TRADING TERMS AND CONDITIONS
The supplier whose details appear in the Summary Schedule next (the “Supplier” or “us“) will provide products to you the purchaser whose details appear in the Summary Schedule next (the “Purchaser” or “you”), on the terms and conditions as set out in these Trading Terms and Conditions
Mining, whether it be investing in a mining rig or cloud mining involves substantial risk of loss and is not suitable for everyone. The valuation of cryptocurrencies may fluctuate, and, as a result, clients may lose their original investment and/or purchase price. The highly leveraged nature of cryptocurrency means that small market movements will have a great impact on your trading account and or mining output and this can work against you, leading to large losses, or it can work for you, leading to large gains. If the market moves against you, you may lose the amount you initially invested and or your purchase price of your rig. You are responsible for all the risks and financial resources you use and for any chosen systems. You should not engage in mining unless you fully understand the nature of the transactions you are entering and the extent of your exposure to loss. If you do not fully understand these risks, you must seek independent advice from your financial advisor. All strategies and or purchase of mining hardware are at your own risk.
Any content on our website or on our online communities or social media, should not be relied upon as financial or other advice or construed as providing recommendations of any kind. It is your responsibility to confirm and decide what you decide to invest in and whether or not mining and the purchase of a mining rig is for you. Use only with risk capital; that is, trade with money that, if lost, will not adversely impact your lifestyle and your ability to meet your financial obligations. Past results are no indication of future performance. In no event should the content of this correspondence be construed as an express or implied promise or guarantee.
Mining Store is not responsible for any losses incurred as a result of using any of our strategies including the purchase of your mining rig. Information is in no way guaranteed. No guarantee of any kind is implied or possible where projections of future conditions are attempted. Bitstreams that Mining Store has access to may not last forever. Should a bitstream be no longer available or viable and therefore resulting in financial loss, Mining Store is not responsible for such loss. Mining equipment is non- refundable after deposit has been made, as Mining Store’s suppliers have a no refund policy.
For clients that opt to have their rigs hosted through our hosting providers, you will be covered by the hosting providers terms and conditions as set out in Clause 25 of this Agreement. The hosting providers are responsible for the loss caused by their management: theft, robbery, damage except for the natural disaster. Any downtime for maintenance or relocation should be expected & Mining Store is not liable for any loss incurred during this downtime. Our hosts do everything in their power to minimise downtime, however maintenance is essential to ensure the longevity of miners. During downtime power charges will not be incurred. Mining Store is not responsible for any loss or damage that occur whilst units are hosted, however every precaution has been taken to avoid such instances occurring. Power charges can change, however at least 2 weeks’ notice will be provided.
For security purposes, the identity and location of the hosting provider (and as required by their Non-Disclosure Agreement with us) shall not be disclosed to you, for the better protection of your interests and assets.
These Trading Terms and Conditions (“Terms and Conditions”) constitute the entire terms of the agreement between the Supplier and the Purchaser and is governed by the laws of the state set out in the summary on the previous page, for the goods supplied by us to you (the “Goods”). The Purchaser may not sub-contract, assign or vary its rights under the Terms and Conditions without the prior written consent of the Supplier. In the event of any ambiguity, conflict or confusion between the purchase or written order issued by a purchaser for the supply of Goods, these Terms and Conditions shall prevail.
2. Site Contents, Ownership & Use Restrictions
The material on this site is protected by copyright under the laws of Australia and other countries through international treaties.
Unless otherwise indicated, all rights (including copyright) in all content, other material and compilations contained in, or used to create or support this site including text, graphics, logos, button icons, video images, audio clips and navigational and other software (collectively referred to as the Contents) are owned or controlled and are reserved by Mining Store.
3. Personal, Non-commercial Use
Permission is granted to display, copy, distribute, download, and print in hard copy portions of this site solely for the proper and reasonable purposes of:
Placing an order with Mining Store; or
Using this site as a shopping resource, provided that you do not modify the site and that Mining Store retains all copyright and other proprietary notices contained in the Contents.
4. Prohibited Conduct
You are not authorised, without the prior written permission of Mining Store and each other owner of rights in content that you access via the site, to reproduce, frame, download, store (in any medium), communicate, show or play in public, adapt, change, or create a derivative work from that content.
No trademark (whether registered or otherwise) that is contained on this site or otherwise used by Mining Store may be used without our prior, specific, written permission or that of the trademark owner.
