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Terms & Conditions

1.      Definitions

           In these terms and conditions:

          "Activated" means either or both of Activated Electrical Pty Ltd (ACN 139 220 027)

           and Activated Air Pty Ltd (ACN 621 620 933);

          "Conditions" means the terms of these terms and conditions;

          "Customer" means an individual, partnership or corporation seeking to acquire Goods or Services                  from Activated and where applicable includes the applicant in the Commercial Credit                                    Application and, if the Customer consists of more than one person, each of them jointly  and                        severally;

          "Goods" means all goods and or materials supplied by Activated to the Customer;

          “GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth)              as amended;

          “Insolvency Event” means any matter referred to in clause 6.6(a) or (b) of these Conditions;

          “Other Property” means all present and after-acquired property of the Customer (except the Goods)             whether acquired alone or jointly as a tenant in common or as a joint tenant;

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

          “Real Property” means all real property interest held by the Customer now and in the future;

          "Security Agreement" and “Security Interest” have the meaning ascribed to them in the PPSA;

          “Services” means any and all services supplied by Activated to the Customer; and

2.       Application of the Conditions

2.1     Subject to clause 2.2, or unless otherwise agreed in writing, these Conditions will apply exclusively to            every order or contract for the sale of Goods and or the supply of Services by Activated to the                      Customer and cannot be varied or replaced by any other conditions without the prior written consent            of Activated.

2.2     Unless otherwise expressly agreed by Activated, previous dealings between Activated and any                      Customer or the imposition of additional or alternative terms and conditions by a Customer shall not              vary or replace these Conditions or deemed in any circumstances whatsoever to do so.

2.3     Activated may vary these Conditions provided it first gives 7 days written notice to the Customer.                  Any order placed, or Goods or Services supplied at the request of the Customer, after such                           day period, will be deemed to be the Customer’s acceptance of the varied Conditions.

2.4     Activated may terminate this agreement on 7 days written notice.  Any termination is without                        prejudice to the rights of Activated accrued prior to such termination including the right to be paid or            to recover the Goods.

2.5     Activated may terminate this agreement without notice if an Insolvency Event occurs in relation to the            Customer.

2.6     The Customer and Activated agree to keep confidential the terms of these Conditions, including the                price of the Goods and Services, except as required by law.

2.7     These Conditions prevail over any terms and conditions of trade of the Customer whether or not any              inconsistency arises.

3.       Quotations, orders and contracts

3.1     All quotations are made and all orders for Goods or Services are accepted by Activated on and subject            to the Conditions and any special terms and conditions which are agreed by Activated in writing.

3.2     Any written quotation provided by Activated to the Customer concerning the supply of Goods or                    Services is valid for 30 days, unless otherwise stated in the quotation, and is an invitation only to the            Customer to place an order based upon that quotation.

3.3     Activated may withdraw, revoke or vary a written quotation at any time prior to accepting an order by            the Customer.

3.4     Activated will not be deemed to have accepted an order or an offer by the Customer unless it has                  received a deposit from the Customer and communicated to the Customer in writing a time and date            for delivery of the Goods or Services stated in the order.

3.5     Activated reserves the right to accept or decline, in whole or in part, any order for Goods or Services              placed by the Customer.

3.6     Where in the period between the acceptance of a quote and delivery of the relevant Goods or                        Services, Activated incurs an increase in the costs of supplying the Goods or Services, Activated                    reserves the right to increase the quoted price of those Goods or Services any time prior to the                    supply and the Customer shall accept any such price increase.

4.       Payment

4.1     A deposit amount disclosed in the quote is payable by the Customer when placing the order for Goods            or Services.

4.2     Payment for Goods or Services must be made, without deduction or setoff, within 7 days following the            date of the invoice.

4.3     In the event that there are insufficient funds to meet any cheque drawn by the Customer in favour of            Activated, an administration fee of $100.00 will be charged on each and every representation and or              dishonour.

4.4     Activated may withdraw any terms or require the provision of security at any time in its absolute                    discretion and without notice to the Customer and may apply any payment by the Customer in any                manner as Activated sees fit.

