TERMS AND CONDITIONS
“Seller” and “Supplier” means Vivaquip Pty Ltd T/As FastAid ABN 88 621 252 319 and its related bodies corporate (as that term is defined in the Corporations Act 2001) and includes their successors and assigns except where the context requires otherwise. “Customer” means the Customer whose order for the purchase of goods is accepted by the Seller. “Customer” includes a buyer that has not dealt with the Supplier previously.
These Terms and Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of goods by the Supplier to the Customer from time to time. Any supply of goods by the Supplier to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by the Supplier (‘Agreement’) and any such supply does not give rise to a new or separate agreement.
- Cash prior to the goods leaving the Seller’s warehouse unless the Customer shall have made some other arrangement with the Supplier. If the Supplier shall have granted to the Customer credit facilities, the terms of payment are strictly thirty (30) days (or such other period as nominated by the Supplier herein) from the date of statement and payment is due and payable on that date. Vivaquip Pty Ltd T/As FastAid ABN 88 621 252 319 and its related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, upon the provision of 48 hours written notice to the Applicant vary the terms and conditions of trade.
- If the Customer does not agree with the variations proposed by the Supplier, they must notify the Supplier in writing within fourteen (14) days from receipt of the written notice that the variations are not agreed to. The Supplier and/or the Customer will then be at liberty to suspend/withdraw credit facilities if no agreement can be reached between the parties regarding the proposed variations. Absent notice from the Customer, the varied terms and conditions of trade may be deemed accepted. Clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction without notification.
- The Customer must check all invoices and advise the Supplier of any errors or omissions within seven (7) days of receipt. Failing advice from the Customer that the invoice contains any errors or omissions, the invoice may be deemed accepted by the Supplier.
- Should the Customer not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier and Customer from time to time after issuing a written demand to the Customer demanding payment within fourteen (14) days, the Supplier shall be entitled to charge an administration fee of 10 percent of the amount of the invoice payable.
Prices and GST
- Prices are subject to change without notice.
- To the extent that any supply made by the Supplier is a Taxable Supply, the original amount will be increased by the rate of GST payable by us in respect of that Taxable Supply. The Supplier will issue a tax invoice to the Customer in respect of the taxable supply before the due date for payment. “GST’, “tax invoice” and “taxable supply” each have a meaning given to them by section 195-1 of a New Tax System (Goods and Services Tax) Act 1999.
Delivery and Returns
- Where Customer nominates a delivery address other than the address of the Customer, Customer acknowledges that it remains liable for payment for all goods supplied.
- The Customer must notify the Supplier within seven (7) days of the date of delivery of goods of any claim, loss or expense in relation to the goods. If the Customer fails to do this, then the Supplier will not, to the extent that the law enables them, be liable for any claim, loss or expense the Customer seek to recover from the Supplier.
- In the event any good supplied by the Supplier are deemed defective, the Supplier will not be liable for any consequential loss arising out of the defect and where permitted by law the Supplier’s liability to the Customer will be limited to resupplying the goods to the Customer or the cost of supplying the goods to the Customer.
- The Supplier will not accept return of goods unless the Supplier has authorised the return in writing. Any goods that the Customer returns for credit will only be accepted by the Supplier if they are in the original packaging, in pristine order and condition, to be determined in the Supplier’s absolute discretion.
- The Customer acknowledges and agrees that this Agreement shall be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
- The Customer acknowledges and agrees that this Agreement for the supply of goods or services between the Supplier and the Customer is formed at the address of the Supplier.
- The parties to this Agreement submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
- The Customer charges in favour of the Supplier all of its estate and interest in any real property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
- The Customer charges in favour of the Supplier all of its estate and interest in any personal property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged including its interest in the goods and in the proceeds of sale of any of the goods..
- The Customer appoints as its duly constituted attorney each company director and/or secretary of the Supplier from time to time to execute in the Customer's name and as the Customer's act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder, upon written notice and demand to the Customer (in the event that there is no default by the Customer in carrying out its obligations hereunder).
- Where the Customer has previously entered into an agreement with the Supplier by which the Customer has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this Agreement and will secure all indebtedness and obligations of the Customer under this Agreement. The Supplier may, at its election and upon the provision of written notice, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Purpose of credit
- The Customer acknowledges and agrees that the credit to be provided to the Customer by the Supplier is to be applied wholly or predominantly for commercial purposes.
