Terms and Conditions
Author: Kathey Senter Date Posted:27 April 2016
Hill & Smith Pty Ltd
A.C.N. 153 144 364
TERMS AND CONDITIONS OF CREDIT
HILL & SMITH PTY. LIMITED
STANDARD TERMS AND CONDITIONS OF SALE
In these Conditions the following words shall have the following meanings (unless the context otherwise requires):-
“Company” means Hill & Smith Pty. Limited. ACN 153 144 364
"Contract" means the contract for the sale of Goods between the Company and the Customer to which these Conditions apply;
“Customer” means the person, firm or company who has placed an order for Goods from the Company;
“Delivery Point” means the Company’s trading address from time to time or such other address as the Company may specify to the Customer in writing and in advance;
“General Conditions” means the standard terms and conditions of sale set out in this document and (unless the context requires otherwise) includes any special terms and conditions agreed in writing between the Customer and the Company;
“Goods” means all goods and associated documentation to be supplied under the Contract to the Customer by the Company;
"GST" and "Goods and Services Tax" have the meanings ascribed to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended from time to time) or any replacement or other relevant legislation and regulations.
“Insolvency Event” means the occurrence of any one or more of the following events:
- an application is made to a court for an order, or an order is made, that the Customer be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed;
- a liquidator or provisional liquidator is appointed;
- an administrator (as defined in section 9 of the Corporations Act 2001) or a controller (as defined in section 9 of the Corporations Act 2001) is appointed to any of the Customer's assets;
- the Customer enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
- the Customer proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
- the Customer is insolvent as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act 2001) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
- the Customer becomes, or states that it is, an insolvent under administration (as defined in section 9 of the Corporations Act 2001) or action is taken which could result in that event;
- an order is made, a resolution is passed, proposal put forward or any other action taken, in each case which is preparatory to or could result in any of the matters referred to in paragraphs (a) to (g) inclusive;
- the Customer is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act 2001;
- a notice is issued under sections 601AA or 601AB of the Corporations Act 2001;
- a writ of execution is levied against the Customer or a material part of its property;
- any step is taken by a mortgagee to enter into possession of or dispose of the whole or any part of the Customer's assets or business; or
- anything that occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
"Site” means the premises of the Company as specified in the order acknowledgment issued by the Company to the Customer; and further
- a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re‑enactments and replacements;
- the word "it" includes every gender;
- if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- "includes" in any form is not a word of limitation.
- Any quotation is not an offer. All orders by the Customer for the Goods ("Orders") if accepted will be accepted subject to these General Conditions. Except as otherwise required by law, all other terms conditions or warranties whatsoever are excluded from the Contract or any variation thereof unless expressly accepted by the Company in writing (order acknowledgements do not constitute such acceptance). In particular, in no circumstances will any conditions of purchase submitted at any time by the Customer be applied to this or any other Contract and any failure by the Company to challenge any such conditions of purchase does not imply acceptance of those conditions of purchase.
- If, subsequent to this contract, any Contract for sale is concluded with the same Customer by letter, email, fax, or orally, or by any combination of these, without express reference to these General Conditions, it shall be a term of such a Contract that these General Conditions of sale apply to such Contract.
- Quotations shall be available for acceptance by the Customer for a maximum of sixty (60) days from the date of issue by the Company and may be withdrawn by the Company by written or oral notice to the Customer at any time prior to acceptance of the Order by the Company.
- Without prejudice to the parties' rights to vary this Agreement and to make specific arrangements from time to time, and to the extent permitted by law, the terms and conditions of this Agreement constitute the entire agreement between the parties as to its subject matter and supersedes any prior arrangements, agreements, conditions, representations, undertakings and warranties. To the extent permitted by law, any statement or representation by the Company its servants or agents upon which the Customer wishes to rely must be set out in writing and agreed between the Company and Customer at the time the Contract is entered into. Any statement or representation which is not so confirmed in writing is followed or acted upon entirely at the Customer’s own risk. For the avoidance of doubt illustrations, weights, measures, performance capabilities, application suitability information and other data set out in the sales literature of the Company are statements of opinion and are provided for information only and form no part of the Contract.
