Lowes Petroleum Supply Conditions

SECTION 1: GENERAL TERMS

The following terms and conditions apply to the supply of Goods and to the hire of Equipment by Lowes to its Customers from time to time.

In addition:

  • to the extent that the Goods are supplied, or the Equipment is hired, by Lowes to the Customer on credit, the Credit Conditions will also apply;
  • additional terms also apply to the hire of Equipment as set out in the Additional Terms for Equipment Hire;
  • the Customer’s arrangements with Lowes are subject to any Fuel Supply and Equipment Hire Schedule entered into with Lowes.

These conditions (including the Additional Terms for Equipment Hire), the Credit Conditions (if applicable), the Direct Debit Service Agreement (if applicable) and any Fuel Supply and Equipment Hire Schedule are together referred to as ‘these conditions’.

1. DEFINITIONS

1.1 In these conditions:

Acts means any legislation or statutory instrument of a State or Territory of Australia or of the Commonwealth of Australia;

Additional Terms for Equipment Hire means those terms specific to the hire of Equipment as set out in Section 2 of these conditions;

Application Letter means the notification issued by Lowes to the Customer of acceptance or rejection of the Account Application (as applicable);

Account means an account set up by Lowes for the Customer;

Account Application means Lowes’ online account application in respect of new Customers, of which these conditions form a part (as applicable);

Australian Consumer Law means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation;

Business Day means any day other than a Saturday, Sunday or public holiday in Queensland, Australia;

Confidential Information means any information in any form which includes:

(a) the existence of and the terms of these conditions; and 

(b) all information, know-how, ideas, concepts, technology, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with or in support of the business of a party or a Related Body Corporate of a party which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with these terms;

but does not include:

(c) information which is or becomes generally available in the public domain (other than through any breach of confidence);

(d) information rightfully received by the other party from a third person who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the first party; or

(e) information which has been independently developed by the other party;

Consent Form means an owner’s consent document which provides Lowes with a right to access any premises at which any Equipment is located, in a form specified by Lowes to the Customer from time to time;

Consequential Loss means any loss, damage or costs incurred by a party that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity; 

Credit Conditions means the conditions on which Lowes provides credit to the Customer (if any) which can be found at https://www.lowespetrol.com.au/credit-conditions/;

Customer means the purchaser of Goods and/or hirer of Equipment (as applicable). A new Customer means a Customer for which Lowes accepts an Account Application after the date of these terms and conditions. An existing Customer is a Customer which is not a new Customer;

Customer’s Premises means any or all sites or premises at which the Goods are supplied or the hired Equipment is delivered;

Defect has the meaning provided in clause 15.1;

Direct Debit Request means any direct debit request provided by the Customer to Lowes;

Direct Debit Request Service Agreement means the terms applicable to any direct debit arrangements established for the Customer which can be found at https://www.lowespetrol.com.au/direct-debit-request-service-agreement-ocwen-energy/ ;

Due Date means the date for payment by the Customer of an amount due in respect of Goods supplied and/or Equipment hired;

Equipment means the Tanks, Vehicles and Trailers (including that equipment as repaired or replaced from time to time) hired by Lowes to the Customer pursuant to these conditions; 

Force Majeure Event means a strike, industrial action, compliance with a government request, a shortage of supply, flood, fire, tempest or any other cause beyond the reasonable control of Lowes;

Fuel Supply and Equipment Hire Schedule means a separate document between Lowes and the Customer setting out details of the fuel to be supplied and/or Equipment to be hired by Lowes to the Customer, amongst other things.

Goods mean any goods supplied by Lowes to the Customer pursuant to these conditions;

GST has the meaning set out in section 195-1 of the GST Act;

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended;

Hire Period has the meaning provided in clause 35.1;

Insolvency Event in relation to a person means:

(a) they are (or state they are) an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth)); or

(b) they have had a controller (as defined in the Corporations Act 2001 (Cth)) appointed, are in liquidation, in provisional liquidation, under administration or wound up or have had a receiver or a receiver and manager appointed to any part of their property; or

(c) they are subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved, (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by Lowes); or

(d) an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with them, which is preparatory to or could result in any of the things referred to in paragraphs (a) to (c) inclusive above; or

(e) they are taken (under section 459F of the Corporations Act 2001 (Cth)) to have failed to comply with a statutory demand or have committed an act of bankruptcy as defined in the Bankruptcy Act 1966 (Cth); or

(f) they are the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth) (or they make a statement from which Lowes reasonably deduces they are so subject); or

(g) they are otherwise unable to pay their debts when they fall due; or

(h) something having a substantially similar effect to any of the things referred to above happens in connection with them under the law of any jurisdiction.

