INDEPENDENT FUEL SOLUTIONS PTY LTD
STANDARD TERMS AND CONDITIONS
ACKNOWLEDGEMENT AND AUTHORITY PURSUANT TO THE PRIVACY ACT 1988 (CTH)
I/We understand that the Customer has applied to Independent Fuel Solutions Pty Ltd and / or its subsidiaries (hereafter “the Company”) for a Trading Account in relation to the supply of goods and services by the Company from time to time.
I/We further acknowledge and understand that as directors/partners/principal/guarantor of the Customer (as applicable), the Company may seek credit reporting information from a credit reporting body and credit information and credit eligibility information from other credit providers concerning my/our personal credit dealings.
Acknowledgment and Authority that Credit Information may be given to a Credit Reporting Body
I/We understand that Section 21D of the Privacy Act permits the Company to disclose to a credit reporting body certain credit information, and other personal information, concerning my/our association with the Customer’s credit application. I/We understand that the information which may be given to a credit reporting body includes:
Identifying details of myself/ourselves.
The type and amount of credit sought in an application to the Company (or that I/We have offered to act as guarantor(s) in respect of the Trading Account arrangement).
Payments of $150 or more which become more than 60 days overdue.
Advice that payments are no longer overdue.
That in the opinion of the Company I/we have committed a serious credit infringement in relation to consumer credit provided to me/us.
That the credit provided to me/us by the Company has been discharged.
Any court judgement that relates to any credit that has been provided to, or applied for by, me/us.
Any personal insolvency information about me/us (as defined in the Privacy Act 1988 (Cth)).
Publicly available information about me/us that relates to my/our activities in Australia and my/our credit worthiness.
Authority for the Company to obtain and disclose Credit Information
I/we authorise the Company to:
Obtain from a credit reporting body credit reporting information about me/us.
Obtain information about my/our commercial activities or commercial credit worthiness from a business which provides information about commercial credit worthiness.
Use or disclose such information for the purpose of assessing my/our application for commercial credit or collecting payments that are overdue in relation to the credit the subject of my/our application.
Authority to Exchange Information with Other Credit Providers
I/We authorise the Company to seek and obtain from credit providers credit eligibility information about me/us for the purposes of assessing my/our application for credit, assisting in collecting payments that are overdue in relation to my/our credit, notifying other credit providers of a default by me/us, exchanging information with other credit providers as to the status of the Customer’s loan where I/we are in default with other credit providers and assessing my/our credit worthiness. I/We understand this information can include any information about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give to or receive from each other under the Privacy Act.
I/We authorise the Company to seek and obtain a banker’s opinion for purposes connected with my/our business, trade or profession.
Authority for Trade Insurers
I/We authorise a trade insurer in relation to an application by the Customer for commercial credit to obtain credit reporting information about me/us for the purposes of assessing whether to insure or the risk of insuring the Company or assessing the risk of default by the Customer and/or me/us in our capacity as guarantors on the commercial credit application.
Use of Information
I/We understand the information obtained by the Company may be used for any of the purposes referred to in this authority and to notify the Company’s successor and assigns, the Company’s financiers and/or any assignees or any lender to an assignee of the Company’s interests in any Amount(s) Payable arising under the Trading Terms between the Customer and the Company from time to time.
Disclosure to Guarantor
I/We authorise the Company to disclose credit eligibility information about me/us to:
a guarantor, to keep the guarantor informed about the guarantee; and
to someone I/we have indicated is a prospective guarantor, for the purpose of that person considering whether to offer to act as guarantor in relation to the commercial credit applied for by me/us.
I/We understand that the information disclosed can include any credit eligibility information that credit providers are allowed to disclose under the Privacy Act.
PRIVACY ACT 1988 (CTH) – SECTION 20F(1) Item 3 - ACKNOWLEDGEMENT AND AUTHORITY BY GUARANTOR(S)
I/We agree that the Company may seek from a credit reporting body credit reporting information about me/us to assess whether to accept me/us as a guarantor for credit applied for, or provided to, the Customer. I/We agree that this agreement commences from the date of this agreement and continues until the credit the subject of the Customer’s application is fully discharged.
I/We also agree that the Company may give to and receive from another credit provider credit eligibility information about my/our consumer or commercial credit worthiness for the purpose of assessing a commercial credit application made by the Customer to the other credit provider, or collecting any payment under a commercial credit arrangement that is overdue to a credit provider by the Customer.
