Terms and Conditions

MANAGEM TERMS AND CONDITIONS (“Terms”)

PART A

Application of Part

(a) Part A applies to each and every supply of goods and services made by Managem to the Customer.

Definitions and Interpretations

2.1 In these Terms;

Additional Service means any service that is not performed by Managem at its option that is an addition to the Support Services and the IIT Services required to be performed by Managem under this Document and which is not subject of a separate agreement with Managem.

Base Software means the software that is installed upon or embedded in the Equipment in an activated state when the Equipment is delivered and any Maintenance Releases provided thereafter but excludes Diagnostic Software.

Business Day means any day which is not a Saturday, Sunday or Bank or public holiday in the state or territory where the obligation is to be performed.

Business Hours means 8.30am to 5pm on a business day.

Customer means the person or entity purchasing the goods and services upon these Terms.

Consumables means any ink, toner or fuser used in the Equipment in the ordinary course of their operation.

Claim means any and all claims arising from or in relation to this Document, howsoever caused whether wilfully or otherwise (including repudiation), and whether fundamental or non-fundamental breach of contract (including for breach of an Essential Term), in tort (including negligence) or for breach of any statutory provision.

Consequential Loss means any claim for; any consequential, special or indirect cost, loss or liability: any loss of business opportunity, loss of revenue, profit or savings; and any loss, corruption or delay of data.

Details Section means the section in this Document carrying that title.

Diagnostic Software means the software embedded in the Equipment and used or intended to be used by Managem to maintain or diagnose defects or substandard performance.

Document means this document which is made up of the following:

(a) Details Section;

(b) the Terms; and

Documentation means any manual and Specification for the Equipment or Services that is generally provided to Customers by Managem.

Equipment means the equipment that is either purchased from Managem outright without the intervention of any finance or leasing third parties and/or equipment that will be serviced by Managem as set out in the Product Schedule.

Essential Term means all of the Customer’s obligations under these Terms. EULA has the meaning given in clause 5.1.

GST has the meaning given to the expression ‘’tax’’ as it appears in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means any of the following:

(a) In relation to a natural person, that person, that person is declared bankrupt, or is unable to pay their debts when they fall due;

(b) insolvency or the likelihood of future insolvency;

(d) an application for winding up is made and not stayed within 14 days, or a resolution for winding up is passed;

(e) a winding up order is made;

(f) a trustee, controller, administrator, receiver and/or manager, statutory manager, provisional liquidator or liquidator is appointed;

(g) a mortgagee enters the possession of any of the Customer’s property;

(h) notice is given of a meeting of creditors for the purpose of a deed or scheme of arrangement; or

(i) any actions of a similar effect to those set out above are taken.

Maintenance Release means any release of Base Software that is provided or made available to the Customer by Managem that primarily incorporates code error fixes and is generally made available by Managem without charge to Customers in the course of

performing Support Services.

Non-Excludable Right means any warranty, guarantee or other right enjoyed by the Customer which cannot lawfully be excluded or limited (including any statutory guarantees set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

Managem means Managem Group Pty Ltd ACN 653 541 694 and any related body corporate of Managem within the meaning of section 50 of The Corporations Act 2001.

Product and Service Schedule means the schedules(s) setting out the Equipment and Support Services in the Details Section of this Document.

Services means the Support Services and any Additional Services.

Software means the Base Software, Diagnostic Software, FM Audit Software, Maintenance Releases and any additional software which is provided by Managem.

Specifications means any published specification for Equipment.

Interpretation: unless the context requires otherwise:

(a) a reference to $ or dollars means the lawful currency of Australia;

(b) a reference to a person includes a firm, partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority and its legal personal representatives, successors and assigns;

(c) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;

(d) Managem’s obligations will be performed during Business Hours;

(e) if the date on or by which any act must be done under these Terms is not a Business Day, the act must be done on or by the end of the next Business Day;

(f) headings do not affect interpretation;

(g) “include” or “including” means includes all including (as the case may be) without limitation;

(h) capitalized terms that are not defined in clause 2 have the meaning given to them in the Details Section;

(i) clauses intended by their nature to survive expiration or termination of this agreement, survive such expiration or termination; and

(j) reference to ‘’in writing’’ includes by facsimile and email.

Binding Terms and Conditions

3.1 The only terms which are binding upon Managem are:

(a) those set out in these Terms or otherwise agreed to in writing by Managem; and

(b) those, if any, which are imposed by law and which cannot be excluded.

3.2 These Terms apply to each supply of goods and services made by Managem to the Customer. For the avoidance of doubt, these Terms apply regardless of whether Part B of these Terms applies or not.

3.3 The Customer and Managem agree that these Terms apply to the goods and services described in the Details Section and to every order for other goods and services by the Customer which is accepted by Managem, to the exclusion of the Customer’s terms and conditions of the purchase.

3.4 Unless expressly stated otherwise in this Document, no Customer right to terminate another agreement, gives the Customer a right to terminate this agreement.

3.5 Subject to any Non-Excludable Rights, this agreement cannot be cancelled or terminated except as expressly provided in this Document.

3.6 Time is of the essence in respect of all of the Customer’s obligations under these Terms.

Orders

4.1 Managem accepts orders for goods and services by delivery of the goods and services.

4.2 An order for goods and services cannot be cancelled after the Customer has signed the “Customer Acceptance” section in the Details Section.

4.3 The prices shown in any Managem price list are subject to alteration without notice, unless otherwise set out in this Document.

4.4 Without prior approval of Managem, the Customer must not allow the balance of its

account to exceed any approved credit limit as set out in the Details Section.

4.5 Managem may vary or withdraw the approved credit limit of the Customer at any time in its absolute discretion.

4.6 The Customer acknowledges that Managem may pay commission or other amounts to its personnel, contractors, agents, dealers or any other third parties.

Software

5.1 Where the goods include Software, the Customer acknowledges and agrees that the

Software is owned by Managem or a third party and licensed directly or indirectly to the

Customer under separate terms and conditions which may include an end user license

document (together, the ‘’EULA’’) and that title in the Software at all times remains with

the owner of the Software unless expressly indicated otherwise in the description of the

Software.

5.2 If requested by Managem, the Customer must promptly accept or authorise the

acceptance on the Customer’s behalf of any EULA associated with the

acquisition, implementation or use of the Software. To the extent necessary for

Managem to fulfil its obligations under this Document, the Customer hereby

authorises Managem to act as the Customer’s agent to acquire the Software and to

accept on behalf of the Customer an EULA associated with the acquisition,

implementation and use of the Software.

5.3 The Customer must use the Software strictly in accordance with and comply with the

EULA.

5.4 The Customer indemnifies and holds Managem harmless against all liability, loss, damage, cost and expenses (including legal costs on a full indemnity basis) in relation to any Claim arising out of or in connection with any breach or failure to comply with clause

5.3 or any other act or omission of the Customer in relation to the Software which

infringes the intellectual property rights of the owner or head licensor of the

Software.

5.5 Nothing in this Document transfers ownership or any present or future intellectual

property rights.

5.6 Managem grants to the Customer a non-exclusive, non-transferable license to reproduce the object code version of the Base Software within Australia only and in the course of operating the Equipment with which (or within which) it was delivered for as long as the Customer is legally in possession of the Equipment in working order.

5.7 Unless otherwise stated, where Managem customizes the Software or develops new

software for the Customer (other than diagnostic software) that customized or

developed code is licensed to the Customer upon the same terms as a license for the

Base Software.

