This is the Procuret Payment Terms Agreement between you and Procuret.
In this Agreement, unless separately identified in the Procuret Application Process, the following terms have these meanings: Particulars of the Customer, Commencement Date, Guarantor, Payments, Supplier and Term are as referred to in the Procuret Application Process.
Agreement means the agreement arising out of your acceptance of the Procuret Quote, the Procuret Application Process and this Procuret Payment Terms Agreement. Business Day means a day other than a Saturday, Sunday or public holiday in New South Wales, Australia. Early Termination Amount means the sum of: (a) any amounts due but unpaid under this Agreement; plus (b) the total of the Payments which would have otherwise been payable by you under this Agreement from the date of early termination to the end of the Term, reduced to a present value by applying the Procuret explicit contract rate to such Payments at the date of termination; plus (c) any Prepayment Costs. Goods means the equipment or assets acquired by you and financed by Procuret. GST means goods and services tax levied under A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related legislation. Insolvency Event means, in relation to a person, any of the following: the person enters into, or any steps are taken to have the person enter into, liquidation, provisional liquidation, receivership, receivership and management, administration, bankruptcy or any arrangement, reconstruction or composition with the person's creditors or any of them, or a controller is appointed with respect to any of the person's assets or the person fails to pay its debts as they fall due or the person otherwise become insolvent. Late Charge means an amount equal to 0.09% per day of any amount overdue for payment. Person includes any body corporate, association, authority and any other body or entity. PPS Law means the PPSA and the regulations made under the PPSA. PPSA means the Personal Property Securities Act 2009 (Cth). PPSR means the Personal Property Securities Register. Prepayment Costs means any reasonable cost, loss or expense incurred by us as a result of the early termination of this Agreement, including due to the termination or alteration of any funding arrangements entered into by us in connection with this Agreement (whether in whole or in part). Product means the Goods, Software or services described in the Supplier’s Tax Invoice. Procuret Quote means the final schedule of Payments that are quoted to you at the completion of the Procuret Application Process. Procuret Application Process means the process by which you apply for a Procuret Payment Terms Agreement. Procuret Funding Cost means the total cost of funds to Procuret for the provision of this Agreement. Purchase Price means the amount invoiced to you by your chosen Supplier and the amount or part thereof that you request Procuret to pay in accordance with the Procuret Quote, the Procuret Application Process and the Procuret Payment Terms Agreement. Related Entity has the meaning given to it in the Corporations Act 2001 (Cth). Security Interest means a security interest under the PPSA. Software means any approved licensed (including under the End User Licence Agreement – “EULA”), packaged, developed or supported software application that is manufactured, licensed or owned by the Supplier or any other third party. Supplier means the organisation that you have selected to supply you with the Product. Supplier Tax Invoice means the document supplied by the Supplier evidencing the sale of the Product to you. Verification Statement has the meaning given to that term in the PPSA. we or us, our, or Procuret means Procuret Operating Pty Limited ABN 77 630 036 789 and, where applicable, includes any of our related bodies corporate. you or your means the Customer referred to in the Procuret Quote and approved through the Procuret Application Process (including any Guarantor) and includes any successors, legal personal representatives and permitted assigns.
Interpretation. The singular includes the plural and vice versa. References to statutes include all statutes amending, consolidating or replacing such statutes. If any party is comprised of more than one person, those persons' obligations are joint and several. The words "includes" and "including" are not words of limitation.
Payment for Product. We agree at your request to pay the Supplier in accordance with the Supplier Tax Invoices in reliance upon your promises under this Agreement, including your promise to make the Payments to Procuret.
GST on consideration. We may in our discretion agree to fund the GST inclusive consideration payable to the Supplier for the provision of the Product to you.
Payments. In consideration of us paying the Supplier the Purchase Price, you must pay us the Payments referred to in the Procuret Quote and approved through the Procuret Application Process for the duration of the Term at the scheduled dates in accordance with this Agreement. Payments are not refundable for any reason. The Payments include a margin above the Purchase Price (“Premium”), which is divided by the Term of this Agreement.
Unconditional obligations. Your obligation to pay the Payments under this Agreement is absolute and unconditional and shall not be affected or reduced by, or be subject to, nor shall you assert against us, any abatement, set-off, claim, deduction, counterclaim, adjustment, reduction or defence of any kind whatsoever and (without limitation) continues even if the Supplier fails to provide the Product; or the Product is or becomes (either in whole or in part) unserviceable or defective for any reason (including by virtue of a software virus), damaged, lost, stolen, destroyed, unsuitable, or ceases to be available for any reason and you agree not to exercise or seek to exercise any right or claim to withhold payment or claim any deduction or set-off.
