These Trade Terms, together with any Trade Credit Application or purchase order, set out the agreement under which Doom Juice Worldwide Pty Ltd (the Company) provides Goods to you or the company which you represent (the Customer).
SUPPLY OF GOODS
Doom Juice and the Customer agree that Doom Juice will provide and supply the Goods to the Customer on the terms and conditions contained in this Agreement.
Each time the Customer requires Doom Juice to provide the Goods, the Customer must submit a Purchase Order to Doom Juice via email (or otherwise in writing and accepted by Doom Juice). Doom Juice may accept or reject a Purchase Order in its discretion. Any accepted Purchase Orders shall form part of and be governed by the terms of this Agreement.
In the event of any inconsistency between this Agreement and any Purchase Order, the terms contained in the Purchase Order will prevail to the extent of such inconsistency.
PAYMENT
All quotes and orders are in Australian dollars and excluding GST and any other taxes, duties, customs and excise charges.
Unless otherwise stated in a Purchase Order:
Doom Juice will issue a Tax Invoice for the fees for Goods (as indicated in the Purchase Order); and
the Customer will pay Doom Juice the amount stated on the Tax Invoice for the Goods within 21 days of the date of the Tax Invoice, or will otherwise make payment on any other day nominated by Doom Juice (irrespective of when the Tax Invoice is issued).
The Customer will also pay to Doom Juice, on demand, on a full indemnity basis, all amounts that Doom Juice may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Customer defaulting on any of the terms of this Agreement.
If payment is not made in accordance with this clause 2, Doom Juice at its entire discretion may require the Customer to pay Doom Juice interest on all outstanding monies from the due date until the date of payment at the rate of 15% per annum accruing daily, subject to change from time to time by written notice to the Customer at the absolute discretion of Doom Juice. However, before applying this interest, the Doom Juice will provide the Customer with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Doom Juice. The obligation to pay interest survives termination of this Agreement.
If payment is not made in accordance with this clause 2, Doom Juice may:
refuse to supply any further part of the Goods to the Customer until all outstanding monies, including any accrued interest, is paid in full; or
terminate this Agreement whereupon the full price for the Goods then supplied, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.
The Customer may not withhold payment or make any deduction from any amount owing without Doom Juice’s prior written consent, irrespective of any claim the Customer may have against Doom Juice for any thing or matter whether related to the provision of the Goods or not.
Doom Juice reserves the right to change the price of the Goods it provides to the Customer from time to time, including without limitation when Doom Juice’s suppliers vary the costs of the materials that they supply to Doom Juice.
Without limitation to the above clause, due to the uncertainty in world currency exchange rates, Doom Juice reserves the right to vary prices for goods supplied to overseas customers. On the date that Doom Juice accepts a Purchase Order, Doom Juice will confirm the price for the relevant Goods based on applicable exchange rate. We may be required to vary the prices of Goods even after we have accepted a Purchase Order and prior to delivery. We will endeavour to provide you with notice in the event that this occurs.
If the Doom Juice varies any price of Goods and/or in accordance with this clause 2, the Doom Juice will use its best endeavours to provide reasonable notice to the Customer about such variation.
All prices quoted by Doom Juice are the actual amounts payable to Doom Juice free of all deductions and set off whatsoever and the Customer will be responsible for all tariffs, taxes, import duties and all other charges and payments which may be levied, charged or assessed or imposed in respect of the Goods.
Doom Juice reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
CREDIT LIMIT
Doom Juice is not obliged to provide any further Goods for the Customer once the Credit Limit has been reached.
Doom Juice may, at its option, provide further Goods for the Customer, where to do so will result in the Credit Limit being exceeded and the Customer agrees that Doom Juice is expressly authorised to provide those Goods and this Agreement will continue to apply in full to all monies owing.
Doom Juice is under no obligation to advise the Customer when the Credit Limit has been reached or exceeded.
RIGHT TO REFUSE FURTHER CREDIT OR VARY THE CREDIT LIMIT
Doom Juice may at any time, for any reason whatsoever:
vary the Credit Limit of the Customer to increase or decrease the Credit Limit; or
refuse further credit to the Customer,
without any liability to the Customer whatsoever.
WARRANTIES
To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods provided.
