Terms & Conditions

Terms & Conditions

TERMS AND CONDITIONS (CREDIT ACCOUNT, HIRE & SALE)

Interpretation

01 February 2012

 In these terms and conditions:

“Supplier” means Unispan Australia Pty Ltd A.C.N. 099 939 287, Uni-Span Height Safety Pty Ltd A.C.N. 122 411 198, Uni-span Formwork Solutions Pty Ltd A.C.N. 158 121 361 and any related body corporate (as defined by the Corporations Act 2001) and   successors or assigns from   whom Goods are purchased.

“Customer” means the party making the application for credit or purchasing goods and services from the Supplier.

“Hirer” means the party hiring the goods from the Supplier.

“Property” means all real and personal property owned by the Guarantor now or in the future, whether owned solely or jointly.

“Goods” includes equipment and services agreed to be supplied by the Supplier to the Customer under any Contract, agreement, arrangement or understanding between the Supplier and the Customer.

“Services” means any service agreed to be supplied by the Supplier to the Hirer under any Contract, agreement, arrangement or understanding between the Supplier and the Hirer.

GENERAL TERMS (CREDIT ACCOUNT)

1. These terms and conditions replace in their entirety any previous terms and conditions published, used or used by the Supplier and these terms and conditions will be deemed to be incorporated into all Contracts, Applications and orders.

Credit Application

2. The Customer warrants that the information provided is accurate, correct and complete   and is supplied   for the purpose of obtaining credit. The person/s signing below warrants that he/she is duly authorised by the Customer to apply for credit and execute this Application on its behalf.

3. The Customer agrees that it is not entitled to any credit facilities until it receives notice in writing the Supplier stating that credit facilities have been given in accordance with the terms and conditions contained herein. Until the Customer receives such notice, any goods that are supplied by the Supplier to the Customer shall be on basis of cash upon delivery. The parties agree that if, prior to formally approving credit, the Supplier grants to the Customer time to pay for any goods supplied, it does so on these terms and conditions.

4. The Customer will notify the Supplier no later than 14 days after any change of ownership, change in its particulars, any alteration or addition to shareholders or directors, and any change, alteration or addition to the Customer’s internal structure and senior management.

5. The Customer and, in the case of a corporate Customer, its directors, hereby authorises and unconditionally grants its consent to the Supplier obtaining from a credit reporting agency or other person or company, information and/or reports concerning it from time to time during the continuance of its credit account so as to assist the Supplier in deciding whether to grant credit or to continue to grant credit to it or for collecting overdue payments in respect of commercial credit applied for or provided to it. The Customer further authorises and consents to the Supplier obtaining and disclosing information about its credit worthiness to and from credit reporting agencies and credit providers (including identity particulars and details or overdue payments), who have or are or intend to enter into some commercial or business dealings with it and/or grant credit to it. For the purposes of this paragraph “report” and “information” include any credit report originating from a credit reporting agency or any other record or information that has bearing on the Customer’s creditworthiness, credit standing, credit history, credit capacity and personal information.

Payment of Credit Account

6. In the event of the Supplier granting credit facilities to the Customer then, unless otherwise advised in writing, must make payment of the account within 30 days of the end of the month in which goods are supplied, hired or delivered. Equipment requiring special design and manufacture shall be paid for on the following basis: 10% on acceptance of order, 20% on completion of drawings, 60% on completion of manufacture, and 10% thirty (30) days after delivery. Unless advised otherwise in writing by the Supplier, the Customer shall, in addition to prices quoted or charged, be responsible for all applicable taxes and statutory charges including, but not limited to GST.

7. The Supplier may suspend performance in the event that any part of the Customer’s account is overdue and may at its discretion and in that event, charge interest at the rate of 12% per annum, calculated on monthly balances until such time as the Supplier receives full payment of all outstanding invoices rendered to the Customer. The Supplier shall be entitled to pro rata progress charges for part deliveries.

