LIBERTY OIL RURAL PTY LTD ACN 114 544 437
GENERAL TERMS AND CONDITIONS OF SUPPLY
1. Definitions
In these terms and conditions:
(1) Application means the form headed “New Customer Information Sheet” prepared by Liberty and completed or to be completed by the Purchaser (including the fuel storage checklist).
(2) Daily Prices means the prices determined by Liberty on a daily basis for each type of Petroleum Product.
(3) Environmental Laws means all Laws, environmental protection policies and directions, standards and guidelines of any authority (and any other like bodies) regulating or otherwise relating to the environment.
(4) Interested Party means a director, shareholder or officer of the Purchaser nominated by Liberty;
(5) Laws means Federal, State, Territorial or Local Government legislation, regulations, ministerial determinations, rulings and guidelines of Australia;
(6) Liberty means Liberty Oil Rural Pty Ltd ACN 114 544 437 and its successors and assigns;
(7) Liberty Group means Liberty and its related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) and any directors, officers, employees and contractors of Liberty or its related bodies corporate;
(8) Petroleum Products means unleaded petroleum, premium unleaded petroleum, diesel, liquefied petroleum gas and lubricants;
(9) Premises means the premises at the delivery addresses specified in the Application or any other premises to which Liberty delivers Petroleum Products at the purchaser’s request;
(10) Purchaser means the purchaser in the Application and its successors and assigns. A trustee is bound personally and in its trustee capacity;
(11) Taxes means all present and future Federal and State Government duties, levies, imposts fees and taxes of whatever nature (excluding income tax).
2. Binding terms and conditions
The only terms and conditions binding on Liberty in relation to the supply of Petroleum Products to the Purchaser are those set out in these terms and conditions or otherwise agreed to in writing by Liberty and those, if any, imposed by law and which cannot be excluded.
3. Orders and delivery
3.1 The Purchaser will order the quantity of each type of Petroleum Product it requires according to the ordering procedures specified by Liberty from time to time.
3.2 If an order is accepted, Liberty will deliver the petroleum Product to the Premises.
3.3 Delivery occurs when the Petroleum Product passes the outlet flange of the delivery vehicle into the storage tanks at the Premises (except for lubricants which are delivered when the storage containers are offloaded from the vehicle onto the Premises).
3.4 Liberty’s calculation or statement of the quantity of Petroleum Products in each delivery to the Purchaser is conclusive evidence of the supply of that quantity to the Purchaser.
4. Price and GST
4.1 The prices payable by the Purchaser to Liberty for the supply of Petroleum Products are the Daily Prices applicable on the day of delivery plus, if applicable (as determined by Liberty):
(1) a delivery fee;
(2) a credit card surcharge of 1.0 cents (plus GST) per litre of Petroleum Product supplied or the merchant’s fee charged to Liberty, whichever is the greater;
(3) a fee of $20 (plus GST) per cheque;
(4) a trading terms surcharge; and
(5) $50 for each cheque dishonoured and direct debit payment rejected; and
4.2 The prices notified by Liberty to the Purchaser (unless otherwise stated) include GST as defined in A New Tax System (Goods & Services Tax) Act 1999.
4.3 The Purchaser must pay when due and must indemnify Liberty in respect of Taxes that exist at the date of delivery, unless the price of the relevant Petroleum Product is expressly stated to be inclusive of those Taxes.
5. Payment
5.1 The Purchaser must pay for the Petroleum Products within the time and by the method specified by Liberty from time to time and, if no time is specified, on the day after delivery.
5.2 Payment is deemed to be made when cleared funds are received by Liberty:
5.3 Time is of the essence for the Purchaser’s obligation to make payment for Petroleum Products.
5.4 If the Purchaser defaults in paying Liberty according to these terms and conditions, Liberty may in its absolute discretion and in addition to any other remedy it may have at law or otherwise:
(1) charge the Purchaser interest at the 90 day bank bill rate published from time to time by the Australian Financial Review plus 3% from the date of default; and
(2) require the Purchaser to reimburse Liberty for all collection costs, including legal costs (calculated on a solicitor and client basis), incurred as a consequence of Liberty instructing its solicitor to provide advice to it in connection with the default and to institute such recovery process as Liberty in its discretion decides.
6. Risk and insurance
6.1 Risk in the Petroleum Products passes to the Purchaser upon delivery.
6.2 The Purchaser must obtain public liability insurance for at least $10,000,000 and produce a certificate to this effect to Liberty on request. The Purchaser must not do anything to compromise the insurance.
7. Defects
If the Purchaser believes it has received defective Petroleum Products from Liberty, it must: (1) obtain a sample of the relevant product; (2) immediately inform Liberty of the defect; (3) notify Liberty in writing of any claim for the alleged defect within seven days of delivery; and (4) give Liberty a reasonable opportunity to inspect and take samples of the relevant product.
8. Termination
8.1 Either party may immediately terminate this arrangement by giving the other party notice in writing.
8.2 Upon any default or breach of these terms and conditions by the Purchaser, Liberty may immediately cease to supply the Petroleum Products.
8.3 On termination of this arrangement:
(1) the Purchaser must pay to Liberty all amounts then owing by the Purchaser to Liberty, whether or not in relation to the supply of Petroleum Products;
(2) all orders placed by the Purchaser with Liberty are automatically cancelled unless Liberty notifies the Purchaser that the Purchaser must take delivery of the Petroleum Products ordered;
(3) Liberty may exercise its rights under the security or guarantee given under clause 12; and
(4) Liberty retains the rights it had against the Purchaser in respect of any past breach, in addition to any other rights, powers or securities provided by law.
