TERMS OF SERVICE
THE PARTIES AGREE:
1.1 In this Agreement unless inconsistent with the context or subject matter:
(a) “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
(b) "Agreement" means the Schedule and these Terms of Service”;
(c) "Claim" means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss;
(d) "Client" means the Client identified in the Schedule;
(e) "Client's Address for Service" means the email address of the Client set out in the Schedule;
(f) "Credit Provider" has the meaning given in section 6G of the Privacy Act 1988 (Cth);
(g) “Equipment” means any equipment used by the Credit Provider in the provision of the Services, including any Equipment that is left at the Client’s site in connection with the Services;
(h) "Force Majeure" means an act, omission or circumstance over which the Credit Provider could not reasonably have exercised control;
(i) “Goods” means any goods supplied by the Credit Provider to the Client from time to time;
(j) "GST" has the meaning given to it in the GST Act;
(k) "GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(l) “Insolvency Event” means:
iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph i) or ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
vi) a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts
(m) "Loss" includes (without limitation) the following, whether direct or indirect, special or consequential in nature:
i) loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and
ii) to the extent not covered in the preceding subclause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales
turnover, income, reputation (or damage to it), employment, corruption or destruction of data, customers, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and
iii) anything referred to in the preceding subclauses relating to or arising out of or in connection with:
A. personal injury (including death or disease) to the Client;
B. personal injury (including death or disease) to any third party; or
C. loss of or damage to the property of the Credit Provider, the Client or any third party; and
D. a breach or non-compliance by the Credit Provider or the Client with any law;
(n) "PPSA" means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;
(o) "PPS Register" means the Personal Property Securities Register established under the PPSA;
(p) “Purchase Order” means a request for Services by the Client to the Credit Provider and which is accepted by the Credit Provider in accordance with this Agreement;
(q) "Schedule" means the schedule to this document headed "Application for Credit";
(r) "Services" means any services supplied by the Credit Provider to the Client, from time to time and includes without limitation the supply of the Goods (and the Goods themselves);
(s) "Credit Provider" means Staunch Machinery Australia ABN 46 620 312 978; and
(t) "Credit Provider's Address for Service" means email@example.com;
(u) “State” means Victoria; and
(v) "Tax Invoice" has the same meaning as in the GST Act.
1.2 In this Agreement unless inconsistent with the context or subject matter:
(a) References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.
(b) Words denoting the singular include the plural and words denoting the plural include the singular.
(c) Words denoting any gender include all genders.
(d) The word 'person' includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(e) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(f) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(g) No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
(h) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(i) A reference to time is a reference to time in the capital city of the State.
(j) A reference to a day is a reference to a day in the capital city of the State.
(k) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(l) If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
(m) A reference to an amount of dollars, Australian dollars,
$ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(n) Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(o) A reference to writing or written includes email.
(p) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. PROVISION OF SERVICES
2.1 The Credit Provider and the Client agree that the Credit Provider will provide the Services to the Client on the terms and conditions contained in this Agreement.
2.2 The Client may request the Credit Provider provide Services either through writing, verbally, SMS text message or any other method accepted by the Credit Provider (“Purchase Order”).
2.3 The Credit Provider may accept or reject a Purchase Order in its discretion. Any accepted Purchase Orders shall form part of and be governed by the terms of this Agreement.
2.4 In the event of any inconsistency between this Agreement and any Purchase Order, the terms contained in the Purchase Order will prevail to the extent of such inconsistency.
2.5 Unless otherwise agreed, all quotes provided to the Client are estimates only and are subject to change.
2.6 Purchase Orders cannot be cancelled.
3.1 The fees payable by the Client to the Credit Provider for the Services is the price:
(a) (where quote is provided) as quoted; and/or
(b) (where no quote is provided) calculated on the basis of the Credit Provider’s current rates schedule at the time the Purchase Order is accepted by the Credit Provider (unless otherwise agreed).
3.2 The Credit Provider may require the Client to pay a deposit as set out in the quote, or otherwise provided in writing. The deposit is due before commencement of work on the Services or provision of any Goods.
3.3 The Credit Provider reserves the right to vary the price of the fees payable from time to time:
(a) if there is an increase in the Credit Provider’s rate schedule;
(b) if a variation to the Services which are to be supplied is requested (which is accepted in accordance with the terms of this Agreement);
(c) upon 14 days’ written notice to the Client; and/or
(d) in the event of increases to the Credit Provider’s cost of labour or materials, or fluctuations in currency exchange rates, which are beyond the Supplier’s control.
