air allied compnay background

CONDITIONS OF SALE

THE PARTIES AGREE:

 1.      DEFINITIONS

1.1    In this Agreement unless inconsistent with the context or subject matter:

“Agreement" means the Application for 30 Day Credit Account and these Conditions of Sale, which are to be read together;

“Company’s Address for Service” means

            1/50 Success Street, Acacia Ridge Qld 4110;

     Facsimile No.: 07 3272 7982; or

Email Address: accounst@air-allied.com.au.

“Company” means Air & Allied Sales (Pacific) Pty Ltd ACN 106 053 258 and its successors and assigns;

“Confidential Information” means information relating directly or indirectly to the Company, its assets and the operation and affairs of the Company, including without limitation, this Agreement;

"Credit Account Application" means the document attached headed Credit Account Application;

“Credit Limit” means the amount set out in the Credit Account Application or notified from time to time by the Company to the Customer, as the maximum amount of credit which will be extended to the Customer by the Company under this Agreement;

 “Customer’s Address for Service” means the business street address of the Customer set out in the Credit Account Application;

 “Customer” means the Customer identified in the Credit Account Application;

“Force Majeure” means an act, omission or circumstance over which the Company could not reasonably have exercised control;

“Goods” means the goods and/or equipment supplied by the Company to the Customer and as described on the invoices, quotations, orders or any other forms provided by the Company to the Customer;

“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Guarantor” means the person or persons identified in the Credit Account Application who is/are guaranteeing the performance of the Customer;

       “Party/ies” means the Company and the Customer;

 “PPSA” means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;

"PPS Register" means the register of security interests operated pursuant to the PPSA;

"Services" means any services provided by the Company to the Customer as set out in the Credit Account Application or as described on the invoices, quotations, orders or other forms provided by the Company to the Customer;

“Tax Invoice” has the same meaning as in the GST Act.

1.2    In this Agreement unless inconsistent with the context or subject matter:

(a)     A reference to a person includes any other legal entity;

(b)     A reference to a legal entity includes a person;

(c)     Words importing the singular number include the plural number;

(d)     Words importing the plural number include the singular number;

(e)     The masculine  gender must be read as also importing the feminine or neuter gender;

(f)      A reference to a party includes the party’s heirs, executors, successors and permitted assigns;

(g)     Clause headings are for reference purposes only and must not be used in interpretation;

(h)     Where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;

(i)       A reference to a statute includes all regulations and subordinate legislation and amendments;

(j)       References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;

(k)     A reference to a monetary amount is a reference to an Australian currency amount;

(l)       An obligation of two or more parties binds them jointly and each of them severally;

(m)    An obligation incurred in favour of two or more parties is enforceable by them severally;

(n)     References to time are to local time in Queensland;

(o)     Where time is to be reckoned from a day or event, the day or event must be excluded, and reference to a month means a calendar month;

(p)     A reference to a business day means any day on which trading banks are open for business in Queensland; and

(q)     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.

2.      PROVISION OF GOODS

(a)     The Parties agree that the Company provides the Goods and/or Services to the Customer on the terms and conditions set out in is Agreement.

(b)     When Goods are returned to the Company for any reason whatsoever, prior arrangements for the acceptance of the returned Goods must have been made with the Company. Unless such prior arrangements have been made, the Company will not under any circumstances accept the responsibility or liability for Goods returned. Goods returned for credit will not be accepted unless prior approval is given by the Company. Such authorised returns are to be dispatched freight prepaid and will be subject to a 20% handling charge. All details of documents, and invoice numbers relating to original delivery must accompany the returned Goods.

3.      WARRANTIES

3.1    The Customer warrants to the Company that as at the date of this Agreement and for the duration of this Agreement:

(a)  this Agreement is a valid and binding agreement on the Customer, enforceable in accordance with its terms;

(b) the information contained in this Agreement is true and correct and it has disclosed all relevant information to the Company to assess the credit worthiness of the Customer;

(c)  it has the legal right and power to enter into this Agreement;

(d) the Customer is not insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over or any part of its assets and no such appointment has been threatened;

(e)  the Customer is not bankrupt or in liquidation or administration and no proceedings have been brought or threatened for the purpose of bankrupting or winding up the Customer;

(f)  no partner, director or shareholder of the Customer is bankrupt, a discharged bankrupt or in any form of receivership, administration or liquidation; and

(g) it has the capacity to make the payments in accordance with clause 4 of these terms.

3.2    The Customer warrants to the Company that if any of the warranties at clause 3.1 change it will immediately notify the Company.