I/We agree that if the Customer’s credit application is approved, then this Acknowledgment and Authority remains in force until the credit provided to the Customer(s) and the subject of the application has been fully discharged.
AUTHORITY PURSUANT TO THE PRIVACY ACT 1988 (CTH)
I/We have read and understand this Acknowledgement and Authority, and duly authorise the Company to perform the actions described herein.
INDEPENDENT FUEL SOLUTIONS PTY LTD STANDARD TRADING TERMS
Independent Fuel Solutions Pty Ltd (ABN 90 620 863 550) and each related body corporate from time to time (as defined in the Corporations Act 2001) of 4 Stoke Street, Mt Pleasant, WA 6153, Australia (individually and together called “the Company”)
1. Application of terms
1.1 The terms of this Agreement apply in every case where the Company provides goods or services of any kind (“Goods”) to the customer (as referred to in the Application for Trading Account or if there is no application, the customer placing the order, or on whose behalf the order is placed) (“Customer”) on the Customer’s trading account (“Trading Account”), unless otherwise agreed in writing between the Company and the Customer. Acceptance of Goods by the Customer is conclusive evidence before any court that this Agreement (and any variation) applies and is binding on it and the guarantors (as referred to in the Application for Trading Account) ("Guarantors").
1.2 In the event of, and to the extent of, any inconsistency between this Agreement and the terms of any purchase order for the provision of Goods, this Agreement prevails.
1.3 This Agreement comprises the Application for Trading Account, the Acknowledgement and Authority pursuant to the Privacy Act 1988 and these Trading Terms, as amended from time to time.
2.1 The Company may, in its absolute discretion:
(a) grant, sell or supply any Goods to the Customer, as requested by the Customer from time to time, on credit;
(b) issue a statement at any time showing the debit or credit balance of the Trading Account at the date shown on the statement ("Statement"); and
(c) terminate the Trading Account by notice in writing to the Customer accompanied by a Statement showing the final balance of the Trading Account ("Final Statement").
2.2 the Company's agreement to open the Trading Account does not entitle the Customer, at any time, to credit or any particular amount of credit.
3. Payment of Accounts
3.1 The Company will issue a tax invoice in respect of all Goods supplied (“Invoice”).
3.2 The Customer must, without demand from the Company, pay the whole amount shown on an Invoice ("Amount(s) Payable") on or before the due date shown on the Invoice (which unless otherwise stated is seven (7) days from the date of delivery of the Goods) ("Due Date"); and where a Statement is issued as a “Final Statement”, on or before the due date shown on the Final Statement ("Final Due Date"). This clause does not affect the obligation of the Customer to pay the entire Amount Payable prior to a Due Date or the Final Due Date where required under any other provision of the Agreement.
3.3 By setting the Due Date on a particular Invoice:
(a) the Company does not represent that the Due Date will be the same number of days from the date of the Invoice on future Invoices; and
(b) the Company does not limit its right to vary the number of days between the date of an Invoice and the Due Date from one Invoice to another.
3.4 In this Agreement, "Amount(s) Payable" includes:
(a) all amounts debited to the Trading Account for Goods supplied pursuant to this Agreement, now and in the future;
(b) all money now and in the future owing or payable to the Company by the Customer, either alone or jointly with another person, whether directly or indirectly or contingently under this Agreement or on any other account whatsoever, and including all such money arising from:
(1) any guarantee, deed, indemnity, account, document or other agreement in writing between the Company and the Customer and/or any Guarantor (as referred to in the Application for Trading Account);
(2) any service fee or accounting administration fee or any other charge, cost or expense payable by the Customer to the Company under this Agreement;
(3) all costs (including legal costs on a full indemnity basis and expenses), expenses or losses incurred or sustained by the Company in relation to any failure by the Customer and/or Guarantor to comply with the terms and conditions of this Agreement;
(4) interest on any judgement entered by the Company against the Customer in respect of the Amount(s) Payable; and
(5) all advances, further advances, loans, credits or financial accommodation (whether given on, before or after the date of this Agreement) by the Company, to, for or on account of or at the request of the Customer and/or any Guarantor;
(c) any tax, duty, charge or other impost or levy made at any time by any local, state or Commonwealth government in connection with the Goods or this Agreement; and
(d) all amounts owing in accordance with clause 10.1(if applicable).
