TERMS AND CONDITIONS
TALLAHESSE PTY LIMITED ā TERMS & CONDITIONS OF TRADE
1. Definitions
1.1 āTallahesseā means Tallahesse Pty Limited, its successors and assigns or any person acting on behalf of and with the authority of Tallahesse Pty Limited.
1.2 āClientā means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 āGoodsā means all Goods or Services supplied by Tallahesse to the Client at the Clientās request from time to time (where the context so permits the terms āGoodsā or āServicesā shall be interchangeable for the other).
1.4 āPriceā means the Price payable for the Goods as agreed between Tallahesse and the Client in accordance with clause 5 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Tallahesseās consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Tallahesse.
2.3 None of Tallahesseās agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Tallahesse in writing nor is Tallahesse bound by any such unauthorised statements.
3. Electronic Transactions Act 2000
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give Tallahesse not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Clientās details (including but not limited to, changes in the Clientās name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Tallahesse as a result of the Clientās failure to comply with this clause.
5. Price and Payment
5.1 At Tallahesseās sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Tallahesse to the Client; or
(b) the Price as at the date of delivery of the Goods according to Tallahesseās current price list; or
(c) Tallahesseās quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Tallahesse reserves the right to change the Price in the event of a variation to Tallahesseās quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rate or as a result of increases to Tallahesse in the cost of materials and labour) will be charged for on the basis of Tallahesseās quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
5.3 At Tallahesseās sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Tallahesse, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Tallahesseās payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Clientās address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by Tallahesse.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and Tallahesse.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Tallahesse an amount equal to any GST Tallahesse must pay for any supply by Tallahesse under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (āDeliveryā) of the Goods is taken to occur at the time that:
(a) the Client or the Clientās nominated carrier takes possession of the Goods at Tallahesseās address; or
(b) Tallahesse (or Tallahesseās nominated carrier) delivers the Goods to the Clientās nominated address even if the Client is not present at the address.
6.2 At Tallahesseās sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.3 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
6.4 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Tallahesse shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.5 Tallahesse may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.6 Any time or date given by Tallahesse to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Tallahesse will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Tallahesse is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Tallahesse is sufficient evidence of Tallahesseās rights to receive the insurance proceeds without the need for any person dealing with Tallahesse to make further enquiries.
7.3 If the Client requests Tallahesse to leave Goods outside Tallahesseās premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Clientās sole risk.
8. Specifications of the Goods
8.1 Where Tallahesse gives advice or recommendations to the Client, or the Clientās agent, with specific instructions regarding the use of the Goods and such advice or recommendations are not acted upon then Tallahesse shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent purchase of the Goods.
8.2 The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Tallahesseās fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Tallahesse;
(b) while Tallahesse may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that Tallahesse has given these in good faith, and are estimates which are variable due to factors out of Tallahesseās control.
8.3 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
8.4 Tallahesse reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases Tallahesse will notify the Client in advance of any such substitution.
9. Title
9.1 Tallahesse and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Tallahesse all amounts owing to Tallahesse; and
(b) the Client has met all of its other obligations to Tallahesse.
9.2 Receipt by Tallahesse of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1that the Client is only a bailee of the Goods and must return the Goods to Tallahesse on request.
(b) the Client holds the benefit of the Clientās insurance of the Goods on trust for Tallahesse and must pay to Tallahesse the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Tallahesse and must pay or deliver the proceeds to Tallahesse on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Tallahesse and must sell, dispose of or return the resulting product to Tallahesse as it so directs.
(e) the Client irrevocably authorises Tallahesse to enter any premises where Tallahesse believes the Goods are kept and recover possession of the Goods.
(f) Tallahesse may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Tallahesse.
(h) Tallahesse may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (āPPSAā)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Tallahesse to the Client.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Tallahesse may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or10.3(a)(ii);
(b) indemnify, and upon demand reimburse, Tallahesse for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Tallahesse;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Tallahesse;
(e) immediately advise Tallahesse of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 Tallahesse and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Tallahesse, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Tallahesse under clauses 10.3to 10.5.
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of Tallahesse agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies Tallahesse from and against all Tallahesseās costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Tallahesseās rights under this clause.