8. A payment processing fee applies to credit card payments. The rate is 3% including applicable GST. Exceptions may apply.

Security

9. The Customer hereby charges all of its equitable interest in any freehold and leasehold Property it may have or may hereafter acquire of whatsoever nature and wheresoever situate as security for any monies owing by the Customer to the Supplier. Where the Customer is a Trustee, the Customer shall be liable on the account and in addition the assets of the Trust shall be available to meet payment of any monies due and owing to the Supplier.

10. The Supplier may at any stage during the continuance of the credit arrangement impose as a condition precedent to the grant of further credit that the Customer give such security or additional security as the Supplier shall in its discretion think fit. The Supplier shall be entitled to withhold supply of goods or further credit until such security or additional security is obtained.

GENERAL TERMS (SALE)

Quotation

11. A quotation given by the Supplier shall not constitute an obligation to sell and no contractual relationship shall arise until the Supplier has accepted the Customer’s order in writing. The Supplier hereby reserves the right not to supply Goods to the Customer if there is any error or omission found in the quotation.

Price

12. Unless advised otherwise in writing by the Supplier, the Customer shall, in addition to prices quoted or charged, be responsible for all applicable taxes and statutory charges including, but not limited to GST.

Delivery and Risk

13. Signed delivery dockets will be conclusive proof of receipt of delivery of the Goods in good condition. Unless otherwise agreed in writing, all risk in and to the Goods shall pass to the Customer on delivery to the Customer or its agent or to a carrier commissioned by the Customer.

Title

14. Title in the Goods shall not pass to the Customer until the full price of all the Goods has been paid to the Supplier. If prior to transfer of title, the Customer sells the Goods or uses the Goods in some process, then the Customer will hold the proceeds of such sale on trust for the Supplier.

Default

15. If the Customer breaches these terms of sale, fails to make payments to the Supplier when due, is unable to pay its debts when due and payable as determined by the Supplier in its absolute discretion or enters into any arrangement or composition with its creditors, the Supplier may without prejudice to its other rights, retake possession of the Goods from the Customer’s site and/or suspend further deliveries. For this purpose, if requested by the Supplier, the Customer must divulge to the Supplier the site addresses where the Goods are being used, stored or kept. The Customer shall indemnify and keep indemnified the Supplier against all costs and liabilities incurred by the Supplier arising from its entry on the Customer’s site including the Supplier’s legal costs on a full indemnity basis.

Returns

16. The Supplier will accept return of Goods within fourteen (14) days of delivery, subject to payment of a service charge or re- stocking fee by the Supplier and provided the Goods are in the same condition as delivered to the Customer, as determined by the Supplier in its absolute discretion. No return of specially designed or manufactured goods will be accepted.

Brochures

17. Illustrations of the Goods in any of the Supplier’s brochures and catalogues are not to be taken as exact representations of the Goods.

Cancelled or Varied Orders

18. The Supplier reserves the right to charge for the cost of materials used or purchased and the cost of labour incurred and all other costs associated with any order cancelled or altered by the Customer.

Limited Warranty

19. The Supplier warrants that the Goods will be free from defects and of merchantable quality. To the extent permitted by law, all other warranties, express or implied, are hereby excluded.

Limitation of Liability

20. Notwithstanding anything else contained in these Terms of Sale, the Supplier shall under no circumstances be liable to the Customer in connection with the Goods for any loss of use, loss of profit or consequential loss, whether arising in negligence or otherwise. To the extent permitted by law, the Supplier’s liability to the Customer is limited to the repair or replacement of the Goods.

Delays

21. The Supplier shall not be liable to the Customer for any costs, losses or damages caused by any delays in delivery, which are beyond the reasonable control of the Supplier, including but not limited to strikes, lockouts or other labour difficulty, inability   to   obtain   any   necessary   materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network.

GST

22. If the Supplier has any liability to pay the Goods and Services Tax (“GST”) on any goods or services supplied to the Customer, the Customer shall pay to the Supplier the amount of such GST or any other duty or statutory   charge in connection with the sale of the equipment at the same time as payment is made for those goods or services.