5.8 Any license provided under this Document must be read subject to any EULA that

accompanies the Equipment, which prevail over the Terms to the extent of any

inconsistency.

5.9 Unless and only in the extent permitted by law notwithstanding this prohibition, the

Customer must not:

(a) distribute, copy, modify, create deviate works of, decompile or reverse engineer the

Software;

(b) activate any Software delivered with or within the Equipment in an inactivated state;

(d) disclose the Software, the Documentation and any information designated as confidential to any third party without Managem’s prior written consent; or

(e) allow others to do anything described in clause 5.9(a)-(e).

5.10 Software may contain or be modified to contain computer code which disables the proper operation or functioning of the Equipment if:

(a) Managem is denied full access to the Equipment;

(b) there is a default under this Document or other agreement between Managem and the Customer; or

5.11 Diagnostic Software may be installed on, embedded in or reside on Equipment. Title to

Diagnostic Software shall at all times remain solely with Managem or its licensors.

5.12 This Document does not grant the Customer a license or right to access or use the

Diagnostic Software in any manner, and unless separately licensed by Managem to do

so, the Customer must not access, use, reproduce, distribute or disclose the Diagnostic

Software for any purpose or allow any third party to do the same.

5.13 Managem may suspend or terminate, or cause to be suspended or terminated, any

Software licence without any liability by written notice with immediate effect if the Customer fails to perform any of its obligations under these Terms, including but not limited to failure to make any payments by the due date or failure to comply with an EULA.

5.14 Upon the suspension or termination of any Software license, the Customer must

immediately cease using the Software and do all such things requested by Managem

to uninstall or otherwise remove the Software from the Customer’s computer

system or network. The Customer irrevocably authorises Managem to enter any

premises owned or controlled by the Customer at any time to enable Managem to

verify or audit the Customer’s compliance with the obligation under this clause. If

required by Managem, the Customer must provide all such evidence required by

Managem to prove to the satisfaction of Managem the Customer’s compliance with its

obligations under this clause.

Delivery and Installation of Goods

6.1 Unless otherwise agreed by the parties, the Customer must pay Managem’s charge for

transportation of goods to the place of delivery.

6.2 If a delivery date is specified, that date is an estimate only and Managem is not liable

for any delay in delivery. Managem will not be liable for penalties or damages (direct or

indirect) or compensation for any failure or delay.

6.3 Managem is deemed to have delivered the goods when they are made available for

unloading at the delivery location specified in an accepted order whereupon all risk

passes to the Customer. Deemed acceptance is not invalidated by any Managem request

for the Customer to acknowledge receipt or acceptance of the Equipment.

6.4 The supply of the goods is subject to availability. If Managem is unable to supply the

Customer’s order Managem may accept the order in part or deliver the order in

instalments and these Terms continue to apply to the goods supplied.

6.5 Managem will only install the goods during normal business hours at the place of delivery or such other times as agreed between the parties in writing. The Customer must prepare the site to meet Managem’s installation or other specification.

6.6 Physical risk in the Equipment passes to Managem only when the Equipment is

delivered to Managem’s premises or its nominee’s premises following the expiration or

termination of this Document.

Installation, Implementation and Training services.

7.1 Managem will provide installation, implementation and/or training services generally

required for the operation of the goods (IIT Services).

7.2 The Customer agrees to promptly provide Managem with all information, instructions

and/or access to premises or persons within the Customer’s control as Managem

reasonably requires to perform the IIT Services. The Customer agrees it is

responsible for the completeness and accuracy of all information supplied to Managem

and Managem may rely on all such information to perform the IIT Services including

but not limited to making any recommendations in relation to the Software.

7.3 The Customer agrees it is solely responsible for determining the acceptability of the

Software (including but not limited to its functionality and operational capability) for its

purposes and Managem relies on the Customer’s determination to perform the IIT

Services.

7.4 The Customer agrees to ensure Managem is permitted to use any third-party

information or intellectual property rights the Customer requires Managem to use to

perform any of the IIT Services including but not limited to implementation and

installation of the Software.

7.5 Managem’s performance depends on the Customer also performing its obligations. The

Customer agrees Managem is not liable for any default or loss or damage suffered or

likely to be suffered by the Customer because the Customer does not fulfil its

obligations or because information supplied is inaccurate or incomplete.

7.6 The Customer acknowledges the installation and implementation of any software

including the Software is an iterative process which is subject to multiple stages getting

tested and reconfiguration.

7.7 If a delivery date, installation date or other date is provided by Managem, that date is

an estimate only and Managem is not liable for any delay or failure. Managem will not be

liable for penalties or damages (direct or indirect) or compensation for the delay.

7.8 Managem is deemed to have completed the IIT services when the IIT services are

provided. Deemed completion is not invalidated by any Managem request for the

Customer to acknowledge completion of the IIT Services.

7.9 After the initial installation of any goods, if the Customer requires any further work,

such work will be treated, at the discretion of Managem, as Additional Services and

charged in accordance with Managem’s rates as set at that time.

7.10 The supply of IIT Services and Additional Services is subject to availability of resources.

7.11 Managem will only provide IIT Services during normal working hours or such other

times as agreed between the parties in writing. The Customer

must provide adequate and safe facilities for Managem if Managem is to provide any of the

IIT Services at the Customer’s premises.

Managem may use subcontractors or agents to perform or assist Managem to perform

any part of the IIT Services.

Once the goods are delivered by Managem, they must not be removed from the

location that they were delivered to, at any time and for any reason without prior

written consent of Managem, and if they are, the Customer must immediately advise

Managem in writing and provide details of the new location.

Notification of Claims

8.1 The Customer must inspect the goods immediately upon delivery and/or conduct such

tests necessary to check or verify the functionality or operability of the goods upon

completion of the IIT Services.

8.2 Any Claim that the goods or services are not in accordance with these Terms

(including if they are damaged during delivery, short delivered or not working,

functioning or operable) must be made in writing to Managem within 7 days of delivery,

installation, implementation or provision of the goods and/or the IIT Services or the

Services (as applicable).

8.3 If the Customer fails to make such claim within 7 days of delivery of the goods and/or

provision of IIT Services or the Services (as applicable), then to the extent permitted by

law, the goods and/or IIT Services and/or Services are deemed to have been accepted

by the Customer and the Customer must pay for the goods and/or IIT Services and/or

Services in accordance with the provisions of these Terms.

Trade-Ins

9.1 The Customer represents and warrants that all trade-in products are unencumbered

and that a clear title can be given.

9.2 The Customer represents and warrants to Managem that it is the lawful owner of any

trade-in products.

9.3 The Customer acknowledges that by trading-in equipment or products:

(a) title to the equipment or products will be transferred to Managem;

(b) the Customer will no longer have any right, title or interest in the equipment or products; and

Payment

10.1 Subject to clauses 10.2 to 10.4, payment is required to be made within 7 days of

invoice or if agreed prior in writing by Managem, may be made by way of cash on delivery

(COD). In any event payment must be received prior to Managem arranging for the

delivery of any goods, unless cash on delivery is agreed in writing by Managem.

10.2 If Managem has accepted and approved an application for commercial credit made by

the Customer and granted the Customer an approved credit limit (which is stated in

the Details Section), the Customer must make each payment for the goods and services

within 30 days of the date of the invoice (or such other period as agreed by the parties in

writing). If payments subject to commercial credit approved by Managem are not

made by direct debit, then an additional administration fee of $20 plus GST per month

applies.