Loss means all actions, claims (including third party claims), costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities, losses (including Consequential Loss); 

Lowes means Ocwen Energy Pty Ltd ACN 605 178 578 trading as Lowes Petroleum Service;

PPSA means the Personal Property Securities Act 2009 (Cth);

Personal Information has the meaning given in the Privacy Act 1988 (Cth);

Pick Up Request has the meaning given in clause 41.3;

Post Hire Inspection has the meaning given in clause 42.1;

Purchase Price has the meaning given in clause 39.6;

Related Body Corporate has the meaning given to it in the Corporations Act 2001 (Cth);

Representatives mean the officers, employees, agents, representatives, contractors and subcontractors of the relevant party; 

Tanks means the storage vessels described in the Fuel Supply and Equipment Hire Schedule (if any) and any accessions to them;

Tax Invoice means an invoice which complies with the GST Act in relation to the production and form of tax invoices for GST purposes; 

Termination Event means any of the events specified in clause 20.1;

Trailers means any trailers described in the Fuel Supply and Equipment Hire Schedule (if any) and any accessions to them; 

Variation has the meaning provided in clause 25; and

Vehicles means any motor vehicles described in the Fuel Supply and Equipment Hire Schedule (if any) and any accessions to them.

2. INTERPRETATION

2.1 In these conditions, where consistent with the context:

(a) words importing the singular number shall include the plural number and vice versa, and words importing one gender shall include the other genders;

(b) if the Customer consists of more than one person, these conditions shall be deemed to have been entered into jointly and severally by those persons and the provisions hereof shall have effect accordingly;

(c) any agreement not to do something includes an agreement not to permit it to be done; and

(d) a reference to an Act includes regulations and any statutory instruments or binding determinations made under any of them, and consolidations, amendments, re-enactments or replacements of any of them.

(e) if a term in these conditions is expressed to be subject to this clause 2(e) then, but not otherwise, the qualification contained in subclause 2(f) shall apply to the interpretation and application of that clause;

(f) subject to clause 2(e), a clause that is expressed to be subject to this clause and clause 2(e) that empowers Lowes to exercise a right or discretion is to be read as limiting the conferral and exercise of the right or discretion to the extent that:

(i) it is reasonably necessary to protect the legitimate interests of Lowes or it is required or permitted by law;

(ii) it is exercised within reason and in conformity with the express provisions of these conditions; and

(iii) it is not to be exercised capriciously, arbitrarily, unconscionably or for a purpose ulterior to which the contractual right, power or discretion was conferred;

(g) the expressions “including”, “for example” or “such as” or any form of them in these conditions do not limit what else is included and must be construed as if they were followed by the words “without limitation”.

3. ACCOUNTS

3.1 Lowes may accept or decline any Account Application by a new Customer in its absolute discretion.

3.2 An Account Application is accepted by Lowes upon delivery to the Customer of an Application Letter by email, facsimile or post to any contact address or number provided in the Account Application confirming that the Customer’s Account Application has been accepted by Lowes.

4. ACCEPTANCE

4.1 The Customer acknowledges and agrees that it will be treated as having accepted these conditions by:

(a) using its Account; or 

(b) placing an order with Lowes for Goods or for the hire of Equipment after (in the case of a new Customer) the date of the Application Letter or (in the case of an existing Customer) after written notification by Lowes that these conditions apply from the date specified in (and being after the date of) the notification. 

5. SALE OF GOODS

5.1 Subject to acceptance of the Customer’s Account Application (in the case of a new Customer), and subject to availability, Lowes will sell and deliver, or procure the sale and delivery by its nominees, to the Customer, such quantities of the Goods as the Customer orders or requests from time to time.

5.2 Goods will be supplied in accordance with these conditions and any Fuel Supply and Equipment Hire Schedule (if applicable). 

6. HIRE OF EQUIPMENT

6.1 Subject to acceptance of the Customer’s Account Application (as applicable), and subject to availability, Lowes will deliver, or procure the delivery by its nominees, to the Customer of any Equipment agreed to be hired to the Customer from time to time.

6.2 To the extent applicable, Equipment will be hired to the Customer in accordance with these conditions and any Fuel Supply and Equipment Hire Schedule (if applicable). 

7. PRICE FOR GOODS

7.1 Any quotation provide by Lowes to the Customer is an estimate only of the price of supply of Goods to the Customer. The actual price for the sale and delivery of the Goods to the Customer may vary from the quotation.

7.2 Subject to clauses 7.4 and 7.5, the price for the supply of Goods to the Customer will be:

(a) the list price of the Goods on the day of delivery; and

(b) any freight costs incurred by Lowes to deliver the Goods to the Customer (if applicable).

7.3 Lowes will use all reasonable endeavours to minimise the costs of freight.

7.4 The price for the supply of Goods may be specified in the Fuel Supply and Equipment Hire Schedule, if any.

7.5 In addition to the above, the Customer must pay all taxes, duties and other levies imposed or assessed at any time on or in respect of the Goods and their delivery. 

8. PRICE FOR EQUIPMENT

8.1 The price for any Equipment hired to the Customer will be the equipment hire rate set out in the Fuel Supply and Equipment Hire Schedule.

8.2 The Customer acknowledges and agrees that special conditions may apply to the hire rate as set out in the Fuel Supply and Equipment Hire Schedule, including special conditions relating to increases to the hire rate and/or price for Goods supplied if the Customer does not achieve minimum volume requirements.

9. GST

9.1 Unless otherwise provided in writing, prices are exclusive of GST. 

9.2 If any supply by Lowes to the Customer under or in connection with these conditions is subject to GST, the Customer must pay to Lowes, in addition to the consideration for that supply (unless it expressly includes GST), an amount (additional amount) equal to the amount of the consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.  