- Verbal and telephone, Orders will be executed at the Customer's risk only and must be confirmed in writing and received by the Company within 72 hours.
- The Contract is between the Company and the Customer as principals; neither the benefit nor the burden is assignable by the Customer without the Company’s prior consent in writing; the Contract may however be assigned or sub-contracted by the Company at any time at its sole discretion and without the Customer's consent.
- No Order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of such cancellation.
- The Company shall be entitled to cancel an Order at any time by serving notice in writing on the Customer if it does not receive, on request, satisfactory (in the Company's sole opinion) credit references in relation to the Customer. If the Company cancels an Order pursuant to this Clause it shall have no liability whatsoever for any liabilities, losses, damages, costs or expenses whatsoever incurred, suffered or paid by the Customer as a result of or in connection with such cancellation.
- In the supply of Goods :
- unless specific prices have been expressly agreed by the Company in a quotation or other written document provided to the Customer by the Company, the price payable by the Customer shall be the price stated in the Company's published price list at the date of dispatch of each delivery.
- Prices do not include the price of delivery or of any import or customs duties or any other applicable taxes unless otherwise stated in writing by the Company and such taxes and duties shall be payable in addition to the Price.
3.2 The Company reserves the right at any time prior to delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including but not limited to, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or any other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
All prices are subject to the addition of GST (or other applicable sales tax).
- Subject to Clause 4.2 below, payment of the price for the Goods is due in Australian dollars in cash or cleared funds by the end of the month following the month of delivery of the Goods unless otherwise agreed in writing (including without limitation where alternative payment terms are stated on any quotation or order confirmation provided to the Customer by the Company).
- If the Customer wrongfully fails to take delivery of the Goods the Company shall be entitled to invoice the Customer for the price at any time after the Company has tendered delivery of the Goods.
- No payment shall be deemed to have been received until the Company has received cleared funds.
- In the event of default in payment by the Customer, the Company shall be entitled (without prejudice to any other right or remedy it may have under these Conditions or otherwise) to charge interest on a daily basis (after as well as before judgment) on any amount outstanding at the rate of four percent (4%) above the base rate of Reserve Bank of Australiafrom time to time.
- In the event of any dispute, the Customer shall not be entitled to withhold payment of the price of the Goods or any agreed payments or to any right of set-off, deduction, counterclaim, abatement or otherwise against any payment due to the Company under any Contract.
- In respect of Goods sold for export, unless otherwise agreed in writing, payment should be made by irrevocable letter of credit confirmed with a clearing bank approved by the Company.
- Time for payment shall be of the essence of the Contract.
- All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
- Unless otherwise agreed in writing by the Company, delivery shall be deemed to take place when the Goods are made available by the Company at the Delivery Point, for collection by the Customer or its carrier at the Company's premises ("Delivery").
- Any and all dates and periods specified by the Company for delivery are estimates only and do not constitute fixed times for delivery. Delivery shall not be of the essence of the Contract and shall not be made of the essence by notice. The Customer shall have no liability for any damages, losses, costs or expenses whatsoever or in connection with the failure by the Company to meet any delivery times specified in the Order and shall have no right to cancel an order for a failure to meet any such date.
- The Company will endeavour to comply with any reasonable request by the Customer for postponement of delivery but shall be under no obligation to do so and the Customer is obliged to take delivery at such date and time as specified by the Company. Where postponement is agreed by the Company in writing the Customer shall, if required, pay all costs and expenses including a reasonable charge for storage occasioned thereby and any costs incurred by the Company in relation to any insurance payments reasonably made by it. The Company reserves the right to deliver the Goods to the Customer in instalments. Where the Goods are delivered in instalments, each Delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
- The date for Delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer.
- If the Customer is ordering Goods for delivery outside of the country of manufacture by the Company, such Goods may be subject to import duties and taxes which are levied when the Goods reach the specified destination. The Customer will be responsible for payment of such import duties and taxes. The Customer will comply with all laws and regulations of the country for which the Goods are destined and the Company will not be liable for any breach of those laws.
- Unless otherwise agreed in writing between the Customer and the Company, the Goods shall be delivered to the Delivery Point and the Company shall be under no obligation to give any notice in respect to the same.
