TERMS & CONDITIONS AND POLICIES

1. Definitions

“Noordeman” means Noordeman Diesel Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Noordeman Diesel Pty Ltd.

“Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Noordeman to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: if there is more than one Customer, is a reference to each Customer jointly and severally; and if the Customer is a partnership, it shall bind each partner jointly and severally; and if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and includes the Customer’s executors, administrators, successors and permitted assigns.

“Goods” means all Goods or Services supplied by Noordeman 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).

“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.

“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 ordering from the 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 ordering Goods via the website.

“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Noordeman and the Customer in accordance with clause 5

“GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

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. 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. Any amendment to the terms and conditions contained in this contract may only be amended in writing by the consent of both parties. The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Noordeman and it has been approved with a credit limit established for the account. In the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, Noordeman reserves the right to refuse Delivery. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act. Goods are supplied by Noordeman only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade. These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Noordeman’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.

3. Errors and Omissions

The Customer acknowledges and accepts that Noordeman shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): resulting from an inadvertent mistake made by Noordeman in the formation and/or administration of this contract; and/or contained in/omitted from any literature (hard copy and/or electronic) supplied by Noordeman in respect of the Services. In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Noordeman; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.

4. Change in Control

The Customer shall give Noordeman 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 Noordeman as a result of the Customer’s failure to comply with this clause.

5. Price and Payment

At Noordeman’s sole discretion, the Price shall be either: as indicated on any invoice provided by Noordeman to the Customer; or Noordeman’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

Noordeman reserves the right to change the Price if a variation to Noordeman’s quotation is requested. Variations will be charged for on the basis of Noordeman’s quotation, and will be detailed in writing, and shown as variations on Noordeman’s invoice. The Customer shall be required to respond to any variation submitted by Noordeman within ten (10) working days. Failure to do so will entitle Noordeman to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

At Noordeman’s sole discretion, a non-refundable deposit may be required.

Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Noordeman, which may be:

• on delivery of the Goods;
• for approved Customers, due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
• the date specified on any invoice or other form as being the date for payment;
• or failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Noordeman.

Payment may be made by cash, cheque, bank cheque, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Noordeman.

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 Noordeman nor to withhold payment of any invoice because part of that invoice is in dispute.

Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Noordeman an amount equal to any GST Noordeman must pay for any supply by Noordeman under this or any other contract 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.

On-Line Ordering

The Customer acknowledges and agrees that:

• Noordeman does not guarantee the website’s performance;
• display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by Noordeman on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
• there are inherent hazards in electronic distribution, and as such Noordeman cannot warrant against delays or errors in transmitting data between the Customer and Noordeman including orders, and you agree that to the maximum extent permitted by law, Noordeman will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
• when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences;
• if the Customer is not the cardholder for any credit card being used to pay for the Goods, Noordeman shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
• Noordeman reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of Noordeman’s business, or violated these terms and conditions.

Delivery of Goods

Delivery (“Delivery”) of the Goods is taken to occur at the time that:

• the Customer or the Customer’s nominated carrier takes possession of the Goods at Noordeman’s address;
• or Noordeman (or Noordeman’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

At Noordeman’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

Noordeman 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.

Any time specified by Noordeman 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. Noordeman 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 Noordeman shall be entitled to charge a reasonable fee for redelivery and/or storage.

Risk

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.

If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Noordeman is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Noordeman is sufficient evidence of Noordeman’s rights to receive the insurance proceeds without the need for any person dealing with Noordeman to make further enquiries.

If the Customer requests Noordeman to leave Goods outside Noordeman’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.

Specifications

The Customer acknowledges that:

• all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Noordeman’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Noordeman;
• while Noordeman may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges that Noordeman has given these in good faith, and are estimates based on industry prescribed estimates.

The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

Title

Noordeman and the Customer agree that ownership of the Goods shall not pass until:

• the Customer has paid Noordeman all amounts owing to Noordeman;
• and the Customer has met all of its other obligations to Noordeman.
• Receipt by Noordeman 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.
• It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 1:
• the Customer is only a bailee of the Goods and must return the Goods to Noordeman on request.
• the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Noordeman and must pay to Noordeman the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
• 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 Noordeman and must pay or deliver the proceeds to Noordeman on demand.
• 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 Noordeman and must sell, dispose of or return the resulting product to Noordeman as it so directs.
• the Customer irrevocably authorises Noordeman to enter any premises where Noordeman believes the Goods are kept and recover possession of the Goods.

Noordeman may recover possession of any Goods in transit whether or not delivery has occurred.
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 Noordeman.

Noordeman may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.