9.3 The Customer must pay the additional amount to Lowes at the same time as the consideration for the supply is payable.  

10. PAYMENT

10.1 Unless otherwise agreed and subject to clause 10.5, the Customer must pay Lowes in accordance with the payment terms set out in the Application Letter or as otherwise notified by Lowes to the Customer (including if applicable in any Fuel Supply and Equipment Hire Schedule). 

10.2 Payment must be made by means of cash, bank cheque or electronic funds transfer (including direct debit) without deduction. The Customer agrees that it may be required to pay a reasonable surcharge for processing any payment made by other means to reflect Lowes’ costs incurred in processing the payment.

10.3 The Customer must pay Lowes interest at a rate of 1.75% per month on any payment not received by the Due Date.  On the last Business Day of each month, interest which has accrued in accordance with this clause will capitalise and be added to the outstanding amount and bear interest accordingly.

10.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued and then to principal.

10.5 Lowes may, acting reasonably, vary the manner and/or terms of payment at any time by providing at least one month’s written notice to the Customer.

10.6 Time is of the essence with respect to all amounts payable by the Customer to Lowes.

10.7 Lowes may, acting reasonably, suspend the provision of Goods and/or the hire of Equipment if Lowes believes, acting reasonably, that the Customer is unable or unwilling to pay an amount owing to Lowes when due.

11. DIRECT DEBIT ARRANGEMENTS

11.1 The Customer acknowledges that moneys due to Lowes may be drawn from the Customer’s bank account as specified in the Direct Debit Request. Lowes will only initiate a drawing when a payment is due from the Customer under these conditions.

11.2 All direct debit arrangements are subject to the Direct Debit Request Service Agreement.

12. SET-OFF

12.1 If any money is owing by Lowes to the Customer, Lowes may set-off those amounts against any moneys owing by the Customer to Lowes under these conditions. The parties agree that clauses 2.1(e) and 2.1(f) apply to this clause.

13. TITLE AND RISK 

13.1 Risk in the Goods passes from Lowes to the Customer at the time the Goods are despatched from Lowes’ nominated premises.

13.2 Risk in the Equipment passes to the Customer upon the Equipment being delivered to the Customer’s Premises and remains with the Customer until the time the Equipment is collected from the Customer’s Premises by Lowes or returned by the Customer to Lowes’ nominated premises (as the case may be).

13.3 Title in the Goods passes to the Customer when all amounts payable by the Customer to Lowes in respect of the Goods have been paid in full. Until that time, the Customer shall hold the Goods as bailee for Lowes (returning the same to Lowes on request). 

13.4 Title in the Equipment remains with Lowes at all times.

14. DELIVERIES

14.1 Lowes may make, or arrange to be made, delivery of Goods or Equipment by such means of delivery and, for Goods, into such tanks or other containers as it selects.

14.2 Delivery of Goods or Equipment will be made at such place as Lowes and the Customer agree, or failing agreement, at any place at the discretion of Lowes upon the Customer’s Premises.

14.3 Lowes will use all commercially reasonable efforts to deliver the Goods or Equipment by the delivery date agreed with the Customer. However any dates and times quoted by Lowes for delivery of Goods or Equipment to the Customer are estimates only, and the Customer agrees that Lowes is not liable for any delays in delivery. 

14.4 For the avoidance of doubt, a failure by Lowes to deliver the Goods or Equipment by the due date for delivery does not entitle either party to treat these conditions as repudiated. Clauses 2.1(e) and 2.1(f) apply to this clause.

14.5 The Customer agrees and acknowledges that:

(a) the Customer’s signature on any delivery docket is evidence of satisfactory delivery of Goods to the Customer;

(b) absent the Customer’s signature on the delivery docket, the signature of any authorised employee or agent for Lowes on the delivery docket that Goods have been delivered to the Customer at a specified place and on a specified date, is evidence of satisfactory delivery of the Goods to the Customer at that place and on that date;

(c) any inability or failure to obtain the Customer’s signature upon delivery of the Goods to the Customer is not evidence of a failure to deliver Goods in accordance with the Customer’s order and does not relieve or excuse the Customer from any obligations under these terms and conditions, including but not limited to the Customer’s payment obligations; and

(d) without limiting clause 14.5(c) above, payment by the Customer to Lowes for the Goods is not conditional on the Customer receiving a delivery note or docket.

15. DEFECTIVE GOODS

15.1 The Customer must inspect the Goods on delivery and within 30 days of delivery notify Lowes of any alleged defect, shortage or damage to the Goods (Defect or Defective as the case may be). 

15.2 Lowes will, as soon as reasonably practicable after being notified by the Customer under clause 15.1, inspect the Goods and make an assessment, acting reasonably, whether the Goods have a Defect. The Customer must afford Lowes an opportunity to inspect the Goods on the Customer’s Premises for this purpose. 

15.3 Subject to clause 18 and clauses 2.1(e) and 2.1(f), if the Customer fails to notify Lowes of any alleged Defect, in accordance with this clause, the Goods shall be presumed to be free from any defect or damage. Where Lowes has made an assessment, in accordance with clause 15.2, that the Goods are Defective, Lowes’ liability is limited in the way set out in clause 18 of these conditions. 