10.3 If Managem has accepted payment by way of finance;

(a) the Customer must make payment for the goods and services in accordance with the

terms and conditions applicable to the financing arrangement, prior to Managem

arranging for delivery of any goods;

(b) Managem will sell the goods and services to the finance provider, not the Customer;

and

or granting of finance by any finance provider, whether that finance provider was

referred to the Customer by Managem or otherwise; and

(d) Managem shall not be responsible for any acts or omissions of any finance provider,

breaches of any duties by the finance provider nor any contractual obligations of any

finance provider.

10.4 If Managem has agreed to payment by direct debit, the Customer must make payment

for the goods and services in accordance with Managem’s direct debit terms and upon

the dates set by Managem. Any failed payments made by Direct Debit will be charged at

$20 plus GST per failed attempt.

10.5 Invoices must be paid in full without set-off (including set-off in accordance with the

Corporations Act (2001)) or deduction.

10.6 Time is of the essence in respect of the Customer’s obligation to make payment for the

goods and services.

10.7 Notwithstanding that Managem may have granted the Customer an approved credit

limit, time to pay or finance, upon the occurrence of any of the following events, all

amounts owing by the Customer (including any amounts owing but not yet due) will

become immediately due and payable:

(a) a breach of these Terms by the Customer;

(b) an Insolvency Event occurs in relation to the Customer; or

(c) any event occurs which in the reasonable opinion of Managem is likely to affect the ability of the Customer to perform its obligations under these Terms.

10.8 Upon the occurrence of any of the events in clause 10.7, Managem may also in its

absolute discretion:

(a) vary or withdraw any approved credit limit;

(b) cancel any unfilled orders; and

incurred by Managem on a full indemnity basis in connection with the default and/or to

institute such recovery process as Managem in its discretion decides.

10.9 Any payment by the Customer to Managem may be applied by Managem against monies owing by the Customer in such manner as Managem sees fit.

Goods and Services Tax

11.1 In these Terms ‘’GST’’ means GST as defined in the A New Tax System (Goods and

Services Tax) Act 1999 as amended from time to time (‘’GST Act’’) or any replacement

or other relevant legislation and regulations.

11.2 Unless GST is expressly included, the price payable for any supply made under or in

connection with these Terms does not include GST.

11.3 To the extent that a supply is a taxable supply, the GST exclusive consideration

otherwise payable for that supply is increased by the amount of any GST payable in

respect of that taxable supply, and that amount is payable at the same time as the

GST exclusive consideration.

11.4 Each party agrees to do all things, including providing tax invoices and other

documentation, that may be necessary to enable the other party to claim any input tax

credit, adjustment or refund in relation to any amount of GST paid or payable.

Interest

12.1 Interest accrues on overdue amounts at the rate of 20% per annum, compounding

daily.

12.2 Interest is charged from the date the payment was due until the date the payment is

made.

Risk and insurance

13.1 Goods supplied and/or delivered by Managem to the Customer are at the Customer’s risk immediately upon being made available for unloading at the delivery location specified in an accepted order.

13.2 The Customer must insure the goods at its cost from the time that the goods are made available for unloading at the delivery location until they are paid for in full against such risks as it reasonably thinks appropriate and must note interest of Managem on the policy and produce a certificate to this effect to Managem on request.

Retention of title

14.1 In this clause 14:

(a) PPSA means Personal Property Securities Act 2009 (Cth); and

(b) a term that is used in italics in this clause 14 has the same meaning as in the PPSA.

14.1 Subject to clause 5.1 and the preservation of Managem’s rights under the PPSA in respect of the Software, property in the goods supplied by Managem to the Customer under these Terms does not pass to the Customer until those goods, and any goods previously supplied, have been paid for in full, unless and until the goods are paid for in full by way of finance. The Customer in the meantime takes custody of the goods and retains them as the fiduciary

and bailee of Managem. Any amounts owed by the Customer to Managem (including payment for services) constitutes both a security interest and an equitable interest in land that may be the subject of a Caveat under the Real Property Act 1900.

14.2 The Customer charges any real property that it owns and grants Managem a mortgage or a charge over any real property that the Customer owns to secure the recovery of any amounts due under this Document.

14.3 Until the goods have been paid for in full, the Customer must:

(a) store the goods in such a manner as to show clearly that they are the property of Managem;

(b) keep the goods fully insured in accordance with these Terms and at the Customer’s cost and hold the proceeds of any insurance claim in respect of the goods (to the extent of the

Customer’s debt to Managem) in trust for Managem;

(c) not sell or sub-licence the goods, and if does so, the Customer grants Managem a security interest in every payment to the Customer for the goods (both as proceeds of the goods and as original collateral); and

(d) not sell, sub-licence, charge or otherwise encumber the goods or grant any interest over any debts and other obligations which any third party may owe to the Customer as a result of the use or resale of the goods.

(e) Once the goods are delivered by Managem, they must not be removed from the location that they were delivered to, at any time and for any reason without prior written consent of Managem.

14.4 The Customer irrevocably authorises Managem at any time, to enter any premises:

(a) Upon which the Customer’s records pertaining to the goods are held:

to inspect the goods; and/or
if the Customer has breached these Terms or suffered an Insolvency Event, to reclaim

possession of the goods (even if mixed with other goods); and

(b) Upon which the Customer’s records pertaining to the goods are held, to inspect and copy the records.

14.5 The Customer indemnifies Managem against any liability to any person in connection with the entry or reclamation.

14.6 Managem may commence legal action against the Customer if the goods are not paid for within

the applicable credit terms or any separate arrangement for the credit made by Managem with

the Customer although property in the goods has not passed to the Customer.

14.7 The Customer acknowledges and agrees that:

(a) This clause 14 creates a security interest in all present and after acquired goods (including any Software, for the avoidance of doubt) and any proceeds as security for the Customer’s obligations to Managem;

(b) Managem is a secured party in the relation to the goods and any proceeds of the goods, and is entitled to register its interest on the register as;

a security interest; and
if applicable, a purchase money security interest;

by Managem to ensure its security interest in the goods and the proceeds are enforceable

and to perfect, or better secure the position of Managem and the Customer must comply

with that notice; and

(d) Managem is not obligated to give any notice, document or information under the PPSA, unless the provision of the notice, document or information is required by the PPSA and cannot be excluded.

14.8 Until the goods have been paid for in full and any other money owing by the Customer to Managem has been repaid, every payment by the Customer to Managem must be taken to be a payment:

(a) firstly, of any amount owed by the Customer to Managem that is not subject to a security

interest;

(b) secondly, of any amount owed by the Customer to Managem that is subject to a security

interest, to the extent that the security interest is not a purchase money security interest; and

(c)thirdly, of any amount owed by the Customer to Managem that is subject to a security

interest, to the extent that it is a purchase money security interest.

14.9 An ordinary acknowledgment by Managem to the Customer that an invoice has been paid is not, and must not be treated as a Document by Managem to amend the order of priority set out in clause 14.8.

14.10 If any of the goods are on-sold to a third party or are lost, stolen or damaged, Managem may trace the proceeds of such sales or any insurance proceeds and the Customer must hold on trust for Managem the proceeds of such sales or insurance proceeds up to an amount equivalent to the amount owing to Managem in respect of those Goods and must remit such amounts to Managem on demand.

14.11 The parties may not disclose any information of a kind referred to in section 275(1) of the PPSA this is not in the public domain.

14.12 Managem is not obliged to give any notice or provide copies of any documents or information

under the PPSA, including, but not limited to under section 95, 118, 130, 123(3) (d), 132(4), 135, or 157 of the PPSA, unless the notice, document or information is required by the PPSA and cannot be excluded.