(a) the Credit Provider will issue a Tax Invoice for the fees for Services to the Client; and
(b) the Client will pay the Credit Provider the amount stated on the Tax Invoice for the Services within the timeframe for payment stated on the invoice, or if no timeframe is stated, within 30 days of the date of the invoice.
4.3 The Client will also pay to the Credit Provider, on demand, on a full indemnity basis, all amounts that the Credit Provider may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis and any debt collection agency costs/commissions) as a result of the Client defaulting on any of the terms of this Agreement.
(a) require the Client to pay the Credit Provider interest on all outstanding monies from the due date until the date
of payment at the rate of 12% per annum accruing daily, subject to change from time to time by written notice to the Client at the absolute discretion of the Credit Provider;
(b) demand payment and all money due under this Agreement to the Credit Provider shall immediately become due and payable;
(c) refuse to supply any further part of the Services to the Client until all outstanding monies, including any accrued interest, is paid in full; or
(d) terminate this Agreement whereupon the full price for the Services then supplied, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.
4.5 The Client may not withhold payment or make any deduction from any amount owing without the Credit Provider's prior written consent, irrespective of any claim the Client may have against the Credit Provider for any thing or matter whether related to the provision of the Services or not.
4.6 The Credit Provider reserves the right to change the price of the Services it provides to the Client from time to time. Such changes shall not apply retrospectively.
5.1 The scope of the Services being provided will be as agreed upon in the Purchase Order.
5.2 If the Credit Provider determines that additional Services are required to be carried out, then the Credit Provider will make all reasonable attempts to contact the Client and stop all work associated until further instructions are provided by the Client.
5.3 The Client is solely liable for the payment of any additional Services outside of the scope as agreed upon in the Purchase Order.
6. RIGHT TO REFUSE FURTHER CREDIT OR IMPOSE CREDIT LIMIT
6.1 The Credit Provider may at any time, for any reason whatsoever (at its discretion):
(a) refuse further credit to the Client; or
(b) impose a credit limit (Credit Limit) or vary such Credit Limit of the Client to increase or decrease the Credit Limit,
without any liability to the Client whatsoever.
6.2 Where a Credit Limit has been imposed by the Credit Provider:
(a) the Credit Provider is not obliged to perform any Services for the Client once the Credit Limit has been reached;
(b) the Credit Provider may, at its option, perform further Services for the Client, where to do so will result in the Credit Limit being exceeded and the Client agrees that the Credit Provider is expressly authorised to provide those Services and this Agreement will continue to apply in full to all monies owing; and
(c) the Credit Provider is under no obligation to advise the Client when the Credit Limit has been reached or exceeded.
7. SITE ACCESS AND STORAGE
7.1 The Client shall, where relevant, ensure the Credit Provider and its agents, employees, contractors, service providers and other nominees have full, safe, and unfettered access to the Client’s site at which the Services will be provided, as well as full, safe and unfettered access to pass through any other areas for the purpose of providing the Services.
7.2 The Client must ensure that the Credit Provider has unobstructed access to the Client’s site at all times during which the Services are being provided, and that the Client’s site complies with best practice work health and safety requirements and standards.
7.3 Where Equipment is required to be left and stored at the Client’s site the Client shall ensure the security and safe keeping of such Equipment. Equipment left at the Client’s site will be at the risk of the Client. For ownership and risk of Equipment please review clause 8.
7.4 The Client represents and warrants to the Credit Provider that it has all necessary rights and authorities to grant the Credit Provider access to the site, and that by accessing the site in
accordance with this Agreement, the Credit Provider will not be infringing any third party rights.
8.1 Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that the Credit Provider retains full title to the Equipment and title will not at any time pass to the Client. The Equipment is to be used solely by the Credit Provider in providing the Services, and may be collected or inspected by the Credit Provider at any time.
8.2 Except to the extent caused or contributed to by the Credit Provider, the Client is solely responsible for any damage that occurs to the Equipment whilst it is on the Client’s premises or within their possession or any Loss suffered by the Client or any third party in connection with that Equipment being left with the Client. The Client indemnifies the Credit Provider in respect of any Loss suffered by the Credit Provider in connection with the Equipment being left on the Client’s premises or in their possession.
