To apply for a credit account with Peak Lubricants, we will ask for the following information to be provided:

Your ABN and/or ACN · The Director’s / Public Officer’s / Owner’s information, which may include their date of birth and private address · The business accounts payable contact details including their email address · The name and contact details of three businesses who will provide a trade reference.

If you require any assistance with your application, please contact our accounts department on 03 9799 0977 Please click here or the apply now button to start the application process.

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1. GENERAL

Any contract (a Contract) formed upon the acceptance by Peak Lubricants Pty Ltd (ABN 74 887 510 101) (Peak) of an order for any goods placed by the customer whose name and details appear as the Account/Customer, will incorporate the terms and conditions of this agreement even if any inconsistencies are introduced in the Customer’s order or Peak’s acceptance unless expressly agreed to by Peak in writing.

2. TERM

(a) The rights and obligations under this agreement commence on the Commencement Date defined as the date upon which the Customer signs this Application). Those rights and obligations will terminate on the date of termination under clause 10, or in accordance with sub-clause (b) below.

(b) On the Rollover Date, and on each subsequent anniversary of the Rollover Date during the continuance of this agreement, this agreement will be automatically renewed for a further period of one year, unless either Peak or the Customer gives to the other party at least 1 month’s prior written notice that it will not renew this agreement on and from the Rollover Date.

3. MINIMUM PURCHASE ORDER

If a Minimum Purchase Order amount is specified in a separate Supply and Equipment Agreement, the Customer must:

(a) purchase the specified Minimum Purchase Order amount of stock in each calendar year during this continuance of this agreement (or a pro rata amount for any period which is less than a full calendar year); or

(b) pay to Peak the difference between the Minimum Purchase Order amount and the amount of stock actually ordered by the Customer during that calendar year (or a pro-rata amount for any period which is less than a full calendar year).

4. PRICES AND QUOTATIONS

Prices quoted are based on Peak’s estimated costs of supply at the time of quotation and may be altered without notice to the Customer if there is any increase in Peak’s costs between the date of quotation and the date of delivery. Unless Peak agrees otherwise in writing, all goods will be charged at the prices prevailing at the date of delivery plus any applicable goods and services tax (GST) which must be paid to Peak by the Customer when payment for the Goods is due.

5. PAYMENT AND INTEREST

Payment must be made in cash without deduction immediately on delivery of the goods, or, if the Customer has established a standard credit account with Peak, within 21 days after the end of the month in which the goods are delivered. Peak reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery if, at any time, the creditworthiness of the Customer is, in Peak’s opinion, unsatisfactory. Without prejudice to any other rights or remedies of Peak, if any payment is not made on the due date, the Customer will be in default and Peak reserves the right to require the Customer to pay to Peak, on-demand, by way of liquidated damages, interest at the rate fixed under section 2(1) of the Penalty Interest Rates Act 1983 (Vic) from time to time on the amount outstanding, calculated daily and capitalised monthly, from the due date for payment until payment is made in full, and all expenses including Legal Costs incurred in the recovery of the debt.

6. DESCRIPTION AND SALE BY SAMPLE

Any description of the Goods is given by way of identification only and the use of that description does not constitute a sale by description. No sale made under this Agreement constitutes a sale by sample.

7. IMPLIED TERMS AND LIABILITY

All conditions, guarantees and warranties expressed or implied by statute, the common law, equity, trade, custom, usage or otherwise are expressly excluded to the maximum extent permitted by law. So far as the law permits, the liability of Peak for a breach of a condition or warranty that cannot be excluded is limited, at Peak’s option, to:

(a) the replacement of the goods;