The warranties contained in clause 5(c) are additional to warranties implied by law. Each of the warranties will be read and construed as a separate and independent warranty and will not be limited by reference to each other. All warranties will be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.
The Customer warrants to Doom Juice that as at the date of this Agreement and for the duration of this Agreement:
the information contained in this Agreement is true and correct and it has disclosed all relevant information to Doom Juice to assess the credit-worthiness of the Customer;
it has the legal right and power to enter into this Agreement;
the execution, delivery and performance of this Agreement by the Customer has been duly and validly authorised by all necessary corporate action on its part;
this Agreement is a valid and binding Agreement on the Customer, enforceable in accordance with its terms;
the Customer is not bankrupt or insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over any part of its assets and no such appointment has been threatened;
and no proceedings have been brought or threatened for the purpose of bankrupting or winding up the Customer;
no partner, director or shareholder of the Customer is bankrupt, a discharged bankrupt or in any form of receivership, administration or liquidation; and
it has the capacity to make the payment in accordance with this Agreement.
CONFIDENTIAL INFORMATION
The Customer acknowledges that the Customer may become acquainted with or have access to Confidential Information, and agrees to maintain the confidence of the Confidential Information and to prevent its unauthorised disclosure to or use by any other person, firm or company.
PERSONAL INFORMATION
Doom Juice is bound by the Australian Privacy Principles in the Privacy Act 1988 (Cth) in dealing with Personal Information provided by the Customer.
The Customer acknowledges and agrees that the Customer may receive Personal Information of another person in the course of business with Doom Juice and agrees that any such Personal Information must only be used, disclosed or otherwise dealt with in accordance with the Australian Privacy Principles.
NO ASSIGNMENT
The Customer must not transfer or assign its rights under this Agreement to anyone else, without the prior written consent of Doom Juice, which may be granted or withheld by Doom Juice in its sole, absolute and unfettered discretion. The Customer must provide any information Doom Juice requires to consider whether to grant its consent.
Any change in 50% or more of the shareholding of the Customer will constitute a deemed assignment which requires Doom Juice’s prior written consent in accordance with clause 8(a).
The Customer acknowledges and agrees that Doom Juice may transfer, assign or otherwise dispose of its interest in this Agreement upon giving written notice to the Customer.
OWNERSHIP AND ASSIGNMENT
Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that Doom Juice retains full title to the Goods and title will not at any time pass to the Customer until the purchase price for the Goods and all other amounts owing in respect of the Goods are paid to Doom Juice notwithstanding:
the delivery or collection of the Goods to/by the Customer (as the case may be); and/or
the possession and use of the Goods by the Customer.
The Customer acknowledges and agrees that:
it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of Doom Juice;
it will, if requested by Doom Juice, return the Goods to Doom Juice following non-fulfilment of any obligation of the Customer (including payment of monies) without limiting any other right Doom Juice may have;
it will deliver up the Goods to Doom Juice upon demand by Doom Juice and give Doom Juice or its agents or authorised representatives the right to enter any premises occupied by the Customer and any premises where it believes any Goods may be stored (without liability for trespass or any resulting damage) and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify Doom Juice and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Goods from the Customer’s possession or control;
it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for Doom Juice immediately when they are receivable or are received; and
Doom Juice may recover as a debt due and immediately payable by the Customer all amounts owing by the Customer to Doom Juice in any respect even though title to the Goods has not passed to the Customer.
PRODUCT INFORMATION
Doom Juice endeavours to ensure that the descriptions and specifications in relation to the Goods on its website or in catalogues are accurate. However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, descriptive literature or a catalogue are based on information provided by manufacturers and suppliers and, as such Doom Juice does not guarantee that those descriptions and specification are accurate or free from errors or omissions. Doom Juice reserves the right to make any necessary corrections to the descriptions or specifications without notice.