16. HEALTH, SAFETY AND ENVIRONMENTAL MANAGEMENT

16.1 The Customer undertakes to Lowes that the Customer will comply with all relevant Acts relating to health, safety and environmental conservation when storing and handling the Goods and Equipment. 

16.2 If required to do so by Lowes and upon written notice, the Customer must allow Lowes’ Representatives access to the Customer’s Premises where the Goods and Equipment are stored, to enable those premises to be inspected for compliance with such Acts. This clause does not impose, nor is it intended to impose, an obligation on Lowes to undertake any such inspection.

17. FORCE MAJEURE

17.1 If there is any failure by Lowes to comply or any delay in complying with any of these conditions due to a Force Majeure Event:

(a) Lowes is not in breach of these conditions by reason of the Force Majeure Event; 

(b) Lowes’ obligation to supply or deliver the Goods or to hire or deliver the Equipment is suspended for the duration of the Force Majeure Event;

(c) if the delay or failure continues for in excess of 7 days’, Lowes may terminate any existing order or request for Goods or Equipment by notice in writing to Customer; and

(d) Lowes is not liable for any Loss incurred by the Customer by reason of such suspension or termination.

18. LIMITATION OF LIABILITY & INDEMNITY

18.1 Subject to clause 18.3 or any other laws, all terms, conditions, warranties or undertakings whether express or implied, statutory or otherwise, oral or written relating in any way to the sale of the Goods, the hire of Equipment or to these conditions are excluded including, without limitation, any warranties of merchantability or fitness for purpose.

18.2 The Customer may have rights under the Australian Consumer Law or other rights in relation to the supply of Goods and hire of Equipment that cannot lawfully be excluded by Lowes (Non-excludable Rights). With the exception of Non-excludable Rights, and notwithstanding any other provision of these conditions, the liability of Lowes to the Customer, whether arising under or in connection with these conditions or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort for negligence or otherwise, or on any other basis in law or equity is hereby limited and excluded as follows:  

(a) Lowes shall have no liability whatsoever to the Customer for any Consequential Loss; and 

(b) the total aggregate liability of Lowes is at all times limited to the amount equal to the price as it relates to the Goods or Equipment, or both. 

18.3 To the maximum extent permitted by law, Lowes’ liability pursuant to any warranty, term or condition implied in these conditions and any Non-Excludable Right is limited to: 

(a) replacement of the Goods and Equipment or the supply of equivalent Goods and Equipment; or

(b) payment of the cost of replacing the Goods and Equipment or of acquiring an equivalent product.

18.4 Lowes disclaims all liability to the Customer for loss, damage or injury (including death) resulting from the use of the Goods and Equipment for a purpose other than its intended purpose or otherwise than in accordance with its directions for use.

18.5 The Customer must indemnify and hold Lowes and Lowes’ Representatives harmless against all loss howsoever caused, arising out of or in any way connected with any breach by the Customer of these conditions.

18.6 Lowes holds the benefit of this indemnity on trust for itself and its Representatives.

18.7 The Customer acknowledges that it is not necessary for Lowes or any of its Representatives to incur an expense or make a payment before enforcing a right of indemnity conferred by this Agreement or to mitigate its loss.

19. PRIVACY

19.1 Where Lowes receives, collects or handles Personal Information in the course of processing and administering the Customer’s accounts, Lowes will ensure that it has taken and continues to take all reasonable technical and organisational measures against the unauthorised or unlawful processing or disclosure of the Personal Information.

19.2 All Personal Information collected by Lowes will be treated in accordance with Lowes’ Privacy Policy set out at www.lowespetrol.com.au/privacy-policy from time to time. The Privacy Policy also includes information about how individuals can request access to or correction of their personal information and about how Lowes will handle any privacy-related complaints.

20. TERMINATION RIGHTS 

20.1 It is a Termination Event if:

(a) the Customer fails to pay a Tax Invoice by  the Due Date;

(b) a direct debit request made by Lowes pursuant to clause 12 in respect of the Customer’s nominated account fails;

(c) the Customer provides a cheque to Lowes which is dishonoured;

(d) an Insolvency Event occurs in relation to the Customer or a guarantor of the Customer (if any);

(e) the Customer refuses to take delivery of Goods or Equipment that the Customer has ordered from Lowes; 

(f) if the Customer is a trustee of a trust, anything  has occurred which, in the reasonable opinion of Lowes, has caused or is likely in future to cause any of the warranties in clause 32.1(b) to be untrue;

(g) if the Customer is a partnership, anything has occurred which, in the reasonable opinion of Lowes, has caused or is likely in future to cause a breach of the Customer’s obligations under clause 33.1; or

(h) either party breaches a material term of these conditions and, in the reasonable opinion of the other party, the breach:

(i) cannot be remedied; or 

(ii) can be remedied but is not remedied within 10 Business Days after the non-defaulting party provides the defaulting party written notice of the breach.

20.2 If a Termination Event occurs, the non-defaulting party may:

(a) terminate its obligations under these conditions immediately by written notice to the defaulting party; and

(b) exercise its rights under these conditions and at law as if it had accepted a repudiation of these conditions by the defaulting party.

