1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “LK Diesel” means LK Diesel Service Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of LK Diesel Service Pty Ltd.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting LK Diesel to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and (d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods (including but not limited to, any parts and/or consumables used during the course of the Services) or Services supplied by LK Diesel to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using LK Diesel’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between LK Diesel and the Customer in accordance with clause 6 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges and accepts that:
(a) the supply of Goods on credit shall not take effect until the Customer has completed a credit application with LK Diesel and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, LK Diesel reserves the right to refuse Delivery;
(c) where Goods are ordered by the Customer subject to description and/or part number and such Goods are subsequently found to be incorrect for the intended application and/or use, then the Customer accepts that the Goods will not be eligible for a credit, refund or exchange, unless approval from LK Diesel is granted. LK Diesel reserves the right to provide alternate/upgraded Goods to prior confirmation and agreement of both parties.
2.5 In the event that the Goods and/or Services provided by LK Diesel are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by LK Diesel and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.6 These terms and conditions may be meant to be read in conjunction with LK Diesel’s Warranty Form, and if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.7 None of LK Diesel’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of LK Diesel in writing nor is LK Diesel bound by any such unauthorised statements.
2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Distribution of Goods via an Approved Distributors
3.1 The Customer agrees that until they are authorised as a distributor by LK Diesel, (and hereinafter the Customer shall be referred to as “Distributor” for the purposes of this clause) the Distributor shall not be able to sell the Goods on as a Distributor for LK Diesel or represent to any third parties that the Distributor is in any way acting for LK Diesel. LK Diesel shall not accept responsibility or agree to be bound in any way by any contracts with third parties to whom the Distributor is a party.
3.2 At LK Diesel’s sole discretion, the Distributor acknowledges that only approved Distributors shall have the authority to accept internet orders via their respective website and/or any alternative online auction sites.
3.3 Orders from a Distributor are accepted on the basis that;
(a) unless otherwise agreed by prior approval between LK Diesel and the Distributor, Goods may only be resold to consumers at retail level and may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale,
(b) the Goods are kept separate from the Distributor’s own goods;
(c) the Goods are insured by the Distributor with a reputable insurer and noting the interest of LK Diesel;
(d) Goods are to be sold for retail or displayed for sale at only the nominated locations advised by the Distributor to LK Diesel,
(e) sale of Goods by mail order, internet or any other method outside of the traditional display and sell at the approved location is prohibited without prior written consent of LK Diesel, and
(f) Goods are to be displayed, presented and marketed in the manner that is in the best interest of the brand name.
3.4 The Distributor will receive all the proceeds of any resale of/or any dealing with the Goods whether the proceeds are tangible or intangible, whether direct or indirect in trust for LK Diesel and will keep such proceeds in a separate trust account until the liability of the Distributor to LK Diesel pursuant to this Contract. Such proceeds shall be deemed to be equal in dollar terms to the amount owing by the Distributor to LK Diesel in respect of the Goods at the time of receipt of such proceeds.
3.5 Any default of clauses 3.1-3.3 may at LK Diesel’s sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand.
3.6 LK Diesel has sole discretion on which brands or Goods are made available to any approved Distributor and LK Diesel does not guarantee continuing supply of any specific brand or Goods.
4. Errors and Omissions
4.1 The Customer acknowledges and accepts that LK Diesel shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by LK Diesel in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by LK Diesel in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of LK Diesel; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Customer shall give LK Diesel not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by LK Diesel as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At LK Diesel’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by LK Diesel to the Customer; or
(b) LK Diesel’s estimated Price (subject to clause 7.1) which shall not be deemed binding upon LK Diesel as the actual Price can only be determined upon completion of the Services. LK Diesel undertakes to keep the Customer informed should the actual Price look likely to exceed the original estimate; or
(c) LK Diesel’s quoted price (subject to clause 7.1) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 At LK Diesel’s sole discretion, a non-refundable deposit may be required, the amount or percentage of which will be stipulated at the time of the Customer’s order and shall become immediately due and payable.