GST, duties and taxes. You must pay, and indemnify us upon demand against, any government duties, GST, other direct taxes and other duties payable on or in respect of this Agreement or any amounts payable under this Agreement.
Costs. You must reimburse us for any reasonable costs we incur to recover any unpaid Payments, to register our interests under this Agreement on the PPSR, to enforce our rights under this Agreement, to consider and act on any assignment or variation request received from you; or as a result of you not paying us at the times and in the way required under this Agreement. You authorise us to debit your account for these costs.
Direct Debit. You must pay all Payments under this Agreement by way of direct debit or in such other manner as we may request from time to time in writing. You irrevocably authorise us to direct debit the Payments owing to us from the credit card or bank account that you nominate as part of the Procuret Application Process and agree to procure any additional approvals or authorities required from your financial institution to facilitate each Payment.
Date for payment. You must make all Payments in immediately available funds on the due date or on demand as provided for in this Agreement. If a date for payment is not a Business Day, then you must make the payment on the preceding Business Day; or if it falls on a day not contained in a month, you must make the payment on the last day of that month.
Dishonour fee. If we attempt to Direct Debit your nominated account and the payment is unsuccessful due to insufficient funds held with your institution to honour the payment, we may charge a $10.00 dishonour fee.
Acknowledgements. You acknowledge and agree Procuret is not the Supplier and we are independent to the Supplier; you have selected the Supplier and the Product, based upon your own skill and judgment and you have satisfied yourself as to the suitability of the Product for your business purposes and you have not relied on Procuret in deciding to enter into this Agreement or in selecting the Product or the Supplier. To the full extent permitted by law, we make no representation, warranty or other assurance, express or implied, about the Product. You must, at your own cost, obtain delivery of the Product and you will be taken to have received and accepted the Product in the condition in which it is delivered (which may be done electronically); you must observe any user obligations or restrictions relating to the use of the Product;
Indemnities. You indemnify us, our agents, and employees against any losses, damages, liabilities, taxes and reasonable costs, charges and expenses (including legal expenses) incurred or suffered by us arising in respect of any failure by you to observe your obligations under this Agreement; any untrue or materially misleading representation, warranty or statement (including on tax matters) made by you in, or in connection with, this Agreement or the Product; any new legislation or change in the interpretation of any legislation, or any change in any ruling, guideline, directive or requirement issued by any government authority or body which reduces our return in connection with this Agreement; the early termination of this Agreement; any Security Interest provided for by this Agreement not having the priority required by us, not being perfected (other than as a result of our negligence), being void, illegal, invalid, unenforceable or of limited force and effect; any claim or demand made by any third party in relation to the Product including any claim for the infringement of a patent, trademark, copyright or other intellectual property right; any steps taken by us to administer, exercise, enforce or preserve any of our rights under this Agreement; and any loss, reduction or disallowance of any depreciation allowance or of any tax deduction or rebate of any income or other tax upon which we have reasonably relied in calculating the Payments.
Exclusion from indemnity. The indemnities given by you under this Agreement do not extend to any indirect or consequential loss (including loss of bargain or profit) or to any damage, liabilities, costs, taxes, duties, charges and expenses suffered or incurred by us to the extent caused by any act or omission of us or our agents or employees.
Continuing indemnities. The indemnities in this Agreement continue in full force and effect notwithstanding the termination (however occurring) of this Agreement.
Release. To the full extent permitted by law, you release us from, and indemnify us against, all claims and demands of any kind arising out of the delivery, installation, location, operation or use of the Product, including any liability which may arise in respect of any accident or damage to property or death of, or injury to, you or any other person.
Default. We may terminate this Agreement if any of the following events occur: (a) you fail to pay a Payment when due unless the failure to pay is remedied within 7 Business Days after the Payment due date; (b) an Insolvency Event occurs in relation to you or any Guarantor; (c) any of the following occur where we consider such occurrence materially increases our risk as a creditor to you or materially or adversely affects your ability to perform your obligations under this Agreement: (i) you do not comply with any other obligation under this Agreement; (ii) any distress or execution is threatened or levied against you or the Product; (iii) you cease or threaten to cease to carry on your business; (iv) any representation or warranty made by you in connection with this Agreement is untrue or misleading; (v) you fail to pay any indebtedness to us or any of our Related Entities on any other account when due; (vi) you breach any other loan or lease contract with us or any of our Related Entities or you breach the terms of any other document that provides security to us or any of our Related Entities in respect of any of your obligations; or (vii) any of the events referred in paragraphs (i) to (vi) occurs in relation to any Guarantor, and, if capable of rectification, you do not rectify it within the period specified in a notice of breach given to you.