20.3 If its obligations under these conditions are terminated due to a breach by Lowes, the Customer must pay Lowes for Goods and Equipment delivered and/or hired but not yet paid for within seven days of receiving a Tax Invoice from Lowes in respect of the amounts owing.

20.4 If Lowes’ obligations under these conditions are terminated due to a breach by the Customer, the Customer must pay Lowes for all amounts it owes Lowes including for Goods and Equipment ordered but not yet delivered and Goods and Equipment delivered but not yet paid for, whether those amounts are due at that time or not, within seven days of receiving a Tax Invoice from Lowes in respect of the amounts owing.

20.5 If a party’s obligations under these conditions terminate for any reason: 

(a) clause 41 will apply in respect of the return or repossession of the Equipment; 

(b) Lowes will not be obliged to deliver any Goods ordered by the Customer but not yet delivered (or Equipment requested for hire which has not yet been delivered) prior to the date of expiry or termination; and

(c) each party must return to the other party within five Business Days after the date of expiry or termination, the other party’s Confidential Information.

20.6 The Customer grants Lowes a licence to enter any premises occupied or controlled by the Customer for the purpose of taking immediate possession of Goods and Equipment if the Customer does not comply with clause 20.5(a) .

20.7 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Lowes in enforcing its rights under these conditions and any security interests arising under them and the recovery of money payable by the Customer to Lowes. The parties agree that clauses 2.1(e) and 2.1(f) apply to this clause.

21. DISPUTES

21.1 Any dispute relating to these conditions (Dispute) will be dealt with in accordance with this clause.

21.2 The party claiming the Dispute will give notice of the Dispute to the other party which will include all facts on which that party relies in relation to that Dispute (Dispute Notice).

21.3 Within five Business Days after service of a Dispute Notice, each of the parties’ Representatives will meet at least once to attempt, using their reasonable endeavours, to resolve the Dispute in good faith.

21.4 If the Dispute has not been resolved within 15 Business Days after the service of the Dispute Notice, either party may start mediation by serving a written notice setting out the nature of the dispute, the proposed mediator, venue and attendees (Mediation Notice).

21.5 Within 30 days of the Mediation Notice, the parties must use best endeavours to agree on the mediator, venue and attendees.

21.6 If the parties cannot reach agreement about the mediator, either party may refer the matter to the Australian Disputes Centre for the appointment of a mediator.  

21.7 Each party must pay an equal share of the mediator’s fees and the mediation venue costs.

21.8 Each party must be represented at the mediation by a person with authority to settle the dispute.

21.9 Any information disclosed in connection with mediation remains confidential and is privileged from disclosure to third parties or in evidence, except to enforce a settlement agreement reached at the mediation.

21.10 Any agreement reached at mediation will not be binding unless it is reduced to writing and signed by the parties.

21.11 The parties agree to comply with the Farm Debt Mediation Act 2017 (Qld) (or equivalent legislation in the relevant state or territory in which the Customer is located) to the extent applicable to the resolution of any Dispute in connection with these conditions.

21.12 A party may not start court proceedings in relation to a Dispute until it has complied with the procedures in this clause, unless it commences legal proceedings to preserve any rights it may have. 

21.13 Nothing in this clause prevents a party seeking urgent injunctive or interlocutory relief.

21.14 Notwithstanding the existence of a Dispute, both parties will continue to perform their respective obligations under these conditions.  

22. CONFIDENTIAL INFORMATION

22.1 Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:

(a) as permitted under these conditions;

(b) with the prior written consent of the Discloser;

(c) where the Recipient is compelled to do so by law, provided that it gives the other party written notice prior to disclosure.

22.2 The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with these conditions.

22.3 The Recipient must:

(a) maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient from unauthorised access, use, copying or disclosure; 

(b) notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of these conditions by the Recipient and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and

(c) reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by the Recipient.

23. PPSA – GOODS 

23.1 These conditions, the Credit Conditions and each invoice issued by Lowes to the Customer for Goods together comprise the security agreement for PPSA purposes in respect of the security interest which arises in favour of Lowes in the Goods its supplies to the Customer on credit from time to time.

23.2 The Customer:

(a) agrees, at its cost, to do anything that Lowes requires to:

(i) enable Lowes to prepare and register any ‘financing statement’ or any ‘financing change statement’ (each as defined in the PPSA) or give any notification in connection with any security interest in Goods supplied to the Customer; and

(ii) ensure that such security interest is enforceable, perfected and otherwise effective, and has the priority Lowes requires (which, unless Lowes agrees otherwise in writing, is first priority) and to enable Lowes to exercise any of its rights or perform any of its obligations in connection with the security interest;

(b) agrees, when Lowes asks, to reimburse Lowes for all its costs and expenses in preparing and applying for the registration of any financing statement or any financing change statement, or giving any notification in connection with, or enforcing, such security interest; and

(c) agrees, in connection with such security interest, that:

(i) Lowes need not comply with sections 95,  121(4), 125, 130, 132(3)(d) or 132(4) of the PPSA;

(ii) it will not exercise rights under section 142 or 143 of the PPSA; and

(iii) Lowes need not give it any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.

23.3 Except if section 275(7) of the PPSA applies, both Lowes and the Customer agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.