(b) the supply of equivalent goods; or

The Customer agrees to release, hold harmless and indemnify Peak to the maximum extent permitted by law from and against any liability whatsoever and howsoever arising (including from negligence or willful misconduct on the part of Peak or others) in connection with the supply of goods by Peak. The Customer acknowledges that neither Peak nor any person purporting to act on its behalf has made any representation or given any promise or undertaking that is not expressly set out in writing, whether as to the fitness of the goods for any particular purpose or any other matter. Peak acknowledges that under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010 (CCA)), certain statutory guarantees and warranties may be implied into this agreement and cannot be excluded by law (Non-Excluded Guarantees). If this agreement is a consumer contract for the purposes of the CCA then, notwithstanding anything to the contrary in this agreement: you are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage; and you are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Peak acknowledges that nothing in this agreement purports to modify or exclude the Non-Excluded Guarantees. The warranties given in this Agreement are given by Peak Lubricants Pty Ltd (ABN 74 887 510 101), of the above address and telephone number. So far as the law permits, and subject to the CCA where the agreement constitutes a consumer agreement, Peak is not liable in any way for any indirect or consequential loss or loss of profit including any loss by reason of delay, defect or negligence or any act or matter or thing done, permitted or omitted by Peak.

8. DELIVERY

The goods will be delivered at the Customer’s premises within the Melbourne metropolitan area at Peak’s cost and expense, and otherwise as agreed between Peak and the Customer. Goods dispatched by Peak will be at the Customer’s risk and Peak is under no obligation to insure the goods while in transit. Any time quoted for delivery is an estimate only. The Customer is not relieved of any obligation to accept or pay for goods because of any delay in delivery. Peak is not liable for any failure to deliver or delay in delivery for any reason including force majeure. If Peak determines that it is or may be unable to deliver within a reasonable time or at all Peak may cancel the relevant Contract.

If a Contract is so cancelled, the Customer will have no claim against Peak for any damage, loss, cost or expense. Peak reserves the right to deliver by instalments and each instalment will be taken to be sold under a separate contract. Failure of Peak to deliver any instalment will not entitle the Customer to cancel the balance of the order. If the Customer defaults in payment for any instalment, Peak may elect to treat the default as a breach of contract relating to each other instalment. The Customer must notify Peak immediately of any defect in the goods of which it becomes aware after delivery and will take all reasonable steps to mitigate loss (if any) arising as a consequence of the defect.

Any claim by the Customer for short or wrongful delivery of the goods must be notified to Peak in writing within 7 days after delivery of the goods. Any such claim that the Customer does not notify within that time (time being of the essence) will be taken to have been absolutely waived.

9. RISK AND PROPERTY

(a) Risk of loss of, and damage to, the goods passes to the Customer on dispatch from Peak’s premises. The Customer will insure the goods until subsequently sold.

(b) Property in, and ownership of, the goods will not pass from Peak to the Customer until all monies owing to Peak on any account whatsoever have been paid in full and in cleared funds to Peak.

(c) Until property passes to the Customer:

(i) the Customer will hold the goods as fiduciary and bailee for Peak and the Customer hereby accepts this appointment;

(ii) the goods must be stored separately and in a manner to enable them to be identified;

(iii) unless otherwise notified in writing by Peak and subject to paragraph (e) the Customer is authorised to sell the goods in the ordinary course of the Customer’s business; and

(iv) the proceeds of sale of goods sold by the Customer are to be held in a separate bank account on trust for Peak, are not the be mixed with any other monies and the Customer will promptly account to Peak those proceeds notwithstanding that Peak may have at any time granted any credit facility and/or time to pay.

(d) Until all amounts owed by the Customer to Peak are fully paid, Peak (and any authorised person) may enter the premises where the goods are located without liability for trespass or any resulting damage, retake possession of the goods and keep or resell those goods. The Customer shall be liable for the payment of all costs, charges and expenses incurred by Peak on a full indemnity basis (including legal costs, repossession costs and costs of any mercantile agent) of any attempt made by or on behalf of Peak to recover payment of monies owing by the Customer to Peak or to protect or enforce the rights of Peak in relation to the goods provided by Peak to the Customer on credit.