11.3 The Client irrevocably appoints Tallahesse and each director of Tallahesse as the Clientās true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11including, but not limited to, signing any document on the Clientās behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Tallahesse in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Tallahesse to inspect the Goods.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
12.3 Tallahesse acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Tallahesse makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Tallahesseās liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Tallahesseās liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Tallahesse is required to replace the Goods under this clause or the CCA, but is unable to do so, Tallahesse may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, Tallahesseās liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Tallahesse at Tallahesseās sole discretion;
(b) limited to any warranty to which Tallahesse is entitled, if Tallahesse did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) Tallahesse has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Clientās cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1to 12.8 but subject to the CCA, Tallahesse shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Tallahesse;
(e) fair wear and tear, any accident, or act of God.
12.10 Tallahesse may in its absolute discretion accept non-defective Goods for return in which case Tallahesse may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
12.11 Notwithstanding anything contained in this clause if Tallahesse is required by a law to accept a return then Tallahesse will only accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1 Where Tallahesse has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Tallahesse.
13.2 The Client warrants that all designs, specifications or instructions given to Tallahesse will not cause Tallahesse to infringe any patent, registered design or trademark in the execution of the Clientās order and the Client agrees to indemnify Tallahesse against any action taken by a third party against Tallahesse in respect of any such infringement.
13.3 The Client agrees that Tallahesse may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Tallahesse has created for the Client.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Tallahesseās sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes Tallahesse any money the Client shall indemnify Tallahesse from and against all costs and disbursements incurred by Tallahesse in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Tallahesseās contract default fee, and bank dishonor fees).
14.3 Without prejudice to any other remedies Tallahesse may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Tallahesse may suspend or terminate the supply of Goods to the Client. Tallahesse will not be liable to the Client for any loss or damage the Client suffers because Tallahesse has exercised its rights under this clause.
14.4 Without prejudice to Tallahesseās other remedies at law Tallahesse shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Tallahesse shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Tallahesse becomes overdue, or in Tallahesseās opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. Cancellation
15.1 Tallahesse may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Tallahesse shall repay to the Client any money paid by the Client for the Goods. Tallahesse shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Tallahesse as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.3 Cancellation of orders for Goods made to the Clientās specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1 The Client agrees for Tallahesse to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Tallahesse.
16.2 The Client agrees that Tallahesse may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Clientās repayment history in the preceding two years.
16.3 The Client consents to Tallahesse being given a consumer credit report to collect overdue payment on commercial credit.
16.4 The Client agrees that personal credit information provided may be used and retained by Tallahesse for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Clientās credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
16.5 Tallahesse may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
16.6 The information given to the CRB may include:
(a) personal information as outlined in 16.1 above;
(b) name of the credit provider and that Tallahesse is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Clientās application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Tallahesse has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Tallahesse, the Client has committed a serious credit infringement;
(h) advice that the amount of the Clientās overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.7 The Client shall have the right to request (by e-mail) from Tallahesse:
(a) a copy of the information about the Client retained by Tallahesse and the right to request that Tallahesse correct any incorrect information; and
(b) that Tallahesse does not disclose any personal information about the Client for the purpose of direct marketing.
16.8 Tallahesse will destroy personal information upon the Clientās request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
16.9 The Client can make a privacy complaint by contacting Tallahesse via e-mail. Tallahesse will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. General
17.1 The failure by Tallahesse to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Tallahesseās right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Tallahesse has its principal place of business, and are subject to the jurisdiction of the Sydney Courts in New South Wales.
17.3 Subject to clause 12 Tallahesse shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Tallahesse of these terms and conditions (alternatively Tallahesseās liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
17.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Tallahesse nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 Tallahesse may license or sub-contract all or any part of its rights and obligations without the Clientās consent.
17.6 The Client agrees that Tallahesse may amend these terms and conditions at any time. If Tallahesse makes a change to these terms and conditions, then that change will take effect from the date on which Tallahesse notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Tallahesse to provide Goods to the Client.
17.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
I/WE (ALSO REFERRED TO AS THE āGUARANTOR/Sā) UNCONDITIONALLY AND IRREVOCABLY: TALLAHESSE ACCOUNT HOLDERS & WHERE CREDIT IS GIVEN.