PERSONAL PROPERTY SECURITIES FOR GOODS SUPPLIED WITHIN AUSTRALIA
General
The Customer acknowledges and agrees that notwithstanding any other provision of this Agreement:
the PPSA applies to any supply of Goods by Doom Juice to the Customer for Goods supplied in Australia ;
by agreeing to and/or accepting or adopting this Agreement the Customer grants to Doom Juice:
a purchase money security interest in the Goods (on the basis that the Goods are sold on retention of title terms); and
a security interest over all present and after-acquired property of the Customer (“Customer’s Property”),
to secure Doom Juice’s interest in the Goods and all monies owing or payable by the Customer under this Agreement and any other moneys payable by the Customer to Doom Juice from time to time on any account whatsoever. The Customer agrees that Doom Juice may apply any payments received from the Customer as Doom Juice sees fit, and notwithstanding any prior application, Doom Juice may apply amounts received at Doom Juice’s discretion;
if a purchase money security interest is not able to be claimed by Doom Juice in respect of the Goods for any reason, Doom Juice will have a security interest in the Goods;
the Customer agrees that Doom Juice's security interest in Goods, Equipment and the Customer’s property covered by this Agreement may be registered on the PPS Register and the Customer agrees to do all things necessary and required by Doom Juice to effect registration of Doom Juice's security interest on the PPS Register in order to give Doom Juice's security interest the best priority possible and anything else Doom Juice requests the Customer to do in connection with the PPSA without delay;
the Customer warrants that all information provided by the Customer to Doom Juice, including the Customer’s details, including the entity, name, ACN or ABN and address is correct in all respects and must not change its name, address or other details without providing Doom Juice with at least 20 business days prior written notice;
the Customer unconditionally and irrevocably appoints Doom Juice as its attorney to do any of acts and matters set out in this clause 10 in the event that the Customer fails, delays or declines to execute such documents or do such acts;
the Customer agrees that it will not grant a security interest or other encumbrance in the Goods whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of Doom Juice , which Doom Juice may refuse to provide or grant in its absolute and unfettered discretion. Doom Juice may request and the Customer must provide any information that Doom Juice requires, acting reasonably, in order to fully consider whether to grant its consent;
Doom Juice ’s security interest in the Goods, and the Customer’s Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Goods, and/or the Customer’s Property by the Customer;
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 Doom Juice under this Agreement;
the Goods are located in Australia at the date of the supply of the Goods and the Customer warrants that the Goods will remain located in Australia for the duration of the Agreement;
neither Doom Juice or the Customer will disclose any information to any interested person unless required to do so under the PPSA;
the Customer waives its right under the PPSA:
to receive a copy of any verification statement, financing change statement, or any notice that Doom Juice intends to sell the Goods and/or the Customer’s Property or to retain the Goods and/or the Customer’s Property on enforcement of the security interest granted to Doom Juice under this Agreement or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;
to object to a proposal by Doom Juice to dispose of or purchase or retain the Goods, and/or the Customer’s Property in satisfaction of any obligation owed by the Customer to Doom Juice ;
to receive a statement of account following the sale of the Goods and/or the Customer’s Property; or
to redeem the Goods and/or the Customer’s Property;
it will not give (or allow any person to give) to Doom Juice a written demand requiring Doom Juice to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
a default under any other security agreement under which it has granted a security interest to any other party in respect of the Goods is deemed to be a breach of this Agreement.
Requests for Information
The parties agree that Doom Juice is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.
Further Supplies
The parties acknowledge and agree that any supply of Goods of any kind by Doom Juice to the Customer which is not specifically set out but for which Doom Juice has or later issues a Tax Invoice or any other documentation to the Customer is deemed to form part of the Agreement and is subject to the terms of the Agreement.
Enforcement
The enforcement provisions contained in this Agreement are in addition to any rights available to Doom Juice under the PPSA and apply to the maximum extent permitted by law.
Without limitation to clause 10.4(a) and any other provision of this Agreement section 125, 129(2), 142 and 143 of the PPSA are contracted out of.
Power of Attorney
The Customer irrevocably nominates constitutes and appoints Doom Juice and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Customer on behalf of and in the name of the Customer to do all things necessary and sign all such documents as may be necessary to deal with the Goods in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Customer is in default of this Agreement.
Interpretation
A term used in this clause 10 is taken to have the meaning defined under the PPSA.
DELIVERY OF GOODS
The Customer must pay all delivery costs associated with the delivery of the Goods to the Customer at the same time as the other fees are payable under this Agreement or at other times requested by Doom Juice. Any estimates for delivery provided by Doom Juice are an estimate only, and are subject to change without notice. A change in the delivery costs does not entitle the Customer to dispute payment of such costs. Any special delivery costs incurred (as determined by Doom Juice) will be charged at cost.
