- The customer and/or the Guarantors acknowledge that they have each read and understood the Terms and Conditions of Sale that are attached hereto (“the trading terms”) and that they hereby make application for and request Sydney Express Powder Coating Pty Ltd (ABN:41 626 547 564) (“SE”) to supply goods as and when requested by the customer upon and subject to the trading terms.
- The customer hereby authorises SE to make all necessary enquiries of each of the referees and the bank for the purpose of obtaining such financial or other information that it may reasonably require in order to satisfy itself of the financial standing and credit worthiness of the customer and/or the Guarantors and to decide whether to accept this application and in this regard the customer undertakes that it shall forthwith authorise the referees and the banks to provide such information and documentation as SE may require.
- The customer hereby undertakes to promptly provide to SE such further details, documents or information concerning the customer and/or the Guarantors as SE may require in order to consider and determine whether to accept or refuse this application and the customer hereby acknowledges declares and warrants that all statements made and information contained in this application and to be hereinafter supplied are true and correct in every particular.
- Each of the signatories to this application and, in the case of a sole trader, the customer (each an “Applicant”) acknowledges that SE by this clause informs the Applicant that, under section 18E(8)(c) of the Privacy Act 1988 (“the Act”), SE is allowed to give a credit reporting agency personal information about this credit application, The information which may be given to an agency is covered by section 18E(1) of the Act and includes: a) Identity particulars as permitted by the Privacy Commissioner’s determination issued under 18E(3); b) The fact that the customer has applied for credit and the amount of credit applied for; c) The fact that SE is a current credit provider to the customer; d) Details of payments which become more than 14 days overdue, and for which collection action has commenced; e) Advice that payments are no longer overdue; 2 f) In specified circumstances, advice that, in the opinion of Sydney Express Powder Coating Pty Ltd, the customer committed a serious credit infringement; g) And advice that credit provided to the customer by SE has been paid or otherwise discharged, and the above information may be used to obtain a consumer credit report about the Applicant and/or to allow the credit reporting agency to maintain a credit information file containing information about the Applicant.
- Each Applicant acknowledges that if SE considers it relevant to assessing the customer’s application for commercial credit, SE may obtain from a credit-reporting agency, a credit report containing personal credit information about the Applicant in relation to commercial credit provided by SE.
- Each Applicant acknowledges that SE may give to and seek from any credit provider named in the credit application and any credit provider concerning the Applicant’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Act to assess and application by the customer for credit, to notify other credit providers of a default by the Applicant, to exchange information with other credit providers of the status of credit with SE where the Applicant is in default with other credit providers and/or to assess the Applicant’s credit worthiness.
- The customer and/or the Guarantors agree acknowledge and declare that they and each of them shall be bound by the provisions of this credit application form and to the trading terms as and from the moment of the acceptance by this application.
- The customer and/or the Guarantors hereby agree that the trading terms hereinafter set forth can be amended from time to time by SE in the manner as set forth in the trading terms.
- DEFINITIONS
SE means Sydney Express Powder Coating Pty Ltd (ABN:41 626 547 564);
Deed means this Deed of Guarantee and Indemnity;
Credit Facility means the Credit Application between SE and the Customer dated on or about the same date this Deed; Guaranteed Moneys means and includes all and any moneys that are or may become payable by the customer, and the Guarantor or any other person pursuant to the Credit Facility or this Deed. - GUARANTEE The Guarantor unconditionally and irrevocably guarantees to SE the due and punctual payment by the Customer of all moneys that are or may become payable by the Customer pursuant to the Credit Facility and performance of all the Customer’s obligations ancillary thereto. 3. INDEMNITY The Guarantor indemnifies and will keep SE wholly indemnified against any loss, damage, cost, charge, expense or other liability directly or indirectly incurred SE in any way in connection with or arising from any actual or attempted breach or default by the Customer of any of its obligations under the Credit Facility or any inability by SE to enforce the Credit Facility against the Customer for any reason, including that the Credit Facility or any part of it may be void, voidable or declared unenforceable. This indemnity is a principal obligation which is separate and distinct from the guarantee under clause 2 and must not be construed otherwise or read down or limited in its effect or otherwise varied by virtue of its inclusion in the same document as the guarantee and any of the other undertakings given by the Guarantor. 4. GUARANTOR’S OBLIGATIONS
- 4.1 The Guarantor must pay any money due to SE under this Deed on demand and without prior notice being given.
- 4.2 The guarantor’s obligations and SE rights and remedies against the Guarantor will continue until all Guaranteed Moneys have been paid and discharged in full and this Deed has been released and will not in any way be affected by:
- a) Any release or variation of the Credit Facility an any time;
- b) Any time, concession, indulgence, waiver, compromise, abandonment or transfer (whether with or without consideration) of:
- (i) Any right of any person under this Guarantee and Indemnity or the Credit Facility; or
- (ii) Any other rights of SE against the Customer, the Guarantor or any other person;
- c) Any acquiescence, delay, act, omission, neglect or mistake on the part of SE or any other person to enforce the Credit Facility or this Deed;
- d) The Customer, the Guarantor or any other person:
- (i) Being or becoming bankrupt, insolvent, placed under administration or in liquidation; or
- (ii) Dying or being dissolved or deregistered or otherwise ceasing to existWhether or not SE assents to this or receives or accepts any dividend from any trustee, administrator or liquidator;
- e) Any incapacity or change in the legal capacity or the Customer or any other Guarantor including any change in the membership of any firm (whether or not this involves dissolving an existing partnership and forming another) which is the Customer or the Guarantor or of which the Customer or the Guarantor is a member;
- f) Any amounts guaranteed by this Deed being or becoming irrecoverable against any person for any reason;
- g) Any provision of the Credit Facility or this Deed being or becoming void, voidable or unenforceable against any person;
- h) Any assignment or transfer of any rights in respect of the Credit Facility or this Deed by SE, the Customer, the Guarantor or any assignee of them or any other person;
- i) Any judgement or order being made against any person;
- j) The amount of the guaranteed moneys increasing or being reduced to nil or otherwise varied;
- k) The failure to give notice to or the lake of consent of the Guarantor before or after the happening of any acts or events referred to in this clause; or
- l) Any other act, omission or default by any person or any other matter or thing which, but for this clause, might discharge, reduce, abrogate, prejudice or otherwise affect the liability of the Customer or the Guarantor.
- 4.3 The Guarantor’s obligations are continuing obligations under this Deed and are unconditional and irrevocable, remaining in full force and effect until the whole of the Guaranteed Moneys have been paid or satisfied and this Deed released.
- NATURE OF GUARANTEE & INDEMNITY
- 5.1 This Deed is and remains a principal obligation and may be enforced against the Guarantor without SE first having taken any proceedings against the Customer or any other guarantor to recover the guaranteed moneys.
- 5.2 This Deed is in addition to and does not affect or merge with any other right of SE under any other guarantee, indemnity or security held at any time by SE.
- 5.3 The Guarantor is not entitled to claim or seek the benefit of or require the transfer of the benefit of any guarantee and indemnity or security held by SE at any time or to recover from the Customer any amount paid to SE by or on behalf of the Guarantor unless and until all moneys owned by the Customer to SE (whether or not guaranteed) have been fully paid and satisfied.
- COVERNING LAW AND SUBMISSION TO JURISDICTION This Deed will be construed in accordance with the laws of New South Wales and the laws of New South Wales will be the proper law of the contract. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals there from.
Please also read the terms & conditions of Sydney Express Powder Coating Ltd Pty.