 

GENERAL TERMS (HIRE)

Quotation

23. A quotation given by the Supplier shall not constitute an obligation to sell and no contractual relationship shall arise until the Supplier has accepted the Customer’s order in writing. The Supplier hereby reserves the right not to supply Goods to the Customer if there is any error or omission found in the quotation.

24. The Supplier reserves the right to amend, change, update, rectify (etc.) any quotation provided to the Customer for any reason whatsoever.

Brochures

25. Illustrations of the Goods in any of the Supplier’s brochures and catalogues are not to be taken as exact representations of the Goods.

Cancelled or Varied Orders

26. The Supplier reserves the right to charge for the cost of materials used or purchased and the cost of labour incurred and all other costs associated with any order cancelled or altered by the Customer.

Hire Period

27. Hire of the goods shall commence from the day the Hirer takes delivery of the goods until the day of return of the Goods, with both of these days charged as whole days. No allowance on hire will be made for holiday periods, weekends, inclement weather, industrial action, transport delays or Government interference. A minimum of four (4) weeks hire applies.

Use on Site

28. The Hirer may use the Goods only on the site specified in the Hirer’s order. The Hirer must not transfer the Goods to any other site without obtaining The Supplier’s prior written approval. The Hirer shall not erect any of the Goods in such a manner as to make it a fixture to land.

Site Preparation

29. If The Supplier is to be responsible for erection of the Goods (such arrangement to be agreed by the Supplier), the Hirer shall ensure that the site is cleared and ready for erection of the Goods and that the foundations, footings or the structures upon which the Goods is erected/connected have adequate bearing and strength capacity to withstand and support all forces imposed on them from the Goods.

Delivery

30. Signed delivery dockets will be conclusive proof of receipt of delivery of the Goods in good condition. A representative may be appointed by the Hirer for the sole purpose of checking the quantity of material delivered and the time of delivery. If the Hirer provides no representative, the Hirer agrees that the Supplier shall be able to affect delivery and/or pick up of the Goods at its absolute discretion without the necessity for a representative of the Hirer to be present. In these circumstances, the Supplier’s   statements as to proof of receipt of the quantity, date and description of the Goods delivered, and delivery of the Goods in good condition will be evidenced by the delivery docket, which shall represent conclusive proof.

Transport

31. Unless the Supplier otherwise agrees in writing, the Hirer is responsible for the cost of delivery to and pick-up of the Goods from the Supplier’s premises and where deemed necessary by the Supplier, the Hirer shall provide loading and unloading the goods at its own cost.   The loading and unloading of the Goods collected by the Supplier is the responsibility of the Hirer. Transport charges as specified are for loading or unloading at the designated site during the Supplier’s normal business hours. Waiting time and delivery time outside of The Supplier’s normal business hours will incur additional charges.   Where the Hirer has requested delivery and adequate access is not provided to the Supplier or its agent such that delivery cannot be performed, the Hirer will be liable for all transport charges and/or waiting time.

Delays

32. The Supplier shall not be liable to the Customer for any costs, losses or damages caused by any delays in delivery, which are beyond the reasonable control of the Supplier, including but not limited to strikes, lockouts or other labour difficulty, inability   to   obtain   any   necessary   materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network.

Return of Goods by Hirer

33. Unless the Supplier otherwise agrees in writing:

  • the Hirer shall be responsible for the return of the Goods to The Supplier.
  • The Supplier will only accept return of the Goods upon expiry of the hire period at the depot from which it was obtained, during normal business hours. At the same time as returning the Goods, the Hirer may provide a representative to check the quantity and description of the Goods and that the time of return is as stated on the return docket. If no representative of the Hirer is provided, the return docket   shall   be conclusive evidence as to the quantity, description, date, condition, state of repair, and time of return. In all cases of returns whether by the Hirer or the Supplier, the Goods should be stacked, cleaned and sorted in the same manner as received when delivered.
  • Any restacking and sorting will be at the sole cost of the Hirer.
  • The Hirer agrees that it will return all Goods hired by it without any chemical, concrete, paint and/or hazardous or dangerous substances affecting the Goods.
  • The Supplier will accept no damaged Goods and the Supplier retains the sole absolute discretion to continue to charge hire costs for such period until the Goods is returned in a clean and safe condition.