4. Changes to Trading Account
The Company may at any time, in its absolute discretion, without notice and without assigning any reason:
4.1 set, change or limit credit in relation to the Trading Account;
4.2 refuse to open a Trading Account, close the Trading Account and/or refuse to extend credit to the Customer on any account;
4.3 refuse or limit credit or suspend or terminate the supply of Goods or the granting of any rights under this Agreement. All subsequent trading between the Company and the Customer will revert to a cash purchase or a cleared funds basis until the Company, in its absolute discretion, reinstates the provision of credit to the Customer; and
5. Payments by the Customer
5.1 the Company may appropriate any moneys paid to it by the Customer in such manner and at such times as the Company, in its absolute discretion, determines.
5.2 The amount stated in a certificate signed by the Company's duly authorised representative or solicitor as being due and payable by the Customer to the Company under this Agreement is prima facie evidence that such amount is owing.
5.3 Amounts payable by the Customer under this Agreement must be paid without deduction, retention or set-off of any kind and for any reason.
5.4 If an event listed in clauses 6.4(a) – 6.4(h) (inclusive) occurs, the Company may, at its discretion, apply a credit balance in any of the Customer's Trading Accounts towards satisfaction of a debit balance in any of the Customer's other Trading Accounts.
5.5 Payment by cheque or other negotiable instrument is not deemed to be payment of any Amount(s) Payable until the cheque or other negotiable instrument is met on first presentation for payment.
6. Retention of Title
6.1 Title to all Goods purchased by the Customer whilst the Trading Account has a debit balance (“Bailed Goods”) remains with the Company.
6.2 The Customer must hold all Bailed Goods in the possession of the Customer as fiduciary and bailee for the Company.
6.3 The Customer is authorised to use / sell the Bailed Goods in the ordinary course of its ordinary business, but only until:
(a) notified in writing to the contrary by the Company; or
(b) the occurrence of an event listed in clauses 6.4(a) – 6.4(h) (inclusive).
6.4 If the Customer or any person who has guaranteed the debts of the Customer to the Company:
(a) becomes an ‘externally-administered body corporate’ within the meaning of the Corporations Act 2001;
(b) has any step taken for its winding up or dissolution;
(c) holds a meeting of directors which considers a resolution that an administrator should be appointed;
(d) is insolvent within the meaning of the Corporations Act 2001, or being taken or presumed to be insolvent; commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act 1966 or any amendment or replacement thereof;
(e) has distress, attachment or other execution levied or enforced over any of its property;
(f) fails to pay the entire Amount Payable in accordance with this Agreement;
(g) breaches any other provision of this Agreement or any other agreement with any the Company Entity (as defined in clause 18.1); or
(h) if, without the prior consent of the Company, there is a change in control of the Customer (as defined in the Corporations Act 2001) or the business of the Customer is sold to another person, the Customer must immediately notify the Company and the Company may, at its election and without prejudice to other rights which the Company may
(1) declare the Amount Payable immediately due for payment; and
(2) enter the premises at which the Bailed Goods are kept (“Premises”) and remove the Bailed Goods from the Premises.
6.5 The Company may sell or otherwise dispose of any Bailed Goods recovered by the Company pursuant to this clause 6 in its absolute discretion and on its own account, without limitation to any other rights which the Company may have.
6.6 The Customer indemnifies the Company and every person acting on its behalf against any loss, damage, liability or expense incurred or sustained as a result of the reasonable exercise by the Company of its rights under this clause 6.
6.7 This clause 6 is for the benefit of the Company, and the Company may waive the benefit of this clause by giving notice in writing to the Customer at any time.
6.8 Notwithstanding the other provisions of this clause 6 and without derogating from the rights of the Company, the Company may take any action it deems necessary, including legal proceedings, to recover as a liquidated debt an Amount Payable.
6.9 The Customer grants to the Company (under clause 6.1) a purchase money security interest, as defined in the Personal Properties Securities Act 2009 (“PPSA”) in the Bailed Goods and any proceeds of sale of the Bailed Goods (“PMSI”) to secure the purchase price of the Bailed Goods.
6.10 The costs of registering a financing statement will be paid by the Customer and may be debited against the Customer’s Trading Account.
6.11 The Customer agrees not to do or permit anything to be done that may result in the PMSI granted to the Company ranking in priority behind any other security interest (as defined in the PPSA).