- The Customer shall (and shall procure that its sub-contractors and agents shall):
- observe the works rules and safety regulations applicable to the Site; and
- indemnify and keep the Company indemnified in full against all and any direct, indirect or consequential liabilities (all three of which terms include without limitation loss of profit, loss of business, depletion of goodwill and like loss), losses, claims, damages, costs and expenses (including all legal and other professional expenses) awarded against or incurred or paid by the Company as a result of or in connection with any death or personal injury to the Company's employees or agents while such employees or agents are on any premises of the Customer in connection with the Contract.
- RISK AND TITLE
- Until payment has been made to the Company of all monies owing to the Company from the Customer on any account whatsoever:
(a) any Goods and/or items supplied to such Customer under the terms of the Contract shall be held by that Customer as bailee for the Company and it shall be an express term of the Contract that all legal and equitable title in the Goods shall remain in the Company until such payments have been made in full;
(b) The Customer shall permit the servants or agents of the Company to enter on the Customer's premises and to repossess the Goods at any time prior to such payment;
- the Customer shall not sell, offer to sell, assign, underlet, pledge, mortgage, charge, encumber or part with possession of the Goods or any interest in the Goods nor create or allow to be created over the Goods any lien save that the Customer shall only be at liberty to resell the Goods purchased from the Company prior to the passing of title on the understanding that if it does resell the goods then it will hold on trust for the Company so much of the proceeds of sale received by it, under contracts which include any of the Goods hereby sold either in their original or altered state as are necessary to discharge payment in full to the Company;
- The Customer shall only be at liberty to mix the Goods with others or use them in the process of manufacture prior to the passing of title with the consent of the Company in writing, which such consent shall not be unreasonably withheld providing that suitable guarantees are given by the Customer to discharge payment in full at the due date under this Contract for sale to the Customer;
- The Customer shall not remove any trademark, trade or business name of the Company from any of the Goods; and
- The Customer shall keep the Goods insured to their full replacement value and shall ensure that they are securely and safely stored.
6.2 Unless otherwise agreed between the Company and the Customer in writing, risk of damage to or loss of the Goods shall pass to the Customer upon delivery as defined in the applicable Incoterm. When Goods are covered by the Company's own transport, delivery shall be deemed to take place at the moment the Goods are lifted from the delivery vehicle. When Goods are delivered by other means of transport delivery shall be deemed to take place when the Goods are loaded on to the road or rail vehicles used.
6.3 No claim for Goods damaged in transit will be considered by the Company unless the Company used its own transport for delivery of the Goods and unless:-
- An appropriately qualified signature, e.g. "Goods received damaged, (signed)" is clearly made by the Customer on the delivery note; and
- The Company is advised in writing, in addition to 6.3 above, within three days of receipt of material.
- No allowance for claims for short weight will be made unless the Company is given an opportunity for verifying same within three days.
- For the avoidance of doubt where the Customer collects the Goods from the Delivery Point or where a third party delivers the Goods the Company shall have no liability to the Customer for any Goods damaged in transit.
- The Customer's right to possession of the Goods shall terminate immediately if:
- the Customer becomes the subject of an Insolvency Event; or
- the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Customer, is unable to pay its debts or the Customer ceases to trade; or
- the Customer encumbers or in any way charges any of the Goods.
- The Customer acknowledges that the Company has a security interest (for the purposes of the Personal Properties Securities Act 2009) in the Goods and any proceeds contemplated by clause 6.1 until title in the Goods passes to the Customer. This security interest secures all moneys owing by the Customer to the Company under any contract or otherwise. The Customer hereby agrees that the Company can register this security interest on the Personal Properties Security Register maintained under the Personal Properties Securities Act 2009.
- On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights contained in this Clause 6 shall remain in effect.
- WARRANTY AND LIABILITY
- The Company warrants that for a period of twelve (12) months from Delivery, the Goods will comply in all material respects with any specifications for the Goods agreed between the Company and the Customer in writing. If no specification for the Goods has been agreed between the Company and the Customer, the Company warrants that for a period of twelve (12) months from Delivery, the Goods will comply in all material respects with the specifications published by the Company in relation to the Goods from time to time (if any) and in the absence of any specification (agreed or published) the Company warrants that for a period of twelve (12) months from the date of Delivery the Goods will be free from material defects in workmanship or materials. All other warranties or conditions, expressed or implied, as to material, workmanship, quality, description or fitness of the Goods for any particular purpose, whether such purpose be known to the Company or not (in each case whether statutory or otherwise) are excluded to the fullest extent permitted by law.