14.13 The Customer consents to the waiver of the right to receive notice, copies of documents or information under clause 14.12.

14.14 To the extent that chapter 4 of the PPSA would otherwise apply to enforcement by Managem of

any security interest in the goods, the parties agree that the following provisions of the PPSA are excluded;

(a) to the extent section 115(1) of the PPSA allows them to be excluded; Sections 125,

123(3)(D), 123(4), 135, 142 and 143 of the PPSA; and

(b) to the extent section 115(7) of the PPSA allows them to be excluded: sections 129(2) and (3),

132, 133(1)(b) (as it relates to Managem’s security interest), 14(2), 135, 136(3)(4) and

(5) of the PPSA.

14.15 The Customer consents to the waiver of the requirement for notice under any other

provision of the PPSA that Managem may notify to the Customer after the date of this

document and the Customer waives any right it has to receive that notice.

15 Storage

15.1 Managem may agree, upon request by the Customer, to temporarily store goods on

behalf of the Customer, on terms agreed between the Customer and Managem.

15.2 If Managem agrees to store goods on behalf of the Customer, the Customer agrees that:

(a) The goods will remain at the Customer’s risk for the duration of the storage period;

(b) The Customer must insure the goods for the duration of any period of storage; and

(c) Managem will not be responsible for any loss, damage or destruction that occurs to the goods while stored by Managem.

15.3 The Customer indemnifies Managem for all losses, liabilities, costs and expenses arising directly or indirectly in connection with the storage of the goods by Managem in accordance with this clause.

16 Warranties, exclusions and limitations

16.1 Managem warrants that it is an authorised reseller of the Software and to the best of its

knowledge, the licensor of the relevant Software is the owner or authorised licensee of the

Software.

16.2 Subject to clauses 16.3 and 16.4 and to the maximum extent permitted by law, these

Terms exclude all other conditions, guarantees, warranties, liabilities, rights or

representations in relation to the goods and services, whether statutory, implied or

otherwise.

16.3 Where legislation implies in these Terms any condition or guarantee which cannot be excluded

or modified, the condition or guarantee is deemed to be included in these Terms.

16.4 To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth),

the liability of Managem for a breach of any non-excludable condition or guarantee about the

goods or services, is at the absolute option of Managem, limited to any one or more of the

following:

(a) In the case of the goods:

the replacement of the goods or the supply of equivalent goods;
the repair of the goods;

iii. the payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Customer’s account, in cash or by cheque at Managem’s absolute discretion;

the payment of the cost of having the goods repaired; or
repayment of any part of the purchase price of the goods which has been paid by the

Customer, by credit to the Customer’s account, in cash or by cheque at Managem’s absolute discretion; and

(b) In the case of the services, the supply of the services again or the payment for the cost of the supply of the services again by credit to the Customer’s account, in cash or by cheque at Managem’s absolute discretion.

16.5 To the maximum extent permitted by law, Managem has no liability for any loss or damage

of any kind whatsoever, including without limitation, for any indirect or Consequential Loss

(including without limitation, loss of profits, income, business opportunity, goodwill,

anticipated savings or benefits, economic loss or loss, or corruption of data), even if due to the

negligence of Managem or its agents or employees arising out of or in connection with the

supply of the goods or services.

16.6 Where Managem is unable to limit its liability as set out above, to the maximum extent

permitted by law, Managem’s aggregate liability for all claims connected directly or indirectly with

the goods and services (including claims of negligence) is limited to an amount equal to the

amount paid by the Customer for the goods and services.

16.7 Managem will not be liable to the Customer for any delay or non-performance of its

obligations, to the extent that such delay or non-performance arises from: circumstances

beyond its control; acts of God or nature; actions of the government (including the change or introduction of any law or regulation); fire; flood, strike or other labour dispute; civil

disturbance; tourism; or power, air conditioning, communication or network failure.

16.8 Evaluation provided by Managem is deemed accepted by the Customer unless the Customer notifies Managem that it rejects such a valuation within five (5) Business Days of receipt.

17 Customer Warranty and Indemnity

17.1 To the maximum extent permitted by law, the Customer indemnifies Managem, regardless of any negligence on the part of Managem or its employees or agents, against:

(a) all losses incurred by Managem;

(b) all liabilities incurred by Managem; and

(c) all costs actually payable to its legal representatives and any other expenses in connection with a demand, action, arbitration or other proceeding, arising directly or indirectly as a result of or in connection with:

the supply of goods or services by Managem to the Customer;
the trade-in or storage of equipment or used goods by Managem for the Customer (including connection with any third-party Claims arising from such trade-in or storage); and

iii.any breach of these Terms by the Customer, unless caused by wilful misconduct on the part of Managem.

17.2 The Customer represents and warrants to Managem that:

(a) it has acquired the Equipment and the Services for business and/or investment purposes and not for resale or for personal, domestic or household use or consumption and the Customer acknowledges that the Equipment is not ordinarily acquired for such a purpose;

(b) it has the right and authority to enter into and perform this Document;

(c) it has the authority to permit Managem to decommission, remove and dispose of any third party equipment that is to be removed; and

(d) it has received and carefully read any documents provided, or in the case of Third Party Equipment, the Specifications, prior to entering into this Document, and has based its decision to acquire the Equipment and Services solely on their contents.

18 Suspension or Recall

18.1 If the Customer is directed to assist in any suspension or supply or recall of goods for any reason by Managem or any government authority, the Customer must co-operate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall.

18.2 The sole cost and expense of such suspension or recall will be borne by:

(a) Managem to the extent the costs and expenses are reasonable and necessary, and where the reason for the suspension or recall is fault in the manufacture of the goods; and

(b) the Customer for any other reason.

19 Purchase of Consumables

If any goods or services are purchased from Managem and consumables are not included in the price, then all consumables required to be purchased for the goods must be purchased from Managem.

20 Trusts

20.1 The provisions of this clause apply if the Customer is entering into these Terms in its capacity as a trustee of a trust, whether stated in the Details Section or not.

20.2 The Customer enter into these Terms in its personal capacity and as a trustee of the trust.

20.3 The Customer warrants to Managem that:

(a) it has unrestricted authority and power to enter into these Terms;

(b) entering into these Terms is in the sure and proper administration of the trust and is for the benefit of the beneficiaries of the trust;

authorised in accordance with the terms of the trust; and

(d) no limitation or restriction exists in respect of the Customer’s right to be indemnified from the trust assets for its obligations under these Terms.

20.4 The Customer must not, so far as it is able to do so, permit any of the following to occur without

Managem’s prior written consent:

(a) any variation, replacement or limitation of the terms of the trust deed;

(b) its removal as trustee or the appointment of another trustee of the trust whether or not in

conjunction with the Customer; and

21 Privacy

Where goods are supplied to the Customer on credit the Customer agrees that any Customer who is an individual or any individual who will be a guarantor of the credit provided to the Customer (whether or not an individual) are subject to Managem’s Privacy Policy and the individual Customer or individual guarantor will be required by Managem to provide the relevant consents for compliance with the Privacy Act 1988 (Cth).

22 Notices

A notice or other communication connected with these Terms has no legal effect unless it is in writing.

23 Waiver

2.1 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

2.2 A waiver is not effective unless it is in writing. To be effective any waiver by Managem must be in writing on letterhead and signed by a duly authorised representative.