8.3 Notwithstanding anything to the contrary express or implied in this Agreement, the Parties agree that the Credit Provider retains full title to the Goods and title will not at any time pass to the Client notwithstanding:
(a) the delivery or collection of the Goods to/by the Client (as the case may be);
(b) installation in or attachment of the Goods to the Client's property; and/or
(c) the possession and use of the Goods by the Client.
8.4 The Client acknowledges and agrees that:
(a) it will not use the Equipment without the Credit Provider’s consent;
(b) it will, if requested by the Credit Provider, return the Goods to the Credit Provider following non-fulfilment of any obligation of the Client (including payment of monies) without limiting any other right the Credit Provider may have;
(c) it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Equipment or Goods without the express written consent of the Credit Provider; and
(d) it will deliver up the Equipment and Goods to the Credit Provider upon demand by the Credit Provider and give the Credit Provider or its agents or authorised representatives the right to enter any premises occupied by the Client and any premises where it believes any Equipment or Goods may be stored (without liability for trespass or any resulting damage) and to use the name of the Client and to act on its behalf, if necessary, to recover possession of the Equipment or Goods and agrees to indemnify the Credit Provider and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Equipment or Goods from the Client’s possession or control;
(e) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for the Credit Provider immediately when they are receivable or are received; and
(f) the Credit Provider may recover as a debt due and immediately payable by the Client all amounts owing by the Client to the Credit Provider in any respect even though title to the Goods has not passed to the Client.
9. DELIVERY OF GOODS
9.1 At the Credit Provider's sole, absolute and unfettered discretion, delivery of the Goods shall take place when:
(a) the Goods are installed in or attach to the Client's property; or
(b) the Client (or its employees or agents) takes possession of the Goods at the Credit Provider's address; or
(c) the Client (or its employees or agents) takes possession of the Goods at the Client's address (in the event that the Goods are delivered to the Client).
9.2 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Agreement.
10.1 The Client acknowledges and agrees that notwithstanding any other provision of this Agreement:
(a) the PPSA applies to any performance of Services of any kind and the supply of Goods by the Credit Provider to the Client;
(b) the Goods are used by the Client only for any commercial purposes and are not used by the Client for personal, domestic or household purposes;
(c) the Goods the Client is receiving from the Credit Provider are not to be used as inventory;
(d) by agreeing to and/or accepting or adopting this Agreement the Client grants to the Credit Provider:
i) a purchase money security interest in the Goods; and
ii) a purchase money security interest in the Equipment (to the extent the hire or possession by the Client of the Equipment is a PPS Lease); and
iii) a security interest over all present and after- acquired property of the Client ("Client's Property"),
to secure the Credit Provider's interest in the Goods and Equipment and all moneys owing or payable by the Client under this Agreement and any other moneys payable by the Client to the Credit Provider from time to time on any account whatsoever.
(e) if a purchase money security interest is not able to be
(f) claimed by the Credit Provider in respect of the Equipment or the Goods for any reason, the Credit Provider will have a security interest in the Equipment or the Goods as the case may be;
(g) the Client agrees that the Credit Provider's security interest in Equipment and the Goods and the Client's Property covered by this Agreement may be registered on the PPS Register and the Client agrees to do all things necessary and required by the Credit Provider to effect registration of the Credit Provider's security interest on the PPS Register in order to give the Credit Provider's security interest the best priority possible and anything else the Credit Provider requests the Client to do in connection with the PPSA without delay;
(h) the Client warrants that all information provided by the Client to the Credit Provider, including but not limited to the Client’s details, including the entity, name, ACN or ABN and address set out in the Schedule is correct in all respects and must not change its name, address or other details set out in the Schedule without providing the Credit Provider with at least 20 business days prior written notice;
(i) the Client unconditionally and irrevocably appoints the Credit Provider as its attorney to do any of acts and matters set out in this clause 10 in the event that the Client fails, delays or declines to execute such documents or do such acts;
(j) the Client agrees that it will not grant a security interest or other encumbrance in the Equipment or the Goods whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of the Credit Provider, which the Credit Provider may refuse to provide or grant in its absolute and unfettered discretion. The Credit Provider may request, and the Client must provide any information that the Credit Provider requires, acting reasonably, in order to fully consider whether to grant its consent;
(k) the Credit Provider's security interest in the Goods, the Equipment and the Client's Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Goods, the Equipment and/or the Client's Property by the Client;
(l) it has received value as at the date of provision of the Services and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Credit Provider under this Agreement;
(m) the Goods and the Equipment are located in Australia at the date of the supply of the Goods and Equipment and the Client warrants that the Goods and Equipment will
remain located in Australia for the duration of the Agreement;
(n) neither the Credit Provider or the Client will disclose any information to any interested person unless required to do so under the PPSA;
(o) the Client waives its right under the PPSA:
i) to receive a copy of any verification statement, financing change statement, or any notice that the Credit Provider intends to sell the Client's Property or to retain the Client's Property on enforcement of the security interest granted to the Credit Provider under this Agreement or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;
ii) to object to a proposal by the Credit Provider to dispose of or purchase or retain the Goods, the Equipment and/or the Client's Property in satisfaction of any obligation owed by the Client to the Credit Provider;
iii) to receive a statement of account following the sale of the Client's Property; or
iv) to redeem the Client's Property;
(p) will not give (or allow any person to give) to the Credit Provider a written demand requiring the Credit Provider to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
(q) a default under any other security agreement under which it has granted a security interest to any other party in respect of the Goods or Equipment is deemed to be a breach of this Agreement.
