“Agreement” means any agreement for the supply of Goods by PSC to the Applicant.
“Applicant” means the person set out in Section “A” and/or Section “B” of the Application for a Commercial Credit Account (which forms part of this document).
“Charged Property” means all of the rights, property, title, estate and interest of whatever kind and wherever situated and whether present or future in any freehold or leasehold property and/or real estate and in any Land which the Guarantor(s) now has or may hereafter have.
“Goods” means any goods and/or services supplied and/or where appropriate to be supplied to the Applicant by PSC.
“Guarantee” means this Guarantee & Indemnity
“Guarantor” means the person named in the Guarantor Schedule.
“Land” means land and includes but is not limited to Land as defined in the Real Property Act 1900 (NSW) and/or the Conveyancing Act 1919 (NSW) and/or their equivalents in other States or Territories of the Commonwealth of Australia, as amended.
“Money” means all monies owing and/or payable by the Applicant to PSC pursuant to or in relation to any Agreement and/or on any and all accounts the Applicant has or may have with PSC.
“PSC” means the Plumbers’ Supplies Co-operative Limited A.R.B.N. 053 236 436 and/or its employees, agents and authorised representatives.
“I” means the Guarantor and where the context permits, includes each Guarantor.
“Terms and Conditions” means the Terms and Conditions applicable to the Agreement.
1.1. In this Guarantee, unless the context indicates otherwise, reference to:
One gender includes others;
The singular includes the plural and the plural includes the singular;
A person includes a natural person, firm, unincorporated association, corporation, partnership, joint venture and a government or statutory body or authority;
A statute, regulation or provision of a statute or regulation (Law) includes:
That Law as amended or re-enacted;
A statute, regulation or provision enacted in replacement of that Law;
Another regulation or statutory instrument made or issued under that Law; and/or
Any amendment made to a statute, regulation or provision as a consequence of another statute, regulation or provision;
A thing (including any amount) is a reference to the whole and each part of it;
Payment includes repayment, discharge or satisfaction.
1.2. If the Guarantor comprises 2 or more persons:
A reference to the Guarantor includes each and any 2 or more of them;
This Guarantee binds each of them separately and any 2 or more of them jointly
I have received valuable consideration for entering into this Guarantee;
I (or our director(s) if we are a company) have read and understood the terms and conditions of this Guarantee and the Terms and Conditions;
I have made my own inquiries and satisfied myself as to the financial condition of the Applicant and of the Applicant’s ability to perform its obligations under any Agreement and have not relied in any way on any information that may have been provided by PSC;
I will continue to make my own inquiries and satisfy myself as to the financial condition of the Applicant as long as this Guarantee remains in force;
PSC has no duty at any time to give me any information relating to the financial condition or other affairs of any Applicant (including notice of default) or anyone else; and
Any security held by PSC from me secures payment by me of Money under this Guarantee.
PSC relies upon the accuracy of the information and representations that I have made in this Guarantee
This Guarantee is provided in the furtherance of the trade and/or business of the Applicant
This Guarantee is provided by me in a trade and/or business capacity
This Guarantee is not provided by me in any personal, household or domestic capacity
This Guarantee is given in support of future matters, including the promise of future payment of Money owed by the Applicant to PSC
This Guarantee is provided in support of the provision of a financial service (namely credit) by PSC to the Applicant
I unconditionally and irrevocably guarantee to PSC the punctual payment to PSC of Money and the due and prompt observance and performance of all covenants, obligations, Terms and Conditions (monetary or non-monetary, present or future, actual or contingent) on the part of the Applicant to be performed or observed under or in connection with any Agreement.
If the Applicant does not pay PSC Money, I will pay Money to PSC (or as PSC directs) immediately without the need for any demand.
Any loss suffered by PSC, directly or indirectly, as a result of PSC dealing with the Applicant whether by Agreement or otherwise;
Any expenses, including but not limited to, legal costs (such legal costs to be agreed to on a full indemnity basis) and disbursements as well as commission, incurred by PSC in pursuing and/or enforcing payment of Money by the Applicant and/or me;
All liabilities, losses and expenses which may be incurred (directly or indirectly) by PSC if Money:
Is not recoverable by PSC from the Applicant or from me as surety for any reason; or
Is not paid to PSC by the Applicant in accordance with the Terms and Conditions.