24. ASSIGNMENT

24.1 Lowes may, at any time, assign any of its rights, or transfer by novation any of its rights and obligations under these conditions to any person or persons (acting reasonably). At the request of Lowes, the Customer must do anything necessary, including execute any document, to effect any such assignment or novation by Lowes.

24.2 The Customer must not transfer or assign any of its rights or obligations under these conditions without the prior written consent of Lowes (which it will not unreasonably withhold).

24.3 The parties acknowledge and agree this clause 24 is subject to clauses 2.1(e) and 2.1(f).

25. VARIATION

25.1 Lowes may vary or replace these conditions where it deems such amendment or replacement reasonably necessary to protect its interests, by providing prior written notice to the Customer, which notice may be endorsed on or accompany an invoice, statement, correspondence or other document provided to the Customer by Lowes. 

25.2 The amended or replacement conditions apply with effect from the date stipulated in the notice (which must be no earlier than the date the notice is given to the Customer) and do not affect accrued rights and obligations (including in respect of any Goods ordered or Equipment hired but (in each case) not delivered to the Customer prior to the date stipulated in the notice).

26. SEVERABILITY

26.1 If a provision in these conditions is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from these conditions for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of these conditions.

27. SURVIVAL

27.1 Clauses 1, 2, 10, 17, 18, 19, 20, 21 and 22 will continue to apply after the termination of any agreement or arrangement between Lowes and the Customer.

28. GOVERNING LAW

28.1 These conditions are governed by, and interpreted in accordance with, the laws of Queensland, and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.

29. NOTICES

29.1 Any notice, demand, approval, request or other communication in relation to these conditions (Notice) will:

(a) be in writing in English;

(b) be marked for the attention of the Customer or Lowes (as applicable); and

(c) be given at the recipient’s address by being:

(i) hand delivered;

(ii) sent by email; or 

(iii) sent by regular post (or airmail if posted to or from a place outside Australia).

29.2 A Notice is given if:

(a) hand delivered, on the date of delivery;

(b) sent by email, when the email (including any attachment) is sent to the receiving party at that email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent;  

(c) if sent by prepaid mail within Australia, at 9:00am on the sixth Business Day after the date of posting; or

(d) if sent by airmail, at 9:00am on the 12th Business Day after the date of posting.

29.3 If a Notice is regarded as being given and received on a day that is not a Business Day or after 5:00pm on a Business Day, then the Notice will be deemed as given and received at 9:00am on the next Business Day.

30. CERTIFICATES

30.1 Lowes may give the Customer a certificate about a matter or amount payable by the Customer to Lowes. Such certificate may be signed by the Executive Manager, a director or the financial controller of Lowes and is sufficient evidence of the matter or any amount referred to in it unless it is proven to be incorrect.

31. APPLICATION OF FUNDS

31.1 Lowes may apply any amount paid to it by or on behalf of the Customer toward meeting any part Lowes chooses of any amount payable by the Customer to it under these conditions or otherwise.

32. TRUST

32.1 If the Customer is the trustee of a trust:

(a) the Customer is bound by these conditions in its personal capacity and in its capacity as trustee of the trust;

(b) the Customer warrants that at all times while these conditions apply:

(i) all transactions it undertakes with Lowes (including those under which security interests arise) pursuant to the terms of these conditions are permitted by the terms of the trust;

(ii) it has the right to be fully indemnified out of trust property for obligations owed to Lowes pursuant to the terms of these conditions and the trust property is sufficient to satisfy that right of indemnity and all other obligations for which it is entitled to be indemnified out of trust property; and

(iii) no action has been taken or proposed to terminate the trust nor has any event for the vesting of trust property occurred;

(c) the Customer agrees to notify Lowes promptly whenever anything happens which would cause any of the warranties in clause 32.1(b) to be untrue.

33. PARTNERSHIP

33.1 If the Customer is a partnership, its partners must:

(a) not do anything, or permit anything to be done or fail to do anything, which may effect or facilitate the variation or dissolution of the partnership;

(b) immediately notify Lowes if the partnership is varied (including by a partner dying, leaving or joining the partnership) or dissolved; and

(c) if Lowes so requests, use their best endeavours to ensure all partners of any successor partnership sign and deliver to Lowes a document (in form and substance satisfactory to Lowes) by which they agree the successor partnership is bound by these conditions and by which arrangements satisfactory to Lowes are made for the performance by the successor partnership of any obligations outstanding to Lowes at the time the partnership was varied or dissolved.

SECTION 2: ADDITIONAL TERMS FOR EQUIPMENT HIRE

34. USE OF EQUIPMENT

34.1 The Customer must use the Equipment only for purposes connected with the storage and transport of Goods supplied pursuant to these conditions and in a manner,  which accords with the Equipment’s purpose, Lowes instructions and in a manner which is proper, safe and without risk to health.

34.2 The Customer warrants that it has:

(a) obtained the consent of the landlord of the Customer’s Premises (if any) to hire and install the Equipment and (pursuant to the Consent Form referred to in clause 44.1) consent for Lowes to enter onto the Customer’s Premises for the purposes of repossessing the Equipment pursuant to these conditions; and

(b) obtained and will maintain for the duration of the Hire Period all necessary approvals, certifications, permissions, consents or licences from any government authority or other third party for the installation and hire of the Equipment.