5. Protecting Your Log on Details
You agree to take responsibility for the safekeeping of your username and password. You are liable if your username or password is used by an unauthorised person. You agree to release and indemnify Mining Store in connection with any use (whether authorised or unauthorised) of your username or password. Mining Store may suspend or cancel your account at any time without prior notice.
6. Security & Privacy
Mining Store will not reveal your personal information to external organisations except for the purposes of fulfilling your order.
7. We Can Use Your Feedback
You grant Mining Store an irrevocable, non-exclusive license to use any material, information and ideas that you transmit to this site or otherwise provide to Mining Store from the time you authorise it to be sent. You agree that we can use and adapt any ideas, concepts, techniques, words, images or other content contained in these transmissions for any purpose and without restriction or compensation.
8. General Prohibitions
You must not upload, post, transmit or otherwise make available through the site any material which:
Violates or infringes the rights of others (including their privacy and intellectual property rights);
Is unlawful, threatening, abusive, defamatory, invasive of privacy, vulgar, obscene, profane or which may harass or cause distress or inconvenience to, or incite hatred of, any person;
Encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law;
Restricts or inhibits any other user from using or enjoying the site;
Affects the functionality or operation of the site or its servers or the functionality or operation of any user’s computer systems (e.g. by transmitting a computer virus or other harmful component, whether or not knowingly); or
Breaches any standards, content requirements or codes promulgated by any relevant authority, including authorities that require Mining Store to take remedial action under any applicable industry code.
9. Ordering Goods
Any order placed by you in the manner described in this site is an offer by you to purchase a particular product or service for the price (including the delivery and other charges) specified on this site at the time you place your order. You acknowledge that, by placing your order, you are agreeing to pay for and accept delivery of the goods ordered unless you ask us to cancel that order, and we send you written confirmation of the cancellation prior to the goods being dispatched to you. Cancellation is at the discretion of Mining Store.
Mining Store shall pay for the supply of goods after payment is received from you, and the purchase of that supply is non-refundable. Mining Store may provide a refund with a restocking fee of thirty percent (30%) of the costs of good for any website or invoiced orders. Mining Store has the right not to provide a refund in accordance with the Australian Competition and Consumer Commission (‘ACCC”).
Mining Store may change the prices published on its website at any time. While every effort has been made to ensure the accuracy of prices and information displayed on the Mining Store website, Mining Store reserves the right to accept or reject your offer for any reason, including without limitation, the unavailability of any product, an error in the price or the product description posted on this site, or an error in your order. We may require additional verification or information before accepting any order.
10. Orders, Cost and Payment
10.1 No price list, range, book, catalogue or quotation given by the Supplier shall constitute an offer to supply goods to the purchaser
10.2 Any indent order for the supply of goods must be in writing and shall not be binding upon the Supplier until accepted by the issue of an order confirmation which will detail all prices, the part of the order accepted, pricing and the proposed delivery date of the stock ordered (“Order Confirmation”).
10.3 The Order Confirmation may list suggested substitution of styles for styles not being produced or unavailable.
10.4 In season orders made by telephone, email or by our agents are done so in accordance with these Terms and Conditions.
10.5 All orders placed with the Supplier by the Purchaser shall be deemed to be an offer by the Purchaser to purchase the Goods subject to these Terms and Conditions
10.6 Whilst every endeavour is made to maintain prices as quoted on the Order Confirmations if any movements occur after the date of acceptance in the relevant exchange rates, duty rates, tariffs, quotas or freight rates or any other factors beyond our control, the Purchaser reserves the right to amend the price to include a reasonable allowance for any movement in such rates, tariffs, quotas, freight rates or other such factors and all orders shall be subject to such price alterations up to the date of delivery of the goods
10.7 The Goods supplied shall be as specified in the Order, unless otherwise discussed
10.8 At the Supplier’s sole discretion a deposit may be required or the Supplier may require payment by way of letter of credit against delivery. Any special terms concerning payment by the Purchaser will be detailed on page 1 of the summary page which forms part of these Terms and Conditions
10.9 In the event that no special terms of payment are listed on page 1 per clause 2.7 payment shall be due on delivery of the goods or be due thirty days following the end of the month of the date of invoice which will be sent with the goods
11.1 All goods are dispatched to the client are billed individually, or free when delivered to the Supplier’s warehouse unless prior agreements have been made. All goods will be sent with our nominated freight carrier and the consignment note number and cost of freight will be added to each invoice sent with the goods.