Doom Juice may in its discretion make part deliveries of Goods as and when it considers this is required, and in that case the Customer must pay all delivery costs of each individual delivery made in accordance with this Agreement.
Packing for standard consignments within Australia (as determined by Doom Juice) is included in the price quoted by Doom Juice. Any packing (such as wooden crates and pallets) for overseas delivery will be charged separately.
At Doom Juice’s sole, absolute and unfettered discretion, delivery of the Goods shall take place when:
the Goods are installed in or attach to the Customer’s property; or
the Customer (or its employees or agents) takes possession of the Goods at Doom Juice’s address; or
the Customer (or its employees or agents) takes possession of the Goods at the Customer’s address (in the event that the Goods are delivered to the Customer).
Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Agreement.
Any times provided by Doom Juice to the Customer in respect of the delivery of the Goods are estimates only and are non-binding on Doom Juice. Whilst Doom Juice attempts to deliver all Goods on time, sometimes delays are inevitable and Doom Juice will not be responsible for any Losses suffered by the Customer in the event of delay.
Unless Doom Juice is delivering the Goods personally, Doom Juice shall not be liable for loss of or damage to Goods in transit and the Customer must make all claims for such loss or damage against the carrier. Doom Juice encourages the Customer to take out insurance to protect itself for loss of or damage to Goods in transit.
Purchase Orders may not be cancelled by the Customer and to the extent permitted by law, the Customer is not permitted to return any Goods supplied by Doom Juice without Doom Juice’s prior written consent which may be withheld by Doom Juice in its sole and absolute discretion.
In the event that Doom Juice permits the Customer to return any Goods supplied by Doom Juice, only Goods in original packing will be accepted. A re-stocking charge of up to 10% plus GST of the total amount stated on the Tax Invoice/s which relate to the Goods will be deducted on Goods returned within 14 days, beyond which a higher charge (at Doom Juice’s discretion) will be levied. Without limitation to the above, any Goods specially imported, procured or manufactured by Doom Juice for the Customer can only be returned on such terms and conditions as Doom Juice may agree.
RISK
Until Goods are paid for in full, title in those Goods will be retained by the Supplier.
Even if Doom Juice retains ownership of the Goods, all risk for the Goods passes to the Customer on delivery of the Goods to Customer or the nominee of the Customer.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Doom Juice is entitled to:
receive payment for the Goods; and
receive all insurance proceeds payable for the Goods. The production of these Credit Terms by Doom Juice is sufficient evidence of Doom Juice’s rights to receive the insurance proceeds without the need for any person dealing with Doom Juice to make further enquiries.
INDEMNITY AND RELEASE
Except as provided under this Agreement and to the extent permitted by law:
the Customer:
releases Doom Juice and its officers, employees, agents and contractors from any and all Claims by the Customer or any of its officers, employees, agents or invitees;
indemnifies Doom Juice and its officers, employees, agents and contractors against any and all Claims made by third parties against Doom Juice;
indemnifies Doom Juice and its officers, employees, agents and contractors against any Loss suffered by or incurred by the Customer,
arising from any act, default, omission, negligence or breach of contract or otherwise, by the Customer or any of its directors, employees, agents, contractors or invitees,
except to the extent (if any that):
Doom Juice recovers an amount from its insurers in respect of the Claim; or
the Loss the subject of the Claim is caused by the fraudulent act or omission of Doom Juice.
Doom Juice is not liable for any Claim or any Loss arising from any event or cause, beyond the control of Doom Juice, and the Customer indemnifies Doom Juice from any loss that it suffers in this regard, including but not limited to:
any act or omission of the Customer, including any delay caused by the Customer;
damage after delivery;
any problem caused by misuse, abuse, wear and tear or abnormal movement;
goods or appliances made by others;
any defect in, or problem caused by, work materials or goods supplied by the Customer;
any problem caused by or contributed to by any modification to the Goods by the Customer; or
any defect caused or contributed to by a failure of the Customer to follow any procedure recommended by Doom Juice or by the manufacturer of any materials used by Doom Juice in the Goods.