Early Termination Amount. If we terminate this Agreement due to an event of default, you must pay us the Early Termination Amount on demand, by way of indemnity for our loss arising from the termination.. Voluntary termination. You can elect to terminate this Agreement prior to the end of the Term. To do so, you must give us 5 days written notice and pay us the Early Termination Amount by way of indemnity for our loss arising from the termination.
Assignment. We may assign, transfer or otherwise deal with all or any part of our rights or obligations under this Agreement without the need to obtain your consent or the consent of any Guarantor. You must not assign, transfer or otherwise deal with any of your rights under this Agreement without our prior written consent.
Certificate. A certificate or email notification containing statements as to an amount due by you under this Agreement, the occurrence of any event or the existence of any fact, will be sufficient evidence of the amount, event or fact, unless you prove them to be false.
Notices. Any notice or demand to be given by a party under this Agreement may be served on any other party by being left at or sent by pre-paid mail or transmitted by electronic email to email@example.com or to that other party's address, email address or mobile phone number set out in the Procuret Application Process or otherwise as notified in writing by that other party for the purposes of this Agreement. The notice or demand will be treated as having been given and received if delivered, on the day of delivery; or transmission if a Business Day, or otherwise on the next Business Day.
Overdue amounts. You must pay to us on demand a Late Charge on any amounts due but unpaid under this Agreement calculated on a daily basis from the date the relevant amount became due to the date of payment by you. Any Late Charge or part thereof may be waived at our discretion. If you do not pay any Late Charge when due we may capitalise it monthly.
No waiver. No waiver or indulgence by us in relation to any breach of this Agreement by you will effective unless it is in writing, and no such waiver will be deemed a waiver of any continuing or recurring breach.
Commission. You consent to us paying or receiving any commission, brokerage or fee to or from any person in connection with this Agreement and to the inclusion of that commission, brokerage or fee in the Payments.
Set-off. You irrevocably authorise us to set off without notice any amount held by us on any account of yours against any amount owing by you to us or any Related Entity of ours. You must not exercise any right of set-off on any account.
Governing law. This Agreement shall be governed by and construed in accordance with the laws of the state of New South Wales and you and the Guarantor agree to submit to the non-exclusive jurisdiction of the courts of such state.
Trustee. If you enter into this Agreement as a trustee, you enter into this Agreement both in your personal capacity and as trustee. You warrant that you enter into this Agreement for a proper purpose of the trust, that you have power and authority under the trust to enter into this Agreement, that you are the sole trustee of the trust and no action has been taken or proposed to remove you as trustee or to terminate the trust and that you have the right to be indemnified fully out of the trust property before the trusts’ beneficiaries for all liabilities you incur under this Agreement. You must not, without our prior written consent, permit or effect any variation, replacement or limitation of the terms of the deed constituting the trust.
Partnership. If you enter into this Agreement as a partnership: each partner signing this Agreement represents and warrants that they have power and authority to enter into this Agreement for the partnership and perform their obligations under this Agreement; each partner of the partnership is liable to us as a separate, independent, principal and personal obligation, whether or not we may recover any sum from the partnership assets; and you must provide immediate written notice to us if the partnership is dissolved, and if this occurs (to the extent permitted by law) then each partner must act in relation to the administration of the partnership assets in the manner (if any) directed by us, a retiring partner is not discharged from any liability to us as a result of an agreement between the then existing partners, and the obligations of a retiring partner to us are not affected by anything which might otherwise affect them at law or in equity.
Invalid provisions. If any provision of this Agreement is found to be invalid or unenforceable in any jurisdiction, it will have no force or effect in that jurisdiction and will be severed from this Agreement in that jurisdiction without affecting the remaining provisions and without affecting the operation of this Agreement in any other jurisdiction.
Agency. We may enter into this Agreement as agent for an undisclosed principal.
KYC. You must on request from us provide us with any documentation or other evidence as may be requested by us to enable us to carry out any necessary “Know Your Customer” requirements or similar checks under all applicable laws and regulations.