11.2 Every attempt will be made by the Supplier to deliver the goods during the delivery window as advised on the Order Confirmation. It can be expected that due to the nature of the industry supply that delays can occur up to 6 months. Mining Store will communicate any delays with the client. In the event of any failure to deliver the goods during the delivery window does not give the Purchaser any right to terminate or alter any order confirmed.
11.3 Part orders of an Order Confirmation may be sent on a pro rata basis and the goods so delivered will be invoiced and must be paid as required by these Terms and Conditions
11.4 The Supplier will deliver Goods to the address nominated by the Purchaser which will be listed on the Order Confirmation when reasonably practicable and the Purchaserwill take delivery of goods when tendered. Any redelivery shall entitle the Supplier to charge a reasonable re supply fee
11.5 The Supplier does not guarantee availability of Goods even if the goods are listed in an Order confirmation
11.6 The Supplier will not be liable for any loss or damage (including consequential loss or damage) arising from any delay in delivery or failure to deliver or delivery of defective Any shortage or packing mistakes must be advised to the Supplier in writing within seven (7) days.
12. Title & Risk
Title to the goods purchased on this site does not pass from Mining Store to you until we have received payment in full for the goods. All risk in the goods passes to you upon delivery.
Once the purchaser makes full payment for a miner ownership fully transfers to them. Deposits are paid straight to manufacturers to secure stock & can not be returned.Purchaser can request miners to be shipped to them anywhere in the world upon request (freight charges will be paid by the purchaser)
The Purchaser is required to ship the unit to Mining Store returns and quality check station which is located in China. Freight charges to Mining Store are to be paid by the purchaser, return charges are paid by Mining Store
13.1 Returning the product
You are entitled to return a product if you believe that there is a problem. You are responsible for returning the product if it can be posted or easily returned. You are responsible for paying the freight costs for the product being returned.
The Purchaser cannot return goods unless a return authorisation number has been obtained. The return authorisation number is only for tracking, return and assessment of the reason for return which must only be due to a defect. The correct procedure for the return of goods is as follows:
14. Product Information, Prices & Photos
Mining Store aims to include up-to-date pictures and specifications of all of the goods. However, our picture and/or description of the goods may differ from the actual goods. Images are for illustration purposes only, actual product may differ.
All prices quoted on the Mining Store website are quoted in Australian Dollars and are inclusive of GST except where otherwise stated.
16. Clearance, Sale & Stock to Clear Products
All Clearance products are sold on a No Returns basis and are subject to these Terms & Conditions of purchase. Clearance products are either new, ex-demo, or have some minor cosmetic imperfection.
Due to the limited stock availability of clearance products, neither placement of an order, nor email confirmation that we have received your order, guarantees fulfilment of that order. Orders are processed on a first-come first served-basis and we will be considered to have accepted your order only by delivering the goods. If we cannot accept your order for any reason, we will notify you by telephone or email.
If your order is unsuccessful because the stock has been purchased by an order prior to yours, Mining Store is not required to supply you with any alternative products and has no liability to you whatsoever. You will receive a full refund.
17. Limitation of Liability
17.1 Other than as provided for in these Terms and Conditions, the Supplier shall not be liable to the Purchaser whether in contract (including under any indemnity or warranty) in tort, including negligence and under statute, for any loss or damage, whether direct, indirect, secondary or consequential, whether or not reasonably foreseeable, reasonably contemplatable caused as a result of reliance by the Purchaser or any third party on the Goods or its results.
17.2 The provisions of this clause shall not apply insofar as their application is prevented by the CCA, and in particular section 64 of the Australian Consumer Law (“ACL”).
17.3 Where our goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption our liability arising from consumer guarantees in the Completion and Consumer Act 2010, is limited, at our election, to either:
17.4 If the Supplier shall be held to be liable to the Purchaser in contract including under any indemnity or warranty, in tort (including negligence), under statute or otherwise for any loss or damage, cost or expense whatsoever and howsoever arising in connection with these Terms and Conditions, such liability shall be limited to and shall not exceed the aggregate total of the amount actually paid by the Purchaser to the Supplier (and received by the Supplier) pursuant to these Terms and Conditions
17.5 The Supplier shall not be liable for any delay in performing an obligation if such delay is caused by circumstances beyond its reasonable control and the Supplier shall not be liable for and shall have no responsibility in respect of the acts, omissions or 1defaults of its sub- contractors and third party products and any action against the Supplier in connection with these Terms and Conditions must be commenced within eighteen (18) calendar months of the cause of action arising.