6.12 The Customer will take such further steps (including obtaining consents, supplying information, signing forms or executing documents) which may be required by the Company to take further or better security under the PPSA in respect of the Bailed Goods and proceeds of sale of the Bailed Goods or to maintain the effectiveness or priority of any security interest under the PPSA.
7. Risk in Goods and Customer Obligations
7.1 All Goods purchased by the Customer are at the risk of the Customer from the time the Goods are delivered to the Customer or its nominated agent. Delivery is deemed to occur when the Goods are delivered to the carrier, whether the Company arranges, procures or effects the transport of the Goods at the request of the Customer or otherwise. The Customer must insure the Goods (with the Company’s interest noted on the policy) from the date of delivery until title passes to the Customer or the Goods are sold in accordance with clause 6.
7.2 The Customer must inspect all Goods delivered to the Customer or its nominated agent within 24 hours (or such other time period for perishable, dry, security or other Goods as notified by the Company from time to time) of delivery to the relevant Premises (“Inspection Period”) in order to ensure that Goods delivered are as ordered by the Customer and are not delivered in a damaged state. The Customer must notify the Company within the Inspection Period if Goods are found to be other than as ordered by the Customer or have been delivered in a damaged state.
7.3 Subject to clause 9.1(e), if the Customer has not notified the Company within the Inspection Period that Goods delivered were not as ordered by the Customer, or that Goods were delivered in a damaged state, then the Goods will be deemed to have been delivered in good condition and as ordered by the Customer.
7.4 Goods supplied by the Company are reused / resold by the Customer in the same consequential order as the Goods have been supplied by the Company. All Goods of the same type as the Bailed Goods will be deemed to have been supplied by the Company unless the Customer proves to the contrary at the time the Company claims to be entitled to possession of such Goods.
7.5 To the extent permitted by law, if the Customer is in breach of this Agreement, the Company may (without prejudice to any other rights) repossess the Bailed Goods and the Customer licences the Company and its employees and agents to enter its premises at any time without notice for such purpose, with all related costs of the Company to be paid by the Customer on demand.
8. Data and Information
8.1 Where the Company has charged an incorrect price for Goods, the Company will correct the data as soon as it becomes aware of the error and will credit or debit (as applicable) to the Customer, the difference between the invoice price and the correct price. The Customer must, in addition to its other obligations under this Agreement, take steps to mitigate any loss it may suffer as a result of the Company’s error.
8.2 The Customer acknowledges and agrees that all trading information as between the Customer and the Company belongs to the Company at all times and that the Application for Trading Account and Trading Terms are confidential information and may not be disclosed to any third party without the prior written consent of the Company.
8.3 The Company agrees to take reasonable steps to prevent the disclosure of a Customer’s trading information to a competitor of the Customer.
9.1 The Goods are deemed to be defective if any Goods:
(a) do not conform to any sample, specification or other description given to the Company by the Customer in relation to the Goods;
(b) being in the nature of services, are not of a reasonable standard, quality, value or grade; or
(c) do not comply with any consumer guarantee or implied warranty applicable to the supply of the Goods which cannot be excluded (including pursuant to the Competition and Consumer Act 2010 (“CCA”)).
9.2 Where Goods are defective (as defined in clause 9.1) the Company may, at its option, elect to:
(a) replace the Goods; or
(b) repair the Goods or reimburse the Customer for the cost of repairing the Goods; or
(c) in the case of Goods being in the nature of services, re-supply the services; or
(d) if payment of the purchase price for the Goods has not been made by the Customer - release the Customer from any obligation to pay the purchase price; or
(e) if payment of the purchase price for the Goods has been made by the Customer - refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Goods to the Company; and
(f) in any case, reimburse to the Customer any cost incurred by the Customer in transporting the Goods to the Customer from the Company.
9.3 To the extent permitted by law, the Company will not accept the return of Goods unless:
(a) prior authorisation has been given (which will not be unreasonably withheld);
(b) the claim is supported by the relevant invoice;
(c) the Goods are in the same condition as at the date of supply;
(d) the Goods are returned via the Company’s nominated carrier and at the Company’s designated rates; and
(e) in the case of Goods delivered in a damaged state or Goods delivered other than in accordance with the Customer's order, the Company was given notice in accordance with clause 7.2.