Collection by the Supplier

34. Where the Supplier has agreed in writing to collect the Goods from the Hirer, a request to the Supplier to collect the Goods must be received by the Supplier in writing at least two (2) business days before collection is required. Delays during pick up or restacking for transport is to be to the Hirer’s account.

Late/No Return of Goods by Hirer

35. If the Hirer fails to return the Goods to the Supplier or make arrangement for such return at the end of the Hire Period, such Hire Period shall automatically be extended until (or unless) terminate by either party by written notice or the date of return of the Goods to the Supplier (collectively or individually “the Extended Hire Period”).

36. During the Extended Hire Period, the Hirer shall continue to be liable to pay hire charges, payable on demand, and calculated weekly on a pro-rata basis (as a proportion of which the Extended Hire Period bears to the Hire Contract Period) and the hire charges payable for the Hire Contract Period.

37. In the event that either party terminates the Extended Hire Period by written notice (”the Notice”) then such Notice sent by ordinary post or recorded delivery shall be deemed to be served three (3) working days following the day of posting. Notices sent by facsimile or email transmission shall be deemed to be served on the day of transmission if transmitted before   4.00   p.m. on   a   business   day, but otherwise on the next following business day.

38. In   the   event   that   the   Goods   are   not   returned, or arrangements made with the Supplier (to its sole satisfaction) to have the Goods returned, within three (3) working days of deemed service of the Notice, then the Goods shall be considered not to be returned by the Hirer, and without limiting the other rights of the Supplier may raise an invoice for the “Sale by Loss” by applying the Supplier’s current price list to those items which have not been returned by the Customer.

Loss and Damage

39. The Hirer shall be responsible for all theft, loss and damage to the Goods and the cost of replacement or repair will be charged to the Hirer at the Supplier’s then current list price as the date the theft, loss or damage is notified to the Supplier.

Hirer’s Obligations

40. The Hirer shall:

  • prior to use of the Goods, satisfy itself as to its condition and suitability for the purpose required;
  • use the Goods in a skillful, proper and safe manner and only for the purpose and within the capacity for which it was designed and in accordance with the relevant Australian Standards;
  • ensure the Goods are erected and dismantled by competently trained or certified   persons as per Australian Standards in a manner that is specified by the Supplier;
  • maintain and check the Goods regularly to confirm it is in good condition, fair wear and tear excepted;
  • indemnify the Supplier against all claims and liabilities arising out of the use or servicing of the Goods;
  • not sell, mortgage, sub-hire, pledge, lease or otherwise deal with any of the Goods unless the Supplier provides the Hirer with the prior written consent to do so;
  • not modify or alter the Goods in any way from the state in which it was hired;
  • not remove, deface or cover up any plates or marks on the goods indicating its ownership or the Supplier’s details;
  • ensure that all safety and operating instructions relating to the goods are observed; and
  • ensure that hazard identification, risk assessment and risk control measures are carried out on site for the installation of the goods and that all users are trained in the safe use of the goods.

Limited Warranty

41. The Supplier warrants that the Goods will be free from defects. To the extent permitted by law, all other warranties, express or implied, are hereby excluded.

Limitation of Liability

42. Notwithstanding anything else contained in these Terms of Hire, the Supplier shall under no circumstances be liable to the Customer in connection with the Goods for any loss of use, loss of profit or consequential loss, whether arising in negligence or otherwise. To the extent permitted by law, the Supplier’s liability to the Customer is limited to the repair or replacement of the Goods.

Licenses and Approvals

43. The Customer shall be responsible for obtaining all licenses, consents, permits and approvals in connection with the use of the Goods.