Formation of contract
- Quotations made by the Supplier shall not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it upon provision of written reasons to the Customer. Only written acceptance by the Supplier of the Customer’s offer shall incorporate each such offer into this Agreement.
- Placement of an order, either verbally or in writing, shall imply acceptance of the Supplier’s offer and of these terms and conditions.
Retention of title
- Title in the goods does not pass to the Customer until the Customer has made payment in full for the goods and, further, until the Customer has made payment in full of all the other money owing by the Customer to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
- Whilst the Customer remains indebted to the Supplier, the Customer agrees that property and title in the goods shall not pass to the Customer and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.
- Until payment in full of all amounts outstanding has been made to the Supplier, the Customer will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and shall not mix the goods with other similar goods.
- The Customer shall be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Supplier, the Customer shall sell as agent and bailee for the Supplier and the proceeds of sale of the goods shall be held by the Customer on trust for the Supplier absolutely.
- The Customer’s indebtedness to the Supplier, whether in full or in part, shall not be discharged by the operation of clause 24 hereof unless and until the funds held on trust are remitted to the Supplier.
- The Customer agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with prior notice to the Customer, to enter upon any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) or any premises upon which the goods owned by the Supplier are stored or reasonably thought to be stored, to inspect the goods of the Supplier and to repossess the goods which may be in the Customer’s possession, custody or control when payment is overdue and to enter onto such premises which the Customer’s business records are stored, or are reasonably thought to be stored to inspect and copy these records.
- The Customer will be responsible for the Supplier’s reasonable costs and expenses in exercising its rights under clause 26. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Supplier, its employees, servants or agents.
- The Customer agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Customer on those goods, and the Customer hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Customer.
- For the avoidance of doubt, the Supplier’s interest in the goods constitutes a ‘purchase money security interest’ pursuant to the PPSA and the Supplier’s interest in the proceeds of sale of any goods constitutes an interest in those proceeds as an ‘Account’.
Cancellation of terms of credit
- The Supplier reserves the right to withdraw or suspend any credit arrangements at any time.
- Upon cancellation with or without notice, all liabilities incurred by the Customer become immediately due and payable to the Supplier.
- The Customer agrees to indemnify the Supplier and keep the Supplier indemnified against any claim that arises out of the goods and services supplied under this agreement. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.
Limitation of liability
- The Customer acknowledges that they have not relied upon any representation or warranty made by or on behalf of the Supplier in relation to the products we supply, except if made in writing by an authorised representative of the Supplier. Subject to the warranties implied by statute, it is the Customer’s responsibility to ensure that the products are sufficient and suitable for their purpose.
Provision of further information
- The Customer undertakes to comply with any reasonable written requests by the Supplier to provide further information or any consent under the Privacy Act 1988 (Cth) (as amended) for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.
- If the Customer is a corporation (with the exception of a publicly listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity and the Supplier may in its absolute discretion refuse to sell or supply goods or services until such guarantee and indemnity is signed.
- If the Customer is a corporation, the Customer warrants that all of its directors have signed this agreement and that all of its directors may be required to enter into a guarantee and indemnity with the Supplier in relation to the Customer's obligations to the Supplier.
If the Customer is the trustee of a trust (whether disclosed to the Supplier or not), the Customer warrants to the Supplier that:
- the Customer enters into this agreement and places orders for goods and services in both its capacity as trustee and in its personal capacity;
- the Customer has the right to be indemnified out of trust assets;
- the Customer has the power under the trust deed to sign this agreement and order goods and services from the Supplier; and
- the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
- The Customer must give the Supplier a copy of the trust deed upon request.
- If the Customer is the trustee of a trust (whether disclosed to the Supplier or not), the Customer warrants to the Supplier that:
- If the Customer enters into this agreement as partners, the Customer warrants that all of the partners have signed this agreement and that all of the partners may be required to enter into a guarantee and indemnity with the Supplier in relation to the Customer's obligations to the Supplier.
- If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
- If the Customer becomes insolvent, the Customer remains liable under this agreement for payment of all liabilities incurred hereunder. The Customer remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Customer being insolvent.
- A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Customer must be made by the Customer's authorised officer in writing.