9.4 Other than any remedies the Customer may have under the CCA, the sole remedies of the Customer under or in relation to this Agreement whether in contract, in tort, under statute or otherwise are only as specified in this Agreement and are subject to the limitations set out in clause 9.6 and the following limitations:
(a) the Company, and the Company’s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clauses 9.1(a) – 9.1(c) except to comply with its obligations (subject to the other provisions and limitations in this clause 9) under clause 9.2;
(b) all conditions, warranties and other terms pertaining to the condition or quality of Goods are excluded to the extent permitted by law (including the CCA);
(c) the Customer warrants and represents that it is relying upon its own skill and judgement in relation to the quality of Goods, and their fitness for any purpose that may be required, and not upon any conduct or representation of the Company, or any of the Company’s officers, employees or agents; and
(d) the Customer must not make any claim or demand, or take any action or other proceeding against the Company, or any of the Company’s officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract or opportunity, loss of goodwill OR any indirect, special or consequential loss of whatever nature including of any loss of a type described in this sub-clause, whether or not reasonably foreseeable, reasonably contemplatable or actually contemplated by the parties at the time of execution of this Agreement, arising out of, or in any way directly or indirectly relating to this Agreement including in relation to any of the matters referred to in clauses 9.1(a) – 9.1(c).
9.5 Subject to the remainder of this clause 9, the Customer:
(a) releases and forever discharges the Company, and each of the Company’s officers, employees and agents, from all claims under or in relation to this Agreement; and indemnifies the Company and each of the Company’s officers, employees and agents in respect of all loss, damages and expenses relating to, or arising out of, any claim.
9.6 To the extent permitted by law, the Company’s total liability for any claim under or in relation to this Agreement is limited to the price paid by the Customer for the Goods or services the subject of the claim.
10. Administration Fee and Enforcement Costs
10.1 The Customer agrees that if any Amount Payable is not paid by the Due Date or by the Final Due Date in accordance with this Agreement, the Company shall be entitled to charge and recover:
(a) interest on the outstanding amount at a rate equivalent to 3% p.a. above the annual business overdraft interest rate of its principal banker, as determined and calculated by the Company, in its discretion; and/or
(b) an additional amount representing an accounting administration fee and loss of use of moneys not exceeding 3.5% per month or part thereof on the Amount Payable overdue for the period between the Due Date or the Final Due Date until payment is made in full. The Customer acknowledges that this fee is a genuine pre-estimate by the Company of the loss, costs and expenses of the Company which shall be incurred by reason of the Customer's default in payment of the Amount Payable and the recovery of same.
10.2 If the Customer breaches its obligations under this Agreement, the Customer shall immediately pay to the Company on demand, all costs and expenses whatsoever incurred by the Company in the enforcement or attempted enforcement of this Agreement including, but without limiting the generality of the foregoing costs and expenses including legal costs (on a full indemnity basis) freight costs, storage costs, electricity and telephone charges (except to the extent such costs and expenses directly result from the Company’s breach of this Agreement) and the Customer authorises the Company to debit any Trading Account with such costs and expenses.
11. Security Interest
11.1 The Customer:
(a) grants a security interest in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) ("Personal Property") to the Company;
(b) charges all of its rights, property and undertaking of whatever kind and wherever situated, whether present or future including, without limitation, its capital and any interest in real property (both legal and beneficial, in freehold and leasehold land) (other than any Personal Property to which the PPSA applies) to the Company; and
(c) agrees to mortgage all of its present and future interests in any real property to the Company, as security for the performance of its obligations under this Agreement including payment of the Amount(s) Payable.
11.2 The Customer must, within 10 days of request from the Company, execute such documents as the Company requires to perfect the security interest, charge and mortgage. The Customer must pay on demand any stamp duty (including any fines and penalties) assessed in connection with the security interest, charge and mortgage. The costs of registering a financing statement will be paid by the Customer and may be debited against the Customer’s Trading Account.
11.3 The Customer acknowledges that the Company, by virtue of the charge and mortgage, has a caveatable interest in any real property of the Customer which is or becomes subject to the charge and/or mortgage and may lodge a caveat over that property.