Right of Inspection

44. The Supplier shall at all times have the right to inspect any of the Goods hired.

Access

45. The Customer irrevocably give to the Supplier and its agents(s) the right, without notice, to enter the premises of the Customer (or any property where the Customer has placed the Supplier’s goods) for the purpose of inspecting, removing or taking possession of the goods or part thereof; and in doing so, the Supplier is entitled to use all reasonable force to gain access to the premises and shall not be held liable for any damage or loss occasioned by the Customer or its premises and the Customer shall indemnify the Supplier.

Default

46. If the Customer breaches these terms, fails to make payments to the Supplier when due, is unable to pay its debts when due and payable as determined by the Supplier in its absolute discretion or enters into any arrangement or composition with its creditors, the Supplier   may without prejudice to its other rights, retake possession of the Goods from the Customer’s site and/or suspend further deliveries and/or terminate the credit facility.

47. For this purpose, if requested by the Supplier, the Customer must divulge to the Supplier the site addresses where the Goods are being used, stored or kept.

Termination

48. Either party can terminate this agreement by giving 14 days written notice for any reason whatsoever.

49. Upon termination, the Supplier may continue to charge hire at the Supplier’s then current rate until the Goods are returned to the Supplier’s depot in accordance with these terms and/or charge the Hirer for repair of damages or cleaning of the Goods, if required.

50. In the event of termination:

  • the loading of Goods collected by the Supplier is the responsibility of the Hirer. The cost of repossession and transport of the Goods shall be borne by the Hirer. The cost of dismantling and stacking erected Goods, or stacking dismantled Goods by the Supplier will be to the Hirer’s account.
  • The Hirer hereby provides all necessary permission for the Supplier to enter the site to repossess the Goods and indemnifies and keeps indemnified the Supplier for any damage arising out of the Supplier’s entry onto the site to remove the Goods.
  • The Supplier’s repossession of the Goods shall not affect the right of the Supplier to recover outstanding payments under the contract and the Supplier reserves its rights to pursue any additional remedies available to it.

51. The Customer shall indemnify and keep indemnified the Supplier against all costs and liabilities incurred by the Supplier arising from its entry on the Customer’s site including the Supplier’s legal costs on a full indemnity basis.

RETENTION OF TITLE

Risk

52. Unless otherwise agreed in writing, all risk in and to the Goods shall pass to the Customer   on delivery to the Customer or its agent or to a carrier commissioned by the Customer.

Title

53. Title in the Goods shall not pass to the Customer until the full price of all the Goods has been paid to the Supplier.

54. If prior to transfer of title, the Customer sells the Goods or uses the Goods in some process, then the Customer, in a fiduciary capacity, will hold the proceeds of such sale on trust for the Supplier. If, without prior written consent of the Supplier, the goods have been on-sold by the Customer, then the Customer agrees to hold all proceeds in trust for the Supplier. Notwithstanding any other provision of these Terms and Conditions, all hire goods will remain the sole and absolute property of the Supplier.

Jurisdiction

55. The parties agree that these terms and conditions of credit shall be governed and construed in accordance with the laws of the State of Queensland and the parties agree to submit to the jurisdiction of the Courts of that State.

Entire Agreement

56. These Terms constitute the entire agreement between the Supplier and the Customer concerning the application for credit, the supply of credit and the supply and hire of Goods by the Supplier to the Customer and shall prevail over all conditions appearing on any document of the Customer.

PERSONAL PROPERTY SECURITIES ACT (“PPSA”)

57. The Customer acknowledges that these Terms & Conditions constitute a security agreement in favour of the Supplier for the purposes of section 20 of the PPSA and that a security interest exists in:

  • The goods (and their proceeds) previously supplied (whether by sale or hire) by the Supplier to the Customer (if any);
  • All of the goods (and their proceeds) to be supplied (whether by sale or hire) by the Supplier to the Customer in the future;
  • All of the Proposed Customer or Customer’s present and after acquired property in which the goods or materials supplied or financed by the Supplier have been attached or incorporated.