4.5     Payments made by credit card may be subject to a surcharge.

5.       Credit Information

5.1     The Customer irrevocably authorises Activated, its servants and agents to make such enquiries as it              deems necessary to investigate the credit worthiness of the Customer from time to time including the            making of enquiries with persons nominated as trade references, the bankers of the Customer, any                other credit provider or a credit reporting agency (hereinafter called the ‘Information Sources’).

5.2     The Customer authorises the Information Sources to disclose to Activated such information                            concerning the Customer which is within their possession and which is required by Activated to the                fullest extent permitted by the relevant privacy laws in Victoria.

5.3     The Customer agrees that the information provided on any credit application signed by or on behalf of            the Customer concerning the Customer may be disclosed by Activated to a credit reporting agency or            any other interested party to the fullest extent permitted by the relevant privacy laws of Victoria.

6.       Payment Default and Security

6.1     If the Customer defaults in payment by the due date of any amount payable to Activated, then all                  money which would become payable by the Customer to Activated at a later date on any account,                becomes immediately due and payable without the requirement of any notice to the Customer, and                Activated may, without prejudice to any accrued rights or other remedy available to it:-

         (a)   charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty                          Interest Rates Act 1983 (Vic) plus 2 per cent for the period from the due date until the date of                      payment in full;

         (b)   charge the Customer for all expenses and costs (including but not limited to legal costs on a                         solicitor/own client basis) incurred by it resulting from the default and in taking whatever action                   it deems appropriate to recover any sum due including enforcing the charge in clause 6.2;

         (c)   cease or suspend for such period as Activated thinks fit, supply of any further Goods, Services or                   credit to the Customer; and

         (d)   by notice in writing to the Customer, terminate any contract with the Customer so far as                               unperformed by Activated. 

6.2     As security for any amounts due to Activated from time to time, the Customer charges all of its legal              and equitable interest (both present and future) of whatsoever nature held in any and all Real                      Property to Activated.

6.3     Without limiting the generality of the charge in clause 6.2, the Customer agrees on request by                      Activated, to execute any documents and do all things reasonably required by Activated to perfect the            charge given in clause 6.2 including registering a mortgage security over any Real Property. The                    Customer appoints Activated to be the Customer’s lawful attorney for the purposes of executing and              registering such documents and taking all such steps in that regard. The Customer fully indemnifies              Activated against all costs and expenses incurred by Activated in connection with the                                    preparation and registration of any such steps needed to perfect the security or prepare to register                the mortgage documents.

6.4     The Customer consents unconditionally to Activated lodging a caveat or caveats noting its interest in              any Real Property owned by the Customer.

6.5     A statement in writing by an authorised officer of Activated setting out the moneys due or owing to                Activated at the date of the statement shall be sufficient evidence of the amount so due or owing                  until the contrary is proven.

6.6     Clause 6.1 may also be relied upon, at the option of Activated:

           (a)   where the Customer is an individual and becomes bankrupt or enters into any scheme of                               arrangement or any assignment or composition with or for the benefit of any creditors; or

           (b)   where the Customer is a corporation and it enters into any scheme of arrangement or any                             assignment or composition with or for the benefit of any creditors or has a liquidator,                                   provisional liquidator, administrator, receiver or receiver and manager appointed, or any action                     is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or                     dissolution without winding up of the Customer.

6.7     In the event of a dispute, the Customer will not be entitled to withhold payment of any undisputed                amount due to Activated.

7.       Retention of title

7.1     The Customer agrees:

         (a)   title and property in all Goods remain vested in Activated and do not pass to the Customer;

         (b)   the Customer must hold the Goods as fiduciary bailee and agent for Activated;

         (c)   unless the Goods are installed by Activated, the Customer must keep the Goods separate from                       its own goods;

         (d)   the Customer is required to hold the proceeds of any sale of the Goods on trust for Activated in                     a separate account;

         (e)   the Customer must deliver up all Goods to Activated immediately upon service of a written                           demand; and

         (f)    Activated may without notice, enter any premises where it suspects the Goods may be and                           remove them, notwithstanding that they may have been attached to other goods not the                             property of Activated, and for this purpose the Customer irrevocably licences Activated to enter                     such premises and also indemnifies Activated from and against all costs, claims, demands or                         actions by any party arising from such action,

                 until full payment in cleared funds is received by Activated for all Goods supplied by it to the                         Customer, as well as all other amounts owing to Activated by the Customer. 