Until ownership of the goods passes, the Customer waives its rights it would otherwise have under the PPSA (unless otherwise agreed to in writing by the Supplier and the Customer):
- under section 95 to receive notice of intention to remove an accession;
- under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law;
- under section 121(4) to receive a notice of enforcement action against liquid assets;
- under section 129 to receive a notice of disposal of goods by the Supplier purchasing the goods;
- under section 130 to receive a notice to dispose of goods;
- under section 132(2) to receive a statement of account following disposal of goods;
- under section 132(4) to receive a statement of account if no disposal of goods for each 6 month period;
- under section 135 to receive notice of any proposal of the Supplier to retain goods;
- under section 137(2) to object to any proposal of the Supplier to retain or dispose of goods;
- under section 142 to redeem the goods;
- under section 143 to reinstate the security agreement; and
- under section 157(1) and 157(3) to receive a notice of any verification statement.
- The Customer must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Customer under this agreement. The Customer must also pay for all stamp duty and other taxes payable on this agreement (if any).
- The Customer will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis.
The Customer acknowledges and agrees that payments by the Customer will be applied by the Supplier as follows.
- Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 27 and 45.
- Secondly, in payment of any interest incurred in accordance with clause 52.
- Thirdly, in payment of the outstanding invoice(s).
- In circumstances where the Supplier seeks to enforce a purchase money security interest under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Customer will be allocated in a manner at the Suppliers absolute and unfettered discretion, so as to attribute, to the greatest extent possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which the Supplier seeks to enforce its purchase money security interest.
- To the extent that payments have been allocated to invoices by the Supplier in its business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Supplier’s absolute discretion, including in a manner inconsistent with clause 46 herein.
- Payments allocated (and/or reallocated) under clause 46 and/or 47 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.
Taxes and duty
- The Customer must pay GST on any taxable supply made by the Supplier to the Customer under this agreement. The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply.
If as a result of:
- any legislation becoming applicable to the subject matter of this agreement; or/li>
- any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;/li>
- The interest rate on any outstanding debts is a fixed rate of 10 percent per annum.
- All payments required to be made by the Customer under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding, unless agreed to otherwise by the Supplier and the Customer in writing. Any reasonable requests to set-off or withhold amounts outstanding, will be considered by the Supplier.
- Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Customer by the Supplier.
- The Supplier is not liable for any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier's control.
In relation to the supply of goods, and to the extent permissible at law, the Supplier’s liability is limited to:
- replacing the goods or supplying similar goods;
- repairing the goods;
- providing the cost for replacing the goods or for acquiring equivalent goods; and
- providing the cost for having the goods repaired.
In relation to the supply of services, and to the extent permissible at law, the Supplier’s liability is limited to:
- supplying the service again; or
- providing for the cost of having the services supplied again.
- The Supplier is not liable for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer as a result of the goods and/or services supplied under this agreement.
- The Customer will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Customer under the PPSA.
- The Customer agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Customer or the Customer’s authorised representative.
- The Customer further agrees that where we have rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
- The Customer irrevocably grants to the Supplier the right to enter upon the Customer’s property or premises, with notice, and without being in any way liable to the Customer or to any third party, if the Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and the Customer shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
- Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
- While the Customer does not own the products until they have paid the Supplier for them in full, the Customer accepts all risk of loss and damage to the products from the time they are delivered to the Customer. Until the Customer has paid the Supplier for the products the Customer are required to keep them insured against any loss from that time. Loss of or damage of the products after the risk has passed to Customer does not discharge the Customer from their obligations to pay for the products.
- If the Customer breaches any of these terms, then all monies due to the Supplier by the Customer shall immediately become due and payable and in addition the Supplier reserves the right to enter the Customer’s premises to retake possession of the Supplier’s products to the equivalent of outstanding monies owed and/or recover balance of any monies owing by the Customer without prior notice to the Customer.
- Where the Supplier takes possession of products, the Supplier is entitled to sell the products and recover from the Customer the amount outstanding less the amount for which the products were sold.
- Where any cheque the Customer pays to the Supplier is dishonoured then the Customer will pay the Supplier any fees incurred as a result or consequence of that cheque being dishonoured.
- The Customer agrees that if they transfer the business to any person the Customer will provide the Supplier notice of the transfer. If the Customer fails to do this they will indemnify the Supplier in respect of any failure by a person to whom the business is subsequently transferred to pay for goods order. The indemnity will not apply to any goods order after the date the Customer notifies the Supplier of the transfer.
- If the whole or any part of a provision of these terms and conditions is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction. The remainder of these terms and conditions have full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
- The Customer agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Customer. The Customer will be provided with fourteen (14) days to accept the variation/s, failing which the variations may be deemed accepted by the Supplier.