(e) The Customer’s right to hold and sell the goods will immediately cease if, being a company, an administrator or a controller within the meaning of section 9 of the Corporations Act or similar officer is appointed to all or any assets or undertaking of the Customer or an order is made or resolution passed for the winding up of the Customer or the Customer is deregistered or, being an individual, the Customer commits an act of bankruptcy or makes a composition with or assignment of his or her property in favour of creditors.

In any such case, and without the need for notice or demand by Peak, the Customer acknowledges any sale or purported sale of the goods will not be in the ordinary course of the Customer’s business and the proceeds of any goods sold in such circumstances will be held in a separate bank account on trust for Peak by the administrator, controller, trustee in bankruptcy or similar officer as the case may be, or if there is no such officer, by the Customer.

(f ) The Customer agrees that goods will be deemed at all times to be dealt with by the Customer on a “first in first out” basis for the purpose of all transactions between the Customer and Peak.

(g) If the Customer uses products in any packaging, fabrication or manufacturing process, the Customer agrees to hold such part of the proceeds of the sale of finished articles which equates to the invoiced price for the goods used, upon trust for Peak as bailee and fiduciary agent of Peak until payment in full for those goods and of all monies owed to Peak.

10. PPSA

(a) For the purposes of this clause 10, the following definitions shall apply:

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

(ii) “PPSR” means the Personal Property Securities Register established pursuant to the PPSA;

(iii) “Secured Property” means all goods that are supplied to the Customer by Peak (whether now or in the future); and

(iv) “Security Interest” means an interest in personal property provided for by a transaction that, in substance, secures payment of money or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property), and also includes a transaction which the PPSA treats as a security interest whether or not the transaction concerned, in substance, secures payment or performance of an obligation.

(b) The Customer acknowledges that pursuant to this agreement they grant to Peak a Security Interest in the Secured Property and, for avoidance of doubt, the proceeds of sale of the Secured Property for the purposes of the PPSA.

(c) The Customer consents to Peak effecting a registration on the PPSR (in any manner Peak considers appropriate) in relation to the Security Interest arising under or in connection with this agreement and the Customer agrees to provide all assistance required by Peak to facilitate this.

(d) The Customer acknowledges and agrees that in relation to the part of the Secured Property that is inventory, the Customer will not allow any Security Interest to arise in respect of that Secured Property unless Peak has perfected its Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.

(e) If Chapter 4 of the PPSA applies to the enforcement of the Security Interest arising under or in connection with this agreement, the Customer agrees:

(i) to the extent that section 115(1) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 95 to the extent that it requires Peak to give a notice to the Customer, section 96, section 121(4), section 125 (obligation to dispose of or retain collateral), section 130 to the extent that it requires the Secured Party to give notice to the Customer, paragraph 132(3)(d), subsection 132(4), section 142 and section 143 (reinstatement of security agreement); and

(ii) to the extent that section 115(7) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 127, section 129(2) and (3), section 132, section 134(2), section 135, section 136(3), (4) and (5) and section 137.

(f ) If the Customer makes payment to Peak at any time whether in connection with this agreement or otherwise, Peak may, at its absolute discretion, apply that payment in any manner it sees fit.

(g) The Customer agrees to immediately notify Peak of any changes to its name or address (as specified in this agreement).

(h) The Customer agrees to do anything Peak requests the Customer to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) to:

(i) provide more effective security over the Secured Property;

(ii) register in respect of a Security Interest constituted by this agreement at any time;

(iii) enable Peak to exercise its rights in connection with the Secured Property; and

(iv) show Peak whether the Customer has complied with this agreement.

(i) The Customer shall pay on demand any losses arising from, and any costs and expenses incurred in connection with, any action taken by Peak under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA.

(j) Any notices or documents which are required or permitted to be given to Peak for the purposes of the PPSA must be given in accordance with the PPSA.