10.2 The parties agree that the Credit Provider is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.
10.3 Further Supplies/Services
The parties acknowledge and agree that any supply of Goods, or Equipment or performance of Services of any kind by the Credit Provider to the Client which is not specifically set out in the Schedule but for which the Credit Provider has or later issues a Tax Invoice or any other documentation to the Client is deemed to form part of the Agreement and is subject to the terms of the Agreement.
(b) Without limitation to clause 10.4(a) and any other provision of this Agreement section 125, 129(2), 142 and 143 of the PPSA are contracted out of.
10.5 Power of Attorney
The Client irrevocably nominates constitutes and appoints the Credit Provider and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Client on behalf of and in the name of the Client to do all things necessary and sign all such documents as may be necessary to deal with the Goods and the Equipment in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Client is in default of this Agreement.
A term used in this clause 10 is taken to have the meaning defined under the PPSA.
11. PERFORMANCE OF SERVICES
11.1 The provision of Services by the Credit Provider to the Client will take place at a time agreed between the Credit Provider and the Client.
11.2 The provision of Services to a third party nominated by the Client shall be deemed to be provision of the Services to the Client for the purpose of this Agreement.
11.3 Any times provided by the Credit Provider to the Client in respect of the provision of the Services are estimates only and are non-binding on the Credit Provider. Whilst the Credit Provider attempts to provide all Services at the agreed times, sometimes delays are inevitable and the Credit Provider will
not be responsible for any Losses suffered by the Client in the event of delay.
12. DEFECTIVE SERVICES
12.1 The Client must provide written notice of any defective services as soon as possible upon becoming aware of them and being no later than 7 days after completion of the Services. The Credit Provider may also require the Client to provide evidence of any defect in any Services supplied.
12.2 The Credit Provider will decide in its sole discretion if the Services are defective (acting reasonably).
12.3 Except as required by law, for each Service that is deemed defective in accordance with this clause, the Credit Provider' liability will be limited to the supplying of the Services again or the payment of the cost of having the Services supplied again (to remedy such defect) and such replacement Services will not be carried out until the Client's account is paid in full. If any works are required outside the 7 day period, it will be deemed a new scope and a new Purchase Order will be agreed between the parties.
12.4 Where services or equipment not supplied by the Credit Provider are faulty and the Client requires the Credit Provider to attend to check or repair it, the Credit Provider may charge the Client a call out fee as specified by the Credit Provider for having one of its personnel attend the site. Such call out fee will be payable at the date as specified on the invoice.
12.5 Notwithstanding any other clause in this Agreement, the Credit Provider will only be responsible for defects in the Services that the Credit Provider supplies. To the extent permitted by law the Credit Provider will not be liable for or required to provide any remedy for:
(a) any services carried out by third parties;
(b) any defect or damage where such defect or damage is caused by or arises as a result of the Client (or the Client fails to take reasonable steps to prevent them from becoming defective), fair wear and tear, or any accident or circumstance outside the reasonable control of the Credit Provider.
13. PERSONNEL & SUBCONTRACTING
The Client approves the Credit Provider to subcontract, delegate or perform the Services through any person without the prior written consent of the Client.