17.6 If the Purchaser has not advised the Supplier of any issue with any order delivered within 7 days, the Supplier have no liability for any loss or damage by reasons of incomplete numbers or otherwise
17.7 In the case of a breach of these Terms and Conditions or any negligence which the Supplier is responsible or a breach of condition or warranty that prohibits the Supplier from excluding (which condition or warranty shall be included in these Terms and Conditions) the Supplier liability to the Owner shall be limited, at its option to:
17.8 The Supplier will not be liable to the final consumer or to you where the Goods do not meet the consumer guarantees in the CCA:
18. Disclaimer of Warranty
Mining Store is unclassified and new hardware and the expected lifetime or quality of life is unknown. Industry standard warranties provided by manufacturers is 6 months. Any issues with mining hardware will need to follow the warranty/quality check process. If the hardware passes the warranty check, a free repair or replacement will be arranged. If it does not, then a paid service will be provided should the unit be repairable.
18.1 Purchasers Warranty
The Purchaser warrants that all information provided to the Supplier is accurate, and the Purchaser shall indemnify the Supplier against any Loss, claims, damages or expenses arising out of or in connection with any breach of this warranty.
18.2 Limitation of Liability
Our total liability to you (if any) in connection with this site, or with these Terms & Conditions or any goods or services supplied under them, will be limited, at our election, to:
18.3 Rights We Cannot Exclude
The above disclaimer and liability limitation do not exclude any rights, which by law may not be excluded, including but not limited to your rights under the Trade Practices Act.
19. Supply of Goods outside Australia and Internet Sales
Goods supplied under these Terms and Conditions must not be supplied by you to purchasers outside Australia, or to persons who operate internet sales stores or who conduct web based sales outside of Australia. You agree that you will state on any website or other method of obtaining orders for sale that the goods will not be supplied to customers outside Australia.
20. Account charges and administration fees
Supply of orders on credit and the extension of credit will be rejected if a Purchaser has an overdue account. A service charge of 1.5% per month will be charged on all overdue accounts. In addition to the service charge, an account keeping fee of AUD $20 per month will be charged on all accounts with invoices and transactions outside normal trading terms. All payments made by the Purchaser will be applied in our absolute discretion to service charges, account keeping charges and outstanding invoiced amounts. Mining Store reserves the right to hold a clients miners until accounts are fully settled.
If all attempts Mining Store have made to contact you and receive payment have failed, we will employ a debt collecting agency to collect the outstanding money from you. If you do not respond within 90 days we may dispose of your equiptment.
21. Implied Terms
The Purchaser agrees that all warranties expressed or implied by statute, common law, equity or trade custom or usage or otherwise howsoever are to the extent permitted by law excluded. Except only for those rights and remedies that the Purchaser has in respect of the Goods under the Competition and Consumer Act 2010 (the “CCA”), and any other similar Federal or State statute and which cannot be lawfully excluded, restricted or modified:
22. Property in Goods and Risk
22.1 The Purchaser agrees that the legal and equitable title to the Goods is retained by the Supplier until the Supplier receives payment in full from the Purchaser for all the Goods and any other goods and services supplied to the Purchaser by the Supplier at any time, whether or not any payment has been made for some of the Goods or other goods and Prior to title in the Goods passing to the Purchaser, the Purchaser:
22.1.1 holds the Goods as bailee and fiduciary agent of the Supplier;
22.1.2 where the Purchaser processes the Goods, either by using the Goods to manufacture other goods or by incorporating the Goods in or with any other goods, holds such part of the new goods (Processed Goods) on trust for the Supplier as bailee and fiduciary agent of the Supplier;
22.1.3 must store the Goods and such part of the Processed Goods separate from its own goods and those of any other third party in such a way as to clearly indicate at all times that the Goods and such part of the Processed Goods are owned by the Supplier; and
22.1.4 must ensure that, at all times, the Goods and such part of the Processed Goods are properly stored, protected, readily identifiable and insured
