The Business (or “you”) hereby apply to Haggled Australia Pty Ltd (“Procurement Direct”, “we” or “us”) for credit to the credit limit amount noted above and acknowledge that the terms and conditions relating to this application and account are binding on you even if Procurement Direct advise or allow you a credit limit that is different (whether higher or lower) than the amount requested above.
You warrant that the information submitted above is true and correct in every particular. You must advise if any of the owners or directors above ceases to be an owner or director.
Without limiting our rights to obtain or exchange information, you consent to us contacting the bank listed above and obtaining information from it regarding your holdings at that bank, and you consent to us contacting the trading references listed above for references
Returns, credits and other claims will only be accepted if authorised by us and if they are notified within 7 days of receipt of goods, or 7 days of invoice if you believe short delivery has occurred. Goods may only be returned if prior authority has been obtained and then only by carrier approved by us. A handling charge may apply to returned goods. This clause does not affect any statutory rights you may have.
You acknowledge that we retain title to all goods we deliver to you until payment in full for those goods. Ownership of goods does not pass to you until you have paid in full for all goods purchased from us. You acknowledge and agree that we may register a Purchase Money Security Interest (PMSI) on the Personal Property Security Register in respect of those goods. Should we register a PMSI you agree to waive the right to receive a verification statement as otherwise provided under s157 of the Personal Property Securities Act 2009. Goods are at your risk from the time goods are dispatched from Procurement Direct, whether collected by you or by an agent or carrier on your behalf. Unless we receive other instructions from you in advance, we shall use our carrier and pre-pay the freight charges on your behalf, which charges you must reimburse by the same due date as payment for the goods themselves.
The credit period at the end of which payment is due for goods purchased commences on the day that those goods are dispatched from Procurement Direct. Amounts become overdue immediately after the expiry of the credit period. Goods will not be supplied to overdue accounts until such time as the account is paid in full. You will indemnify us on demand against all legal costs, debt collection agency fees and other losses or expenses incurred in connection with your account being overdue, including in connection with recovery of amounts owed to us or recovery of goods supplied by us where ownership has not passed to you, and for deterioration in condition or depreciation in value of such goods. All such amounts will form part of the overdue amount. We reserve the right in our absolute discretion to charge fees on overdue accounts, up to 12% p.a. of the overdue amount by way of simple interest calculated daily, or $2.00 per day, whichever is the greater.
To the extent permitted by law, all statutory or implied warranties that may apply to goods supplied by us are hereby excluded and our obligation under any warranty that cannot be excluded is limited at our option to the replacement of the goods or supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of the repair of the goods. We expressly exclude any liability that may otherwise arise in relation to this application, account or the provision of goods for indirect or consequential loss or damages, including without limitation for loss of profits.
Notwithstanding anything else in this agreement, we can terminate or suspend your account at any time, in our absolute discretion.
If any provision in this application or relating to this account is invalid or unenforceable, it should be read down or severed as required and all other provisions will remain in full force and effect.
This application and the account are governed by the laws of the State in which our store is located.
CONSENT RELATING TO INFORMATION
Once your account is established, we will be a “credit provider” within the meaning of the Privacy Act 1988 (Commonwealth). Terms used in this section have meanings given to them in that act.
In connection with our consideration of this application and at any time after an account has been established, you and the listed individuals associated with your business who have signed below consent to us:
Collecting personal information about your business and/or listed individuals associated with your business and using it in connection with this application, this account and purchases made by you or those individuals from us.
Obtaining information about the commercial activities or commercial credit worthiness of your business and/or listed individuals associated with your business, from a business which provided information about the commercial credit worthiness of persons.
Obtaining consumer credit information about listed individuals associated with your business.
Obtaining from a credit reporting agency a credit report containing personal credit information about listed individuals associated with your business.
Obtaining personal information, including any information about credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act 1988, with respect to your business and/or listed individuals associated with your business from other credit providers, either named as suppliers on credit in this application or named in any credit report issued by a credit reporting agency, for any of the following purposes:
To assess the credit worthiness of your business and/or listed individuals associated with your business;
To assess this application for credit;
To help avoid default on credit obligations by your business and/or listed individuals associated with your business; or
To notify a default on credit obligations.
Providing information about your business and/or listed individuals associated with your business with other credit providers, including information contained in a credit report, for any purpose specified above.
Providing any of the following information about your business and/or the listed individuals associated with your business to a credit reporting agency or to another credit provider:
Identity details, including but not limited to the details on this application;
The fact that credit has been applied for and the amount requested and/or provided;
Details of payments overdue for at least 60 days, if we have taken any steps to recover those payments including making a written request for payment;
Details of cheques which have been dishonoured more than once;
If we have formed the opinion that a serious credit infringement has been committed.
PERSONAL GUARANTEE BY THE OWNERS OR DIRECTORS LISTED:
The undersigned unconditionally guarantee and indemnity Procurement Direct from all obligations of the above Business in relation to this application, the account and any purchases from Procurement Direct made by the Company and hereby indemnify Procurement Direct against breaches of those obligations and all associated costs or expenses.