58. The Customer acknowledges that the security interest granted by the Customer to the Supplier pursuant to clauses 11 to 22 of these Conditions shall constitute a purchase money security interest as defined in Section 14 of the PPSA.

59. The Customer acknowledges and agrees that the Supplier will register its security interest in the goods and their proceeds as a purchase money security interest on the register.

60. Where the PPSA applies to action taken by the Supplier in relation to the goods, the Customer waives its right to receive any notices required under section 95, 118, 121, 130, 132 or 135 of the PPSA.

61. The Customer waives its rights under section 157 of the PPSA to receive notice of a verification statement.

62. The Proposed Customer or Customer further agrees that where the Supplier has rights in addition to those under Part 4 of the PPSA, those rights will continue to apply.

63. Until ownership and title of the goods passes to the Customer in accordance with these Terms & Conditions, Customer must not give to the Supplier a written demand or allow any other person to give the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a   financing change statement under the PPSA.

64. The Customer acknowledges that it has received value as at the date of first delivery of the goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Supplier under these Terms & Conditions.

65. In  addition to any other rights under these Terms & Conditions or otherwise arising, the Customer irrevocably grants to the Supplier the right, without notice to the Customer, to exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for an seize, dispose of or retain those goods in respect to which the Customer shall indemnify the Supplier from any Claims made by any third party as a result of such exercise.

66. The Customer agrees and undertakes to:

  • sign any further documents, provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) and do such further acts which the Supplier may reasonably require to enable registration of the security interest granted to the Supplier under these Terms & Conditions and/or any Contract on   the Personal Property Securities Register (“PPSR”);
  • give the Supplier not less than 14 days written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including but not limited to changes in the Proposed Customer or Customer’s address, facsimile number, email address, trading name of business practice);
  • pay all costs incurred by the Supplier in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms & Conditions including executing subordination agreements;
  • be responsible for the full costs incurred by the Supplier (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to Section 182 of the PPSA; and

67. The Customer waives any rights it may have under any section of the PPSA listed in Section 115(1) of the PPSA upon enforcement of any security interest by the Supplier.

68. The Customer agrees that immediately on request by the Supplier the Customer will procure from any persons considered by the Supplier to be relevant to its security position such agreement and waivers as the Supplier may at any time requir

69. Pursuant to Section 275(6) of the PPSA, the Customer agreed it would not disclose to an interested person information pertaining to the Supplier’s purchase money security interest without prior approval of the Supplier.

70. Clauses 57 to 70 will survive the termination of any Contract to the extent permitted by law.

CUSTOMERS SIGNATURE/S

The Customer makes this application for a credit account and agrees to be bound by the above terms and consent to the terms under the Privacy Act 1988, and the Customer hereby irrevocably consents and authorises the Supplier or any officer of the Supplier to insert in this Application any particulars or details with respect to the name of Customer or the date of signing, which is omitted by any party when signing this Application.

 

NOTE: THIS APPLICATION MUST BE SIGNED BY THE CUSTOMER.

(THE DIRECTORS, THE PARTNERS OR SOLE TRADER, AS APPLICABLE)

 

 

 

 

 

 

.……………………………………………………………………….………

Signature of Customer

Name:

Position: Director / Secretary

Date:

 

 

 

 

 

.………………………………………………………………….……………

Signature of Customer

Name:

Position: Director / Secretary

Date:

 __________________________________________________________________________________

DEED OF GUARANTEE, INDEMINITY & CHARGE

 

Between:

 

Unispan Australia Pty Ltd A.C.N. 099 939 287, Uni-span Height Safety Pty Ltd A.C.N. 122 411 198, Uni-span Formwork Solutions Pty Ltd A.C.N. 158 121 361 and to each related body corporate of the Supplier or its successors or assigns (collectively referred to as “the Supplier”)

 

And

 

……………………………………………………………………………………………………………………..…

Name of Customer Company, ACN/ABN and trading name (“Customer”)

 

I/We, the aforementioned customer, have requested that the Supplier to supply me/us with goods on credit. Should the Supplier elect to do so then the Guarantor/s hereby jointly and severally agree to guarantee to the Supplier as follows:

1)       I/We guarantee that the Customer will pay the Supplier all amounts payable under the Credit Account when they are due. I/We acknowledge that this guarantee continues until all of these amounts have been paid in full or the Supplier ends this guarantee and indemnity in writing.