4.      PAYMENT

4.1    The Company will issue a Tax Invoice for the Goods and/or Services to the Customer.

4.2    The Customer will pay the amount stated on the Tax Invoice within 30 days of the date of the Tax Invoice where the Goods and/or Services are supplied on approved credit accounts or otherwise by cash on delivery.

4.3    The Customer will also pay to the Company, on demand, on a full indemnity basis, all amounts that the Company 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.

4.4    If payment is not made in accordance with clause 4.2 or 4.3 of this Agreement, the Customer must pay the Company interest on all outstanding monies from the due date to the date of payment at the rate of 10% per annum simple interest calculated daily until the date payment is received by the Company.  The obligation to pay interest survives termination of this Agreement.

4.5    If payment is not made in accordance with clause 4.2 or clause 4.3, the Company may:

(a)  refuse to supply any further Goods or provide any further Services to the Customer until all outstanding monies, including any accrued interest, is paid in full; and/or

(b) terminate this Agreement whereupon the full price of the Goods and/or Services then supplied/provided, whether the time for payment under this Agreement has arrived, will be due and payable within 7 days of the date of the written notice of termination given by the Company to the Customer.

4.6    The Customer may not withhold payment or make any deduction from any amount owing without the Company’s prior written consent, irrespective of any claim the Customer may have against the Company for any thing or matter whether related to the provision of the Goods/Services or not.

4.7    The Company reserves the right to change the price of the Goods/Services in the event of a variation to the Company’s quotation, or price list.

4.8    GST, freight, insurance, packaging and other charges shall be added to the price of the Goods.

4.9    Unless otherwise stated the Company’s tender or quotation for Goods/Services will be valid for a period of 30 days from date of issue, after which time acceptance of any order placed is subject to written confirmation. The date of acceptance shall be the date upon which notice in writing of acceptance by the Customer of a tender or quotation is received by the Company.

4.10 The prices or quotations are based upon the present cost of equipment, materials, bought-out goods and plant, labour, transport and statutory obligations. If between the date of the quotation and acceptance by the Customer variations should occur (either by rise or fall) then the quotation prices shall be amended by the Company accordingly.

4.11 In so far as any quotation is in respect of Goods or materials imported or to be imported, the quotation is based on the current list price of overseas supplier(s), current rates of freight, duty and exchange. Orders are accepted subject to any alteration of supplier’s list price and freight to date of shipment, duty and primage to date of passing entry and exchange to the due date of payment for the Customer’s account. Further, where Goods are capable of being admitted under by-law customs tariff then the Company shall endeavour to do so. Should By-Law admission be refused the Company reserves the right to re-charge the Goods at the full duty rate applicable.

5.      CREDIT LIMIT

5.1    The Company is not obliged to supply any further Goods/Services to the Customer once the Credit Limit has been reached. 

5.2    The Company may, at its option, supply further Goods/Services to the Customer, where to do so will result in the Credit Limit being exceeded and the Customer agrees that the Company is expressly authorised to do so and to supply such Goods/Services and this Agreement will continue to apply in full to all monies owing.

5.3    The Company is under no obligation to advise the Customer when the Credit Limit has been reached or exceeded.

6.      RIGHT TO REFUSE FURTHER CREDIT OR VARY THE CREDIT LIMIT

6.1    The Company may at any time, for any reason whatsoever:-

(a)  vary the Credit Limit of the Customer to increase or decrease the Credit Limit; or

(b) refuse further credit or Goods an/or Services to the Customer, 

without any explanation or liability to the Customer whatsoever.

7.      DELIVERY OF GOODS

7.1    Availability of Goods is as quoted subject to receipt of prior orders.

7.2    The Company may change a delivery and insurance charge.

7.3    Delivery of the Goods shall take place when:

(a)  the Customer (or its employees or agents) takes possession of the Goods at the Company's address;

(b) the Customer (or its employees or agents) takes possession of the Goods at the Customer's nominated address (in the event that the Goods are delivered to the Customer);

(c)  the Company delivers the Goods to a third party's address as instructed by the Customer.

7.4    The cost of delivery or collection of Goods is to be borne by the Customer.

7.5    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.

7.6    The Company shall not be liable for any loss or damage due to the failure by the Company to deliver the Goods promptly, or to deliver them at all due to the Force Majeure .

8.      RISK

8.1    Even if the Company retains ownership of the Goods, all risk for the Goods passes to the  Customer on delivery.

8.2    If any of the Goods are damaged or destroyed prior to the Goods being loaded onto the vehicle which is to effect delivery/collection of the Goods from the Company’s premises, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of this Agreement by the Company is sufficient evidence of  the Company’s rights to receive the insurance proceeds without the need for any person dealing with  the Company to make further enquiries.