6.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by LK Diesel, which may be:
(a) on or before Delivery of the Goods;
(b) by way of instalments/progress payments in accordance with LK Diesel’s payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by LK Diesel.
6.4 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and LK Diesel.
6.5 LK Diesel may in its discretion allocate any payment received from the Customer towards any invoice that LK Diesel determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer LK Diesel may re-allocate any payments previously received and allocated. In the absence of any payment allocation by LK Diesel, payment will be deemed to be allocated in such manner as preserves the maximum value of LK Diesel’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.6 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 LK Diesel nor to withhold payment of any invoice because part of that invoice is in dispute.
6.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to LK Diesel an amount equal to any GST LK Diesel must pay for any supply by LK Diesel under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Additional Charges
7.1 LK Diesel reserves the right to change the Price:
(a) if a variation to the Services which are to be provided is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Services; or
(c) in the event of increases to LK Diesel in the cost of labour or Goods, or fluctuations in currency exchange rates, which are beyond LK Diesel’s control.
7.2 Where LK Diesel is requested to store the Customer’s part/vehicle, or where the part/vehicle are not collected within twenty-four (24) hours of advice to the Customer that it is ready for collection, then LK Diesel (at its sole discretion) may charge a fee of ($15.00 per day) for storage.
7.3 All tow and/or salvage fees will be charged to the Customer, and will be added to the Price.
7.4 If LK Diesel has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
7.5 The Customer acknowledges and agrees that LK Diesel shall be entitled to:
(a) retain any components replaced during the provision of the Services; and
(b) the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.
8. Delivery of Goods
8.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at LK Diesel’s address; or
(b) LK Diesel (or LK Diesel’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
8.2 At LK Diesel’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
8.3 LK Diesel may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
8.4 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy or to the value that has been delivered.
8.5 Any time specified by LK Diesel for Delivery of the Goods is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. LK Diesel will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then LK Diesel shall be entitled to charge a reasonable fee for redelivery and/or storage.
9.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, LK Diesel is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by LK Diesel is sufficient evidence of LK Diesel’s rights to receive the insurance proceeds without the need for any person dealing with LK Diesel to make further enquiries.
9.3 If the Customer requests LK Diesel to leave Goods outside LK Diesel’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
9.4 The Customer acknowledges and agrees that where LK Diesel has performed temporary repairs on the engine that:
(a) LK Diesel offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) LK Diesel will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair of the engine.
9.5 LK Diesel will accept no responsibility for valuables or other items left in the Customer’s vehicle. It is the Customer’s responsibility to remove any valuables from the Customer’s vehicle prior to the repair.
9.6 The Customer acknowledges and accepts that LK Diesel is only responsible for Goods that are replaced by LK Diesel, and that in the event that other components subsequently fail, the Customer agrees to indemnify LK Diesel against any loss or damage to the Goods or the Customer’s vehicle, or caused by the components, or any part thereof howsoever arising.
9.7 LK Diesel shall not be liable for the loss of or damage to the Customer’s vehicle, its accessories or contents while being repaired or operated in connection with the authorised Services (including in the event of a call-out: it shall be the Customer’s responsibility to remain with the vehicle to ensure security of the same), unless caused by the negligence of LK Diesel, or LK Diesel’s employees.
9.8 It is the Customer’s responsibility to ensure that the Customer’s vehicle is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at LK Diesel’s premises. The vehicle is at all times stored and repaired at the Customer’s sole risk.
9.9 LK Diesel or its employees may test drive or carry out tests on the Customer’s vehicle as required at LK Diesel’s discretion and may if requested by the Customer collect or re-deliver the vehicle when nominated by the Customer. LK Diesel will not be liable for (and the Customer indemnifies LK Diesel against) any damages caused to, or by, the vehicle during such tests, collecting or delivery unless it arises from the recklessness or wilful misconduct of LK Diesel or its employees.
9.10 The Customer acknowledges and agrees that LK Diesel cannot emulate normal highway conditions therefore it is possible that some engine types will use oil during vehicle tests.