 

2)       I/We agree that if the Customer does not pay to the Supplier all amounts payable under the Credit Account (Hire and Sale) when they are due, I/we will immediately pay that sum to the Supplier, whether or not demand has been made by the Supplier on the Customer.

 

3)       I/We will indemnify, and will keep indemnified, the Supplier against any losses, costs, charges, damages and expenses of any nature including legal costs which it suffers or might incur in respect of any action, demand or proceedings made or taken against it as a result of any default by the Customer of its obligations or arising under this Guarantee. I/We agree that I/We will pay any stamp duty assessed on this Guarantee.

 

4)       I/We will also be responsible to the Supplier for all outstanding monies due now or at any time in the future for Goods and/or Services supplied by the Supplier to the Customer from time to time.

 

5)       Both my/our indemnity and my/our Guarantee are continuing security and are binding and will not be affected (whether or not I/We have notice of the following matters):

  • If the Supplier:

– grants any waiver or extension of time or other indulgence to the Customer or to the Guarantor/s;

– refuses further credit to the Customer;

– varies the terms of the Customer’s account or the arrangements between the Supplier and the Customer are changed in any other way (even if this increases my liability under this Guarantee and Indemnity);

  • By the release of any of the Guarantors or if this Guarantee is unenforceable any one or more of the Guarantors;
  • If any payment by the Customer is later avoided by law;
  • If the Credit Account is unenforceable;
  • If the Customer is placed into administration or receivership or if the Guarantor/s are placed into bankruptcy;
  • The death of one of the other Guarantors named herein.

6)  My/Our obligations to the Supplier under this guarantee and indemnity shall not be abrogated, prejudiced or affected by the granting of time credit or any indulgence or concession by the Supplier to the Customer or by any omission or neglect or by any other dealing matter or thing which might (but for this provision) operate to affect or discharge my/our obligations it being the intention of the parties to this agreement that this guarantee and indemnity and my/our obligations shall be absolute and unconditional in any and all circumstances.

7) I/We covenant and acknowledge that I/we must not, on any grounds whatever either directly or indirectly,

  • Claim any right of set-off or any other right or relief at law or in equity which would or may have the result of reducing the liability of the Guarantor/s under this agreement or which would (but for this provision) entitle the Guarantor/s to deduct from the money payable by the Guarantor under this agreement any money claimed by the Guarantor/s to be due from the Supplier to the Guarantor/s on any account whatever;
  • bring any proceedings to restrain or prevent the Supplier from exercising any of its rights, powers or remedies or raise or make any defence, cross-claim or counterclaim on the footing that any right of set-off or any other right or relief referred to in paragraph (a) is vested in or available to a Guarantor, the Customer or any other person against the Supplier.

8) I/We agree that each application for credit made by the Customer to any related body corporate of the Supplier is deemed to have been accepted from the date of the first invoice to the Customer; and without further notice to me/us, this Guarantee extends to all liabilities from the Customer to that related body corporate.

9) This Guarantee and Indemnity extends to credit given to the Customer in the future by a company which is not now, but at the time that such credit is extended, has become a related body corporate of the Supplier and may in such case be enforced by the Supplier.

10) I/We agree that before providing credit to the Customer, the Supplier may seek from a credit agency, a credit report containing personal information about me to assist in deciding whether to accept me/us as Guarantor for the Customer.

