SoftwareMarket – Website Terms and Conditions
1. Agreement :
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 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 SoftwareMarket.
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 SoftwareMarket 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 trade mark (whether registered or otherwise) that is contained on this site or otherwise used by SoftwareMarket 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 user name and password. You are liable if your user name or password is used by an unauthorised person. You agree to release and indemnify SoftwareMarket Store in connection with any use (whether authorised or unauthorised) of your user name or password. SoftwareMarket Store may suspend or cancel your account at any time without prior notice.
6. Security & Privacy
SoftwareMarket 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 SoftwareMarket Store an irrevocable, non-exclusive licence to use any material, information and ideas that you transmit to this site or otherwise provide to SoftwareMarket 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 SoftwareMarket 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.
SoftwareMarket 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 up to thirty percent (30%) of the costs of goods. SoftwareMarket Store has the right not to provide a refund in accordance with the Clients Competition and Consumer Commission (‘CCCC”).
SoftwareMarket Store may change the prices published on this website at any time. While every effort has been made to ensure the accuracy of prices and information displayed on theSoftwareMarket Store website, SoftwareMarket 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
- No price list, range, book, catalogue or quotation given by the Supplier shall constitute an offer to supply goods to the Purchaser.
- 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”).
- The Order Confirmation may list suggested substitution of styles for styles not being produced or unavailable.
- In season orders made by telephone, email or by our agents are done so in accordance with these Terms and Conditions.
- 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.
- 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.
- The Goods supplied shall be as specified in the Order Confirmation.
- 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.
- 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.
- All goods are dispatched free on board from the Supplier’s warehouse unless prior agreements have been made in writing. 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.
- Every attempt will be made by the Supplier to deliver the goods during the delivery window as advised on the Order Confirmation. 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.
- 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.
- 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 Purchaser will take delivery of goods when tendered. Any redelivery shall entitle the Supplier to charge a reasonable re supply fee.
- The Supplier does not guarantee availability of Goods even if the goods are listed in an Order Confirmation.
- 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 goods. 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 SoftwareMarket Store to you until we have received payment in full for the goods. All risk in the goods passes to you upon delivery.
The Purchaser is required to ship the unit to SoftwareMarket Store returns and quality check station which is located in China.
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 entitled to recover reasonable postage or transportation costs from SoftwareMarket Store if the product is confirmed to have a problem, so keep your receipts.
- When a product is too large, too heavy or too difficult to remove, SoftwareMarket Store is responsible for paying the shipping costs or collecting the product within a reasonable time of being notified of the problem.
- If the product is found not to have a problem, you may be required to pay the transport or inspection costs. An estimate of these costs should be provided to you before the product is collected.
- 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:-
- Contact the Supplier by phone/fax/email to obtain a return authorisation number for the respective return for assessment;
- The Supplier will email/fax to you a return number and Return Authorisation Form for completion which must be sent back with the item;
- Upon receipt the Supplier will inspect the goods and either repair the goods or replace the goods at our discretion in accordance with our warranty obligations set out in Clause 8.
- If you have received Goods that have been incorrectly sent to you or you are sending back shop ready stock all packing, swing tags, bar code identifications and polybags in which the Goods arrived must be returned. In the event that the Supplier has to retag, pack or swing tag the Goods, remove store price stickers which may still being affixed to swing tags you may be charged an administration fee of $2.00 per item as a handling charge.
14. Product Information, Prices & Photos
SoftwareMarket 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 SoftwareMarket Store website are quoted in Crypto Currency (Bitcoin,Ethereum,Litecoin, BitcoinCash) and are inclusive of GST except where 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, SoftwareMarket Store is not required to supply you with any alternative products and has no liability to you whatsoever.
17. Limitation of Liability
- 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.
- The provisions of this clause shall not apply insofar as their application is prevented by the CCK, and in particular section 64 of the Clients Consumer Law (“CCL”).
- 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 2020, is limited, at our election, to either:
- replacing the Goods or supplying equivalent goods; or
- repairing the Goods or agreeing to pay the cost of repair.
- 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.
- 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 defaults 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.
- 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.
- 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: –
- if the breach relates to goods, to either the replacement of any goods involved or the supply of equivalent goods, the repair of such goods, the repayment of the cost of replacing the goods or acquiring equivalent goods or the payment of the cost of having the goods repaired; and
- if the breach relates to services, supplying the service again or the payment of the cost of having the services supplied again.