7.2     The Customer may resell the Goods in the ordinary course of its business (but may not otherwise sell            or encumber the Goods) and if it does so shall receive the proceeds of resale as trustee of Activated,            to be held on trust for Activated. Activated shall be entitled to trace the proceeds of resale.

7.3     The reservation of title and ownership is effective whether or not the Goods have been altered from              their supplied form, or commingled with other goods.

7.4     To assure performance of its obligations under these Conditions, the Customer hereby grants                        Activated an irrevocable power of attorney to do anything Activated considers should be done by the              Customer pursuant to these Conditions. Activated may recover from the Customer the cost of doing              anything under this clause 7, including registration fees and legal costs (on a solicitor/own client                     basis).

8.       Security Interest

8.1     The Customer agrees:

          (a)   that these Conditions constitute a Security Agreement for the purposes of the PPSA;

          (b)   that these Conditions create a Security Interest in all Goods (and the proceeds of the Goods) in                    favour of Activated to secure the purchase price for the Goods;

          (c)   that the following sections of the PPSA do not apply: 95, 118, 121(4), 125, 129(2), 129(3),                          130,132(3)(d), 132(4), 135, and, to the extent section 115(7) applies, each section of Part 4.3                    of the PPSA is excluded unless Activated elects in writing to retain Part 4.3 (which Activated                          may elect to do either in whole or in part); and

          (d)   to waive its right to receive notice of a verification statement in relation to registration of a                           Security Interest.

8.2     The Customer:

          (a)  further agrees that these Conditions also create a Security Interest in all of the Customer’s                           Other Property, although such Security Interest is not intended to prevent the Customer from                       transferring such Other Property in the ordinary course of the Customer’s business; and

          (b)  separately charges all Real Property owned now and in the future by the Customer whether                           owned alone or jointly as a tenant in common or as a joint tenant,

                 in favour of Activated to secure payment and performance of all the Customer’s obligations                           under these Conditions.

8.3     The Customer must immediately, if requested by Activated, sign any documents, provide all                          necessary information and do anything else required by Activated to ensure that Activated’s Security              Interest is a perfected security interest.

8.4     The Customer will not enter into any other Security Agreement that permits any other person to have            or to register any Security Interest in respect of the Goods or any proceeds from the sale of the                    Goods until Activated has perfected its Security Interest.

9.       GST and Duties

9.1     Prices for the supply of Goods and Services exclude sales tax, consumption or goods and services tax,            and any other taxes, duties or imposts imposed on or in relation to the Goods and Services.

9.2     If prices for Goods and Services provided by Activated do not expressly indicate that the prices                      include GST then the Customer will pay Activated the price for the Goods and or Services plus GST.

10.     Delivery of the Goods

10.1   Any period or date for delivery of Goods stated by Activated is intended as an estimate only and is not            a contractual commitment. Activated may deliver the Customer’s orders in part or in whole.

10.2   All costs of freight, insurance and other charges associated with the delivery of the Goods to the                    agreed delivery address shall be borne by the Customer.

10.3   If the Customer is unable or fails to accept delivery of the Goods, the Customer will be liable for all               costs incurred by Activated due to storage, detention, double cartage, travel expenses or similar                   causes.

11.     Risk and Insurance

          All risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the              Goods will pass to the Customer immediately upon delivery of the Goods to the Customer.

12.     Liability

12.1   Except as specifically set out herein, any term, condition or warranty in respect of the quality, fitness              for purpose, condition, description, assembly, manufacture, design or performance of the Goods                    and/or Services, whether implied by statute, common law, trade usage, custom or otherwise, is                    hereby expressly excluded.