14.1 The warranties contained in clause 14.2 are additional to warranties implied by law. Each of the warranties will be read and construed as a separate and independent warranty and will not be limited by reference to each other. All warranties will be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.
(a) the information contained in this Agreement is true and correct and it has disclosed all relevant information to the Credit Provider to assess the credit-worthiness of the Client;
(b) it has the legal right and power to enter into this Agreement;
(c) the execution, delivery and performance of this Agreement by the Client has been duly and validly authorised by all necessary corporate action on its part;
(d) this Agreement is a valid and binding Agreement on the Client, enforceable in accordance with its terms;
(e) the Client is not suffering an Insolvency Event and no Insolvency Event is imminent; and
(f) it has the capacity to make the payment in accordance with this Agreement.
15. INDEMNITY AND RELEASE
15.1 Except as provided under this Agreement and to the extent permitted by law the Client releases the Credit Provider and its officers, employees and agents from any and all Claims by the Client or any of its officers, employees, agents or invitees, except to the extent (if any that) the Loss the subject of the Claim is caused by the fraudulent act or omission of the Credit Provider.
15.2 The Client indemnifies the Credit Provider against any direct losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Credit Provider arising out of or in connection with:
(a) any Claim made against the Credit Provider by a third party arising out of or in connection with the provision of the Services and/or this Agreement;
(b) any Claim made against the Client by a third party arising out of or in connection with the provision of the Services and/or this Agreement;
(c) any breach of this Agreement by the Client, including any failure to pay any fees on time;
(d) any event or cause, beyond the control of the Credit Provider;
(e) any reliance by the Client or a third party on the Services or any advice, information or deliverable provided in connection with the provision of the Services and/or this agreement;
(f) the enforcement of this Agreement; and
(g) any negligent act, omission or wilful misconduct of the Client.
15.3 The Client must make payments under this clause:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
16. EXCLUSION AND LIMITATION OF LIABILITY
16.1 The Credit Provider provides the Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. the Credit Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this Agreement to the maximum extent permitted by law. The Client relies on the Services at its own risk.
16.2 Without limiting the generality of clause 16.1, the Credit Provider expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:
(a) any act or omission of the Client, including any delay caused by the Client;
(b) any problem caused by misuse, abuse, wear and tear or abnormal movement; and
(c) any defect in, or problem caused by, work materials or goods supplied by the Client.
16.3 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Credit Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
16.4 Subject to the other terms of this clause, the Credit Provider's maximum aggregate liability to the Client in any 12-month period for any loss or damage or injury arising out of or in connection with the supply of services under this agreement, including any breach by the Credit Provider of this agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the costs of the resupply of the relevant Services to which the liability relates or the payment of the costs of resupply of the relevant Services.
16.5 If the Credit Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, or is otherwise liable for any matter that cannot be excluded, the Credit Provider’s total liability to the Client for that failure is limited to, at the option of the Credit Provider the costs of the resupply of the relevant Services to which the liability relates or the payment of the costs of resupply of the relevant Services.
16.6 Without limitation to the other terms of this Agreement, the Credit Provider excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.
17.1 The Credit Provider may in its absolute discretion, by written notice to the Client, immediately terminate this Agreement or one or more Purchase Orders (and shall have no liability for any Loss suffered by the Client due to the termination):
(a) if the Client fails to make payment in accordance with clause 3;
(b) if the Client suffers an Insolvency Event;
(c) in the event of Force Majeure (such as if there are issues with the weather and the Credit Provider is unable to supply the agreed Services); or
(d) if the Client breaches any warranty or obligation contained in this Agreement or a Purchase Order and fails to rectify the breach within 7 days of being given a notice to do so.
17.2 The Client may terminate this Agreement if the Credit Provider breaches the terms of this Agreement and fails to rectify the breach within 14 days of being given a notice to do so.
17.3 The Client may terminate an individual Purchase Order if the Credit Provider breaches the terms of that Purchase Order and fails to rectify the breach within 14 days of being given a notice to do so.
17.4 Subject to clause 17.6, upon termination of this Agreement, all existing Purchase Orders shall automatically terminate. The Client shall be liable to pay to the Credit Provider for all Services supplied by the Credit Provider under such Purchase Orders up until the date of termination, and such amounts shall be a debt immediately due and owing.
17.5 The termination of a Purchase Order does not affect any other Purchase Order/s which shall continue. Upon termination of a Purchase Order the Client shall be liable to pay to the Credit Provider for all Services supplied by the Credit Provider under that Purchase Order up until the date of termination, and such amounts shall be a debt immediately due and owing.