35. PERIOD OF HIRE

35.1 The period of hire for Equipment commences when the Equipment is delivered to the Customer’s Premises and concludes when the Equipment is returned to Lowes as set out in the Fuel Supply and Equipment Hire Schedule (Hire Period).

35.2 The Customer acknowledges and agrees that, unless otherwise agreed by Lowes, the price for the hire of the Equipment is based on the length of the Hire Period, and not the actual amount of time the Equipment is used by the Customer.

36. INSURANCE 

36.1 The Customer must obtain from and maintain for the duration of the Hire Period with, a reputable Australian insurance company, insurance against the loss of or damage to the Equipment, for the full replacement value of the Equipment. Such insurance policy or policies of insurance must note the interest of Lowes as owner of the Equipment.

36.2 The Customer must provide Lowes with a copy of a certificate of currency for the insurance policy or policies required under clause 36.1 prior to the Equipment leaving Lowes’ premises and at any other time requested by Lowes during the Hire Period.

37. CONDITION OF EQUIPMENT

37.1 If the Equipment is second hand, it is hired to the Customer strictly on an “as is”, “where is” basis with all faults and defects whether or not they are:

(a) latent or patent;

(b) known to the Customer; or

(c) apparent or detectable by inspection.

37.2 Lowes enters into these conditions in reliance on the Customer’s acknowledgement in clause 37.1.

37.3 The Customer shall maintain the Equipment in good order and condition throughout the Hire Period.

38. OPPORTUNITY TO INSPECT

38.1 The Customer confirms that it has inspected the Equipment and conducted any enquiries concerning the Equipment it deems necessary or desirable and has satisfied itself about:

(a) the condition, state of repair, structural soundness or suitability for any use or purpose of the Equipment;

(b) the lawfulness of the existing use of the Equipment;

(c) all risks, contingencies and other circumstances; and

(d) the existence or otherwise of necessary approvals, certifications, permissions, consents or licences from any government authority or other third party relating to the Equipment, including any failure to comply with any conditions applicable to any such approvals, certifications, permissions, consents or licences.

39. REPAIR AND REPLACEMENT OF EQUIPMENT 

39.1 The Customer must notify Lowes immediately if it considers that the Equipment requires repair or should be replaced.

39.2 Lowes will only be responsible for the cost of replacing parts and components of the Equipment required to be replaced due to normal wear and tear.

39.3 The Customer will be responsible for the cost of any replacement parts or components damaged either directly or indirectly by:

(a) the misuse, mishandling, negligent use or operation of the Equipment by the Customer or any other person that has access to the Customer’s Premises, whilst the Equipment is on hire to the Customer, including use of the Equipment in extremely adverse environments causing premature failures to any parts or components; or

(b) failing to comply with the Customer’s obligations pursuant to clause 39 and 40 of these conditions,

and Lowes will not be liable for any delay in Customer’s work or operations as a result of any of the above circumstances.

39.4 The Hire Period includes, and the Customer is liable for hire fees during, any period that the Equipment is stood down for repairs, maintenance or servicing unless otherwise agreed to by Lowes. Lowes agrees to use its best endeavours to carry out any repairs, maintenance and servicing that it is required to undertake pursuant to these conditions as soon as possible.

39.5 The Customer must do all things necessary to facilitate that repair or replacement including but not limited to granting all necessary safe access to the Equipment and the Customer’s Premises.

39.6 If the Customer and Lowes agree that the Customer will purchase the Equipment:

(a) the Customer must purchase the Equipment at a price agreed by the parties (Purchase Price);

(b) on and from the date that the Customer purchases the Equipment (which for the avoidance of doubt will not occur unless and until the Purchase Price has been paid by the Customer in full):

(i) Lowes will owe no further obligation in respect of such Equipment including in respect of any repairs, maintenance, servicing or replacement;  

(ii) the Hire Period will cease; and

(iii) the Customer will no longer be required to pay any hire fees for such Equipment; and

(iv) title and risk in the Equipment will pass to the Customer.

40. CUSTOMER UNDERTAKINGS

40.1 During the Hire Period, the Customer must:

(a) promptly pay any taxes, fees and costs relating to the installation or use of the Equipment;

(b) procure that its Representatives operate the Equipment strictly in accordance with Lowes’ and the Equipment manufacturer’s instructions;

(c) ensure the Equipment is used only by suitably trained and certified persons;

(d) store the Equipment securely;

(e) maintain the Equipment in good operating condition (except to the extent Lowes agrees to make repairs or replace the Equipment, as provided for in clause 39);

(f) not alter the Equipment, including allowing it to become an accession to other property or allow other property to become an accession to it without Lowes’ prior written consent;

(g) not damage or destroy the Equipment; 

(h) keep all signs or markings indicating that the Equipment is the property of Lowes legible and visible;

(i) maintain and comply with all laws and regulations relating to the Equipment’s maintenance, safety and use;

(j) not move the Equipment from the Customer’s Premises without the prior written agreement of Lowes;

(k) ensure that any Vehicle is driven safely and carefully with due consideration for other persons;

(l) pay any traffic or parking fine, storage cost or toll of any kind in respect of a Vehicle or Trailer incurred whilst the Vehicle or Trailer is in the Customer’s or its Representatives’ possession or control;

(m) not do anything prejudicial to Lowes’ title to the Equipment; 

(n) not lease, licence, grant a security interest over or deliver the Equipment to anyone but Lowes; and

(o) on reasonable notice, grant Lowes and its Representative’s access to the Customer’s Premises and the Equipment in order to inspect, repair, maintain or upgrade the Equipment or to observe its use and all records relating to its maintenance.