22.2 The Purchaser hereby agrees to accept this appointment as bailee and fiduciary agent of the supplier.
22.3 The Purchaser may sell or deal in the ordinary course of business with the Goods and such part of the Processed Goods provided that–
22.3.1any such sale or dealing is at arms’ length and on market terms; and
22.3.2the Purchaser holds the proceeds of any sale of or dealing in the Goods and such part of the proceeds of any sale of or dealing in the Processed Goods on trust for the Supplier in a separate identifiable account as the beneficial property of the Supplier and the Purchaser must pay such amount to the Supplier on demand
22.4For the purpose of this clause 9, “such part” means an amount equal in dollar terms to the amount owing by the Purchaser to the Supplier at the time the Goods are used in the manufacture of or incorporated into the Processed Goods
22.5 Notwithstanding any other provision to the contrary, the Supplier reserves the following rights in relation to the Goods until all amounts owed by the Purchaser to the Supplier in respect of the Goods and all other goods and services supplied to the Purchaser by the Supplier at any time are fully paid:
22.5.1 legal and equitable ownership of the Goods;
22.5.2 to retake possession of the Goods;
22.5.3 to keep or resell any of the Goods repossessed; and
22.5.4 any other rights and entitlements contained in the PPSA
22.6 In the event of a breach of this contract by the Purchaser including, without limitation, failure by the Purchaser to make payment for the Goods by the date specified by the Supplier to the Purchaser, the Purchaser must return the Goods to the Supplier immediately on demand
22.7 If the Purchaser does not return the Goods to the Supplier on demand, the Supplier shall be entitled (without further notice), and the Purchaser hereby grants full leave and irrevocable licence to the Supplier and any person authorised by the Supplier, to enter upon any premises where the Goods may for the time being be placed or stored for the purpose of retaking possession of the Goods
22.8 The Purchaser agrees that:
22.8.1 it shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by the Supplier (including consequential losses and damages) as a result of the Supplier exercising its rights under this clause; and
22.8.2 it shall indemnify the Supplier for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as result of any and all prosecution, actions, demands, claims or proceedings brought by or against the Supplier in connection with the retaking possession of the Goods or the exercise by the Supplier of its rights under this clause, and the Purchaser shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand
22.9The parties agree that this creates a Security Interest for the purposes of the PPSA and that the Supplier shall be entitled to register the Security Interest on the PPSR and the Purchaser will not make any objection to such registration
22.10 The Purchaser irrevocably agrees to assist with the prompt registration of the Security Interest, and agrees to sign all PPSR registration forms and acknowledgements and reimburse all costs of the Supplier in obtaining registration of the Security Interest
22.11 It is agreed that the Security Interest applies to all goods that have previously been supplied as well as to all present and after acquired Goods
22.12 The Purchaser agrees that it will not make or register a Financing Change Statement as defined in section 10 of the PPSA or make or demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of the Supplier
22.13 The Purchaser acknowledges and agrees that it waives any rights it may have under s115 of the PPSA upon enforcement and waives any rights it may have to receive a Verification Statement
22.14 If chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interests created under these Trading terms and Conditions, the Purchaser agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of those Security Interests
22.15 In this clause:
PPSA means the Personal Property Securities Act 2009;
PPSR means the Personal Property Securities Register;
Security Interest has the meaning as set out in section 12 of the PPSA;
Purchase Money Security Interest (and PMSI) has the meaning as set out in section 14 of the PPSA;
Financing Change Statement, Verification Statement and Financing Statement have the meaning as set out in section 10 of the PPSA.
23.1 The Supplier reserves the right to charge interest on any outstanding sum in accordance with these terms and Conditions, without notice to the Purchaser
23.2 Should any payment made be dishonoured, you shall be liable to the Supplier for any dishonor fees incurred by the Supplier
23.3 In the event that:
this shall be a default.
23.4 In the event of a default, the Supplier may without prejudice to any other rights it mayhave do any or all of the following:
23.5 In the event of a default, the Supplier has the right to have the Goods returned to the manufacturer, to determine its status, if it is the case that it cannot be properly determined remotely, before considering the need to repair, replacement or refund
The Purchaser and the Guarantor assume sole responsibility for and indemnify and save harmless the Supplier and its Related Bodies Corporate, shareholders, officers, directors, employees, agents and assignees (collectively “Supplier Affiliates”) from any and all claims, liabilities, losses, expenses, responsibility and damages, including all legal costs and expenses on a solicitor/client basis, the Supplier or Supplier Affiliates may suffer or incur as a result of or relating to the Purchaser’s relations with its suppliers, customers and other third parties; or any breach of these Terms and Conditions by the Purchaser.