17.6 Either party may terminate this Agreement at any time on giving the other party 30 days written notice. Termination under this clause will not take effect until every Purchase Order in place has expired, been fulfilled or is otherwise terminated in accordance with the above terms.
17.7 The rights and remedies of the parties contained in this clause 16 are in addition to any other rights and remedies by law, in equity or under this Agreement.
18.1 Even if the Credit Provider retains ownership of the Goods, all risk for the Goods passes to the Client on delivery of the Goods to Client or the nominee of the Client.
18.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Credit Provider is entitled to:
(a) receive payment for the Goods; and
(b) receive all insurance proceeds payable for the Goods. The production of these Terms of Service by the Credit Provider is sufficient evidence of the Credit Provider's rights to receive the insurance proceeds without the need for any person dealing with the Credit Provider to make further enquiries.
19. NO ASSIGNMENT
19.1 The Client must not transfer or assign its rights under this Agreement to anyone else, without the prior written consent of the Credit Provider, which may be granted or withheld by the Credit Provider in its sole, absolute and unfettered discretion. The Client must provide any information the Credit Provider requires to consider whether to grant its consent.
19.2 Any change in 50% or more of the shareholding of the Client will constitute a deemed assignment which requires the Credit Provider's prior written consent in accordance with clause 19.1.
19.3 The Client acknowledges and agrees that the Credit Provider may transfer, assign or otherwise dispose of its interest in this Agreement upon giving written notice to the Client.
20.1 All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
20.2 The following shall constitute proof of receipt:
(a) proof by posting by registered post; or
(b) proof of dispatch by email.
20.3 Receipt of a notice given under this Agreement will be deemed to occur:
(a) in the case of a communication sent by pre-paid registered post, on the third business day after posting;
(b) in the case of an email, on the business day immediately following the day of dispatch.
20.4 If a notice is sent via post, it must also be sent via email.
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
21.2 No Waiver
(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) Words or conduct referred to in clause 21.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this Agreement. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.
(a) If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 21.5(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this Agreement
21.6 No Merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.
Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.
21.8 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.
21.9 Time of the Essence
Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.
21.10 Relationship of the Parties
Nothing in this Agreement gives a party authority to bind any other party in any way. Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.
21.11 Remedies Cumulative
Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.
21.12 Entire Agreement
This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
21.13 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this Agreement.
21.14 Governing Law and Jurisdiction
This Agreement is governed by the law in force in the State. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
21.15 Dispute Resolution
(a) If a dispute arises in connection with this Agreement then a party may only deal with that dispute in the manner set out in this clause.
(b) A party to a dispute which arises in connection with this Agreement may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
(c) Within 7 days after a notice is given under the above clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
(d) If despite the parties' best efforts a dispute not resolved within 7 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Resolution Institute Mediation Rules. The mediation will be conducted by a mediator to be appointed by agreement of the parties or, if the parties are unable to agree on a mediator within 7 days of a party making a written nomination to the other party, to be appointed by the Chair (or his or her designated representative) of Resolution Institute (ACN 008 651 232) at the request of a party.
(e) If the dispute is not resolved within 30 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
(f) The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.
22. GUARANTEE AND INDEMNITY
22.1 In consideration of the Credit Provider, at the request of the Guarantor, entering into this Agreement with the Client the Guarantor covenants and agrees with the Credit Provider that:
(a) Notwithstanding that as between the Guarantor and the Client the Guarantor may be a surety only, as between the Guarantor and the Credit Provider the Guarantor is a principal debtor.
(b) The Guarantor will be liable jointly and severally with the Client (and with each other Guarantor if there is more than one Guarantor) for the due and punctual payment of all moneys to be paid by the Client under this Agreement and for the due performance and observance by the Client of the Terms of Service and such liability will not be reduced or affected by the death insolvency liquidation or dissolution of the Client or the Guarantor or any of them.
(c) The Guarantor indemnifies the Credit Provider from and against all Loss, damage costs (including all costs payable by the Credit Provider to a solicitor on a solicitor and own client basis) and expenses which the Credit Provider may suffer or incur in consequence of any breach or non-observance of the Terms of Service by
the Client and the Guarantor agrees that the Guarantor will remain liable to the Credit Provider under this indemnity notwithstanding as a consequence of any breach or non-observance the Credit Provider has exercised any of its rights under this Agreement.