12. Change in Customer Details
12.1 The Customer must notify the Company, in writing, within seven (7) days, of any proposed or actual change in:
(a) the address of the business and the address at which the Goods will be located (if it differs to the Premises);
(b) the trading name of the business;
(c) the person(s), director(s) or trustee(s) conducting the business of the Customer;
(d) the ownership or proprietorship of the Customer in the event that the Customer converts to a trust, sole trader or company;
(e) control of the Customer;
(f) the Australian Business Number of the Customer; or
(g) the address of any Guarantor.
12.2 The Customer indemnifies the Company against any damage or loss incurred by it as a result of the Customer's failure to provide notice in accordance with clause 12.1.
13.1 The Customer and each Guarantor irrevocably appoints the Company and each of its authorised officers, jointly and severally, to be its attorney to do any act or thing which it is required to do under this Agreement.
13.2 the Company may only exercise the power set out in clause 13.1 where the Customer or Guarantor (as applicable) is in breach of this Agreement and it may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so.
13.3 A third party may rely on a copy of this Agreement certified by a solicitor as evidence of the appointment of the Company as the attorney of the Customer or Guarantor.
13.4 The Customer and each Guarantor must ratify all acts and things done by the Company and its authorised officers in the exercise of the power of attorney granted in accordance with this clause.
14. Customer Warranties and Covenants
14.1 The Customer warrants that the facts and representations contained in the Application for Trading Account are true and correct and the Customer is aware and acknowledges that the Company has relied upon the correctness of such facts and representations in providing the Trading Account to the Customer.
14.2 The Customer covenants that all Goods will be purchased for the purpose of re-supply or in connection with a business carried on by the Customer or by the Customer and another person or persons and not for personal, domestic or household use.
14.3 The Customer acknowledges and agrees that:
(a) all transactions and dealings between the Customer and the Company in connection with the supply of Goods on the Trading Account will be made strictly in accordance with this Agreement (unless otherwise agreed by the Company in writing);
(b) the Customer will pay the Amount(s) Payable punctually and strictly in accordance with this Agreement;
(c) no director or principal of the Customer is or has been bankrupt;
(d) the Customer is solvent and able to pay its debts as and when they fall due and has not made any compromise or arrangements with its creditors and no application has been made and no application is contemplated for the appointment of an administrator or controller of the Customer or any meeting of the Customer's creditors or any class of them;
(e) the Customer has, prior to signing or execution of this Agreement obtained independent legal and financial advice and/or had the opportunity to obtain such advice as to the Customer's obligations and the true meaning, nature and effect of this Agreement; and
(f) the Customer acknowledges receipt of a copy of this Agreement.
15. Guarantee & Indemnity and Security Interest
In consideration of the Company at the request of the Guarantor entering into this Agreement with the Customer, the Guarantor covenants and agrees with the Company that:
15.1 The Guarantor irrevocably guarantees to the Company due performance by the Customer of its obligations under this Agreement including payment of the Amount(s) Payable.
15.2 The Guarantor separately and independently indemnifies the Company and will at all times keep the Company indemnified from and against all losses and expenses which the Company may suffer or incur in consequence of any breach or non-observance by the Customer or any Guarantor of any of the terms of this Agreement (including a failure to pay the Amounts Payable and all enforcement expenses and legal costs on a full indemnity basis) or any part of this Agreement being void or unenforceable.
15.3 The Guarantor:
(a) grants a security interest in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) ("Guarantor Personal Property") to the Company;
(b) charges all of its rights, property and undertaking of whatever kind and wherever situated, whether present or future including, without limitation, its capital and any interest in real property (other than any Guarantor Personal Property to which the PPSA applies) to the Company; and
(c) agrees to mortgage all of its present and future interests in any real property to the Company, as security for the performance of its obligations under this Agreement including its guarantee of the Customer's obligation to pay the Amount(s) Payable.
15.4 The Guarantor must, within 10 days of request from the Company, execute such documents as the Company requires to perfect the security interest, charge and mortgage.
The Guarantor must pay on demand any stamp duty (including any fines and penalties) assessed in connection with the security interest, charge and mortgage. The costs of registering a financing statement will be paid by the Customer and may be debited against the Customer’s Trading Account.
15.5 The Guarantor acknowledges that the Company, by virtue of the charge and mortgage, has a caveatable interest in any real and leasehold property of the Guarantor which is or becomes subject to the charge and mortgage and may lodge a caveat over that property.