24 Entire understanding

3.1 These Terms and any ancillary documents entered into in writing and signed by the parties in relation to the goods and services:

(a) are the entire agreement and understanding between Managem and the Customer on

everything connected with the supply of the goods and services; and

(b) supersede any prior agreement or understanding on anything connected with that subject

matter.

3.2 Unless expressly provided otherwise, where there is any inconsistency in these Terms and any ancillary documents, to the extent of the inconsistency, the order of priority in applying to

the terms will be as follows, commencing from the highest order of priority:

(a) these Terms; and

(b) other ancillary documents.

3.3 In the event of any inconsistency the Customer and Managem undertake to each other to do all things within their control to make the ancillary documents consistent with these Terms applying the order of priority stated in clause 24.2.

3.4 Managem and the Customer have entered into these Terms without relying on any

representation by the other or any person purporting to represent the other.

3.5 The Customer acknowledges that prior to entering into this Document it has had the opportunity to obtain independent legal and financial advice.

25 Independence

These Terms and all agreements relating to it are mutually independent and a breach of any covenant, term or condition of any of these Terms or of any one (1) or more of those agreements will constitute a default under each of those documents.

26 Severability

Any term of these Terms which is wholly or partially void or unenforceable is severed to the

extent that is it void or unenforceable. The validity or enforceability of the remainder of these Terms is not affected.

27 Variation of Terms and Assignment

27.1 Any amendment or variation to these Terms is not effective unless it is in writing and signed by both parties.

27.2 The Customer must not assign or transfer this Document or any benefit or right under it without the prior written consent of Managem, and Managem may without notice assign this Document or any benefit or right under it.

28 Governing law and Jurisdiction

28.1 The law of New South Wales governs these Terms.

28.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.

PART B

29 Application of Part

29.1 Part B applies to each supply of Support Services made by Managem to the Customer

29.2 The definitions and interpretations in this Part B apply in addition to the definitions and

interpretations set out in Part A and in the event of inconsistency, the terms in Part B will prevail.

30 Definitions and Interpretations

30.1.1 In this Part B:

Billing Period means the billing period for Charges as set out in the Details Section.

Break Fee means the fee calculated in accordance with the following:

(a) the then unpaid balance of Support Services Charges; and

(b) the balance of Support Services Charges for the remainder of the Minimum Term or three (3) months whichever is longer; and

(i) the balance of the Support Services Charges in (b) above is calculated on the basis of the “Minimum Monthly Volume”; and

(ii) if no Minimum Monthly Volume is stated in the Charges Schedule, then the unpaid balance of the Support Services Charges is calculated based on the average number of Impressions generated in the 12 months prior to the termination date; and

(iii) if the period prior to termination is less than 12 months then, the amount of $180 plus GST for every item of Equipment; and

(d) a $900 plus GST administration fee for the processing of the termination of this agreement; and

(e) the amount left unpaid and payable under any finance or rental agreements with any third parties related to the Products, for the remaining loan or rental term period, or provide

evidence to Managem (and to the satisfaction of Managem) that this amount has been paid in full directly to the third party;

(f) the cost to Managem of any installation, relocation and removal of the Products; and

(g) any other reasonable business expense incurred by Managem due to the termination;

Charges means the Support Services Charges and any charges for Additional Services.

Commencement Date means the date of which the Equipment is installed by Managem.

Consequential Loss means any claim for; any consequential, special or indirect cost, loss or

liability: any loss of business opportunity, loss of revenue, profit or savings; and any loss, corruption or delay of data.

Consumer Price Index means the Australian Consumer Price Index determined from time to time.

Document Supplies includes paper, transparencies, staples and other through put materials.

FM Audit Software means the software set out in clause 36.

Impression means a single sided print or copy, or for continuous feed equipment, means each single sided lineal foot of stock that is printed by the Equipment, as recorded by the Equipment meter.

Mandatory Retrofit means a modification to the Equipment determined by Managem to be

necessary for safety.

Monthly Maximum Usage means the maximum amount of usage by the Customer of the

Equipment.

Minimum Term means the minimum term for provision of the Support Services and the

payment of relevant Charges as set out in the Product Schedule taken from the

Commencement Date.

PPSA Register means the Personal Property Securities Register established under the

PPSA.

Products means any goods supplied under this Document including Equipment (if any),

Software, Consumables, and any parts installed by Managem in the Equipment in the course of performing the Support Services.

Recovered Amount means any money received by Managem, within 30 days from the date the Equipment is lost, stolen, damaged or destroyed from the Customer’s insurance policies required under clause 33(a)(iii), if any.

Support Services means the services to be provided by Managem to the Customer as set out in clause 36 of this Document but excludes Additional Services. Support Services Charges means the charges for the Support Services calculated based on the “Fixed Monthly Charge” or “Costs per Impression” amount specified in the Details Section, any charges for Additional Services and any other charges in the “Other Charges” section.

Agreement
a) By signing this Document, the Customer irrevocably offers to acquire the Support Services from Managem.
b) The Customer authorises Managem to insert any missing information into the Details Section which is not known at the date of the Customer signing this Document, such as the Commencement Date, the Document number and the serial numbers.
c) By signing this Document, the Customer agrees that Managem may, at its sole discretion, change, modify, add or remove any portion of these Terms and Conditions, including the terms of the Privacy Act – Notification and Authorisation, in whole or in part, at any time.
d) Changes in these Terms and Conditions and/or in terms of the Privacy Act – Notification and Authorisation will be effective when notice of such changes has been provided to the

Customer.

Term and Termination

(a) Unless terminated earlier in accordance with this Document, the Customer agrees to acquire

the Support Services from Managem for the Minimum Term.

(b) If the Minimum Term expires, and neither party has given the other 30 days written notice of on intention to terminate this Document then this agreement shall continue on a month by month holding over basis until terminated by either party by giving the other no less than 30 days written notice to that effect. During this holding over period all Terms of this agreement continue to bind the parties and the Customer must continue paying all Charges.

Managem considers there may be a risk to the health and safety of its personnel, Managem may suspend the provision of Services. Any suspension of the Services does not excuse any of the Customer’s obligations to comply with this agreement, including the continued payment of

the Charges.

(d) The Customer may elect to terminate this agreement early by giving 30 days written notice to Managem.

(e) Managem may immediately by notice terminate this agreement if:

(i) the Customer breaches any term of this agreement;

(ii) the Customer becomes subject to an Insolvency Event;

(iii) a guarantee given to Managem in relation to the performance of the Customer’s

obligations or potential liability under this agreement lapses, becomes unenforceable or the

guarantor dies or becomes subject to an Insolvency Event; or

(iv) any Equipment is lost, stolen, destroyed or damaged to an extent Managem considers

unrepairable or the Equipment has been relocated to premises other than the initial place

of installation.

(f) If the Customer terminates this agreement under clause 32(d) or if Managem terminates this agreement under clause 32(e), or the parties agree in writing to terminate this agreement early, the Customer must:

(i) immediately comply with clause32(i); and

(ii) within 7 days of being provided with an invoice from Managem, pay Managem the Break Fee and any other charges due and payable under this agreement.

(g) Unless otherwise stated, early termination of this agreement for any reason does not effect Managem’s rights to seek damages for any breach of this agreement and does not entitle the Customer to a refund of any period charges.

(h) Upon the expiration or termination of this agreement, the Customer must erase any data on the Equipment’s hard drive, and at Managem’s option, return or destroy all Documentation in its possession or control.

(i) Upon the expiration or termination of this Document, the Customer must deliver up the

Products in good working order subject only to fair wear and tear, to Managem by arranging

for and allowing Managem onto the Customer’s premises (or where the Products are located) and by providing reasonable assistance to Managem to allow Managem to decommission and remove the Products from the premises at the rate of $700 plus GST per Product.