Warranties. You represent and warrant that you have full legal capacity and power to own your property and to carry on your business and enter into this Agreement and to carry out the transactions that it contemplates; you have taken all corporate or other action that is necessary to authorise your entry into this Agreement and to carry out the transactions contemplated by it; you hold each authorisation, consent, declaration, exemption, notarisation or waiver, however described ("Authorisation") that is necessary to enable you to properly execute this Agreement and to carry out the transactions contemplated by it and to ensure that this Agreement is legal, valid, binding and admissible in evidence; or to enable you to properly carry on your business as it is now being conducted, and you are complying with any conditions to which any of these Authorisations are subject; this Agreement constitutes your legal, valid and binding obligations, enforceable against you in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors' rights generally), subject to any necessary stamping or registration; you have disclosed to us all the information that is material to an assessment by us of the risks that we assume by entering into this Agreement; and the Product will be used wholly or predominantly for business purposes.
Acknowledgements. You acknowledge and agree that you have not entered into this Agreement in reliance on any representation, warranty, promise or statement made by us or by any person on behalf of us; we have entered into this Agreement in reliance on the representations and warranties in, or given under, this Agreement by you and the Guarantor; we do not provide any representation or warranty in connection with the Product, its operation or use; and you will communicate directly with the Supplier for the purpose of claiming any warranty or other benefit which may be available to you from the Supplier; to the maximum extent permitted by law, in no event will we be liable for any indirect, consequential or economic loss or damage arising under or in connection with this Agreement.
Security. As security for your obligations under this Agreement you grant to us a Security Interest in the Product. You agree that we may register this Security Interest on the PPSR in any way that we consider appropriate.
Confidentiality. You agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances required by sections 275(7)(b) to (e) of the PPSA. You agree that you will only authorise the disclosure of information under section 275(7)(c) or request information under section 275(7)(d) if we approve. Nothing in this clause will prevent any disclosure by us if we believe it is necessary to comply with our obligations under the PPSA.
Enforcement. To the extent that Chapter 4 of the PPSA would otherwise apply to the enforcement by us of any Security Interest provided for by this Agreement, you agree that the following provisions of the PPSA do not apply to the extent that section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 138B(4), 142 and 143; and in addition, to the extent that section 115(7) of the PPSA allows them to be excluded: sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137.
Delay disposal. If section 115(1) of the PPSA does not allow section 125 of the PPSA to be excluded, you agree that at any time after any Security Interest provided for by this Agreement has become enforceable, we may delay disposing of, or taking action to retain, the whole or part of the collateral to the extent permitted by law.
Verification Statement. You waive your right under section 157 of the PPSA to receive notice of any Verification Statement relating to the registration of any Security Interest arising under this Agreement.
No subordination. Unless agreed to by us in writing, you acknowledge that we have not agreed to subordinate any Security Interest provided for by this Agreement in favour of any third party.
Acknowledgement. The Guarantor acknowledges that we have entered into this Agreement at Guarantor’s request; it has received valuable consideration for entering into this Agreement; we are acting in reliance of the Guarantor incurring obligations and giving rights under this Agreement; it (or its directors if a company) has read and understood the terms of this Agreement; it has made its own enquiries and satisfied itself as to the financial condition of the Customer and its ability to perform its obligations under this Agreement and has not relied in any way on any information provided by us.
Guarantee. In consideration of us agreeing to enter into this Agreement with the Customer, the Guarantor guarantees that the Customer will pay us all amounts payable by the Customer under this Agreement when due from time to time. This Guarantee and Indemnity continues until all these amounts have been paid in full. The Guarantor acknowledges and agrees that this Guarantee and Indemnity extends to all obligations and liabilities of the Customer arising in connection with this Agreement. If we request, the Guarantor must pay us any amount which the Customer does not pay us when it is due. We do not need to first ask the Customer to pay us or otherwise exercise any rights which we may have against the Customer before enforcing this Guarantee and Indemnity. The Guarantor indemnifies us against, and the Guarantor must pay us for, all losses or reasonable costs we suffer or incur if the Customer does not, or is unable to, pay us in accordance with this Agreement; or the Guarantor is not obliged to pay us an amount under the guarantee in this Agreement; or we are obliged, or we agree to pay an amount to a trustee in bankruptcy or liquidator in connection with a payment by the Guarantor or the Customer; or any obligation of the Customer to pay an amount under this Agreement on the specified due date is postponed as a result of any legislation. The indemnity from the Guarantor is a continuing obligation, separate and independent from the Guarantor's other obligations under this Guarantee and Indemnity. It continues after those other obligations end. Rights given to us under this Guarantee and Indemnity and the Guarantor's liabilities under it are not affected by any act or omission by us (other than fraud, negligence or wilful misconduct of us, our employees, officers, agents, contractors or receivers appointed by us) or by anything else that might otherwise affect them under law relating to guarantees and indemnities. We agree to provide the Guarantors notice and obtain consent from the Guarantors for a request to release an existing guarantor or any Security Interest held to secure the Customer's or the Guarantor's obligations under Agreement.