- Any proposed variation to these terms and conditions by the Customer must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
- Variations requested by the Customer will only be binding upon the Supplier if they are accepted in writing.
Termination by Customer
- The Supplier may terminate this Agreement at any time by providing four (4) weeks written notice to the Customer.
Without prejudice to any other rights the Supplier may have under these Terms or at law, the Supplier may terminate the obligations of the Supplier under this Agreement immediately by notice in writing to the Customer if:
- the Customer is in breach of any obligation on the part of the Customer under this Agreement and such breach is not remedied by the Customer within five (5) business days after service by the Supplier on the Customer of a written notice to rectify the breach;
- the Customer becomes insolvent; or
- an administrator, receiver or receiver and manager is appointed in respect of the Customer or any asset of the Customer.
- For the avoidance of doubt, upon termination of this Agreement, all amounts owing by the Customer to the Supplier under this Agreement are immediately payable by the Customer to the Supplier.
Consent to register
- The Customer hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
- The Customer waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
- This Agreement constitutes the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by the Supplier and the Customer in writing. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
- Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Customer and the Supplier, these Terms and this Agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these Terms will prevail.
- The Customer agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in this document.
- This privacy statement encompasses consents, notifications and disclosures under or in relation to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012) (Act).
- The terms of this statement operate concurrently with any pre-existing privacy statement, authorisation or notification, whether contained in our credit application, terms and conditions of trade or otherwise, save to the extent of any inconsistency in which case the terms of this privacy statement shall prevail.
- For the purpose of this statement, the terms “personal information”, “sensitive information”, “credit eligibility information”, “credit information”, “commercial credit purpose”, “credit guarantee purpose”, “consumer credit purpose”, “credit reporting body”, “credit provider”, “credit reporting information”, “credit reporting code” carry the same meaning as under the Act and the term “Information” means personal information, sensitive information, credit eligibility information, credit reporting information and credit information, both severally and collectively.
- The Supplier may collect personal information about the Customer and/or Guarantor(s) for the Supplier’s primary purposes which include the assessment of a credit application, reviewing existing credit terms, assessing credit worthiness, collecting overdue payments, assessing credit guarantees (current and prospective), internal management purposes, marketing, sales and business development purposes and direct marketing.
- The Customer and/or Guarantor(s) consent to the Supplier collecting, using and disclosing personal information (including sensitive information) for both their primary purposes specified herein and purposes other than the primary purposes, including the purpose of direct marketing.
- The Supplier may collect, and may already have collected, Information from the Customer and/or Guarantor(s), other credit providers, credit reporting bodies and other third parties for the purposes of its functions and activities including, but not limited to, credit, sales, marketing and administration. If the Information was not collected by the Supplier it may restrict or impede upon the Supplier trading with, extending credit to, continuing to extend credit to or extending further credit to the Customer and/or Guarantor(s)or their related bodies corporate.
- The Customer and/or Guarantor(s) consent to the Supplier obtaining and making disclosure of Information about the Customer and/or Guarantor(s) from and to a credit reporting body and/or another credit provider for a commercial credit related purpose and/or a credit guarantee purpose and/or a consumer credit purpose and/or another related purpose. The Supplier notifies the Customer and/or Guarantor(s) that it may use and/or disclose credit eligibility information under section 21G of the Act.
The Supplier may provide personal information about the Customer and/or Guarantor(s) to any or all of the credit reporting bodies nominated below. The Supplier intends to disclose default information to any or all of the credit reporting bodies listed below. The Customer and/or Guarantor(s) consent to such disclosure. The Supplier’s credit reporting policy contains a statement of notifiable matters in accordance with s21C of the Act and items 4.1 and 4.2 of the Credit Reporting Code in respect of disclosure to credit reporting bodies including what the information may be used for, what the Supplier may disclose and the Customer’s and/or Guarantor(s)’ right to request limitations to the use of their information.
Level 15, 100 Arthur Street
NORTH SYDNEY NSW 2060
Tel: 1300 921 621
Level 13, 109 Pitt Street
SYDNEY NSW 2000
Tel: 1300 501 312
165 Grenfell St
ADELAIDE SA 5000
Tel: 1800 882 820
Dun & Bradstreet
Level 2, 143 Coronation Drive
MILTON QLD 4064
Tel: 07 3360 0600
Level 6, 549 St Kilda Road
MELBOURNE VIC 3004
Tel: 03 9699 0100
- The Supplier may disclose Information to, and about them and the Customer and/or Guarantor(s) hereby acknowledge that they consent to the disclosure of such information to the Supplier’s employees, subsidiaries, employees, agents and related bodies corporate, past, present or prospective credit providers of the Customer and/or Guarantor(s) or their related bodies corporate, including for the purpose of that person considering whether to offer to act as guarantor or offer security for that credit.