(Indemnity) Each party agrees to indemnify the other party and its employees, contractors and agents (“those indemnified”) from and against any loss or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the other party’s employees’, clients’, contractors’ or agents’:
breach of any third party intellectual property rights; or
negligent, wilful, fraudulent or criminal act or omission.
Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of Doom Juice in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods.
If Doom Juice is liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, Doom Juice’s total liability to the Customer for that failure is limited to, at the option of Doom Juice:
in the case of services, the resupply of the services or the payment of the cost of resupply; and
in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
Without limitation to the other terms of this Agreement, to the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid (or on credit if not paid) by the Customer to Doom Juice in the 3 months preceding the date of the event giving rise to the relevant liability.
FORCE MAJEURE
Doom Juice will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
If a Force Majeure Event occurs, Doom Juice must use reasonable endeavours to notify the Customer of:
reasonable details of the Force Majeure Event; and
so far as is known, the probable extent to which Doom Juice will be unable to perform or be delayed in performing its obligations under this agreement.
Subject to compliance with this clause, the relevant obligation of Doom Juice will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
For the purposes of this agreement, a ‘Force Majeure Event’ means any:
act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
strikes or other industrial action outside of the control of the Affected Party;
war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic.
TERMINATION
TERMINATION FOR CONVENIENCE
Either party may end this Agreement for no reason, by providing notice to the other party. Termination under this clause will not take effect until every Purchase Order in place has expired, been fulfilled or is otherwise terminated in accordance with the above terms.
This agreement will end 10 Business Days after the day the notice is sent (the End Date).
On the End Date, Doom Juice will provide an invoice to the Customer for:
any fees for Goods already provided up to the End Date;
any pre-approved third party costs Doom Juice has incurred on the Customer’s behalf up to the End Date; and
if terminated by the Customer, Doom Juice’s pre-estimated genuine losses as a result of the Customer ending this agreement,
(together, the Outstanding Amounts)
The Customer will pay the Outstanding Amounts to Doom Juice within a further 10 Business Days after the End Date, unless otherwise agreed in a written payment plan between the parties.
Once the Outstanding Amounts have been paid, Doom Juice will hand over any completed deliverables.
termination for breach
If a party (the Notifying Party) considers that the other party is in breach of this agreement including:
if the Customer fails to make payment in accordance with clause 3;
if the Customer becomes insolvent;
if the Customer commits an act of bankruptcy or is made bankrupt;
if the Customer makes a composition or other arrangement with creditors;
if the Customer assigns assets for the benefit of creditors generally;
being a company, if the Customer enters into a deed of company arrangement or has a controller, administrator, receiver or receiver and manager appointed;
being a company, if the Customer goes into liquidation;
being a partnership, if the Customer has a receiver or a receiver and manager appointed; or
in the event of Force Majeure (such as if there are issues with Doom Juice’s supplier and Doom Juice is unable to supply the agreed Goods); or
breaching any warranty or obligation contained in this Agreement or a Purchase Order;
and fails to rectify the breach within 7 days of being given a notice to do (the Breach), the Notifying Party may provide a notice to the other party.
The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
After the Rectification Period, the Notifying Party will:
if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
The Customer may terminate an individual Purchase Order if Doom Juice breaches the terms of that Purchase Order and fails to rectify the breach within 14 days of being given a notice to do so.
The termination of a Purchase Order does not affect any other Purchase Order/s which shall continue. Upon termination of a Purchase Order the Customer shall be liable to pay to Doom Juice for all Goods supplied by Doom Juice under that Purchase Order up until the date of termination, and such amounts shall be a debt immediately due and owing.
The indemnities, warranties and liability caps in clause 15 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 16.1(c)(iii) will not limit or otherwise effect Doom Juice’s rights under this agreement, at law or otherwise in equity; Doom Juice’s losses resulting from the Customer’s breach are likely to far exceed its losses resulting from termination for the Customer’s convenience.
other consequences for termination
If this agreement ends, the parties will:
agree that, unless the Agreement is terminated under 15.1(a), all existing Purchase Orders shall automatically terminate. The Customer will be liable to pay to Doom Juice for all Goods supplied by Doom Juice under such Purchase Orders up until the date of termination, and such amounts shall be a debt immediately due and owing;
return all property and Confidential Information to the other party;
comply with all obligations that are by their nature intended to survive the end of this agreement; and
the Customer must return any Goods to Doom Juice that it has not paid for.