1. GUARANTEEĀ the due and punctual payment to Tallahesse of all monies which are now owing to Tallahesse by the Client and all further sums of money from t ime to time owing to Tallahesse by the Client in respect of goods and services supplied or to be supplied by Tallahesse to the Client or any other liability of the Client to Tallahesse, and the due observance and performance by the Client of all its obligations contained or implied in any contract with Tallahesse, including but not limited to the Terms & Conditions of Trade signed by the Client and annexed to this Guarantee and Indemnity. If for any reason the Client does not pay any amount owing to Tallahe sse the Guarantor will immediately on demand pay the relevant amount to Tallahesse. In consideration of Tallahesse agreeing to supply the Goods to the Client, the Guarantor charges all of its right, title and interest (joint or several) in any land, realty or other assets capable of being charged, owned by the Guarantor now or in the future, to secure the performance by the Guarantor of its obligations under these terms and conditions (including, but not limited to, the payment of any money) and the Guarantor acknowledges that this personal guarantee and indemnity constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (āPPSAā) and unequivocally consents to Tallahesse registering any interest so charged. The Guarantor irrevocably appoints Tallahesse and each director of Tallahesse as the Guarantorās true and lawful attorney/s to perform all necessary acts to give effect to this clause including, but not limited to, signing any document on the Guarantorās behalf which Tallahesse may reasonably require to:
(a) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(b) register any other document required to be registered by the PPSA or any other law; or
(c) correct a defect in a statement referred to in clause 1(a) or 1(b).
2. HOLD HARMLESS AND INDEMNIFYĀ Tallahesse on demand as a separate obligation against any liability (including but not limited to damages, costs, losses and legal fees calculated on a solicitor and own client basis) incurred by, or assessed against, Tallahesse in connection with:
(a) the supply of goods and/or services to the Client; or
(b) the recovery of monies owing to Tallahesse by the Client including the enforcement of this Guarantee and Indemnity, and inclu ding but not limited to Tallahasseeās nominees costs of collection and legal costs; or
(c) monies paid by Tallahesse with the Clientās consent in settlement of a dispute that arises or results from a dispute between, Tallahesse, the Client, and a third party or any combination thereof, over the supply of goods and/or services by Tallahesse to the Client.
I/WE FURTHER ACKNOWLEDGE AND AGREE THAT
3.Ā I/We have received, read and understood Tallahesseās Terms and Conditions prior to entering into this Guarantee and Indemnity and agree to be bound by those Terms and Conditions.
4. This Guarantee and Indemnity shall constitute an unconditional and continuing Guarantee and Indemnity and accordingly shall be irrevocable and remain in full force and effect until the whole of monies owing to Tallahesse by the Client and all obligations herein have been fully paid satisfied and performed.
5. No granting of credit, extension of further credit, or granting of time and no waiver, indulgence or neglect to sue on Tallah asseās part (whether in respect of the Client or any one or more of any other Guarantor(s) or otherwise) and no failure by any named Guarantor to properly execute this Guarantee and Indemnity shall impair or limit the liability under this Guarantee and Indemnity of any Guarantor. Without affecting the Clientās obligations to Tallahesse, each Guarantor shall be a principal debtor and liable to Tallahesse accordingly.
6. If any payment received or recovered by Tallahesse is avoided by law such payment shall be deemed not to have discharged the liability of the Guarantor, and the Guarantor and Tallahesse shall each be restored to the position in which they would have been had no such payment been made.
7. The term āGuarantorā whenever used in this Guarantee and Indemnity shall, if there is more than one person named as Guarantor, mean and refer to each of them individually and all of them together unless the context otherwise requires, and the obligations and agreements on the part of the Guarantor contained in this Guarantee and Indemnity shall bind them jointly and severally.
8.Ā I/We have been advised to obtain independent legal advice before executing this Guarantee and Indemnity. I/we understand that I/we am/are liable for all amounts owing (both now and in the future) by the Client to Tallahesse.
9. I/we irrevocably authorise Tallahesse to obtain from any person or company any information which Tallahesse may require for credit reference purposes. I/We further irrevocably authorise Tallahesse to provide to any third party, in response to credit references and enquiries about me/us or by way of information exchange with credit reference agencies, details of this Guarantee and Indemnity and any subsequent dealings that I/we may have with Tallahesse as a result of this Guarantee and Indemnity being actioned by Tallahesse.Ā
10. The above information is to be used by Tallahesse for all purposes in connection with Tallahesse considering this Guarantee and Indemnity and the subsequent enforcement of the same.