9. Exclusions and Limitations
9.1 The only conditions and warranties binding on Liberty in respect of: (1) the state, quality or condition of the Petroleum Products supplied by it to the Purchaser; and/or (2) advice, recommendation/s, information or services supplied by any of the Liberty Group to the Purchaser regarding the Petroleum Products, their use and application, are those imposed and required to be binding by statute (including the Trade Practices Act 1974) and all other conditions and warranties are excluded.
9.2 To the extent permitted by statute, Liberty may completely discharge any liability arising from the breach of the conditions or warranties referred to in clause 9.1 by: (1) supplying equivalent Petroleum Products or replacing the Petroleum Products supplied to the Purchaser; or (2) supplying the advice, recommendation/s, information or services again.
9.3 The Purchaser acknowledges that: (1) It does not rely (and it is unreasonable for it to rely) on the skill or judgment of Liberty as to whether the Petroleum Products supplied are reasonably fit for any purpose; and (2) the sale is not a sale of goods by description or sample.
9.4 Except to the extent provided in this clause 9, the Liberty Group has no liability to any person for: (1) any loss or damage, consequential or otherwise, suffered or incurred by that person in relation to the Petroleum Products and/or advice, recommendation/s, information or services; and (2) in particular, without limiting part (1) of this clause, any loss or damage consequential or otherwise suffered or incurred by that person caused by, or resulting directly or indirectly from, any failure, defect or deficiency of any kind of the Petroleum Products and/or advice, recommendation/s, information or services.
10. Safety and compliance with laws
10.1 The Purchaser:
(1) warrants that the information provided by it in the Application is true for each of the Premises and must immediately notify Liberty of any change to that information;
(2) must provide suitable and safe facilities for receiving Petroleum Products and must comply with all Laws including health and safety laws; and
(3) is solely responsible for the safety of its employees, agents and contractors and must provide, and ensure that all persons engaged in the collection, transport and storage of Petroleum Products observe, a safe system of work that complies with all Laws.
10.2 Without limiting the above, the Purchaser must
(1) comply with Environmental Laws applying to its storage systems for Petroleum Products;
(2) upon becoming aware of a leak or spill from its storage systems, notify Liberty immediately and remedy the fault within 30 days;
(3) if Liberty requests, provide sufficient data to enable Liberty to assess the storage systems.
11. Indemnity
11.1 The Purchaser indemnifies the Liberty Group against all (1) losses and liabilities incurred by the Liberty Group; and (2) legal costs actually payable by the Liberty Group to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by the Liberty Group in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal), arising directly or indirectly as a result of or in connection with the supply of Petroleum Products by Liberty to the Purchaser or any default or breach of these terms and conditions by the Purchaser.
11.2 The Purchaser must pay to Liberty all liabilities, costs and other expenses referred to in clause 11.1.
12. Security and Guarantee
12.1 Liberty may require the Purchaser or an Interested Party to provide security it specifies from time to time, including but not limited to an unconditional and irrevocable written undertaking issued by a bank as defined by the Banking Act 1959, a mortgage over land or a personal guarantee and indemnity on the terms specified by Liberty, to secure the obligations of the Purchaser to Liberty.
12.2 Liberty may from time to time require the Purchaser to properly complete and deliver a credit and supply application in the form specified by Liberty.
13. Assignment
The Purchaser must not assign or otherwise deal with its rights to be supplied Petroleum Products except with Liberty’s consent. Liberty may at any time assign any of its rights or obligations under these terms and conditions.
14. Confidentiality
The information disclosed by Liberty in connection with the supply of Petroleum Products is proprietary, confidential or a trade secret of Liberty. Except as stated in these terms and conditions, the Purchaser must not and must not permit any of its officers, employees, agents, contractors or Related Bodies Corporate to use or to disclose any of the information to any other person without the prior written consent of Liberty. However, this clause does not apply to information which is generally available to the public (other than as a result of the wrongful disclosure by the Purchaser) or is required to be disclosed by law.
15. Privacy
Each party must comply with Division 3 of Part III of the Privacy Act 1988 as if it were an “organisation” and ignoring any exemption or concessions in relation to the operation of “small businesses”.
16. Changes to the terms and conditions
Liberty may change or replace these terms and conditions by giving the Purchaser 7 days’ written notice.
17. Force Majeure
If Liberty is prevented from or delayed in complying with an obligation by an event beyond its reasonable control, performance by it of that obligation is suspended during the time.
18. Notice
18.1 A notice or other communication connected with the supply of Petroleum Products (Notice) must be in writing and given to the other party or the other party’s solicitor.
18.2 The Notice may be:
(1) sent by registered post to the address of the addressee (and if posted shall be deemed to be received 2 days after posting);
(2) sent by facsimile to the facsimile number of the addressee (in which case it will be deemed to be received on the day it is sent); or
(3) delivered at the address of the addressee.
18.3 Any Notice by a party may be given and may be signed by its solicitor.
19. Severability
If any part of these terms and conditions, being a whole or part of a clause, is held to be unenforceable or invalid then it is severed without affecting any other part of these terms and conditions.
20. Waiver
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
21. Governing Law and Jurisdiction
The law of Victoria governs these terms and conditions. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia. | 