(d) On any default or failure by the Client to observe and perform any of the Terms of Service the Guarantor will immediately (without the need for any demand to be made) pay all moneys and make good to the Credit Provider all damages costs (including all costs payable by the Credit Provider to a solicitor on a solicitor and own client basis) and expenses sustained or incurred by the Credit Provider by reason of or in consequence of any breach or non-observance of the Terms of Service by the Client and the Guarantor will also pay to the Credit Provider interest at the rate of 15% per annum accrued daily from the due date for payment until the date of payment (except on interest as specified under this Agreement).
(e) The liability of the Guarantor under this guarantee and indemnity will not be affected by the granting of time or any other indulgence to the Client or by any compromise abandonment waiver variation or by any other thing which under the law relating to sureties would or might but for this provision release the Guarantor in whole or in part from its obligations under this guarantee and indemnity.
(f) To the fullest extent permitted by law the Guarantor hereby waives such of its rights as surety or indemnifier (legal equitable statutory or otherwise) as may at any time be inconsistent with any of the provisions of this guarantee and indemnity.
(g) The Guarantor hereby:
i) charges all of its legal and beneficial interest in all of its property, including but not limited to its real property and personal property (as that term is defined in the PPSA), including property acquired after the date of this Agreement, in favour of the Credit Provider, whether or not demand has been made on the Client by the Credit Provider;
ii) agrees to execute all documents and do all things necessary, upon request by the Credit Provider, to register the Credit Provider's interest in the Guarantor’s property as granted by this clause 22, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the PPS Register or otherwise;
iii) irrevocably appoints the Credit Provider and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Guarantor on behalf of and in the name of the Guarantor to do all things necessary to register the Credit Provider's security over the Guarantor’s property granted by this clause 22.
(h) If the charges created by sub-clause 22.1(g)i) are or become void or unenforceable, sub-clause 22.1(g)i) may be severed from this Agreement and the Agreement shall continue in full force and effect and the severance shall not effect on its validity and the Guarantor will not be released from its obligations in
whole or in part and the Credit Provider's rights and remedies against the Guarantor shall not be effected by such severance.
(i) The enforceability of this guarantee and indemnity against the Guarantor is not conditional, contingent or dependent in any way upon the validity or enforceability of this guarantee and indemnity against any other person or execution of this contract or this guarantee and indemnity by any other person.
(j) The Guarantor does not execute this guarantee and indemnity as a result of or by reason of any promise representation statement information or inducement of any nature or kind given or offered to the Guarantor by the Credit Provider or on the Credit Provider's behalf whether in answer to any enquiry by or on behalf of the Guarantor or not and the Credit Provider was not prior to the execution of this guarantee and indemnity by the Guarantor, and is not subsequently, under any duty to disclose to the Guarantor or to do or execute any act matter or thing relating to the affairs of the Client or its transactions with the Credit Provider.
(k) In the event of the invalidity of any part or provision of this guarantee and indemnity that invalidity will not affect the validity or the enforceability of any other part or provision of this guarantee and indemnity. If a provision of this guarantee and indemnity is void or unenforceable it must be severed from the guarantee and indemnity and the provisions that are not void or unenforceable are unaffected by the severance.
(l) All notices or demands to be given to, made or served upon the Guarantor will be deemed to be duly given to, made or served on the Guarantor if:
i) it is signed by any officer, authorised employee, agent or solicitor of the Credit Provider; and
ii) it is delivered:
A. to any Guarantor personally; or
B. left at the last known place of business or abode of any Guarantor; or
C. if an address is noted in the Schedule, left at or sent to the Guarantor through the post in an ordinary prepaid envelope addressed to that Guarantor at the address. A notice or demand which is posted will be deemed to have been served on the Guarantor on the second business day following the date of posting.
(m) If there is more than one Guarantor, any notice or demand given to, made or served upon a Guarantor is deemed to be served on each of them.
(n) The Guarantor agrees that its liability to the Credit Provider is unlimited notwithstanding that the Credit Provider supplies the Client with credit in excess of the Credit Limit.
(o) The Guarantor acknowledges and agrees that the Guarantor may receive personal information of another person in the course of business with the Credit Provider and agrees that any such personal information must only be used, disclosed or otherwise dealt with in accordance with the Australian Privacy Principles.