15.6 The Guarantor remains liable to the Company under clauses 15.1, 15.2, 15.3 and 15.4 notwithstanding that:
(a) the Company has exercised any of its rights under this Agreement;
(b) the Customer (being a company) may be wound up or dissolved or (being a natural person) may be declared bankrupt; and
(c) the guarantee given by the Guarantor may be for any reason unenforceable, either in whole or in part.
15.7 It is not necessary that the Company provide notice to the Customer to rectify any breach of this Agreement prior to the Guarantor being required to fulfil its obligations under this clause 15.
15.8 A demand on the Guarantor is deemed to have been duly made if it is in writing and signed on behalf of the Company by its authorised representative or solicitor and has been given to the Guarantor or left at or posted to the address of the Guarantor or Customer as shown in the Application for Trading Account or such last known address as notified to the Company in writing by the Guarantor.
15.9 The terms of this clause 15 are not affected by any action taken or notice issued in relation to any other securities. The Company is under no obligation to marshal in favour of the Guarantor any security whatsoever held by the Company.
15.10 This is a continuing guarantee and the liability of the Guarantor under this clause 15 is not affected by:
(a) any other person giving or not giving a guarantee or indemnity to the Company;
(b) the winding up, deregistration, administration, liquidation or insolvency of the Customer;
(c) the granting of time or concession (including a release, waiver, variation, assignment, novation, compounding or relinquishment of rights) to the Customer by the Company;
(d) any delay or laches on the part of the Company;
(e) any variation of this Agreement between the Company and the Customer (whether or not the Guarantor is party to that variation and whether or not such variation increases the Guarantor’s liability under the Guarantee) or any assignment or novation of this Agreement;
(f) the Company taking, varying, wholly or partially discharging or otherwise dealing with or losing or impairing any security for the Customer’s obligations under this Agreement or a security of that kind being or becoming void, voidable or unenforceable; or
(g) anything that the Company may do or omit to do which, but for this provision, might otherwise affect the liability of the Guarantor.
15.11 As between the Guarantor and the Company the Guarantor is to be deemed to be a primary debtor to the Company independent of the Customer.
15.12 To the fullest extent permitted by law the Guarantor waives such of the Guarantor’s rights as surety or indemnifier (legal equitable statutory or otherwise) which may at any time be inconsistent with any of the provisions of this clause 15.
15.13 The covenants and agreements made or given by the Guarantor are not conditional in any way and remain binding notwithstanding that any other person has not executed or duly executed this Agreement.
15.14 The obligations of the Guarantor under this clause 15 continue in force until the Company confirms in writing that it has been released.
15.15 The Guarantor acknowledges that:
(a) it has, prior to signing or execution of this Agreement obtained independent legal and financial advice and/or had the opportunity to obtain such advice as to its obligations and the true meaning, nature and effect of this Agreement; and
(b) the Company is under no obligation to notify the Guarantor of any changes to this Agreement or any dealings with the Customer (and the Guarantor appoints the Customer as its agent for the receipt of notices in connection with this Agreement).
15.16 In the event of liquidation or bankruptcy of the Customer, the Guarantor will not prove in such liquidation or bankruptcy in competition with the Company.
15.17 The Customer and Guarantor agree that:
(a) if any payment to the Company must be refunded under any statutory provision or otherwise, the liability of the Customer and Guarantor continues, and the Company will immediately be restored to the rights that the Company would have had against each party if the payment had not been made; and
(b) the Guarantor will immediately pay to the Company the amount refunded by the Company so that all amounts payable to the Company under this Agreement have been paid.
15.18 If the obligation of the Guarantor in respect of any part of the debt is unenforceable, the Guarantor’s obligation in respect of the other part of the debt will not be affected by such unenforceability.
15.19 The Company may apply any amounts received under this Guarantee towards satisfaction of any parts of the Amounts Payable or any other amounts under this Agreement in whatever manner it sees fit.
16.1 Time is to be of the essence so far as it relates to the Customer's obligations to the Company under this Agreement.
16.2 The Company does not waive any breach by the Customer or the Guarantor of this Agreement unless the waiver is in writing signed by the Company. No waiver is to be construed as a general waiver unless it is expressly stated to be a general waiver.
16.3 Should any provision of this Agreement be illegal, void or unenforceable, that provision will be ineffective and is to be severed from this Agreement to the extent only of that illegality, voidability or unenforceability. All remaining provisions are to be enforceable between the Company, the Customer and the Guarantor.