(k) The customer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

11. TERMINATION

(a) (Insolvency) If the Customer, being a company, has an administrator or a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to all or any of its assets or undertaking or an order is made or resolution passed for its winding up or it is deregistered or, being an individual, commits an act of bankruptcy or makes a composition with or assignment of his or her property in favour of creditors, Peak may, at its option, suspend its obligations under, or terminate, any Contract without prejudice to any rights it may have under that or any other contract. Nothing in this clause 10 in any way limits or affects Peak’s rights to terminate a Contract or any other contract in other circumstances in which it is entitled to do so.

(b) (Material Breach) If one party commits a material breach of the terms of this document and fails to remedy that breach within 10 Business Days from the date of the giving of written notice to remedy the breach by the other party, that other party may terminate this agreement upon immediate written notice.

12. UNUSED STOCK

When this agreement is terminated (for any reason whatsoever) the Customer must immediately purchase from Peak all products in Peak’s possession that are specifically labelled or branded for the Customer, as well as any unused labels or other packaging that is specifically branded or which has been ordered by Peak from any third party for the Customer. The purchase price for the products, labels, and/or packaging will be determined in accordance with clause 4 or (in the case of unused labels and/or packaging) at cost price plus any applicable GST. In addition, the Customer must immediately reimburse any costs and expenses incurred by Peak in setting up to label or brand goods specifically for the Customer such as printing/printer’s plates, unused label inventories, printer’s fees and charges, and special packaging and so on.

13. MISCELLANEOUS

(a) (Assignment) Peak may at any time in its discretion and without the consent of the Customer or any other person assign the benefit of this agreement and any Contract to any person or entity that may acquire Peak’s business and/or assets. If it does so, all references to Peak (including in clause 1) will be taken to be a reference to the assignee. The Customer may not assign the benefit of this agreement without the prior written consent of Peak.

(b) (Subcontracting) Peak reserves the right to subcontract the supply of all or any part of the goods to be supplied.

(c) (Amendment) Peak reserves the right to amend or vary this agreement at any time. An amendment or variation by Peak becomes valid and binding on Peak giving the Customer 30 days’ notice of the amendment or variation.

(d) (Notices) Any notice to be given by the Customer to Peak must be sent by prepaid mail to Peak’s address and will be taken to have been given only after it is actually received at Peak’s address.

(e) (Waiver) Failure by Peak to insist on strict performance of any term of a Contract or any other contract will not be taken as a waiver of it or of any rights Peak may have and no waiver will be taken as a waiver of any subsequent breach.

(f ) (Governing law) Contracts and this agreement are governed by and will be construed in accordance with the laws of Victoria in the Commonwealth of Australia.

(g) (Invalidity) Any provision of this agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

(h) (No obligation to sell) For the avoidance of doubt, Peak is not under any obligation to sell goods to the Customer other than any Minimum Purchase Order amount set out above. An offer to purchase is made by the Customer when the Customer places an order to purchase Peak’s goods, and Peak is not obliged to accept any offer made by the Customer which exceeds the Minimum Purchase Order amount in any calendar year.

DISCLAIMER

All of our product recommendations are based on equipment manufacturers’ recommendations for new equipment. They do not consider age, condition, service pattern use or operational and environmental circumstances of equipment. Peak Lubricants Pty Ltd (“Peak”) provides information to customers in good faith and to the best of its knowledge, as general guidance only. Product users should make their own specific enquiries with the relevant equipment manufacturer or an appropriately qualified person to ensure products meet the particular needs of the equipment.

Our products are supplied in sealed and labelled packaging. If you receive a product from Peak that is damaged, opened or the label is missing or illegible, you must not use the contents and immediately contact Peak Technical support on 1300 722 256 or technical@peakoil.com.au for further advice.

To the fullest extent provided by law, Peak does not provide any warranties as to the accuracy or completeness of the information provided. Peak will not be liable for any loss, damage or injury arising from reliance on information provided.

Refill capacities where quoted are approximate only. In all cases, when refilling equipment with lubricants, always use the manufacturer’s handbook for instructions and use the dipstick or level plug as a final check.