41. RETURN OF EQUIPMENT 

41.1 Subject to clause 39.6, at the end of the Hire Period or on termination of either party’s obligations under these conditions pursuant to clause 20, the Customer must return the Equipment to a premises nominated by Lowes.

41.2 The Equipment must be returned to Lowes in a clean, undamaged and unaltered condition, fair wear and tear excepted. 

41.3 Lowes may agree to collect the Equipment from the Customer if it receives a written request from Customer to do so at least seven days before the end of the Hire Period (Pick Up Request). If it accepts the Pick Up Request, Lowes will indicate its acceptance by providing a pick-up number to Customer.

41.4 Lowes is entitled to charge the Customer a reasonable fee in each of the following circumstances:

(a) the Customer provides a Pick Up Request less than seven days before the end of the Hire Period;

(b) the Customer returns the Equipment to a place other than Lowes’ nominated premises or outside Lowes’ normal business hours; or

(c) Lowes collects the Equipment from the Customer, either at the request of Customer or because the Customer fails to return the Equipment to Lowes.

41.5 If the Customer does not return the Equipment or arrange with Lowes to collect the Equipment in accordance with this clause 41, Lowes may at its option repossess the Equipment in which case:

(a) the Customer shall within 2 Business Days of receiving written notice from Lowes to do so, ensure that all Equipment is in a clean, undamaged and unaltered condition, fair wear and tear excepted, and accessible with no impediment to its safe and efficient removal from the Customer’s Premises. If the Equipment is a Tank the Customer shall remove all product from the Tank and ensure that it is clean, gas free, inert and safe to be removed from the Customer’s Premises;

(b) within 2 Business Days of receiving written notice from Lowes to do so, the Customer irrevocably authorises Lowes, and any Representatives of Lowes to enter the Customer’s Premises without notice and take all steps reasonably necessary to retake possession of the Equipment;

(c) the Customer shall indemnify Lowes in respect of any and all liability Lowes may incur to third parties by reason of Lowes retaking possession of the Equipment in accordance with this clause; and

(d) whilst Lowes will take reasonable care when repossessing the Equipment, Lowes shall not be responsible for restoring the Customer’s Premises or any other property on which the Equipment was situated to its original or any other condition.

42. POST HIRE INSPECTION

42.1 Upon the return of the Equipment to Lowes’ Premises (or repossession), an inspection of the Equipment will be conducted by Lowes to ascertain and record the condition of the Equipment at the end of the Hire Period (Post Hire Inspection). 

42.2 The Customer acknowledges and agrees that Lowes’ record of the Post Hire Inspection is sufficient evidence of the condition of the Equipment at the end of the Hire Period unless it is proved to be false.

42.3 Lowes is entitled to charge the Customer a reasonable fee for the Post Hire Inspection.

42.4 The Customer acknowledges and agrees that the costs of repairing any damage to the Equipment occurring during the Hire Period (whether identified during or subsequent to the Post Hire Inspection), cleaning the Equipment and replacing any components, consumables and worn parts will be borne by Customer and must be paid by the Customer to Lowes within 7 days after the Customer receives a Tax Invoice from Lowes for those costs.

43. PPSA – EQUIPMENT 

43.1 If a security interest arises in favour of Lowes in any Equipment it hires to the Customer, then these conditions, each Fuel Supply and Equipment Hire Schedule, the Credit Conditions (if applicable) and each invoice (if applicable) issued by Lowes to the Customer for the hire of Equipment together comprise the security agreement for PPSA purposes.

43.2 The Customer:

(a) agrees, at its cost, to do anything that Lowes requires to:

(i) enable Lowes to prepare and register any ‘financing statement’ or any ‘financing change statement’ (each as defined in the PPSA) or give any notification in connection with such security interest; and

(ii) ensure that such security interest is enforceable, perfected and otherwise effective, and has the priority Lowes requires (which, unless Lowes agrees otherwise in writing, is first priority) and to enable Lowes to exercise any of its rights in connection with the security interest;

(b) agrees, when Lowes asks, to reimburse Lowes for all its costs and expenses in preparing and applying for the registration of any financing statement or any financing change statement, or giving any notification in connection with, or enforcing, such security interest; and

(c) agrees, in connection with such security interest, that:

(i) Lowes need not comply with sections 95, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPSA;

(ii) it will not exercise rights under sections 142 or 143 of the PPSA; and

(iii) Lowes need not give it any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.

43.3 Except if section 275(7) of the PPSA applies, both Lowes and the Customer agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.

44. RIGHT OF ENTRY

44.1 If the Customer is not the owner of the Customer’s Premises, the Customer must obtain the owner’s signature on the Consent Form. Until such Consent Form is signed, Lowes shall have no obligation to deliver or make available any Equipment for hire.