anywhere. The Customer accepts that if

the Equipment does, during the Hire Period, contribute to contamination through damage which the Customer has failed to detect and report to the Supplier, the Customer is the sole cause of that contamination. To the extent permitted by law, the Customer shall be solely liable for, and shall release the Supplier from and indemnify and keep indemnified the Supplier against all claims, loss or liability arising in respect of contamination to the Site or anywhere, however arising.

AGREEMENT FOR THE PROVISION OF GOODS AND/OR … · Name on Credit Card: I, _____, hereby authorise...

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Transcript of AGREEMENT FOR THE PROVISION OF GOODS AND/OR … · Name on Credit Card: I, _____, hereby authorise...