Ā©Copyright- EC Credit Control
TERMS AND CONDITIONS
TALLAHESSE PTY LIMITED ā TERMS & CONDITIONS OF TRADE
1. Definitions
1.1 āTallahesseā means Tallahesse Pty Limited, its successors and assigns or any person acting on behalf of and with the authority of Tallahesse Pty Limited.
1.2 āClientā means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 āGoodsā means all Goods or Services supplied by Tallahesse to the Client at the Clientās request from time to time (where the context so permits the terms āGoodsā or āServicesā shall be interchangeable for the other).
1.4 āPriceā means the Price payable for the Goods as agreed between Tallahesse and the Client in accordance with clause 5 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Tallahesseās consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Tallahesse.
2.3 None of Tallahesseās agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Tallahesse in writing nor is Tallahesse bound by any such unauthorised statements.
3. Electronic Transactions Act 2000
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give Tallahesse not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Clientās details (including but not limited to, changes in the Clientās name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Tallahesse as a result of the Clientās failure to comply with this clause.
5. Price and Payment
5.1 At Tallahesseās sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Tallahesse to the Client; or
(b) the Price as at the date of delivery of the Goods according to Tallahesseās current price list; or
(c) Tallahesseās quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Tallahesse reserves the right to change the Price in the event of a variation to Tallahesseās quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rate or as a result of increases to Tallahesse in the cost of materials and labour) will be charged for on the basis of Tallahesseās quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
5.3 At Tallahesseās sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Tallahesse, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Tallahesseās payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Clientās address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by Tallahesse.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and Tallahesse.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Tallahesse an amount equal to any GST Tallahesse must pay for any supply by Tallahesse under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (āDeliveryā) of the Goods is taken to occur at the time that:
(a) the Client or the Clientās nominated carrier takes possession of the Goods at Tallahesseās address; or
(b) Tallahesse (or Tallahesseās nominated carrier) delivers the Goods to the Clientās nominated address even if the Client is not present at the address.
6.2 At Tallahesseās sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.3 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
6.4 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Tallahesse shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.5 Tallahesse may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.6 Any time or date given by Tallahesse to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Tallahesse will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Tallahesse is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Tallahesse is sufficient evidence of Tallahesseās rights to receive the insurance proceeds without the need for any person dealing with Tallahesse to make further enquiries.
7.3 If the Client requests Tallahesse to leave Goods outside Tallahesseās premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Clientās sole risk.
8. Specifications of the Goods
8.1 Where Tallahesse gives advice or recommendations to the Client, or the Clientās agent, with specific instructions regarding the use of the Goods and such advice or recommendations are not acted upon then Tallahesse shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent purchase of the Goods.
8.2 The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Tallahesseās fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Tallahesse;
(b) while Tallahesse may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that Tallahesse has given these in good faith, and are estimates which are variable due to factors out of Tallahesseās control.
8.3 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
8.4 Tallahesse reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases Tallahesse will notify the Client in advance of any such substitution.
9. Title
9.1 Tallahesse and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Tallahesse all amounts owing to Tallahesse; and
(b) the Client has met all of its other obligations to Tallahesse.
9.2 Receipt by Tallahesse of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1that the Client is only a bailee of the Goods and must return the Goods to Tallahesse on request.
(b) the Client holds the benefit of the Clientās insurance of the Goods on trust for Tallahesse and must pay to Tallahesse the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Tallahesse and must pay or deliver the proceeds to Tallahesse on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Tallahesse and must sell, dispose of or return the resulting product to Tallahesse as it so directs.
(e) the Client irrevocably authorises Tallahesse to enter any premises where Tallahesse believes the Goods are kept and recover possession of the Goods.
(f) Tallahesse may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Tallahesse.
(h) Tallahesse may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (āPPSAā)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Tallahesse to the Client.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Tallahesse may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or10.3(a)(ii);
(b) indemnify, and upon demand reimburse, Tallahesse for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Tallahesse;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Tallahesse;
(e) immediately advise Tallahesse of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 Tallahesse and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Tallahesse, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Tallahesse under clauses 10.3to 10.5.
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of Tallahesse agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies Tallahesse from and against all Tallahesseās costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Tallahesseās rights under this clause.