- The Supplier will not be liable to the final consumer or to you where the Goods do not meet the consumer guarantees in the CCL:
- due to an act, default or omission of, or representation made by any person other than us or by one of our employees or agents;
- due to a cause independent of human control that occurs after the Goods have left our control;
- due to you charging a higher price than the recommended retail price for the Goods in question;
- In relation to our guarantee of acceptable quality, where the final consumer was aware of, or ought reasonably to have been aware of the flaw in the Goods at the time of purchase.
18. Disclaimer of Warranty
SoftwareMarket Store is unclassified and new hardware and the expected lifetime or quality of life is unknown. 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.
- 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.
- 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:
- In the case of information or services supplied or offered by us – the re-supply of the information or services or payment of the cost of doing this.
- In the case of goods supplied or offered by us – repair or replacement of the goods, supply of equivalent goods, or payment of the cost of doing this.
- The amount paid by you (if any).
- 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 United kingdom and Internet Sales
Goods supplied under these Terms and Conditions must not be supplied by you to purchasers outside United kingdom, or to persons who operate internet sales stores or who conduct web based sales outside of United kingdom. 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 United kingdom.
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 $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.
If all attempts SoftwareMarket 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.
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 2020 (the “CCK”), and any other similar Federal or State statute and which cannot be lawfully excluded, restricted or modified:
- the Goods are provided for use by the Supplier on an as is where is basis and all conditions and warranties, whether statutory or otherwise, are excluded in relation to the Goods;
- without limiting Clause 7(a) the Supplier warrants that it will provide the Goods with reasonable care and skill. The Supplier makes no express or implied representation that the Goods are fit for purpose or that the Goods will not cause harm or injury whether direct or indirect to any person who uses or otherwise comes in contact with the Goods whether directly or indirectly; and
- The Supplier is not liable to the Purchaser for any loss whatsoever, including any damage, loss, claim, liability, cost or expense (whether direct or indirect, consequential or incidental) loss of profit, revenue, anticipated savings, contract, opportunity or goodwill (the ‘Loss”) which the Purchaser suffers, incurs or is liable for in connection with the use of the Good.
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.
23. 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:
a) No matter whether the customer requires delivery or hosting, there is no refund or return after payment.
b) If the purchased products need to be shipped, the warranty period is 200 days from the date of shipment.
c) If the purchased products requires official hosting service for more than one year, the warranty period is one year from the date of purchase.
d) If the user suspends hosting and evacuates the machine within three months after purchase, the warranty period is 180 days from the date of shipment.
e) If the user suspends hosting and evacuates the machine within 6 months of hosting, the warranty period is 120 days from the date of shipment.
f) If the user suspends hosting and evacuates the machine within 9 months of hosting, the warranty period is 60 days from the date of shipment.
g) If the user suspends hosting and evacuates the machine after 11 months of hosting, the warranty period is 30 days from the date of shipment.
h) The following conditions will invalidate the warranty:
i. The product itself is disassembled, and components are altered and replaced without permission;
ii. Damage caused by lightning strikes, voltage surges, inferior power supplies, etc;
iii. Damage caused by water ingress, moisture and corrosion of circuit boards and components;
iv. There are burn marks on the circuit board or the chip is burned;
v. Voltage overclocking.
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 ± 5%.
3. the Purchaser has paid the full amount of the purchased product. the Supplier will provide the Purchaser with algorithms applicable to its product type for free.
4. Official hosting services
a) The Supplier provides daily maintenance services of the products.
b) Cancellation of hosting shall be notified to the Supplier in advance of one month.
c) The hosting period is 1 year.
The Supplier and Purchaser agree that notwithstanding any other provision in these Terms and Conditions, if you choose to host the miner yourself, the Purchaser acknowledges and agrees it shall operate and maintain the Goods in a suitable environment ordinarily expected to operate these Goods. The Supplier and Purchaser further agree the Purchaser shall be solely responsible for any burns voltage surge or damaged caused by heat and agrees the occurrence of such an event shall void the warranty. .
Article 2: the Supplier’s Rights and Obligations
1. The Supplier is obliged to send the product or allocate cloud products to the Purchaser within 3 days after receiving the full payment, unless otherwise agreed.
2. If the Supplier and the Purchaser agree to use the hosting service provided by the Supplier, the Supplier has the right to receive the corresponding fee within 14 days, otherwise the Supplier will stop the cloud products.
3. If the Supplier and the Purchaser agree to use the hosting service provided by the Supplier, the Supplier is obliged to provide the Purchaser with site operation and maintenance services.
4. The Supplier shall not bear any responsibility if the machine is lost, damaged, confiscated, etc. due to force majeure (natural disaster, national policy, government or security department control, etc.).
