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Contractor Customer Contract

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Contractor Customer Contract document sample

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									                                                                                                                       Qld Government Chief Procurement Office
                                                                                                                                                GITC Services


                                                                                                                                         SCHEDULE S5
                                                                                                                        PERFORMANCE GUARANTEE

Schedule S5: Performance Guarantee
DEED OF PERFORMANCE GUARANTEE dated ................................................................. 20 .......................

Between
..............................................................................................................................................................................
[insert name of Customer]                                                                                                                         (the “Customer”)

And

........................................................................................................ ACN/ABN .....................................................
[insert name of the Guarantor]                                                                                                            (the “Guarantor”)

Purpose

........................................................................................................ ACN/ABN .....................................................
[Insert name and ACN/ABN of the Contractor]                                                                                              (the “Contractor”)

The Guarantor has fully informed itself of the obligations and liabilities of the Contractor under the Customer
Contract and agrees to provide the guarantees and indemnities stated below in respect of the Customer
Contract.

Definitions:

“Business Day”                           means between 9.00am and 5.00pm on a weekday other than a Saturday, Sunday
                                         or public holiday in Brisbane, Queensland;
“Customer Contract”                      means the contract between the Customer and the Contractor that is formed upon
                                         the execution of the General Order or upon terms and conditions of the Customer
                                         Contract otherwise being agreed and a binding Customer Contract being formed
                                         and to which this Deed of Guarantee forms Schedule S5, as amended from time to
                                         time by the parties to the Customer Contract;
“Deed of Guarantee”                      means this Deed of Performance Guarantee;
“General Order”                          means the order in the form of Schedule C1 of the Customer Contract and where
                                         applicable, Schedule C2 of the Customer Contract, which contains the agreed
                                         terms and conditions for the supply of a product and/or service by the Contractor
                                         to the Customer;

What is agreed:

The Guarantor irrevocably guarantees to the Customer the due and punctual performance of the obligations
undertaken by the Contractor under the Customer Contract on the following terms and conditions:
1.             If the Contractor (unless relieved from the performance of the Customer Contract by the Customer
               or by statute or by a decision of a tribunal of competent jurisdiction) fails to execute and perform its
               obligations and undertakings under the Customer Contract, the Guarantor shall, if required to do so
               by the Customer, complete or cause to be completed the obligations and undertakings contained in
               the Customer Contract.
2.             If the Contractor commits any breach of its obligations under the Customer Contract, and the
               breach is not remedied by the Contractor and the Customer Contract is then terminated for default,
               the Guarantor shall indemnify the Customer to the full extent of the liability of the Contractor to the
               Customer under the Customer Contract.
3.             Without limiting clauses 1 and 2 hereof, the Guarantor must, from time to time, pay to the Customer
               on demand any sum which is due and payable by the Contractor to the Customer as a result of a
               breach of or failure to perform any of the obligations and undertakings of the Contractor under the
               Customer Contract and which has not been paid by the Contractor to the Customer.



Part 4 – Customer Contract Schedules @ 1 August 2008                           Page 1 of 4
                                                                               Qld Government Chief Procurement Office
                                                                                                        GITC Services


                                                                                           SCHEDULE S5
                                                                                PERFORMANCE GUARANTEE

4.        Where the Guarantor consists of more than one legal person each of those persons agree to be
          bound jointly and severally by this Deed of Guarantee and the Customer may enforce this Deed of
          Guarantee against all or any of the persons who constitute the Guarantor.
5.        The Guarantor shall not be discharged, released or excused from this Deed of Guarantee by any
          arrangement made between the Contractor and the Guarantor with or without the consent of the
          Customer, or by any alteration, amendment or variation in the obligations assumed by the
          Contractor or by any forbearance whether as to payment, time, performance or otherwise.
6.        The failure of the Customer to enforce a term of the Deed of Guarantee shall not be interpreted as
          a waiver of that term.
7.        The obligations and liabilities of the Guarantor under this Deed of Guarantee shall not exceed the
          obligations and liabilities of the Contractor under the Customer Contract.
8.        If any part of this Deed of Guarantee is void or voidable, then that part is severed from the Deed of
          Guarantee but without affecting the continued operation of the remainder of the Deed of
          Guarantee.
9.        This Deed of Guarantee shall be subject to and construed in accordance with the laws in force in
          the State of Queensland, Australia and the Guarantor agrees to submit to the jurisdiction of a
          Queensland court in the State of Queensland, Australia.
10.       Where the Contractor has failed to perform any obligation under the Customer Contract, the
          obligations of the Guarantor shall continue even though the Contractor has been dissolved,
          declared bankrupt, or has been made subject to external administration procedures under the
          Corporations Act 2001 (Cth) or any other law.
11.       The rights and obligations under this Guarantee shall continue until released by the Customer.
12.       In this Deed of Guarantee headings are for convenience only, and do not affect interpretation. The
          following rules shall apply in interpreting Deed of Guarantee, except where the context makes it
          clear that a rule is not intended to apply.