25. Hosting Agreement
Article 1: Service Content and Price
1. For products sold by the Supplier, the after-sales service policy of this product is as follows.
Once purchased, it is deemed as approval of this policy. The transportation costs incurred during the warranty period shall be borne by both parties. Other details are as follows:
If this happens, we will provide a charge repair service for your product.
2. The Supplier guarantees that the products sold, under normal operating conditions, the computing power will not fluctuate by more than ± 10% (unless miner is second hand. Second hand miners can flucture between ± 10-25%).
3. The Purchaser has paid the full amount of the purchased the Supplier will provide the Purchaser with algorithms applicable to its product type for free.
4. Official hosting services
4.1 The Supplier provides daily maintenance services of the products
4.2 Cancellation of hosting shall be notified to the Supplier in advance of 3 full billing cycles. Reinstallation is at the discretion of the supplier. Freight is arranged by the Supplier with the cost fully borne by the Purchaser.
Article 1.1: Hosting and Maintenance Fees
Article 2: The Supplier’s Rights & Obligations
Article 3: Rights & Obligations of the Purchaser
Article 4: Miscellaneous
Failure by the Supplier to insist upon strict performance of any term or condition shall not constitute a waiver of any rights of the Supplier under that term or condition, or a waiver or any other provision or of any other provision.
27 Privacy Act
27.1 You agree that the Supplier may obtain from a credit reporting agency a credit report containing personal credit information about you and the Guarantor in relation to any credit provided by us. You may agree that the Supplier may exchange information about you with those credit providers named in the application for a credit account or named in a consumer credit report issued by a reporting agency for the following purposes:-
Your ability to purchase goods from this site may be terminated by Mining Store at any time without notice. All restrictions, licences granted by you and limitations of Mining Store’ liability will survive termination. A client can terminate hosting with 3 billing cycles notice. If a client wishes to have miners removed earlier they will be required to pay 3 months hosting fees & freight costs to the destination of their choice.
Should you subscribe for any on-going services with us this will be on an opt-out basis, in other words, should you wish to cancel your subscription at any time, you will need to action that.
This Deed of Guarantee and Indemnity is made on the date set out on the date of the Trading Terms and Conditions (“Terms and Conditions”).
By: The person(s) as set out in the summary schedule of page 1 of the Terms and Conditions (‘the Guarantors’), to which this guarantee forms a part.
In favour of the person named on page 1 as the supplier (the “Supplier”)
Now This Deed Witnesses as follows:
4. If any payment or other transaction in connection with this Guarantee is void, voidable, unenforceable, or defective or is claimed to be so and that claim us upheld or settled then: the liability of the Guarantor is to be what it would have been if the payment or other transaction had been made
This clause survives any termination or full or partial discharge or release of this deed.
5. For the consideration aforesaid and as a separate and severable covenant the Guarantors unconditionally and irrevocably hereby jointly and severally agree to indemnify the Supplier against, and must pay on demand amounts equal to, all damages, loss liabilities, penalties, costs, chargers and expenses, whatsoever which the Supplier may incur by reason of:
6. The indemnity contained in paragraph 5 remain effective even if any of the Purchaser’s obligations to the Supplier including in respect of the supply by the Supplier of goods to the Purchaser or any of the Guarantor’s obligations under this deed are or may be enforceable, invalid or illegal or at any time not immediately enforceable against the Purchaser or Guarantor and whether or not the Supplier knew or ought to have known anything about those matters.
7. A certificate signed by any officer of the Supplier shall, in the absence of manifest error, be conclusive evidence of the amount owed by the Purchaser or Guarantor to the Supplier on the date specified therein or of any other fact or determination relevant to the rights or obligations of the Supplier, a Guarantor or the Purchaser under this deed.
8. Any demand for payment hereunder shall be in writing by the Supplier or by the solicitors to the Supplier and shall be served if delivered personally or sent by pre-paid mail or facsimile to the Guarantors at their addresses set out in the summary of the Terms and Conditions, or such other address as they may advise in writing as being their new or alternative address, on the day of transmission (in the case of facsimile transmission) or on the day following that on which it is posted (in the case of sending by pre-paid mail).