- By reason of the Customer’s and/or Guarantor(s)’ consent to the disclosure to overseas recipients hereunder, APP 8.1 will not apply to the Supplier’s dealing with the Customer’s and/or Guarantor(s)’ Information.
- The Customer and/or Guarantor(s) will be deemed to have acknowledged and accepted the terms of this privacy statement by either signing and returning this statement, failing to provide written notification to the Supplier within 14 days of receipt of this statement that its terms are not accepted, continuing to trade with the Supplier after receipt of this Statement or, if the Customer and/or Guarantor(s) are directors or guarantors of a customer, by not taking steps to prevent the customer from continuing to trade with the Supplier after receipt of this statement.
DEED OF GUARANTEE & INDEMNITY
This Deed of Guarantee & Indemnity is given by the Guarantor/s in favour of Vivaquip Pty Ltd T/As FastAid ABN 88 621 252 319 and its related bodies corporate (Supplier). (Guarantors) hereby covenant and undertake and if more than one, jointly and severally, as follows.
The Guarantors acknowledge and agree that this Guarantee and Indemnity is governed by
the laws of New South Wales, and the laws of the Commonwealth of Australia which are
in force in New South Wales.
The parties to this Guarantee and Indemnity submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
- In consideration of the Supplier extending or agreeing to extend credit or further credit to the Customer at the Guarantors' request (testified by the Guarantors' execution of this Agreement) for goods sold or to be sold from time to time, the Guarantors guarantee payment to the Supplier of all money which is now or at any time in the future becomes due and payable to the Supplier by the Customer on any account or accounts whether now existing or which may in the future be opened or in any manner whatsoever, including but not limited to amounts payable by the Customer to the Supplier arising out of a relationship of trustee and beneficiary.
Guarantee and indemnity
- The Guarantors agree to guarantee and indemnify the Supplier against all losses damages or expenses that the Supplier may suffer as a result, either directly or indirectly, of any failure by the Customer to make due payment of any money owing to the Supplier whether for goods sold or otherwise or to observe the terms of any agreement between the Customer and the Supplier, including costs on an indemnity basis of any attempt or attempts to recover from the Customer or any Guarantor and whether successful or not or whether frustrated by the Customer or Guarantor or by operation of law and including costs ordered by a Court to be paid by the Supplier to the Customer or to any Guarantor including the costs of lodging and withdrawing caveats and/or obtaining injunctions and enforcing any security over real and personal property given to the Supplier.
- This Guarantee and Indemnity shall be a continuing Guarantee and Indemnity and shall not be considered as wholly or partially satisfied or discharged by any money which may at any time or times in the future be received or applied by the Supplier to the credit of any account of the Customer or the Guarantors, or deemed to be held on trust by the Customer for the Supplier, and shall be available as a Guarantee and Indemnity for the whole of the sums referred to in clauses 3 and 4 of this guarantee and indemnity.
- Where two or more persons execute this Guarantee and indemnify the guarantees, covenants and obligations in this Guarantee and Indemnity given or undertaken by the Guarantors shall be deemed to bind the Guarantors jointly and each of the Guarantors severally and the Supplier shall be entitled to seek payment in full from any one or more of the Guarantors without seeking payment from the other Guarantors.
- The Supplier shall have the right to proceed against the Guarantors under the Guarantee and Indemnity, irrespective of default of the Customer to pay and with or without notice to the Customer, as if the primary liability for any money owing was the Guarantors' own. Further the Suppliers shall have the right to proceed against the Guarantors notwithstanding any other rights it may have in relation to the recovery of the amounts hereby guaranteed.
- This Guarantee and Indemnity shall continue in force until such time as the Supplier releases the Guarantors in writing, and notwithstanding the fact that the Guarantors are no longer directors, shareholders or owners of the Customer.