- To the extent that guarantees and warranties cannot be excluded under the Australian Consumer Law, the Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
- The Customer shall only be entitled to claim (and then, subject to this Clause 7) for defects in the Goods as supplied which are apparent on visual inspection if the Customer inspects the Goods within three working days following the date of Delivery and complies with the provisions of Clause 7.4 below.
- Subject to clause 7.2 above, if the Customer believes that the Goods do not comply with the warranty set out in Clause 7.1 ("Defective Goods"):
- the Customer shall within three working days of discovery of the Defective Goods, notify the Company in writing and provide to the Company evidence which supports its claim that the relevant Goods are Defective Goods; and
- on receipt of notice from the Customer and satisfactory evidence (in the Company's sole opinion) in relation to the Defective Goods pursuant to Clause 7.4(a) above, the Company shall (at its option) either repair or replace the Defective Goods or issue a credit note to the Customer in the value of the Goods. For the avoidance of doubt, following repair, replacement or the issuance of a credit note in respect of the Defective Goods pursuant to this Clause 7.4(b) the Company shall have no further liability whatsoever
- The Company shall not be liable for a breach of the warranty set out in Clause 7.1 if:
- the Customer makes any further use of such Goods after giving such notice; or
- the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
- the Customer alters or repairs such Goods without the written consent of the Company.
- All other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- Nothing in these Conditions excludes or limits the liability of the Company:
- for death or personal injury caused by the Company’s negligence;
- for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
- Subject to Clause 7.5 and 7.6:
- the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the contract price or $1,000,000 Australian dollars whichever is the lower; and
- the Company shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- The Customer shall indemnify and keep the Company indemnified in full against all and any direct, indirect or consequential liabilities (all three of which terms include without limitation loss of profit, loss of business, depletion of goodwill and like loss), losses, claims, damages, costs and expenses (including all legal and other professional expenses) awarded against or incurred or paid by the Company as a result of or in connection with any breach of the Contract by the Customer.
8.1 The Company shall be entitled, without prejudice to the Company's other rights and remedies, either to terminate wholly or in part any or every Contract between the Company and the Customer and/or to suspend any further deliveries of Goods in any of the following circumstances;
(a) Non-compliance by the Customer with the Company's terms of payment as per Clause 4 of these Conditions; or
(b) If the Customer has failed to provide a letter of credit or guarantee, bill of exchange or any other security required by the Contract; or
(c) The Customer becomes the subject of an Insolvency Event;
(d) the Customer becomes unable to satisfy its debts as they fall due or ceases or threatens to cease to carry on business;
(e) the Customer or any connected person commits any breach of this or any other contract whenever made between the Customer and the Company; or
(f) the Company suspects that there has been a breach or there has been a breach of any of the provisions of Clause 13 below.
- CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
- All drawings, documents, confidential records, computer software and other information supplied by the Company, whether produced by itself or a third party, are supplied on the express understanding that all intellectual property rights are reserved to the Company (or the third party) and that the Customer will not, without the written consent of the Company, give away, loan, exhibit or sell any drawings, documents, records, software or other information or extracts from them, or copies of them, or use them in any way except in connection with the Goods in respect of which they are issued.
- All claims for alleged infringement of patents, trademarks, registered designs, design rights or copyright received by the Customer relating to the Goods must be notified immediately to the Company. If requested by the Company, the Company shall be entitled to have conduct of any proceedings relating to any such claim in such manner as the Company thinks fit and the Customer will provide the Company such reasonable assistance as the Company may request. The cost of any such proceedings will be borne by the Company.