GUARANTEE AND INDEMNITY
In consideration of Doom Juice, at the request of the Guarantor, entering into this Agreement with the Customer the Guarantor covenants and agrees with Doom Juice that:
Notwithstanding that as between the Guarantor and the Customer the Guarantor may be a surety only, as between the Guarantor and Doom Juice the Guarantor is a principal debtor.
The Guarantor will be liable jointly and severally with the Customer (and with each other Guarantor if there is more than one Guarantor) for the due and punctual payment of all moneys to be paid by the Customer under this Agreement and for the due performance and observance by the Customer of the credit terms and such liability will not be reduced or affected by the death insolvency liquidation or dissolution of the Customer or the Guarantor or any of them.
The Guarantor indemnifies Doom Juice from and against all Loss, damage costs (including all costs payable by Doom Juice to a solicitor on a solicitor and own client basis) and expenses which Doom Juice may suffer or incur in consequence of any breach or non-observance of the credit terms by the Customer and the Guarantor agrees that the Guarantor will remain liable to Doom Juice under this indemnity notwithstanding as a consequence of any breach or non-observance Doom Juice has exercised any of its rights under this Agreement.
On any default or failure by the Customer to observe and perform any of the credit terms the Guarantor will immediately (without the need for any demand to be made) pay all moneys and make good to Doom Juice all damages costs (including all costs payable by Doom Juice to a solicitor on a solicitor and own client basis) and expenses sustained or incurred by Doom Juice by reason of or in consequence of any breach or non-observance of the credit terms by the Customer. However, before applying this interest, Doom Juice will provide the Guarantor with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Doom Juice. The obligation to pay interest survives termination of this Agreement.
and the Guarantor will also pay to Doom Juice interest at the rate of 15% per annum accrued daily from the due date for payment until the date of payment (except on interest under clause 2(e) of this Agreement).
The liability of the Guarantor under this guarantee and indemnity will not be affected by the granting of time or any other indulgence to the Customer or by any compromise abandonment waiver variation or by any other thing which under the law relating to sureties would or might but for this provision release the Guarantor in whole or in part from its obligations under this guarantee and indemnity.
To the fullest extent permitted by law the Guarantor hereby waives such of its rights as surety or indemnifier (legal equitable statutory or otherwise) as may at any time be inconsistent with any of the provisions of this guarantee and indemnity.
The Guarantor hereby:
charges all of its legal and beneficial interest in all of its property, including but not limited to its real property and personal property (as that term is defined in the PPSA), including property acquired after the date of this Agreement, in favour of Doom Juice, whether or not demand has been made on the Customer by Doom Juice;
agrees to execute all documents and do all things necessary, upon request by Doom Juice, to register Doom Juice’s interest in the Guarantor’s property as granted by this clause 16, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the PPS Register or otherwise; and
irrevocably appoints Doom Juice and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Guarantor on behalf of and in the name of the Guarantor to do all things necessary to register Doom Juice’s security over the Guarantor’s property granted by this clause 16.
If the charges created by sub-clause 16(a) are or become void or unenforceable, sub-clause 16(a) may be severed from this Agreement and the Agreement shall continue in full force and effect and the severance shall not effect on its validity and the Guarantor will not be released from its obligations in whole or in part and Doom Juice’s rights and remedies against the Guarantor shall not be effected by such severance.
The enforceability of this guarantee and indemnity against the Guarantor is not conditional, contingent or dependent in any way upon the validity or enforceability of this guarantee and indemnity against any other person or execution of this contract or this guarantee and indemnity by any other person.
The Guarantor does not execute this guarantee and indemnity as a result of or by reason of any promise representation statement information or inducement of any nature or kind given or offered to the Guarantor by Doom Juice or on Doom Juice’s behalf whether in answer to any enquiry by or on behalf of the Guarantor or not and Doom Juice was not prior to the execution of this guarantee and indemnity by the Guarantor, and is not subsequently, under any duty to disclose to the Guarantor or to do or execute any act matter or thing relating to the affairs of the Customer or its transactions with Doom Juice.