This Guarantee and Indemnity is without prejudice to and shall not be affected by nor shall
the rights or remedies of the Supplier against the Guarantors or any of the Guarantors be in
any way prejudiced or affected by:
- any other security taken by the Supplier from the Customer or from any other person;
- any waiver or indulgence, whether as to time or otherwise, given to the Customer or to the Guarantors or any one or more of the Guarantors;
- by any other act, matter or thing which under the law relating to sureties would or might but for this provision release the Guarantors or any of the Guarantors from all or any part of the Guarantors obligations contained in this Guarantee and Indemnity;
- the fact that this or any other agreement between the parties is (or has been) varied, renewed or replaced at any time;
- any change in the membership of any firm which the Customer or the Guarantor or in which the Customer or the Guarantor is a member or merger of that firm with any other firm;
- the assignment in whole or part of the agreements by the Customer and the Supplier with or without the consent of the Guarantor; or
- any person named in this Guarantee and Indemnity as Guarantor failing to execute this Guarantee and Indemnity or failing or ceasing to be bound by the terms of this Guarantee and Indemnity.
Right of subrogation
- In the event of the Guarantors and/or the other Guarantors making any payment in respect to an obligation of the Customer whether under a guarantee or indemnity or otherwise, the Guarantors shall not exercise any rights of subrogation against any other Guarantors or the Customer unless and until the Supplier has been paid in full.
- In the event of the Customer going into liquidation, the Guarantors shall be prohibited from proving in competition with the Customer unless and until the Supplier has been paid in full.
Insolvency of Customer
- No sum of money which the Customer pays to the Supplier and the Supplier later pays, is obliged to pay, allows in account or is obliged to allow in account to a liquidator, administrator, receiver or trustee in bankruptcy of the Customer by reason of the Corporations Act 2001, Bankruptcy Act 1966 or otherwise shall, for the purpose of this Guarantee and Indemnity, be considered as discharging or diminishing the Guarantor's liability and this Guarantee and Indemnity shall continue to apply as if the said sum(s) had at all times remained owing by the Customer.
The Supplier is at liberty from time to time to charge the account of the Customer with all
costs, charges and expenses, legal or otherwise that the Supplier incurs in connection with:
- the account of the Customer;
- this Guarantee and Indemnity;
- any other security in respect of the indebtedness of the Customer to the Supplier;
- the preparation, completion and stamping of this deed; or
- the exercise or attempted exercise of any right, power or remedy conferred on the Supplier under or by virtue of this deed; and the same shall be part of the monies secured by this deed.
- The Guarantors agree to pay the Supplier’s costs and disbursements incurred in recovering monies secured by this deed, including debt recovery agency fees and legal costs on an indemnity basis.
- The Guarantors appoint as their duly constituted attorney the Supplier's company secretary from time to time to execute in the Guarantors' names and as the Guarantors' act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Guarantors may own in any Land Titles Office in any state or territory of Australia, even though the Guarantors may not have defaulted in carrying out their obligations hereunder.
- The Guarantors authorise the Supplier to give time or any other indulgence or consideration to the Customer in respect of compliance with its obligations to the Supplier, even if giving time or any other indulgence or consideration has the effect of increasing the Guarantors’ liability under this Guarantee and Indemnity.
- The Guarantors agree that this Guarantee and Indemnity shall not be avoided, released or affected by the Supplier making any variation or alteration in the terms of its agreement(s) with the Customer, even if such variation or alteration has the effect of increasing the Guarantors’ liability under this Guarantee and Indemnity.
- If any provision of this Guarantee and Indemnity is not enforceable in accordance with its terms, other provisions which are self-sustaining are and continue to be enforceable in accordance with their terms.
- The Guarantors charge in favour of the Supplier all of their estate and interest in any real property, whether held in its own right or as capacity as trustee, that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged, such indebtedness to include all amounts referred to in clauses 3 and 4.
- The Guarantors charge in favour of the Supplier all of their estate and interest in any personal property, whether held in its own right or as capacity as trustee, that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged, such indebtedness to include all amounts referred to in clauses 3 and 4.
- This Guarantee and Indemnity secures the repayment of all monies owed by the Customer whatsoever, and this deed constitutes the entire guarantee.
- Where the Guarantor has previously entered into an agreement with the Supplier by which the Guarantor has granted a charge, mortgage or other security over real or personal property, those charges, mortgages or other security interests shall continue and co-exist with the obligations and security interests created in this Agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Personal Property Securities Act
- For the avoidance of any doubt, the security interest(s) created by this instrument in favour of the Supplier constitutes security interests pursuant to the Personal Property Securities Act 2009.
- The Guarantors waive any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
Service of notices
- The Guarantors agree to accept service of any document required to be served, including any notice under this Agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Guarantors or the Guarantors’ authorised representative.
- The Guarantors agree to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in this document.