(j) If the Customer fails to comply with clause 32(i) within 5 Business Days of the expiration or termination of this agreement, then Managem or its nominee may, without notice, enter

upon the premises on which the Products were last known to be located and repossess the

Products and the Customer indemnifies Managem and its nominee for any Claims,

Consequential Losses, liabilities and expenses suffered or incurred as a result.

(k) If requested by the Customer, Managem may in its absolute discretion, provide written consent to the Customer allowing the Customer to arrange for the delivery of the Products at its own expense to Managem to a location as nominated by Managem in its absolute discretion and in this regard risk in the Products does not pass to Managem until Managem confirms delivery of the Products in writing.

(l) The parties agree and acknowledge that the Break Fee is a genuine pre-estimate of Managem’s damages in the event of termination of this agreement.

Customer Obligations
a) The Customer must:

(i) not sell, assign, mortgage, charge, port possession with, grant a lien, license or otherwise encumber or allow any person to encumber the Equipment in any way;

(ii) ensure that the Equipment is not modified, tampered with or relocated, without Managem’s prior written consent, or used for any unlawful purpose;

(iii) insure the Equipment for its full replacement value on an all risks bases noting Managem as an interested party under such policy, and upon demand indemnify Managem for any loss or damage to the Products (including all associated costs and notwithstanding whether the Customer is entitled to claim or recover under its insurance policy) except for fair wear and tear and to the extent directly attributable to Managem’s negligence or default;

(iv) provide Managem with Equipment meter readings in line with the Billing Period unless

otherwise set out in the Details Section;

(v) maintain proper site, environmental and operational conditions (including the use of

Document Supplies and Consumables) and follow all Managem instructions and directions

regarding the Equipment and Services, including those in the Documentation, or otherwise

given by Managem from time to time;

(vi) allow Managem or its agents immediate access to the Customer’s premises and the

Products during Business Hours to perform the Services and verify that the terms of

this agreement are being complied with;

(vii) ensure any Customer supplied items and premises are safe and sufficient to enable

Managem to perform its obligations under this agreement; and

(viii) not subcontract any of its obligations under this agreement.

Credit Approval

(a) The Customer agrees that from the date it signs this Document:

(i) Managem may obtain a report about the Customer’s and any guarantor’s consumer and/or

commercial credit worthiness from a credit reporting agency or a commercial credit

reporting business, for the purpose of assessing the Customer’s and any guarantor’s credit

worthiness or collecting any overdue payments;

(ii) the Customer agrees that information from its application or concerning Managem’s credit provider history or status may be disclosed; and

(iii) that Managem may give to a credit provider or a credit reporting agent a report about the Customer’s, or its guarantor’s consumer or commercial credit history or status for the

purpose of prospective credit providers assessing the application made by the Customer or

a guarantor to a credit provider, or collecting any payment that is overdue (either directly or

through a credit reporting agency).

(b) The Customer has or will procure any necessary consents from any Customer guarantor

and from any persons set out in the credit application which accompanies this agreement.

Charges, Payment and GST

(a) The Customer must as a fundamental term of this Document pay Managem in full without any deduction or set off;

(i) all fees, charges and other amounts invoiced by Managem under this Document,

including the Charges by the due date noted on the invoice.

(ii) Managem’s system generated invoices for Support Services are based upon, at Managem’s option, the historical usage of the Equipment’s average capacity, if the Customer fails to comply with clause 36(g) and at the minimum amount calculated in accordance with the Minimum Monthly Volume stated in the Details Section;

(iii) any dishonour or re-presentation charges, collection agency costs, third party claims,

costs and losses or legal fees and disbursements suffered or incurred by Managem (all on

a full indemnity basis) as a consequence of the Customer failing to comply with this

agreement (including as a result of Managem exercising any of its rights under this

agreement in response to that failure); and

(iv) for Additional Services, at Managem’s then standard rates.

(b) All Charges are GST exclusive and if taxable supplies under the GST Law shall be

payable, grossed up to recover GST at the then prevailing rate. The Customer will pay GST at the same time as the Charges providing Managem provides the Customer with a tax

invoice that complies with the GST Law.

(d) If the Customer is charged “Costs per Impression” in the Charges Schedule and produces less Impressions than the “Minimum Monthly Volume” stated in the Charges Schedule, then they must pay the amount calculated per month based on the Minimum Monthly Volume stated.

(e) If the Customer is charged Costs per Impression and a “Minimum Monthly Volume” is not stated in the Charges Schedule and the Customer does not produce sufficient chargeable Impressions to compensate Managem for providing the Support Services then Managem reserves the right to impose upon the Customer a reasonable additional or varied charge to ensure that Managem is not unfairly prejudiced.

(f) Managem may in its sole discretion charge the Customer an administration fee of $200 plus GST every 6 months.

(g) The Fixed Monthly Charge and Costs per Impression stated in the Charges Section will be increased by a percentage equivalent to the Consumer Price Index every 12 months,

calculated and applied every 6 months.

Support Services

(a) If Managem is to provide Support Services, then Managem will provide Support Services to ensure the Equipment is in proper working order within a reasonable period of receiving a request for services from the Customer. Support Services will be provided during Business Hours or such other times as agreed in writing between the parties.

(b) The provision of Support Services by Managem to the Customer is for the Minimum Term and any holding over period unless this agreement is terminated sooner pursuant to clause 32.

(i) the provision of corrective maintenance for the Equipment

(ii) the repair or replacement of parts of the Equipment which through fair wear and tear

become unserviceable;

(iii) Mandatory Retrofits;

(iv) Consumables (unless otherwise stated in the Details Section); and

(v) access to a telephone helpline service for assistance with hardware problems and

questions on its operation and use; and

(vi) for Base Software:

A the supply of Maintenance Releases;

B the supply from time to time of technical bulletins;

C access to a telephone helpline service for assistance with Base Software and questions

on its operational use;

D attendance, if Managem Considers it necessary, at the installation site for the purpose of

diagnosing and correcting errors in the Base Software that have been reported by the Customer; and

E assistance in diagnosing errors in the Software and Equipment.

(d) Replacement parts will be of serviceable quality and may be new, refurbished or

remanufactured.

(e) Toner where included must only be used in the Equipment and is provided based upon the assumed page coverage specified by the manufacturer.

(f) The Customer must pay the Support Services Charges stated in the Details Section or as varied by Managem from time to time in accordance with these Terms, or as otherwise agreed in writing between the parties.

(g) Managem may at any time by giving 30 days prior notice to the Customer, increase the Costs per Impression to an amount which Managem at its discretion considers appropriate to cover any increase in costs or expenses, in which case these Terms are deemed to be varied.

(h) If the Customer is charged Costs per Impression, the Customer must continue to pay the Costs per Impression notwithstanding any defect in, breakdown of, or accident or damage to, or seizure or loss of the Equipment, and allow Managem access during normal business hours to the Equipment for the purpose of reading the meters on the Equipment.

(i) Payment of Support Services must be made by the Customer in the manner that Managem may from time to time nominate, and otherwise in accordance with clause 10 and

Managem may require that payments be made by direct debit or other electronic means.

(j) The Customer must only use paper and such other Consumables in the Equipment that have received the prior approval of Managem.

(k) Managem will not be responsible for providing Support Services or parts where they are required as a consequence of the misuse or negligence of the Customer.