9. This Guarantee and Indemnity shall not be determined, prejudiced, or affected by any change in the constitution, ownership or control of the Purchaser, or by bankruptcy, liquidation, appointment of a receiver and manager, administrator, trustee or similar official, provisional liquidator of or to the Purchaser, or by the release or discharge of any guarantor.
10. In the bankruptcy, liquidation, official management, scheme of arrangement or composition with creditors of the Purchaser the Guarantors will not prove in competition with the supplier.
11. No Guarantor may, until the Supplier has been paid in full all moneys owed to it by the Purchaser and the Supplier is satisfied that it will not have to repay any such money, claim, exercise or attempt to exercise a right of set-off, counterclaim or any other right or raise any defence against another Guarantor or the Purchaser or which a Guarantor or the Purchaser may have against the Supplier, which might reduce or discharge a Guarantor’s liability under this deed.
12. The Supplier may at any time or times at its absolute discretion and without giving any notice whatsoever to the Guarantors refuse further credit or supplies of goods or services to the Purchaser and grant to the Purchaser any time, credit or other indulgence and compound with it without discharging or impairing the Guarantors’ liability under this Guarantee and indemnity
13. Each, guarantee, indemnity and other obligation of a Guarantor in this deed is a principal and independent obligation and is not ancillary, collateral or limited by reference to any other obligation and is in addition to, and not prejudiced by, any other guarantee and/or indemnity now or later held by the supplier
14. This Guarantee and Indemnity is valid and fully enforceable against any executing party notwithstanding that one or more of the persons named in this Guarantee and Indemnity as a guarantor may not execute, may execute in a defective manner, or not be bound by, this Guarantee and Indemnity.
15. The Guarantors waive any right which they may have to require the Supplier to proceed against or enforce any other right, power, remedy, or security against or to claim payment from the Purchaser or any other person before claiming from the Guarantors
16. The Guarantors must pay on demand all costs and expenses of the Supplier in connection with enforcing this deed and all taxes, duties and imposed charges in connection with this deed.
17. The Guarantors must pay to the Lender on demand interest on any money owing by the Purchaser to the Supplier which is due and payable by a Guarantor (including on unpaid interest under this clause) but unpaid from and including the due date (or, for an amount payable by reimbursement or indemnity, any earlier date the amount was incurred), up to but excluding the date of actual payment, at the rate of 4% per year above the 60 day Bank Bill Swap Reference Rate last published on or before that day in The Australian Financial Review (of if no such rate is published, another rate set by the Supplier in good faith).
18. All payments by the Guarantor under this deed must be made without set-off, counterclaim, deduction or withholding.
19. The Supplier may assign its rights under this deed and is not obligated to give notice to, or obtain the consent of, the Guarantors in respect of the deed
20. This deed constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
21. This deed may only be altered in writing signed by each party
22. Each party must do, at its own expense, everything reasonably necessary to give full effect to this deed
23. This Guarantee and Indemnity is governed by the laws of the State as set out in the summary on page 1 of the Terms and Conditions and each Guarantor unconditionally submits to the non-exclusive jurisdiction of the courts of that jurisdiction
24. The failure or delay of the Supplier at any time to require performance by the Guarantors of an obligation under this deed is not a waiver by the Supplier at any time to later insist on performance of that or any other obligations under this deed. A waiver by the Supplier in relation to this deed is effective only if in writing.
25. Each such indemnity or reimbursement obligation is separate and independent of each other obligation of the party giving it, is absolute, irrevocable, unconditional and payable on demand and continues despite any settlement of account termination of this deed or anything else
26. To the extent permitted by law this deed prevails to the extent of inconsistency with any law and any present or future legislation operating to reduce a Guarantor’s obligations under this deed or the effectiveness of the Supplier’s rights or powers.
27. A provision of this deed that is illegal, invalid or enforceable in a jurisdiction is ineffective in that jurisdiction to the extent of the illegality, invalidity or This does not affect the validity or enforceability of that provision in any other jurisdiction, nor the remainder of this deed in any jurisdiction.
28. Any undertaking, representation, warranty or indemnity by two or more parties binds them jointly and severally.
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