16.4 This Agreement is enforceable against each of the Customer and Guarantor (if more than one person) jointly and each of them severally.
16.5 The Company may at any time assign its rights and interests or novate its rights and obligations (in whole or in part) under this Agreement. The Customer must not assign any of its rights or obligations under this Agreement without the Company’s prior consent in writing, which consent may be refused or given subject to such terms and conditions as the Company may determine, at its absolute discretion.
16.6 This Agreement binds each person who signs as Customer or Guarantor even if another person who was intended to sign does not sign it or is not bound by it.
16.7 This Agreement binds the Customer and each Guarantor both personally and as trustee of any trusts for which it is trustee.
16.8 This Agreement may consist of a number of copies, each signed by one or more parties to it. If so, the signed copies are treated as making up the one document. the Company’s acceptance of this Agreement may be evidenced by establishing a Trading Account or supplying Goods to the Customer.
16.9 Only a director or company secretary of the Company has the authority to
(a) vary this Agreement in any way or
(b) accept orders or supply Goods under the Trading Account on terms other than this Agreement. This Agreement may be varied from time to time at the discretion of the Company by giving seven (7) day’s notice to the Customer and the Customer and Guarantors prospectively authorise and consent to any such variation.
16.10 This Agreement is governed by and the Customer and Guarantor submit to the laws of the State of Western Australia (or any other State or Territory nominated by the Company). The courts of that State or Territory have non-exclusive jurisdiction in connection with this Agreement.
16.11 In this Agreement, words or terms incorporating the singular or the plural shall include the plural and singular respectively and words importing the masculine gender shall include the feminine and neuter genders.
16.12 In this Agreement, references to include and including are to be construed without limitation.
16.13 Notices in connection with this Agreement may be provided to the Customer and Guarantors by mail, facsimile or email to the Customer’s address provided on the Application for Trading Account, or any other address provided by it to the Company. The Company may also provide notice of any variation of this Agreement by publishing the revised the Company Trading Terms on its website and the Company may (but is not obliged to) notify the Customer that it has done so on an invoice, Statement or order acknowledgement.
17. Contracting out of the PPSA
17.1 The Customer and Guarantor agree that nothing in sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA shall apply to this Agreement, or the security under this Agreement and to the extent permitted by the PPSA, agree to waive and contract out of its rights to receive any notice or statement under sections:
(a) 95 (notice of removal of an accession);
(b) 118 (notice of decision to enforce security interest under land law);
(c) 121(4) (enforcement of liquid assets – notice to grantor);
(d) 123 (notice of seizure of collateral);
(e) 130 (notice of disposal of collateral);
(f) 132(3)(d) (statement of account following a disposal showing the amounts paid to other secured parties);
(g) 132(4) (statement of account if there is no disposal);
(h) 157 (notice in relation to registration events),
or otherwise. The parties also contract out of each other provision of Part 4.3 of the PPSA, under sections 115(7) and 116(2), but only to the extent that the provision impose obligations on the Company.
17.2 The Customer, Guarantor or the Company will not disclose information of the kind mentioned in section 275(1) of the PPSA, unless required by law (other than section 275(1) of the PPSA).
18.1 The Company may set off any amount owing by the Company or any associated entity (as defined in the Corporations Act 2001) of the Company from time to time (“Company Entity”) to the Customer (whether or not due for payment) against any Amount Payable.
18.2 The Company may do anything necessary to effect any set-off under this clause 18 (including varying the date for payment of any amount owing by a the Company Entity to the Customer). This clause 18 applies despite any other agreement between the Customer and a the Company Entity.
18.3 If there are any amounts owing or due for payment by the Customer to the Company Entity (other than the Company), the Customer authorises the Company to pay all or part of any such amount to the relevant Company Entity in satisfaction of all or part of the Customer’s obligations. Any amount paid by the Company will be automatically debited against the Customer’s Trading Account and will constitute a debt from the Customer to the Company under this Agreement. If the Company makes a payment to another Company Entity under this clause 18.3, it must provide written notice to the Customer within fourteen (14) days of any such payment.
18.4 The Customer acknowledges that the Company Entities have entered into, or will enter into, arrangements to effect and authorise the set-off arrangements contemplated by this clause 18.
18.5 The Guarantor consents to the arrangements set out in this clause 18 and acknowledges that the guarantee in clause 15 extends to any amounts payable by the Customer under this clause.