A reference to:
(a)       legislation (including subordinate legislation) is a reference to that legislation as amended, re-
          enacted or replaced, and includes any subordinate legislation issued under it;
(b)       a cross-reference to a clause is a reference to all of its sub-clauses;
(c)       a reference to a clause or a sub-clause only is a reference to a clause or sub-clause in this Deed of
          Guarantee;
(d)       monetary references are references to Australian currency;
(e)       a document or agreement, or a provision of a document or agreement, is a reference to that
          document, agreement or provision as amended, supplemented, replaced or novated;
(f)       a singular word includes the plural, and vice versa;
(g)       a word which suggests one gender includes the other gender;
(h)       if a word is defined, another part of speech of that word has a corresponding meaning;
(i)       a person includes bodies corporate, unincorporated associations and partnerships; and
(j)       anything (including a right, obligation or concept) includes each part of it.

13.       The address for services of notice for a party is, in the case of the:

          Guarantor
          Physical address:
          Postal address:
          Phone number:
          Fax number:
          Email address:

Part 4 – Customer Contract Schedules @ January 2010   Page 2 of 4
                                                                             Qld Government Chief Procurement Office
                                                                                                      GITC Services


                                                                                         SCHEDULE S5
                                                                              PERFORMANCE GUARANTEE


          Customer
          Physical address:
          Postal address:
          Phone number:
          Fax number:
          Email address:

          or such other address as a party may notify to the other party in writing from time to time.

14.       A notice or other communication is deemed to have been duly received if:
          (a)        delivered by hand – at the time when the first party holds a receipt for that document
                     signed by a person apparently employed at that address for service;
          (b)        sent by post – at the time when, in the ordinary course of the post, it would have been
                     delivered at the address to which it is sent;
          (c)        sent via facsimile – at the time when the machine on which the notice is sent reports in
                     writing that the notice has been transmitted satisfactorily.
          If delivery or receipt of a notice or communication occurs on a day other than a Business Day or is
          later than four (4.00) pm ((local time of the Customer’s address specified above or as otherwise
          agreed between the parties) it shall be taken to have duly occurred at nine (9.00) am ((local time of
          the Customer’s address specified above or as otherwise agreed between the parties) on the next
          Business Day.

15.       Notwithstanding any other provision of this Deed of Guarantee, where a party is a company under
          the Corporations Act 2001 (Cth), any notice served upon the party’s registered office is deemed to
          have been given or served in accordance with this Deed of Guarantee.




Part 4 – Customer Contract Schedules @ January 2010   Page 3 of 4
                                                                                                                   Qld Government Chief Procurement Office
                                                                                                                                            GITC Services


                                                                                                                                     SCHEDULE S5
                                                                                                                    PERFORMANCE GUARANTEE


The Parties to this Deed of Performance Guarantee have executed the Deed on the dates set out below.

 EXECUTED AS A DEED OF PERFORMANCE                                                   )
 GUARANTEE                                                                           )
                                                                                     )
 EXECUTION BY CUSTOMER:                                                              )
                                                                                     )
 Signed, Sealed and Delivered                                                        )
                                                                                     )
 .................................................................................   )
 (insert name of Customer                                                            )
 by                                                                                  )
                                                                                     )
 .................................................................................   )    .....................................................................................................
 (insert name of Customer representative)                                            )   (signature of Customer representative)
                                                                                     )
 this ................... day of .......................... 20 ..............        )
                                                                                     )
 In the presence of:                                                                 )
                                                                                     )
 .................................................................................        .....................................................................................................
 (insert name of witness)                                                                (signature of witness)
                                                                                     )
 EXECUTION BY GUARANTOR:                                                             )
                                                                                     )
 Signed, Sealed and Delivered for and on behalf of                                   )
                                                                                     )
 .................................................................................   )
 (insert Guarantor’s name; ACN and ABN)                                              )
                                                                                     )
 in accordance with s.127 of the Corporations                                        )
 Act 2001 (Cth)                                                                      )
                                                                                     )
 this ................... day of .......................... 20 ..............        )
                                                                                     )
 by                                                                                  )
                                                                                     )
 .................................................................................   )    .................................................................................
 (insert name of Director)                                                           )   (signature of Director)
                                                                                     )
                                                                                     )
 .................................................................................   )    .................................................................................
 (insert name of Director/Secretary)                                                 )   (signature of Director/Secretary)
                                                                                     )
 in the presence of                                                                  )
                                                                                     )
                                                                                     )
 .................................................................................   )    .................................................................................
 (insert name of witness)                                                            )   (signature of witness)
                                                                                     )

Where an attorney or other agent executes this Deed of Guarantee or affixes a seal on behalf of a Guarantor, the form of
execution must indicate the source of this authority and such authority must be in the form of a deed and a certified copy
thereof provided to the Contract Authority.




Part 4 – Customer Contract Schedules @ January 2010                           Page 4 of 4

								
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