9.      CONFIDENTIAL INFORMATION

9.1    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.

10.    NO ASSIGNMENT

10.1 The Customer must not transfer or assign its rights under this Agreement to anyone else without the prior written consent of the Company, which may be granted or withheld by the Company in its sole, absolute and unfettered discretion.  The Customer must provide any information the Company requires in order to consider whether to grant its consent. 

10.2 Any change in shareholding of the Customer of 50% or more will constitute a deemed assignment which requires the Company's prior written consent in accordance with clause 10.1.

10.3 The Customer acknowledges and agrees that the Company may transfer, assign or otherwise dispose of its interest in this Agreement without notice to the Customer.

11.    TERMINATION

11.1 The Company may in its absolute discretion immediately terminate this Agreement on giving written notice to the Customer, if the Customer:

(a)  fails to make payment in accordance with clause 4.2 or clause 4.3;

(b) breaches any term, warranty or obligation contained in this Agreement;

(c)  becomes insolvent, commits an act of bankruptcy or is made bankrupt, makes a composition or other arrangement with creditors or assigns assets for the benefit of creditors generally;

(d) being a company, enters into a deed of company arrangement or has a controller, administrator, receiver or receiver and manager appointed or goes into liquidation;

(e)  being a partnership has a controller, administrator receiver or a receiver and manager appointed; or

(f)  in the event of Force Majeure. 

11.2 The rights and remedies of the Company contained in clause 11.1 are in addition to any other rights and remedies the Company has at law, in equity or under this Agreement.

12.    OWNERSHIP AND ASSIGNMENT

12.1 Notwithstanding anything to the contrary express or implied in this Agreement, the Parties agree that the Company retains full title to the Goods and title will not at any time pass to the Customer notwithstanding:

(a)     the delivery or collection of the Goods to/by the Customer (as the case may be); and/or

(b)     the possession and use of the Goods by the Customer.

12.2  The Customer acknowledges that the Customer has the right to possess the Goods as a mere bailee only and will deal with the Goods in such a manner which enables them to be clearly identified as Goods belonging to the Company and does not have any right to pledge the Company’s credit in connection with the Goods and agrees not to do so.

12.3  The Customer acknowledges and agrees that:

(a)     it will not transfer, sell, assign, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods to a subsidiary or related-party, without the express prior written consent of the Company;

(b)     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 other than in the ordinary course of its business, without the express prior written consent of the Company;

(c)     it will, if requested by the Company, return the Goods to the Company following non-fulfilment of any obligation of the Customer (including payment of monies) without limiting any other right the Company may have; 

(d)     it will deliver up the Goods to the Company upon demand by the Company and gives the Company 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 the Company and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of Goods from the Customer’s possession or control;

(e)     it holds the proceeds, book debts and accounts receivable arising from the selling or hiring of the Goods on trust for and as agent for the Company immediately when they are receivable or are received; and

(f)      the Company may recover as a debt due and immediately payable by the Customer all amounts owing by the Customer to the Company in any respect even though title to the Goods has not passed to the Customer. 

13. PERSONAL PROPERTY SECURITIES

13.1  The Customer acknowledges and agrees that notwithstanding any other provision of this Agreement:

(a)     the PPSA applies to any supply of Goods by the Company to the Customer;

(b)     the Goods are commercial property, not consumer property, for the purposes of the PPSA and will not be and are not intended to be used by the Customer for personal, domestic or household purposes;

(c)     the Company has a purchase money security interest under the PPSA in Goods supplied;

(d)     if the Customer is receiving the Goods from the Company and the Goods are to be used as inventory (as defined in the PPSA and as indicated by the Customer on the Credit Account Application),  the Customer warrants that it will not use the Goods for any other purpose other than as inventory;

(e)     if a purchase money security interest is not able to be claimed on Goods by the Company for any reason, the Company will have a security interest in the Goods;

(f)      by agreeing to and/or accepting or adopting this Agreement the Customer grants a purchase money security interest to the Company in the Goods to secure the Company’s interest in the Goods and all monies owing or payable by the Customer under this Agreement and any other monies payable by the Customer to the Company from time to time on any account whatsoever; 

(g)     the Customer agrees that the Company’s security interest in Goods covered by this Agreement may be registered on the PPS Register and the Customer agrees to do all things necessary and required by the Company to effect registration of the Company’s security interest on the PPS Register in order to give the Company’s security interest the best priority possible and to do anything else the Company requests the Customer to do in connection with the PPSA and/or the PPS Register without delay;