(l) The Customer must, if required by Managem, appoint an operator to be responsible for the use and routine care of the Equipment, who will be trained by Managem.

(m) Managem may terminate the provision of Support Services immediately upon written notice to the Customer, if:

The Customer breaches these Terms;
The Equipment is sold, damaged, lost, stolen or located at premises not approved by

Managem;

iii. The Equipment is serviced by persons other than Managem or its appointed agent; or

Non-approved Consumables or parts are used in the Equipment.

(n) Maintenance Releases must be implemented by the Customer within one (1) month after being made available by Managem.

(o) Managem will use reasonable efforts to resolve coding areas of the software and provide workarounds or patches provided the Customer reports the problems accurately and with the detail required by Managem. The Customer accepts that Managem may not necessarily correct all errors.

(p) Support Services shall terminate immediately and without further notice where a license granted to the Customer in respect of the Equipment or the Base Software expires or is terminated.

(q) Any Equipment and Base Software that have not been subject to Managem provided Support Services continually since the date of delivery, will only be eligible for Support Service subject to Customer paying:

(i) any applicable Software license fees: and

(ii) any reasonable charges assessed by Managem for the evaluation or as necessary to bring the Equipment and Base Software into what Managem reasonably determines is a

supportable state of repair or release.

(r) Managem may elect to provide Support Services by telephone, through providing access to its external website, email or remote diagnostics and in relation to the Equipment by providing on-site Support Services at the Customer’s normal place of business.

(s) Where the Details Section indicates that Managem is to provide FM Audit Software and

provided that the Customer meets the performance and operational requirements set out in

the FM Audit Software specifications on a continuing basis, from the date FM Audit Software becomes active:

(i) Managem will remotely obtain the meter readings as stated in the FM Audit Software

specifications where the meter readings can be remotely captured by FM Audit Software;

(ii) Managem will provide the reports stated in the FM Audit Software specifications; and

(iii) Managem will remotely monitor and respond to incident and Consumable alerts as stated in the FM Audit Software specifications by either advising the Customer’s nominated

contact or dispatching a service technician and the Customer will pay for any Consumables

and supplies ordered by Managem not otherwise included in the Support Services.

(t) Managem will remotely capture the meter readings where an FM Audit S software and the Customer does everything necessary to allow Managem to remotely capture the meter readings.

(u) Managem may cease making available Support Services (including parts and labour on a time and materials basis) five (5) years after the date that Managem or its supplier ceases new manufacture of the model of Equipment

(v) If the Customer is charged a Fixed Monthly Charge and the Customer’s usage of the

Equipment exceeds the Monthly Maximum Usage, then Managem, may at its sole discretion charge the Customer extra charges based on Managem’s then current price list.

(w) Where the Details Section indicates that Managem is to provide FM Audit Software and the Customer does not download, use or meet the performance and operational requirements set out in the FM Audit Software specifications on a continuing basis, then Managem may charge the Customer a monthly fee of $150 plus GST for every month that the Customer does not do so to cover Managem’s losses for the Customer’s failure.

Additional Services

(a) Unless otherwise set out in the Details Section, neither the supply of the Equipment nor the performance of Support Services include the following which are chargeable at Managem’s then standard charges:

(i) site preparation, delivery, installation, integration, customization, relocation,

decommissioning and removal services;

(ii) the supply or support of incidental hardware not specified in the Documentation as

included;

(iii) Document Supplies;

(iv) additional copies of Documentation;

(v) training (other than included initial training (if any));

(vi) repairs caused by an accident, mistreatment or failure by the Customer to comply with the Documentation or its obligations under this Document;

(vii) excess toner usage;

(viii) repairs to, or support of, software not supplied by Managem, or of Software provided by Managem that is neither the current or preceding release of the Software;

(ix) rectification of lost or corrupted data howsoever caused;

(x) data deletion from the Equipment hard drive;

(xi) new Software releases provided or made available to the Customer that are not

identified by Managem as a Maintenance Release;

(xii) services required or requested as a result of a change in the Customer’s premises or

technology environment;

(xiii) hardware upgrades necessary for new versions of the Base Software;

(xiv) support of all the provision of parts, supplies and Consumables for Equipment not listed in the Details Section; or

(xv) the support of Software modified in anyway.

(b) Where the Details Section expressly sets out that Managem will provide Support Services for Third Party Equipment:

(i) the Support Services will, unless otherwise set out therein, be provided on the same

terms as the Support Services for the Equipment and Managem may cease making the Support Services available to any Customer on the earlier of:

five (5) years after the date that the supplier of the Third-Party Equipment ceases

new manufacture of that model and;

the date which the supplier of the Third-Party Equipment ceases to supply Managem

with the parts, Consumables or other assistance required by Managem to provide

the Support Services.

In consideration of Managem agreeing to supply goods and/or services to the Customer, each Guarantor enters into this Guarantee in favour of Managem in the following terms:

Request Each Guarantor requests Managem to supply services to the Customer in

accordance with the Terms contained herein.

Guaranteed Money Each Guarantor guarantees to Managem the due and punctual payment

by the Customer of the payment of all amounts payable pursuant to the Terms and the

Documents.

(Guaranteed Money) and the Guaranteed Money will be payable by the Guarantor/s to

Managem immediately on demand by Managem.

Performance Each Guarantor unconditionally and irrevocably guarantees the Customer’s due and punctual performance of all of the Customer’s obligations contained in the Document and the Terms (Customer’s Obligations).
Release and Indemnity

5.1 Neither Managem nor any person appointed by Managem under any document will be liable for any loss that any Guarantor suffers as a direct or indirect result of:

(a) the exercise or attempted exercise of, or failure to exercise, any rights under any Document; or

(b) any release or dealing with any Security Interest.

5.2 Each Guarantor will indemnify Managem, Managem’s Receiver or any other person

appointed by Managem in relation to any losses, liabilities, expenses (including but not limited

to legal expenses on a full indemnity basis) or taxes incurred in connection with:

(a) the exercise or attempted exercise of any powers, rights, discretions or remedies vested in the

person under any Document or the Corporations Act; or

(b) any proceedings, claims or demands in relation to any secured property.

5.3 Each Guarantor indemnifies Managem in relation to any direct and indirect losses, damages or expenses which Managem suffers as a result of:

a) the Customer’s failure to perform, or delay in performing, any of the Customer’s

Obligations; and

b) the Guarantor’s failure to perform, or delay in performing, any of the Guarantor’s

obligations under this Guarantee.

Expenses

Each Guarantor must pay Managem, on a full indemnity basis as a liquidated debt, the full

amount of any bank fees legal fees or other expenses associated with any dishonoured

payments or cheques and any legal, debt recovery or other expenses associated with any

action by Managem to exercise any right or remedy under this Guarantee.

Continuing Guarantee

7.1 This Guarantee is a continuing guarantee in respect of all money due to Managem at any time and will not be wholly or partially satisfied or discharged by the payment of any money to Managem or any other event.

7.2 This Guarantee will not be affected by:

(a) any variation to the Terms and Conditions contained herein whether with or without the

knowledge or consent of any Guarantor;

(b) any event of insolvency affecting a person or the death of a person;

(d) the partial performance of the Customer’s Obligations;

(e) any of the Customer’s Obligations being invalid or unenforceable at any time;

(f) Managem granting any time or other indulgence or concession to the Customer; or

(g) the release of any Guarantor (if there is more than one Guarantor).

7.3 No Guarantor will be released from this Guarantee unless the Guarantor provides a written request for a release to Managem and Managem provides a written agreement to the release which Managem may provide or withhold in Managem’s absolute discretion.

