Terms & Conditions
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.
4.1 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.
12.1 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.
13.1 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.
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.
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.