Article 3: Rights and Obligations of the Purchaser
1. The Purchaser has the right to request delivery of the product to the Purchaser within 3 days of the full payment of the purchase price, unless otherwise agreed.
2. If the Supplier and the Purchaser agree to use the hosting service provided by the Supplier, the Purchaser is obliged to pay the corresponding fee within 14 days of receiving the hosting service statement, otherwise it will accept the Supplier’s treatment plan by default.
3. If the Supplier and the Purchaser agree to use the service provided by the Supplier, the Purchaser has the right to supervise the operation and maintenance services provided by the Supplier.
Article 4: Miscellaneous
1. If an event of force majeure (natural disaster, national policy, government regulation, etc.) prevents any party from fulfilling any of its contractual obligations, during the duration of the force majeure event, such contractual obligations shall be suspended and the two parties shall not bear each other Liability for breach of contract, meanwhile, the performance period shall be automatically postponed, and the postponement period shall be equal to the duration of the force majeure.
2. This Agreement shall become effective on the date of signing by both parties. 3. Any modification of this agreement shall be made by signing a written supplementary agreement. The written supplementary agreement signed by both parties has the same legal effect as this agreement.
4. The invalidity of any clause of this agreement will not affect the validity of the remaining clauses.
5. This agreement is in duplicate, each party holds one copy, and each copy has the same legal effect.
Your ability to purchase goods from this site may be terminated by SoftwareMarket Store at any time without notice. All restrictions, licences granted by you and limitations of SoftwareMarket Store’ liability will survive termination.
Each person who guarantees the performance by the Purchaser of its obligations under these Terms and Conditions and each director of a Purchaser which is a corporation (the “Guarantor”) gives a guarantee and indemnity in favour of the Supplier in consideration of the Purchaser agreeing to enter into these Terms and Conditions and shall execute the guarantee attached to these Terms and Conditions.
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.
SoftwareMarket – Website Guarantee
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”)
- The Supplier has agreed to supply goods to the Purchaser as set out on page 1 of the Terms and Conditions (the “Purchaser”)
- The Guarantors have an interest in the Purchaser.
- The Guarantors have agreed to guarantee the due and punctual payment by the Purchaser of all monies payable by the Purchaser to the Supplier for goods supplied by the Supplier to the Purchaser.
Now This Deed Witnesses as follows:
- 1. In consideration of the Supplier agreeing to supply goods and to grant credit to the Purchaser (which is hereby acknowledged) the Guarantors unconditionally and irrevocably do hereby jointly and severally guarantee:
(a) the due and punctual payment by the Purchaser of all monies due and payable or which may become due and payable by the Purchaser to the Supplier for goods supplied or to be supplied by the Supplier to the Purchaser, including interest and all amounts for which the Purchaser is or may become liable on accountant of the breach or repudiation by the Purchaser of any order or contact for the purpose of goods whether such monies and amounts arise or are contemplated before or after the date of this deed or as a result of the assignment (with or without a Guarantors’ consent) of any debt, liability or this deed and including moneys and amounts which a person would be liable to pay but for the insolvency, liquidation or bankruptcy of that person, and;
(b) the due performance and observance by the Purchaser of all its other liabilities and obligations to the Supplier.
- 2. This Guarantee and Indemnity constitutes a continuing guarantee and indemnity and shall not be considered as wholly or partially discharged by the payment at any time hereafter of any part of the moneys due and payable by the Purchaser to the Supplier or by any settlement of account or any intervening payment or by any other matter or thing whatsoever and shall remain in full force and effect until the whole of all moneys due and payable by the Purchaser to the Supplier and any interest or other moneys have been received by the Supplier and the other liabilities and obligations of the Purchaser have been duly performed.
- 3. The Guarantors shall:
(a) pay the Supplier on demand all moneys due and payable by the Purchaser to the Supplier and which have not been paid by the Purchaser in accordance with the Terms and Conditions; and
(b) if the Purchaser has not performed or observed any of its other liabilities and obligations to the Supplier in accordance with the Terms and Conditions (or other relevant agreement or instruments), perform, or procure the performance of those obligations by the Purchaser whether or not recourse has been had by the Supplier to any other security or against any other person.
- 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:
(b) such moneys not being recoverable from the Purchaser for any reason;
(c) any other default in the performance of its obligations to the Supplier including in respect of the supply by the Supplier of goods to the Purchaser; and
(d) the insolvency, bankruptcy, liquidation, appointment of a receiver and manager, administrator, trustee or similar official, provisional liquidation of the Purchaser or a Guarantor.
- 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 unenforceability. 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.