(h)     the Customer warrants that all information provided by the Customer to the Company, including but not limited to the Customer’s details, including the entity, name, ACN or ABN and address set out in the Credit Account Application is correct in all respects and must not change its name, address or other details set out in the Credit Account Application without providing the Company with at least 20 business days prior written notice;

(i)      the Customer unconditionally and irrevocably appoints the Company as its attorney to do any of the acts and matters set out in this clause 13 in the event that the Customer fails, delays or declines to execute such documents or do such acts;

(j)      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 the Company, which the Company may refuse to provide or grant in its sole, absolute and unfettered discretion. The Company may request and the Customer must provide any information that the Company requires, acting reasonably, in order to fully consider whether to grant its consent;

(k)     the Company's security interest in the Goods 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 by the Customer;

(l)      it has received value as at the date of first delivery, collection, receipt or departure from the Company’s premises of the Goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Company under this Agreement; 

(m)    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;

(n)     neither the Company or the Customer will disclose any information to any interested person unless required to do so under the PPSA;

(o)     the Customer waives its right under the PPSA:

i)     to receive a copy of any verification statement, financing change statement, or any notice that the Company intends to sell the Goods or to retain the Goods on enforcement of the security interest granted to the Company 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;

ii)    to object to a proposal by the Company, to dispose of or purchase or retain the Goods in satisfaction of any obligation owed by the Customer to the Company; 

iii)   to receive a statement of account following the sale of the Goods; and

iv)   to redeem the Goods;

(p)     it will not give (or allow any person to give) to the Company a written demand requiring the Company 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

(q)     a default by the Customer under any other security agreement under which a security interest has been granted to any other party in respect of the Goods and/or any default under such security agreement which results in an exercise of rights under the PPSA is deemed to be a breach of this Agreement.

13.2  The Parties agree that the Company 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. 

13.3  Further Supplies

The Parties acknowledge and agree that any supply of Goods made by the Company to the Customer which is not specifically set out in this Agreement but for which the Company 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.

13.4  Enforcement

(a)     The enforcement provisions contained in this Agreement are in addition to any rights available to the Company under the PPSA and apply to the maximum extent permitted by law.

(b)     Without limitation to clause 13.4(a) and any other provision of this Agreement section 125, 129(2), 142 and 143 of the PPSA are contracted out of. 

13.5  Power of Attorney

The Customer irrevocably nominates constitutes and appoints the Company 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.

13.6  Interpretation

A term used in this clause is taken to have the meaning defined under the PPSA. 

14.    WARRANTY

14.1     The correct operation & maintenance of the Goods supplied in accordance with the directions laid down in the manufacturer’s operating manual supplied is the Customer's responsibility and any contravention of these instructions will render any warranty (if any) on the Goods null and void.

15.    WORK ON CUSTOMER’S PREMISES

15.1     Except where otherwise arranged, should work/Services of any kind be carried out by the Company on the Customer’s premises or any other premises or property at the Customer's request, the Company shall not be liable for any loss or damage occasioned to the Customer or to its employees, contractors or agents arising from any cause whatsoever connected in any way with such work/Services.

16.    INSPECTION AND CLAIM FOR DEFECTIVE DELIVERY

16.1     The Customer is responsible for immediate examination of Goods upon delivery and any deficiency or damage thereof must be reported to the Company in writing within 7 days of receipt of the Goods. No claim for such damages or deficiency will be entertained unless made within that period.

17.    EQUIPMENT REPAIRS OR SERVICING

17.1     Where any Goods are the unit being repaired or serviced, its accessories and contents will only be accepted on the Company’s premises on the condition that these items are at the Customer’s risk entirely whether theft or loss thereof or damage thereto arises from any act or omission on the part of the Company or the Company’s contractors or servants or from any cause whatsoever. Any claim for faulty workmanship is to be raised within 7 days after the unit is returned to the Customer. The claim is limited solely to the rectification free of cost of the faulty work. No claim for loss consequential or otherwise is admissible.

18.    SERVICE AND REPAIR QUOTATION

18.1     Should any quotation covering the service or repairs to the Customer’s Goods not be accepted by the Customer and the work not continued, then a quotation charge will be invoiced to the Customer’s account and accepted for payment to the Company.

19.    GENERAL

19.1 The Company may vary the terms of the Agreement at any time and will notify the Customer of the variation by providing written notice to the Customer at the Customer’s Address for Service within a reasonable time.