8 Enforcement Managem may enforce this Guarantee without first having to enforce any of Managem’s rights against the Customer or having resort to any other guarantee or security in relation to the Customer’s Obligations.

7 Principal Obligation

This Guarantee is a principal obligation and is not ancillary or collateral to any other right or

obligation.

8 Independent

This Guarantee is independent of any other guarantee or security in relation to the Customer’s Obligations.

11 Security Interest

11.1 To secure the punctual payment of all amounts owed by the Client and/or the Guarantor to Managem, each Guarantor grants to Managem:

(a) security interest (as defined under the PPSA) over all present and after-acquired property of the Guarantor in relation to which the Guarantor can be a grantor of a security interest under the PPSA, whether or not the Guarantor has title to the property, including but not limited to all PPSA retention of title property (as defined under section 51F of the

Corporations Act); and

(b) a fixed charge over all present and after-acquired property of the Guarantor in relation to

which the Guarantor cannot be a grantor of a security interest under the PPSA.

11.2 Each Guarantor agrees and acknowledges Managem may (without limiting Managem’s other rights under this Guarantee, at law or otherwise) lodge caveats over the Guarantor’s real property and take any other action to secure and enforce Managem’s security under clause 11.1.

11.3 Managem’s security under clause 11.1 may become enforceable without the need for any demand or notice to the Guarantor.

11.4 If Managem’s security under clause 11.1 has become enforceable, Managem may appoint a Receiver of secured property or exercise any power exercisable by a Receiver even if a Receiver has not been appointed.

11.5 Each Guarantor agrees on demand, and irrevocably appoints Managem, each director and secretary of Managem and any Receiver (as independent and several appointments) as the Guarantor’s agent and attorney, to execute any document (including, without limitation, any mortgage or transfer) or undertake any act, at the Guarantor’s cost, that Managem considers necessary or desirable to:

(a) better secure the security under clause 11.1 in a manner consistent with any Document; or

(b) assist in the completion, execution of, or exercise of any power under, any Document.

Personal Property Securities

12.1 Each Guarantor agrees that funds received by Managem will be applied, after satisfaction of any claim that Managem or Receiver is aware ranks in priority, in the following order:

(a) first in payment of all expenses that Managem or Receiver incurs in the exercise of a power or otherwise in relation to any Document;

(b) then in payment of any other outgoings that Managem or Receiver considers appropriate to pay;

(d) then in payment to Managem or Receiver of any amount necessary to give effect to any

indemnity under any Document; and

(e) then in payment to Managem of all amounts owed by the Client or Guarantor to Managem.

12.2 Each Guarantor:

a) agrees with Managem that neither the Guarantor, nor Managem, will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA);
b) agrees that, to the extent permitted under section 115(1) of the PPSA, the following

provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d),

135, 138B(4), 142 and 143;

c) agrees that, to the extent permitted under section 115(7) of the PPSA, the following

sections of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137;

d) acknowledges that Managem may, at the Guarantor’s cost, register one or more financing statements in relation to any security under any Document;
e) waives, if permitted under the PPSA, the Guarantor’s right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and
f) will not, without prior written notice to Managem, change the Guarantor’s name or initiate

any change to any documentation registered under the PPSA.

Application of Money When Managem or Receiver receives money under or because of any Document, and applies the money in payment of monies owing to Managem, Managem or Receiver may apply different parts of the money received to different parts of the monies owing in the absolute discretion of Managem or Receiver regardless of any appropriation by the Client or the Guarantor.
Administration Until this Guarantee is released by Managem, the Guarantor will not prove in any Administration of the Client in competition with Managem.
Voluntary Each Guarantor acknowledges that the Guarantor has read and understands this Guarantee, enters into this Guarantee voluntarily and not as a result of any representation of Managem or duress of any person.
Legal Advice Each Guarantor acknowledges that the Guarantor has had an opportunity to obtain independent legal and financial advice in relation to this Guarantee
Joint and Several If there is more than one Guarantor, each Guarantor will be jointly and severally bound by the terms of this Guarantee.
Information Each Guarantor warrants that all the information set out in this Guarantee is true and correct and the Guarantor has disclosed to Managem all information relevant to this Guarantee.
Notice Each Guarantor must immediately provide written notice to Managem if there is any change in the ownership or control of the Guarantor or to the Guarantor’s details set out in the Details Section
Administration If any payment by the Guarantor to Managem is avoided as a result of, or Managem settles any claim in relation to, any statutory provision arising as a result of any Administration, the payment will be taken not to have been made and Managem will be

entitled to recover the amount of the payment from the Guarantor.

General

21.1 This Guarantee binds the Guarantor both personally and as trustee of any trust of which the Guarantor is trustee.

21.2 Managem may set off any amounts owed by Managem to the Guarantor against any amounts owed by the Guarantor to Managem whether under this Guarantee or otherwise.

21.3 A certificate or letter issued by Managem stating that an amount of money is payable by the Client or Guarantor to Managem will be prima facie evidence of the fact and the Guarantor will not object to the admissibility of such a certificate or letter in any legal proceedings.

21.4 This Guarantee may only be amended with Managem’s express written agreement.

21.5 Any waiver of a right by Managem must be express and in writing and will not operate as a waiver in relation to any subsequent matter.

21.6 Managem’s rights arising out of this Guarantee do not exclude any other rights of Managem.

21.7 The actions of any person claiming to have the Guarantor’s authority will bind the

Guarantor to the extent permitted by law.

21.8 If any provision of this Guarantee is unenforceable, the provision will be severed and the remaining provisions will continue to apply.

21.9 Managem may assign any rights or benefits under agreement under this Guarantee to any third party.

21.10 The Guarantor may only assign any rights or benefits under any agreement under this Guarantee with Managem’s prior written consent.

21.11 Time is of the essence in respect of the Guarantor’s obligations in this Guarantee.

21.12 This Guarantee will be governed by the laws of, and the parties submit to the jurisdiction of the courts of, the state of Managem’s registered address.

Definitions

In this Guarantee:

“Administration” means the following, or any analogous, events:

(a) any step is taken to appoint an administrator, receiver, receiver and manager, trustee,

provisional liquidator or liquidator of the whole or any part of the Client ’s assets, operations or business;

(b) any person, or agent of a person, who holds any security interest (whether or not under the PPSA) takes possession of any of the Client ‘s property (including but not limited to seizing the Client ‘s property within the meaning of section 123 of the PPSA); or

payment of money or the recovery of any property;

“Corporations Act” means the Corporations Act 2001 (Cth);

“Guarantee” means the guarantee, indemnity and charge contained in this clause;

“Guarantor” means each person identified as a Guarantor in the Details Section;

“PPSA” means Personal Property Securities Act 2009 (Cth);

“Receiver” means a receiver or receiver and manager (or an additional receiver or receiver

and manager).

Interpretation In

this Guarantee:

(a) the headings will not affect interpretation;

(b) the singular includes the plural and vice versa;

corresponding meaning;

(d) a reference to a document includes the document as novated, altered, supplemented or

replaced;

(e) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;

(f) a reference to a person includes a natural person, body corporate, partnership, trust, association

or any other entity;

(g) a reference to a statute, ordinance, code or law includes regulations, rules and other

instruments under the statute, ordinance, code or law and any consolidations, amendments, re-enactments or replacements;

(h) a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;

(i) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;

(j) any agreement, representation, warranty or indemnity by two or more parties binds those

parties jointly and severally;

(k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;

(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Guarantee; and

(m) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.