No merger. This Guarantee and Indemnity does not merge with any judgment or order which we obtain against the Guarantor in respect of an amount payable under this Guarantee and Indemnity in respect of this Agreement. We can still exercise our rights under the Guarantee and Indemnity as well as under the judgment or order.
No assertion of rights. As long as an amount payable under the Agreement remains unpaid, the Guarantor may not, without our prior written consent reduce the Guarantor’s liability under this Guarantee and Indemnity by claiming that the Guarantor or the Customer or any other person has a right of set-off or counterclaim against us; or exercise any rights to another guarantee or mortgage, charge or other security given in connection with an amount payable under this Agreement or an amount payable under this Guarantee and Indemnity; or claim an amount from the Customer or another Guarantor of the Customer’s obligations under a right of indemnity; or claim an amount in the insolvency of the Customer or another Guarantor of the Customer’s obligations under this Agreement (including a person who has signed this Guarantee and Indemnity). The Guarantor acknowledges that the Guarantor is responsible for making itself aware of the financial position of the Customer and any other person who guarantees the Customer’s obligations under the Agreement.
Further assurances. The Guarantor must promptly do anything we reasonably request (such as obtaining consents, signing and producing documents and getting documents completed and signed) to bind itself under the Guarantee and Indemnity.
Claim against Guarantor. We may claim against the Guarantor under this Guarantee and Indemnity before we enforce any of our rights: against the Customer or any other person; or under another document such as a guarantee or mortgage, charge or other security.
Application of moneys. We may use any money paid by or for the Customer towards meeting any part we choose of the amounts the Customer owes us (including meeting any amount the Guarantor does not guarantee). We may use any money paid by the Guarantor under this Guarantee and Indemnity towards paying any part we choose of the amounts the Guarantor owes us under this Guarantee and Indemnity.
You agree to be bound by the terms and conditions of this Agreement. You acknowledge that this Agreement will not bind us until it is accepted by us. We may evidence our acceptance by paying the Supplier; at which time this Agreement will commence without the need for us to give you notice.
You and the Guarantor acknowledge and confirm that you have read, understood and agree to be bound by this Agreement; you have read and understood the Privacy Consent provisions provided during the Procuret Application Process or attached to this Agreement, and consent to us collecting and using your personal information (where applicable) in accordance with the Privacy Consent provisions.
You acknowledge you are clearly aware of your obligation to pay the amounts under this Agreement and that these payments are not dependent upon, related to or affected by the supply of any Product, goods or services by any Supplier or any failure by the Supplier to provide any services. You acknowledge that all the information provided by you to Procuret is true and correct.
You acknowledge you have the authority to enter into this agreement and bind the partnership (as a partner) or company that you represent, as a director, company secretary or explicitly authorised representative.
Where the Customer is an incorporated entity and the user completing the Procuret Application Process is a director of the entity, by signing these terms or completing the Procuret Application Process, you provide a guarantee and indemnity on the terms and conditions set out in the Agreement.
If you or your employees notify Procuret that physical delivery of a Product has been made by your designated Supplier, you irrevocably authorise your employee(s) as your delegated representative to accept and acknowledge delivery of these Products and Procuret will rely on this authority to make payment to the Supplier.
Information collected includes:
It is possible that your telephone calls to us may be monitored or recorded which we do for internal training purposes.
If you do not provide us with this consent or provide us with personal information requested by us, we may not be able to process your Procuret registration for you.
The reasons we collect this personal information is so:
If you do not want to receive any information about products and services (supplied by us or our preferred providers) which we consider may be of value or interest to you, please advise us as part of the acceptance of these terms or unsubscribe to emails that you may receive.
We may share your personal information:
Overseas – Disclosing Information:
Access and Correction of your Personal Information:
Email: firstname.lastname@example.org Phone: +61 2 8866 5399 Post: GPO Box 1909 Sydney, Australia, 2001