19.2 Any notice necessary or required to be given in accordance with this Agreement is deemed to be sufficiently given if provided to the person to whom it is necessary or required to be given, at the Address for Service for that party or at the address that a Party has notified to the other Party and, if it is:

(a)  sent by facsimile, upon which the time of giving notice will be the time shown on the facsimile report generated by the sending machine identifying proof of transmission to the designated number; or

(b) delivered by hand,  upon which the time of giving notice will be the time of delivery; or

(c)  sent by pre-paid post, upon which the time of giving notice will be two (2) business days after the date of postage; or

(d) sent by email, upon which the time of giving notice will be the time shown on the email generated by the sending machine identifying proof of transmission to the designated email address.

19.3     This Agreement is for the benefit of, and binding upon, the Parties, their heirs, executors, successors and permitted assigns. 

19.4     The Agreement is governed by the laws of Queensland and the Commonwealth of Australia which are in force in Queensland. 

19.5     The Parties submit to the jurisdiction of the Courts of Queensland, relevant Federal Courts and Courts competent to hear appeals from them.

19.6     This Agreement contains the entire understanding between the parties.  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. 

19.7     No oral explanation or information provided by a Party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.

19.8     No waiver by a Party of a provision of this Agreement is binding unless made in writing.

19.9     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.

19.10  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.

19.11  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.

19.12  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 facsimile or email.

19.13  If an attorney for a Party executes this Agreement, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

19.14     The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.

19.15     The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

19.16  Time is, in all cases and in every respect, of the essence of this Agreement.

20.    GUARANTEE

20.1     In consideration of the Company, at the request of the Guarantor, entering into this Agreement with the Customer the Guarantor covenants and agrees with the Company that:

(a)  Notwithstanding that as between the Guarantor and the Customer the Guarantor may be a surety only, as between the Guarantor and the Company the Guarantor is a principal debtor.

(b) 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 monies to be paid by the Customer under this Agreement and for the due performance and observance by the Customer of this Agreement 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.

(c)  The Guarantor indemnifies the Company from and against all losses, damages, costs (including all costs payable by the Company to a solicitor, on a solicitor and own client basis) and expenses which the Company may suffer or incur in consequence of any breach or non-observance of this Agreement by the Customer and the Guarantor agrees that the Guarantor will remain liable to the Company under this indemnity notwithstanding as a consequence of any breach or non-observance the Company has exercised any of its rights under this Agreement.

(d) On any default or failure by the Customer to observe and perform any obligation under this Agreement the Guarantor will immediately (without the need for any demand to be made) pay all monies and make good to the Company all losses, damages, costs (including all costs payable by the Company to a solicitor on a solicitor and own client basis) and expenses sustained or incurred by the Company by reason of or in consequence of any breach or non-observance of this Agreement by the Customer and the Guarantor will also pay to the Company interest at the rate of 10% per annum simple interest calculated daily from the time of any monies falling due to the date of payment (except on interest under clause 4.4 of this Agreement).

(e)  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.

(f)  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.

(g) The Guarantor hereby:

i)             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 the Company, whether or not demand has been made on the Customer by the Company;

ii)             agrees to execute all documents and do all things necessary, upon request by the Company, to register the Company’s security interest in the Guarantor’s property as granted by this clause 20, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the PPS Register or otherwise;

iii)            irrevocably appoints the Company 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 the Company’s security over the Guarantor’s property granted by this clause 20.

(h)  If the charges created by sub-clause 20.1(g)i)  are or become void or unenforceable, sub-clause 20.1(g)i) 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 the Company’s rights and remedies against the Guarantor shall not be effected by such severance.

(i)   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 Agreement or this guarantee and indemnity by any other person.

(j)   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 the Company or on the Company's behalf whether in answer to any enquiry by or on behalf of the Guarantor or not and the Company 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 the Company.

(k)  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.

(l)   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:

i)             it is signed by any officer, authorised employee, agent or solicitor of the Company; and

ii)            it is delivered:

  1. to any Guarantor personally; or
    1. left at the last known place of business, work or abode of any Guarantor; or
    2. if an address is noted in the Credit Account Application, 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 day following the date of posting. 

(m)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.

20.2 The Guarantor agrees that its liability to the Company is unlimited notwithstanding that the Company supplies the Customer with credit in excess of the Credit Limit.

21.    INDEMNITY AND RELEASE

The Customer indemnifies, releases and discharges the Company from and against any and all damages, claims, liabilities, costs, losses and expenses of any nature caused by, arising out of or relating to the Goods or Services.

air allied compnay background

Air & Allied Sales (Pacific) Pty Ltd ® 2009