11.3 The Client irrevocably appoints Tallahesse and each director of Tallahesse as the Clientās true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11including, but not limited to, signing any document on the Clientās behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Tallahesse in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Tallahesse to inspect the Goods.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
12.3 Tallahesse acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Tallahesse makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Tallahesseās liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Tallahesseās liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Tallahesse is required to replace the Goods under this clause or the CCA, but is unable to do so, Tallahesse may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, Tallahesseās liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Tallahesse at Tallahesseās sole discretion;
(b) limited to any warranty to which Tallahesse is entitled, if Tallahesse did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) Tallahesse has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Clientās cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1to 12.8 but subject to the CCA, Tallahesse shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Tallahesse;
(e) fair wear and tear, any accident, or act of God.
12.10 Tallahesse may in its absolute discretion accept non-defective Goods for return in which case Tallahesse may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
12.11 Notwithstanding anything contained in this clause if Tallahesse is required by a law to accept a return then Tallahesse will only accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1 Where Tallahesse has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Tallahesse.
13.2 The Client warrants that all designs, specifications or instructions given to Tallahesse will not cause Tallahesse to infringe any patent, registered design or trademark in the execution of the Clientās order and the Client agrees to indemnify Tallahesse against any action taken by a third party against Tallahesse in respect of any such infringement.
13.3 The Client agrees that Tallahesse may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Tallahesse has created for the Client.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Tallahesseās sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes Tallahesse any money the Client shall indemnify Tallahesse from and against all costs and disbursements incurred by Tallahesse in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Tallahesseās contract default fee, and bank dishonor fees).
14.3 Without prejudice to any other remedies Tallahesse may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Tallahesse may suspend or terminate the supply of Goods to the Client. Tallahesse will not be liable to the Client for any loss or damage the Client suffers because Tallahesse has exercised its rights under this clause.
14.4 Without prejudice to Tallahesseās other remedies at law Tallahesse shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Tallahesse shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Tallahesse becomes overdue, or in Tallahesseās opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. Cancellation
15.1 Tallahesse may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Tallahesse shall repay to the Client any money paid by the Client for the Goods. Tallahesse shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Tallahesse as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.3 Cancellation of orders for Goods made to the Clientās specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1 The Client agrees for Tallahesse to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Tallahesse.
16.2 The Client agrees that Tallahesse may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Clientās repayment history in the preceding two years.
16.3 The Client consents to Tallahesse being given a consumer credit report to collect overdue payment on commercial credit.
16.4 The Client agrees that personal credit information provided may be used and retained by Tallahesse for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Clientās credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
16.5 Tallahesse may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
16.6 The information given to the CRB may include:
(a) personal information as outlined in 16.1 above;
(b) name of the credit provider and that Tallahesse is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Clientās application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Tallahesse has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Tallahesse, the Client has committed a serious credit infringement;
(h) advice that the amount of the Clientās overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.7 The Client shall have the right to request (by e-mail) from Tallahesse:
(a) a copy of the information about the Client retained by Tallahesse and the right to request that Tallahesse correct any incorrect information; and
(b) that Tallahesse does not disclose any personal information about the Client for the purpose of direct marketing.
16.8 Tallahesse will destroy personal information upon the Clientās request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
16.9 The Client can make a privacy complaint by contacting Tallahesse via e-mail. Tallahesse will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. General
17.1 The failure by Tallahesse to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Tallahesseās right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Tallahesse has its principal place of business, and are subject to the jurisdiction of the Sydney Courts in New South Wales.
17.3 Subject to clause 12 Tallahesse shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Tallahesse of these terms and conditions (alternatively Tallahesseās liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
17.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Tallahesse nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 Tallahesse may license or sub-contract all or any part of its rights and obligations without the Clientās consent.
17.6 The Client agrees that Tallahesse may amend these terms and conditions at any time. If Tallahesse makes a change to these terms and conditions, then that change will take effect from the date on which Tallahesse notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Tallahesse to provide Goods to the Client.
17.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
I/WE (ALSO REFERRED TO AS THE āGUARANTOR/Sā) UNCONDITIONALLY AND IRREVOCABLY: TALLAHESSE ACCOUNT HOLDERS & WHERE CREDIT IS GIVEN.