10.1 LK Diesel and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid LK Diesel all amounts owing to LK Diesel; and
(b) the Customer has met all of its other obligations to LK Diesel.
10.2 Receipt by LK Diesel of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 10.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to LK Diesel on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for LK Diesel and must pay to LK Diesel the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for LK Diesel and must pay or deliver the proceeds to LK Diesel on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of LK Diesel and must sell, dispose of or return the resulting product to LK Diesel as it so directs;
(e) the Customer irrevocably authorises LK Diesel to enter any premises where LK Diesel believes the Goods are kept and recover possession of the Goods;
(f) LK Diesel may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) 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 LK Diesel;
(h) LK Diesel may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Customer to LK Diesel for Services – that have previously been supplied and that will be supplied in the future by LK Diesel to the Customer.
11.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which LK Diesel may reasonably require to;
— (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
— (ii) register any other document required to be registered by the PPSA; or
— (iii) correct a defect in a statement referred to in clause 11.3
— (a)(i) or 11.3
(b) indemnify, and upon demand reimburse, LK Diesel for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of LK Diesel;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of LK Diesel;
(e) immediately advise LK Diesel of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 LK Diesel and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by LK Diesel, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Customer must unconditionally ratify any actions taken by LK Diesel under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of LK Diesel agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or 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).
12.2 The Customer indemnifies LK Diesel from and against all LK Diesel’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising LK Diesel’s rights under this clause.
12.3 The Customer irrevocably appoints LK Diesel and each director of LK Diesel as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify LK Diesel in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow LK Diesel to inspect the Goods.
13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (NonExcluded Guarantees).
13.3 LK Diesel acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, LK Diesel makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. LK Diesel’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Customer is a consumer within the meaning of the CCA, LK Diesel’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If LK Diesel is required to replace the Goods under this clause or the CCA, but is unable to do so, LK Diesel may refund any money the Customer has paid for the Goods.
13.7 If the Customer is not a consumer within the meaning of the CCA, LK Diesel’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty documentation provided to the Customer by LK Diesel at LK Diesel’s sole discretion, and to which any warranty offered will always be subject to LK Diesel’s recommendation for regular maintenance checks every five (5) thousand kilometres, which must be completed by a qualified diesel mechanic;
(b) limited to the value of any express warranty or warranty card provided to the Customer by LK Diesel at LK Diesel’s sole discretion;
(c) limited to any warranty to which LK Diesel is entitled, if LK Diesel did not manufacture the Goods;
(d) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 13.1; and
(b) LK Diesel has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
13.9 The Customer acknowledges and accepts that any Goods returned without a “request for credit number” will be returned to the Customer at their expense.
13.10 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, LK Diesel shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by LK Diesel;
(e) fair wear and tear, any accident, or act of God.
13.11 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by LK Diesel as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that LK Diesel has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 13.11.
13.12 Notwithstanding clause 13.10, second hand Goods (i.e. used engines) are not covered under any warranty. LK Diesel recommends the Customer examines the crankshaft, camshaft, camshaft seals, oil filters housing, oil cooler assemblies and rocker cover and sump assembly (these assembles can often be damaged in transit).
13.13 LK Diesel may in its absolute discretion accept non-defective Goods for return in which case LK Diesel may require the Customer to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
13.14 Notwithstanding anything contained in this clause if LK Diesel is required by a law to accept a return then LK Diesel will only accept a return on the conditions imposed by that law.
13.15 Subject to clause 13.1, customised, or non-stocklist items, electrical parts, Goods ordered from overseas or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
14. Intellectual Property
14.1 Where LK Diesel has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of LK Diesel. Under no circumstances may such designs, drawings and documents be used without the express written approval of LK Diesel.
14.2 The Customer warrants that all designs, specifications or instructions given to LK Diesel will not cause LK Diesel to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify LK Diesel against any action taken by a third party against LK Diesel in respect of any such infringement.
14.3 The Customer agrees that LK Diesel may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which LK Diesel has created for the Customer.
15. Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at LK Diesel’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Customer owes LK Diesel any money the Customer shall indemnify LK Diesel from and against all costs and disbursements incurred by LK Diesel in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, LK Diesel’s contract default fee, and bank dishonour fees).
15.3 Further to any other rights or remedies LK Diesel may have under this Contract, if a Customer has made payment to LK Diesel, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by LK Diesel under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
15.4 Without prejudice to LK Diesel’s other remedies at law LK Diesel shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to LK Diesel shall, whether or not due for payment, become immediately payable if:
(a) any money payable to LK Diesel becomes overdue, or in LK Diesel’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by LK Diesel;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
16.1 Without prejudice to any other remedies LK Diesel may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions LK Diesel may suspend or terminate the supply of Goods to the Customer. LK Diesel will not be liable to the Customer for any loss or damage the Customer suffers because LK Diesel has exercised its rights under this clause.
16.2 LK Diesel may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice LK Diesel shall repay to the Customer any money paid by the Customer for the Goods. LK Diesel shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by LK Diesel as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17.1 All emails, documents, images or other recorded information held or used by LK Diesel is Personal Information, as defined and referred to in clause 17.3, and therefore considered Confidential Information. LK Diesel acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). LK Diesel acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by LK Diesel that may result in serious harm to the Customer, LK Diesel will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
17.2 Notwithstanding clause 17.1, privacy limitations will extend to LK Diesel in respect of Cookies where the Customer utilises LK Diesel’s website to make enquiries. LK Diesel agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
17.3 The Customer agrees that LK Diesel may exchange information about the Customer with those credit providers and with related body corporates 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 including the Customer’s repayment history in the preceding two (2) years.
17.4 The Customer consents to LK Diesel being given a consumer credit report to collect overdue payment on commercial credit.
17.5 The Customer agrees that personal credit information provided may be used and retained by LK Diesel for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
17.6 LK Diesel may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
17.7 The information given to the CRB may include:
(a) Personal Information as outlined in 17.3 above;
(b) name of the credit provider and that LK Diesel is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and LK Diesel has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of LK Diesel, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
17.8 The Customer shall have the right to request (by e-mail) from LK Diesel:
(a) a copy of the Personal Information about the Customer retained by LK Diesel and the right to request that LK Diesel correct any incorrect Personal Information; and
(b) that LK Diesel does not disclose any Personal Information about the Customer for the purpose of direct marketing.
17.9 LK Diesel will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
17.10 The Customer can make a privacy complaint by contacting LK Diesel via e-mail. LK Diesel will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
18. Unpaid Seller’s Rights
18.1 Where the Customer has left any item with LK Diesel for repair, modification, exchange or for LK Diesel to perform any other service in relation to the item and LK Diesel has not received or been tendered the whole of any monies owing to it by the Customer, LK Diesel shall have, until all monies owing to LK Diesel are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
18.2 The lien of LK Diesel shall continue despite the commencement of proceedings, or judgment for any monies owing to LK Diesel having been obtained against the Customer.
19. Service of Notices
19.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract; (c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not LK Diesel may have notice of the Trust, the Customer covenants with LK Diesel as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of LK Diesel (LK Diesel will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
— (i) the removal, replacement or retirement of the Customer as trustee of the Trust;
— (ii) any alteration to or variation of the terms of the Trust;
— (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.
21. Dispute Resolution
21.1 If a dispute arises between the parties to this Contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be: (a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
22.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which LK Diesel has its principal place of business, and are subject to the jurisdiction of the courts in Victoria.
22.3 Subject to clause 13, LK Diesel shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by LK Diesel of these terms and conditions (alternatively LK Diesel’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 LK Diesel may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
22.5 The Customer cannot licence or assign without the written approval of LK Diesel.
22.6 LK Diesel may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of LK Diesel’s subcontractors without the authority of LK Diesel.
22.7 The Customer agrees that LK Diesel may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for LK Diesel to provide Goods to the Customer.
22.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.