12.2   Activated is not liable for any indirect or consequential losses or expenses suffered by the Customer              or any third party, howsoever caused arising from the supply of the Goods and/or Services, including            but not limited to loss of turnover, profits, business or goodwill.

12.3   Activated will not be liable for any loss, damage or claim suffered by the Customer where Activated                has failed to meet any delivery date or cancels or suspends the supply of Goods or Services.

12.4   Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the                effect of excluding, restricting or modifying the application of any State or Federal legislation                        applicable to the sale of Goods and/or Services which cannot be excluded, restricted or modified. If                any of these Conditions is inconsistent with State or Federal legislation, such Conditions must be read            down only to the extent necessary to comply with such legislation and will otherwise apply to the                  fullest extent legally possible.

12.5   Activated’s total aggregate liability for any loss, damage or claim suffered by the Customer, however             arising, shall not exceed the GST exclusive aggregate price paid by the Customer to Activated for the             specific Goods or Services that gave rise to the loss, damage or claim in question.

12.6   The Customer must take reasonable steps to mitigate any loss, damage or claim it suffers or incurs.

12.7   If the Customer is a “consumer” within the meaning of Schedule 2 of the Competition and Consumer              Act 2010 (Cth) and  the Goods are not of a kind ordinarily acquired for personal, domestic or                        household use or consumption, Activated’s liability for a breach of a condition, warranty or guarantee            (whether express or implied) is limited to any one            of the following as determined by Activated:

          (a)   the replacement of the Goods or the supply of equivalent Goods; or in the case of Services,                          supply the Services again or pay the costs of having the Services supplied again; or

          (b)   the payment of the cost or replacement of the Goods or of acquiring equivalent Goods.

13.     Cancellation

13.1   No purported cancellation or suspension of an order or contract for Goods or Services by the                         Customer will be binding on Activated after that order has been accepted by Activated.

13.2   Cancellation of ordered Goods will incur a cost equivalent to any out of pocket costs or expenses                    incurred by Activated in relation to those Goods.

13.3   Cancellation of ordered Services less than two hours prior to the planned commencement time of the            Services will incur a four hour minimum charge.

14.     Goods Returned

14.1   All Goods are sold on a non-returnable, non-refundable basis and, subject to clause 14.3, may only be            returned if the Goods are damaged by Activated upon delivery or are incorrectly supplied by                          Activated.

14.2   Any claim by the Customer that the Goods are damaged or incorrectly supplied must be made in                    writing to Activated within 5 business days of receipt of the Goods by the Customer and the Customer            must provide a reasonable opportunity for Activated to inspect the Goods. Activated’s only liability                (if any) is limited to the resupply of the Goods.

14.3   Activated may, in its sole and absolute discretion, agree to accept a return of some or all of the Goods            but all such Goods returned will be subject to a minimum 25% handling fee.

15.     Entire Agreement

15.1   These Conditions, the quotation, the credit application and any other written instruction or authority provided by                      Activated to proceed constitutes the entire agreement (‘Agreement’) between the Customer and Activated to the                          maximum extent permitted by law and subject to clause 17, this Agreement supersedes all prior or contemporaneous                  oral or written communications, proposals, terms and representations to the maximum permitted by law and prevails                over any conflicting or additional terms of any quote, order, acknowledgment or similar communication between the

          parties during the term of this Agreement.

16.   Provisions Severable

          If any provision of these Conditions is invalid, illegal or unenforceable in any respect the validity, legality and                              enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to              be severed from these Conditions.

17.    Variation

          No part of these Conditions may be amended or modified unless reduced to writing making specific                reference to these Conditions and signed by the parties hereto or their authorised representatives.

18.    Waiver

          A right in these Conditions can only be waived by a written instrument signed by the party to which              the right applies. No other act, omission or delay of a party will constitute a waiver.

19.     Governing Law

          These Conditions are governed by and are to be interpreted according to the laws in force in Victoria              and the parties submit to the non-exclusive jurisdiction of the courts operating in Victoria.


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