1. GUARANTEEĀ the due and punctual payment to Tallahesse of all monies which are now owing to Tallahesse by the Client and all further sums of money from t ime to time owing to Tallahesse by the Client in respect of goods and services supplied or to be supplied by Tallahesse to the Client or any other liability of the Client to Tallahesse, and the due observance and performance by the Client of all its obligations contained or implied in any contract with Tallahesse, including but not limited to the Terms & Conditions of Trade signed by the Client and annexed to this Guarantee and Indemnity. If for any reason the Client does not pay any amount owing to Tallahe sse the Guarantor will immediately on demand pay the relevant amount to Tallahesse. In consideration of Tallahesse agreeing to supply the Goods to the Client, the Guarantor charges all of its right, title and interest (joint or several) in any land, realty or other assets capable of being charged, owned by the Guarantor now or in the future, to secure the performance by the Guarantor of its obligations under these terms and conditions (including, but not limited to, the payment of any money) and the Guarantor acknowledges that this personal guarantee and indemnity constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (āPPSAā) and unequivocally consents to Tallahesse registering any interest so charged. The Guarantor irrevocably appoints Tallahesse and each director of Tallahesse as the Guarantorās true and lawful attorney/s to perform all necessary acts to give effect to this clause including, but not limited to, signing any document on the Guarantorās behalf which Tallahesse may reasonably require to:
(a) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(b) register any other document required to be registered by the PPSA or any other law; or
(c) correct a defect in a statement referred to in clause 1(a) or 1(b).
2. HOLD HARMLESS AND INDEMNIFYĀ Tallahesse on demand as a separate obligation against any liability (including but not limited to damages, costs, losses and legal fees calculated on a solicitor and own client basis) incurred by, or assessed against, Tallahesse in connection with:
(a) the supply of goods and/or services to the Client; or
(b) the recovery of monies owing to Tallahesse by the Client including the enforcement of this Guarantee and Indemnity, and inclu ding but not limited to Tallahasseeās nominees costs of collection and legal costs; or
(c) monies paid by Tallahesse with the Clientās consent in settlement of a dispute that arises or results from a dispute between, Tallahesse, the Client, and a third party or any combination thereof, over the supply of goods and/or services by Tallahesse to the Client.
I/WE FURTHER ACKNOWLEDGE AND AGREE THAT
3.Ā I/We have received, read and understood Tallahesseās Terms and Conditions prior to entering into this Guarantee and Indemnity and agree to be bound by those Terms and Conditions.
4. This Guarantee and Indemnity shall constitute an unconditional and continuing Guarantee and Indemnity and accordingly shall be irrevocable and remain in full force and effect until the whole of monies owing to Tallahesse by the Client and all obligations herein have been fully paid satisfied and performed.
5. No granting of credit, extension of further credit, or granting of time and no waiver, indulgence or neglect to sue on Tallah asseās part (whether in respect of the Client or any one or more of any other Guarantor(s) or otherwise) and no failure by any named Guarantor to properly execute this Guarantee and Indemnity shall impair or limit the liability under this Guarantee and Indemnity of any Guarantor. Without affecting the Clientās obligations to Tallahesse, each Guarantor shall be a principal debtor and liable to Tallahesse accordingly.
6. If any payment received or recovered by Tallahesse is avoided by law such payment shall be deemed not to have discharged the liability of the Guarantor, and the Guarantor and Tallahesse shall each be restored to the position in which they would have been had no such payment been made.
7. The term āGuarantorā whenever used in this Guarantee and Indemnity shall, if there is more than one person named as Guarantor, mean and refer to each of them individually and all of them together unless the context otherwise requires, and the obligations and agreements on the part of the Guarantor contained in this Guarantee and Indemnity shall bind them jointly and severally.
8.Ā I/We have been advised to obtain independent legal advice before executing this Guarantee and Indemnity. I/we understand that I/we am/are liable for all amounts owing (both now and in the future) by the Client to Tallahesse.
9. I/we irrevocably authorise Tallahesse to obtain from any person or company any information which Tallahesse may require for credit reference purposes. I/We further irrevocably authorise Tallahesse to provide to any third party, in response to credit references and enquiries about me/us or by way of information exchange with credit reference agencies, details of this Guarantee and Indemnity and any subsequent dealings that I/we may have with Tallahesse as a result of this Guarantee and Indemnity being actioned by Tallahesse.Ā
10. The above information is to be used by Tallahesse for all purposes in connection with Tallahesse considering this Guarantee and Indemnity and the subsequent enforcement of the same.
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