11) I/We hereby irrevocably consent and authorise the Supplier or any officer of the Supplier to insert in this Guarantee any particulars or details with respect to the name of Customer or the name of the Guarantor/s or the date of signing, which is omitted by any party when signing this Guarantee.

12) The Guarantor/s HEREBY CHARGES all the equitable interest he/she may have or   may hereafter acquire of whatsoever nature and wheresoever situated in any Property as security for any debt owing by the Customer to the Supplier. The Guarantor/s acknowledges that it shall be liable for all legal costs on an indemnity basis to which the Supplier may be put as a result of taking any steps to enforce in any way the charge hereinbefore created. The Guarantor(s) also agree that the Supplier has a right to register a caveat against any real property owned by the Guarantor(s) as security for any   monies outstanding monies due   and   owing to the Supplier.

13) If the charge created by clause 12 herein or any other clause of this Guarantee is or becomes void or unenforceable, it may be severed from this agreement without any effect on the validity of the remainder and the Guarantor/s will not be exonerated in whole or part. Nor will the Supplier’s rights, remedies or recourse against the Guarantor/s be in any way be prejudiced or adversely affected by such severance.

14) This guarantee and indemnity is to be a continuing guarantee and indemnity and shall be   irrevocable and shall be irrevocable and shall remain in full force and effect until such time as   the Customer shall have duly performed and discharged its obligations as aforesaid.

15) That notwithstanding the due completion of this agreement this clause and the guarantees and indemnities contained in this clause shall endure for the benefit of the Supplier and shall not merge in the transfer upon completion.

16) I/We as Guarantor/s certify that I/We have read this Guarantee and Indemnity and in particular understand that if the Customer fails to make any required payments to the Supplier, the Supplier may recover the amount of these payments from me personally and may, amongst other rights, take a charge over any real property in which I have an interest. I/We also certify that prior to the execution of the Guarantee, I/We have been given an opportunity to obtain independent legal advice regarding its meaning and effect and that I/we have made myself/ourselves   aware of the financial position of the Customer.

17) I/We acknowledge that I/we am/are incurring obligations and giving rights under this agreement for valuable consideration received from the Supplier.

18) I/We agree that no set offs of deductions are permissible by me/us concerning the Customer’s obligations.

19) I/We agree that this guarantee and indemnity is governed by the laws of Queensland. I/We unconditionally submit to the non-exclusive jurisdiction of the Courts of Queensland in relation to this guarantee and indemnity, any dispute under or any transactions contemplated by this guarantee and indemnity.

20) I/We agree to pay to the Supplier all legal costs (on an indemnity basis) incurred by the Supplier in respect of any proceedings for enforcement under this guarantee and indemnity.

21) I/We have read and understood this guarantee and indemnity and the “Terms and Conditions (Credit Account, Hire & Sale)” by the Supplier before signing this guarantee and indemnity.

DEFINITIONS

22) In this Guarantee and Indemnity the following definitions apply;

 

“Goods” includes equipment and services agreed to be supplied by the Supplier to the Customer under any Contract, agreement, arrangement or understanding   between the Supplier and the Customer.

“Supplier” means Unispan Australia Pty Ltd A.C.N. 099 939 287, Uni-Span Height Safety Pty Ltd A.C.N. 122 411 198, Uni-span Formwork Solutions Pty Ltd A.C.N. 158 121 361 and any related body corporate (as defined by the Corporations Act 2001) and successors or assigns from whom Goods are purchased.

“Guarantee” means this Personal   Guarantee and Indemnity Agreement.

“Customer” means the party making the application for credit. “Property” means all real and personal property owned by the Guarantor now or in the future, whether owned solely or jointly. Words: Singular words include the plural and vice versa.

 

Where there is more than one Guarantor, they will be, and agree to be, bound jointly and severally.

 

Signed sealed and delivered by:

 

 

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Name of Guarantor

 

Date

 

 

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Name of Witness

Date

 

Signed sealed and delivered by:

 

 

 

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Name of Guarantor

Date

 

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Name of Witness

Date