- If any allegations shall be made against the Customer to the effect that the supply of the Goods or the supply of infringes the intellectual property rights of any third party or the Company has reason to believe that such allegation is likely to be made, the Company may at its option and expense modify or replace the Goods so as to avoid the infringement (but without adversely affecting the overall performance of the Goods), or obtain for the benefit of the Customer the right to continue to use the Goods, or repurchase the Goods at the Contract Price as reduced by a reasonable provision for depreciation. If the Company pursues any of such options, the Customer will have no rights or remedies against the Company arising directly or indirectly out of the alleged infringement.
10. FORCE MAJEURE
In the event of the performance of any obligation by the Company being prevented, delayed or in any way interfered with by war, riot, civil commotion, strikes, lock-outs, accidents, flood, fire, explosion, or by any other cause beyond its control (including the delay or failure to supply of any suppliers of the Company) the Company may suspend or treat as impossible the performance of any obligation to the Customer without liability for any loss.
- HEALTH AND SAFETY
The Customer agrees to pay due regard to any information supplied by the Company relating to the use for which the Goods are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned, serviced or maintained by any person and the Customer undertakes to take such steps as may be specified by such information or otherwise necessary to ensure that as far as is reasonably practicable the Goods will be safe and without risk to health at all times as mentioned above.
12. TESTING AND INSPECTION
12.1 Testing and inspection if specified by the Customer or his agent shall be at the Company's works (at the Customers expense) and such testing and inspection shall be final and conclusive as to the results thereof.
12.2 The Company shall not be obliged to produce test and performance certificates or safety critical certificates unless requested by the Customer and accepted by the Company in writing.
12.3 In addition to any costs incurred by the Company in testing the Goods the Customer shall pay for all test pieces which comply with specification.
- The Customer shall comply with all relevant anti-corruption legislation in connection with the Contract and the Company’s business and shall immediately notify the Company if it discovers or suspects that any of its officers, directors, employees or representatives are acting or have acted in a way which violates such legislation.
- The Customer acknowledges that the Company has a code of responsible business: The Hill & Smith Holdings PLC Code of Business Conduct (“HS Code of Conduct”). The HS Code of Conduct together with the Company’s Anti Bribery and Corruption Policy (“HS ABC Policy”) are available at www.hsholdings.co.uk and the Customer shall, at all times, conduct, and procure that its officers, directors, employees and/or representatives conduct, business ethically and in accordance with the relevant provisions of the HS Code of Conduct and the HS ABC Policy. This clause shall apply whether or not the Customer is acting pursuant to the Contract or its relationship with the Company.
- The Customer agrees that it must be able to demonstrate its compliance with the requirements referred to in this Clause 13 at the request of and to the satisfaction of the Company which includes, but is not limited to, the Company having the right to inspect any site involved in work for the Company. If the Customer fails to comply with this Clause 13, the Company shall be entitled, in its sole discretion, to terminate this Contract and any other agreements between the Customer and the Company without penalty to the Company, but with obligations for the Customer to remedy any damages suffered by the Company as a result of such termination or as a result of the breach of Contract pursuant to Clause 7.9.
- Any failure to exercise or any delay by the Company in exercising a right or remedy provided by this Contract or at law or in equity will not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of a breach of any of the terms of the Contract or of a default under these Conditions will not constitute a waiver of any other breach or default and will not affect the other terms of the Contract.
- Subject to clause 2.6, the Customer shall not, without the written consent of the Company assign, transfer, mortgage, charge or deal with in any other manner with any of its rights under any Contract or purport to do the same.
- The Company shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under any Contract and shall for the avoidance of doubt be entitled to assign, any interest or rights that it has in relation to any Contract.
- If any provision of these Conditions shall be held invalid or unenforceable in whole or in part then the unaffected provisions shall remain in full force and effect. Headings appear for convenience only and shall not affect the construction of these Conditions.
- The Contract and any non-contractual obligations arising out of or in connection with it shall be governed and interpreted exclusively according to the Laws of Australia. The parties hereby agree to submit to the non-exclusive jurisdiction of the Australian courts.
GUARANTEE AND INDEMNITY
TO: Hill & Smith Pty Ltd A.C.N. 153 144 364, its successors and assigns (“Hill & Smith”).
RE: Application for Credit (“the contract”).
FROM: The Guarantor(s) named in the schedule to this Application for Credit jointly and severally (“The Guarantor”).