In this Guarantee and Indemnity:
"Borrower's Obligations" means, the obligations collectively of the Company both in its own capacity and in its capacity as the trustee for any trust under which the Business is operated (jointly and severally, the “Borrower”) and under a credit facility to be entered into between the Borrower and Procurement Direct for the purchase of goods (“the Facility”);
"Guaranteed Money" means all amounts which are currently payable, owing, or contingently owing by the Borrower to the Company (or any assignee) under the terms of the Facility or which may become payable, owing, or contingently owing by the Borrower to the Company under the terms of the Facility;
“Material Adverse Effect” on a person means a material adverse effect:
(a) on its financial condition or business; or
(b) on its ability to perform and comply with its relevant obligations under this document;
"Security Interest" means:
(a) a mortgage, pledge, lien, charge, assignment by way of security, hypothecation, secured interest, title retention arrangement, preferential right, trust arrangement or other arrangement (including, without limitation, any set-off or "flawed-asset" arrangement) having the same or equivalent commercial effect as a grant of security; or
(b) an agreement to create or give any arrangement referred to in paragraph (a) of this definition;
2.1 In consideration of the Company agreeing to maintain the Facility and from forbearing from the demand and immediate payment of sums owing to the Company pursuant to the Facility, the Guarantor unconditionally guarantees to the Company the due and punctual payment by the Borrower of the Guaranteed Money.
2.2 The Guarantor acknowledges that they jointly and severally receive a direct commercial benefit from the consideration in clause 2.1 and the continued operation of the Facility.
2.3 If the Borrower defaults in the due and punctual payment of any of the Guaranteed Money, the Guarantor shall pay that money on demand to or as directed by the Company.
2.4 This Guarantee is a continuing security notwithstanding any settlement of account, intervening payment or anything else, and is irrevocable until discharged in accordance with its terms
3. GUARANTOR'S OBLIGATIONS
3.1 The Guarantor’s obligations under this guarantee are:
(a) principal obligations and may be enforced against the Guarantor without the Company being required to exhaust any remedy it may have against the Borrower or to enforce any security it may hold with respect to payment of the Guaranteed Money;
(b) absolute and unconditional;
(c) not affected by any increase (whether permanent or temporary) which may occur in the amount of credit provided to the Company under the Facility whether or not notified to the Guarantor.
3.2 The liability of the Guarantor under this Guarantee extends to and is not affected by any act, omission, matter or thing, waiver or other indulgence or concession which might operate to exonerate it from its obligations in whole or in part.
3.3 If two or more parties are included within the "Guarantor", then:
(a) a liability of the Guarantor under this Guarantee is a joint liability of all of them and a several liability of each of them; and
(b) except as contemplated by paragraph (a), a reference to the Guarantor is a reference to each of them severally, so that (without limitation):
(i) a benefit or right given to the Guarantor is a benefit or right given severally to each of them; and
(ii) an undertaking, representation or warranty made by the Guarantor is made severally by each of them.
4. SUSPENSION OF GUARANTOR'S RIGHTS
4.1 Until the Guaranteed Money has been irrevocably paid and discharged in full, the Guarantor may not, without the consent of the Company:
(a) stand in the place of the Company in respect of any right to receive money;
(b) take any steps to enforce a right or claim against the Borrower in respect of any money paid by the Guarantor to the Company under this Guarantee; or
(c) have or exercise any rights in competition with the Company.
5. GENERAL INDEMNITY
5.1 For the consideration referred to in clause 2.1 and as a separate and severable covenant and a primary obligation the Guarantor agrees to unconditionally indemnify the Company not only in respect of the non payment by the Borrower of the Guaranteed Money but also in respect of all costs charges damages losses and expenses whatever which the Company may incur by reason of any default on the part of the Borrower in relation to the Facility, in whole or in part.
5.2 The Guarantor shall pay to the Company on demand a sum equal to any loss in respect of which it indemnifies the Company under this clause, including any of the Guaranteed Money (or any moneys which, if recoverable, would have formed part of the Guaranteed Money) which are not or may not be recoverable for any reason
6. GUARANTOR'S UNDERTAKINGS
6.1 The Guarantor shall:
(a) provide the Company upon request and in any event within five Business Days of request with any information relating to the financial condition, business, assets and affairs of it or any of its subsidiaries;
(b) give the Company prompt notice of any litigation, arbitration, mediation, conciliation or administrative proceedings affecting it or any of its property which, if adversely determined, could have a Material Adverse Effect on it or any of its subsidiaries;
(c) not take any Security Interest from the Borrower for or in consideration of the Guarantor assuming the Guarantor's Obligations or any part of them.
6.2 This Guarantee binds each of the persons executing it notwithstanding that one or more of the persons named in this Guarantee as a Guarantor may not execute or may not be or may cease to be bound by this Guarantee or that the Company may not execute or may only subsequently execute this Guarantee.
6.3 This is a continuing guarantee and indemnity not released by waiver or forebearance by us or any increase in the credit limit and also applies if obligations of the Business are unenforceable for any reason.
6.4 This Guarantee is governed by the law in force in Victoria and the Borrower submits to the non-exclusive jurisdiction of courts of that state