I agree that by executing this Guarantee:
I hereby grant to PSC a charge over all of the Charged Property in order to secure the Money (the “Charge”);
that if more than one person comprises the Guarantor, then each such person separately grants the Charge referred to in this charging clause (and references in this charging clause to “I” shall be construed to refer to each such person separately);
I hereby irrevocably consent to and request PSC to appoint any such person which PSC deems in their absolute discretion fit to be the attorney of the Guarantor for the execution of any document necessary to give effect to this charging clause; and
I hereby irrevocably authorise PSC to lodge a caveat over any or all of the Charged Property noting PSC’s interest so as to prevent any dealings on the title of that charged property until Money has been paid and agree to make payment to PSC of any expense, including but not limited to, legal costs, disbursements and stamp duty for both the lodging and removal of such a caveat.
I agree that PSC’s rights against the Guarantor are not affected by, and this Guarantee shall continue in full force and affect notwithstanding, any of the following:
By PSC making any variation(s) and/or alteration(s) to any of the Terms and Conditions of any Agreement; and/or
By PSC granting any extension of time or any other indulgence to, or compromise with, the Applicant or any co-guarantor or co-indemnifier of the Guarantee; and/or
By PSC releasing a co-guarantor or co-indemnifier (or any number of them), whether or not it be in return for payment of any kind; and/or
the Applicant’s liability to PSC under any Agreement being or becoming invalid, illegal or unenforceable, through any act, omission, legislation or law.
Without limiting the generality of clause 8, I further agree that the Guarantee shall not be avoided, discharged or affected in any way whatsoever by PSC varying in any way whatsoever the level of credit extended to the Applicant and/or the actual or prospective liability of the Guarantor hereunder and/or any amendment to the Terms and Conditions applicable under any Agreement.
It is acknowledged and agreed that notwithstanding the fact that the Guarantee may be intended or expressed to be executed and/or given by more than one person, the Guarantee shall nevertheless be a valid and effectual Guarantee binding against such person as shall execute the Guarantee forthwith upon their execution and shall be binding against such person notwithstanding the fact that any proposed or contemplated person fails for any reason whatsoever to execute the Guarantee.
This Guarantee is a continuing one for Money and is not limited to any transaction or arrangement.
My obligations under this Guarantee to pay Money are a primary obligation. PSC is not obliged to enforce any right against any person or property or demand payment from the Applicant or any other person before requiring payment by me of Money.
This Offer to guarantee will be accepted by PSC:
By supplying Goods to the Applicant, whether or not I am aware of such supply happening; and
without the need for PSC to communicate any notice of acceptance to me.
This Guarantee can only be terminated by the Guarantor by sending written notice of such termination to PSC’s National Credit Manager (the Termination Notice).
The Termination Notice will only be effective:
upon the actual receipt of it by PSC’s National Credit Manager; and
with respect to orders accepted by PSC after the actual receipt of it by PSC’s National Credit Manager
Money as at the time of such termination will remain the subject of this Guarantee as will any Money that subsequently becomes owing for Goods ordered prior to such termination
PSC’s rights under this Guarantee shall survive any termination of this Guarantee until such time as the Guarantor has complied with its obligations herein, including but not limited to the payment of Money
Service of any notice, demands, proceedings, summonses, suits or action (collectively called “Process”) upon the Guarantor may be effected by PSC or its solicitors sending same to the email, postal, trading or street address most recently advised by the Guarantor to PSC or obtained by PSC. The choice of address and method of sending will be at the absolute discretion of PSC. The Process shall be deemed served one business day after the sending by PSC whether or not it has been received by the Guarantor.
16.1. The Guarantor shall not assign its rights or obligations arising under or in relation to this Guarantee without the prior written consent of PSC.
16.2. The Guarantor consents to PSC assigning its rights and/or obligations under this Guarantee without having to give any notice to the Guarantor.
Any legal proceedings between PSC and the Guarantor will be governed by the laws of New South Wales and the Commonwealth of Australia as applicable;
PSC and the Guarantor irrevocably submit to the exclusive jurisdiction of the courts of New South Wales for the determination of any legal proceedings between PSC and the Guarantor;
Any legal proceedings between PSC and the Guarantor shall be instituted in a court of competent jurisdiction in New South Wales (including the New South Wales Registries of the Federal Court of Australia or the Federal Circuit Court of Australia should it be a matter where a State court of New South Wales lacks jurisdiction);
The Guarantor shall not try to intervene or interfere in any way whatsoever with PSC’s choice of jurisdiction, such choice being the jurisdiction in which PSC commences any proceedings;
The Guarantor shall not try to intervene with the jurisdiction of any court of New South Wales or the operation of this clause by seeking a stay (for example, under the Service and Execution of Process Act 1992 (Cth)) or a transfer of proceedings on the basis that they should be held in another jurisdiction; and/or
The Guarantor hereby expressly waives any rights under section 20 of the Service and Execution of Process Act 1992 (Cth) as amended to apply for a stay of any proceedings in relation to any proceedings between the Applicant and PSC.