1. In consideration of Hill & Smith entering into the Application for Credit with the Applicant described in the schedule, the Guarantor guarantees the performance of the Applicant under the contract and indemnifies Hill & Smith as described below.
2. The Guarantor guarantees to Hill & Smith that the Applicant will duly perform its obligations under the contract. The Guarantor warrants that it has full and unrestricted power to enter into this Guarantee and Indemnity and to execute this Guarantee and Indemnity and that it is not necessary to obtain the prior licence or authority of any other person to execute this Guarantee and Indemnity. Where there is more than one person, each agrees that the obligations of the Guarantor are joint and several.
3. The Guarantor agrees to indemnify Hill & Smith against all damages, costs, expenses and losses of any kind (including legal fees on an indemnity basis) which Hill & Smith may suffer as a result of any breach of the contract by the Applicant.
4. The Guarantor agrees that the Guarantor’s liability will not be discharged or reduced by and is continuing, regardless of any:-
(a) Concession or indulgence granted by Hill & Smith;
(b) Termination of the contract by Hill & Smith as a result of any breach by the Applicant;
(c) Insolvency, bankruptcy or winding up of the Applicant;
(d) Grant of time or other concession to the Applicant by Hill & Smith;
(e) Compromise, waiver or variation of any of Hill & Smith’s rights against the Applicant;
(f) Delay in Hill & Smith exercising its rights;
(g) The contract being unenforceable against the Applicant;
(h) Payment which is avoided or set aside under any statute relating to insolvency or any other statute of court order; and
(i) Other matter which, but for this clause, might have released the Guarantor from its obligations to Hill & Smith.
5. The obligations of the Guarantor hereunder shall not merge or be deemed to have merged in any judgment obtained by Hill & Smith against the Applicant and the Guarantor shall remain liable to Hill & Smith under this Guarantee and Indemnity notwithstanding that Hill & Smith may in the meantime obtain any judgment against the Applicant.
6. It is expressly declared that notwithstanding the fact that this Guarantee and Indemnity may be intended or expressed to be executed and given by more than one person, the same shall in fact be a valid and effectual guarantee binding against such person or persons as shall execute the same immediately upon their execution of this Guarantee and Indemnity and shall continue to be binding as against such person or persons notwithstanding the fact that any proposed or contemplated party does not execute this Guarantee and Indemnity.
7. The Guarantor hereby charges all property, both legal and equitable, of the Guarantor in respect of any monies which become owing under this Guarantee and Indemnity. The Guarantor specifically consents the lodgement of a Caveat over any real property as security for the monies owing to Hill & Smith.
8. The Guarantor shall pay to Hill & Smith any sum payable by the Guarantor pursuant to this Guarantee and Indemnity immediately upon receipt of Hill & Smith’s written request to do so. Any moneys payable by the Guarantor to Hill & Smith pursuant to this Guarantee and Indemnity shall be paid to Hill & Smith at such place and to such person or corporation as Hill & Smith or its representative or manager may from time to time in writing direct.
9. A certificate signed by Hill & Smith or any director, attorney or secretary for the time being of Hill & Smith or by its solicitors or by any person authorised in writing by Hill & Smith as to any sum payable to Hill & Smith pursuant to this Guarantee and Indemnity as at the date set out in such certificate with or without particulars thereof shall for all purposes be accepted as prima facie evidence of the amount due to Hill & Smith.
10. Any proceedings in respect of any cause of action arising under this Guarantee and Indemnity shall be instituted and determined before a Court of competent jurisdiction in Brisbane in the State of Queensland selected by Hill & Smith and the Guarantor shall submit to the jurisdiction of such Court and this Guarantee and Indemnity shall be construed according to the laws of the State of Queensland.
11. Any notice under this Guarantee and Indemnity may be served upon the Guarantor by delivering it to the postal address of the Guarantor last known by Hill & Smith by posting the same by prepaid post addressed to the Guarantor at such postal address of the Guarantor last known to Hill & Smith and any notice or demand so posted (whenever received and whether received or not) shall be deemed to have been given on the business day next following the day upon which the same was posted.
Important: If YOU DO NOT UNDERSTAND THIS Guarantee and Indemnity,
You SHOULD seek independent legal advice before YOU sign.