In the event of the invalidity of any part or provision of this guarantee and indemnity that invalidity will not affect the validity or the enforceability of any other part or provision of this guarantee and indemnity. If a provision of this guarantee and indemnity is void or unenforceable it must be severed from the guarantee and indemnity and the provisions that are not void or unenforceable are unaffected by the severance.
All notices or demands to be given to, made or served upon the Guarantor will be deemed to be duly given to, made or served on the Guarantor if:
it is signed by any officer, authorised employee, agent or solicitor of Doom Juice; and
it is delivered:
to any Guarantor personally; or
left at the last known place of business or abode of any Guarantor; or
if an address is noted, left at or sent to the Guarantor through the post in an ordinary prepaid envelope addressed to that Guarantor at the address. A notice or demand which is posted will be deemed to have been served on the Guarantor on the second business day following the date of posting.
If there is more than one Guarantor, any notice or demand given to, made or served upon a Guarantor is deemed to be served on each of them.
The Guarantor agrees that its liability to Doom Juice is unlimited notwithstanding that Doom Juice supplies the Customer with credit in excess of the Credit Limit.
The Guarantor acknowledges and agrees that the Guarantor may receive Personal Information of another person in the course of business with Doom Juice and agrees that any such Personal Information must only be used, disclosed or otherwise dealt with in accordance with the Australian Privacy Principles.
DEFINITIONS
In this Agreement, unless inconsistent with the context or subject matter, the following words and phrases have the following meanings.
Term
Meaning
ACL
means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Claim
means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss.
Confidential Information
means information relating directly or indirectly to Doom Juice, its assets and the operation and affairs of Doom Juice, including without limitation, this Agreement and the Goods.
Credit Limit
means the credit limit per month set out in the Trade Credit Application.
Customer
means the Customer identified in the Trade Credit Application
Force Majeure
means an act, omission or circumstance over which Doom Juice could not reasonably have exercised control. It can include an act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire, strikes, industrial action, war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic.
Goods
means any goods supplied by Doom Juice to the Customer from time to time
GST
has the meaning given to it in the GST Act
GST Act
means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Loss
includes (without limitation) the following, whether direct or indirect, special or consequential in nature:
loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and
to the extent not covered in the preceding subclause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales turnover, income, reputation (or damage to it), employment, corruption or destruction of data, customers, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and
anything referred to in the preceding subclauses relating to or arising out of or in connection with:
personal injury (including death or disease) to the Customer;
personal injury (including death or disease) to any third party; or
loss of or damage to the property of Doom Juice, the Customer or any third party; and
a breach or non-compliance by Doom Juice or the Customer with any law.
Personal Information
Has the meaning given to it in the Privacy Act 1988 (Cth).
Purchase Order
means a purchase order for Goods and placed by the Customer with Doom Juice via email or otherwise in writing and which is accepted by Doom Juice in accordance with this Agreement.
Tax Invoice
has the same meaning as in the GST Act
interpretation
In this Agreement unless inconsistent with the context or subject matter:
(singular and plural) words in the singular includes the plural (and vice versa);
(gender) words indicating a gender include the corresponding words of any other gender;
(defined terms) 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;
(person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(includes) the word “includes” and similar words in any form is not a word of limitation;
(document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(headings) headings and words in bold type are for convenience only and do not affect interpretation;
(adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.
A reference to a business day means any day on which trading banks are open for business in New South Wales, Australia; and
If any time period specified in this Agreement expires on a day which is not a business day, the period shall expire at the end of the next business day.
GENERAL
Doom Juice may vary the terms of the Agreement at any time and will notify the Customer of the variation by providing 30 days written notice to the Customer.
A notice or other communication to a party under this agreement must be:
in writing and in English; and
delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state or territory; or
when replied to by the other party,
whichever is earlier.
This Agreement is governed by the laws of New South Wales, Australia. The parties submit to the jurisdiction of the courts of New South Wales, Australia, relevant Federal Courts and Courts competent to hear appeals from them.
This Agreement contains the entire understanding and agreement between the parties as to the subject matter of this Agreement.
All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect.
No waiver or amendment of a provision of this Agreement is binding unless made in writing and signed by both parties.
The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.
If a provision of this Agreement is void or unenforceable it must be severed from this Agreement and the provisions that are not void or unenforceable are unaffected by the severance.
The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.
This Agreement may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by electronic communications including email.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.