terms & conditions

Terms & Conditions of Sale

These terms and conditions of sale govern the sale and delivery of goods by Active Electrical Distributors Pty Ltd (“the Company”) and any of its “related entities” as that term is defined in the Corporations Act 2001 (Cth) to its customers (“the Customer”). These terms and conditions supersede all previous terms and conditions.

General Terms

  1. 1.Orders accepted by us cannot be cancelled except with our consent and then only upon terms that would indemnify us against loss. Orders received are only binding, by issue of our acknowledgement of order, or invoice in the case of urgent dispatch.
  2. 2.Unless the operation of this condition is expressly excluded by agreement between the Company and the Customer, the price payable by the Customer shall be that agreed at the time of the acceptance of the order or quotation, plus, or minus, an amount equal to any increase or decrease in the Company's costs due to acceptance and the date of dispatch of the goods to the Customer.
  3. 3.Specials are non-cancellable once official order has been placed.
  4. 4.Dates quoted for dispatch are to be treated as estimates only and are given in good faith.
  5. 5.Customer waives any claim for shortage of any goods delivered, if a claim in respect thereof has not been lodged with us within seven days from the date of receipt of goods by the Customer.
  6. 6.Goods are sold FOB our warehouse (ex our store) with property passing at point of sale, and a delivery charge will apply to cover freight. We accept no responsibility for loss or damage in transit. Special road/rail/air transport will be charged freight on, or at cost to Customers account.
  7. 7.The cost of any packing used in relation to the goods shall be at Customers expense, even if omitted from any quotation.
  8. 8.Goods returned for credit:
    1. a.Except for the return of faulty or incorrectly supplied goods, a 20% restocking charge will be applied to all goods accepted for return.
    2. b.In the case of return of buy-ins against Customers order, credit will only be allowed if the original manufacturer's supplier also accepts the return and the appropriate restocking fee.
    3. c.All goods returned shall be in their original packages and should not be shop soiled; obsolete or damaged as such goods may be rejected or credited at a reduced rate.
    4. d.No claim will be recognised unless made within seven (7) days of delivery and in every case the original invoice number and date must be quoted.
  9. 9.Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of goods and any of the other obligations under these terms and conditions. The Company will not be liable to the Customer for any loss or damage suffered because it exercised its rights under this clause.
  10. 10.The Company in its sole discretion reserves the rights to amend these terms and conditions from time to time.

Payment Terms

  1. 11.It is of the essence of these terms and conditions that payment of the price of goods shall be made in full by the Customer within 30 days from the end of the month of delivery of goods or within such time as is otherwise agreed between us and the Customer in writing.
  2. 12.In the event the Customer fails to make any payment when due, then, without prejudice to the application of any other provision hereof or to any other remedy provided to the Company hereunder or otherwise:
    1. a.Interest shall accrue on the amount of the overdue payment at the rate fixed under section 2 of the Penalty Interest Rate Act 1983 (Vic) as amended calculated from the date payment was due.
    2. b.Any expenses incurred by the Company including without limitation all solicitors' costs (or an indemnity basis) debt recovery costs and expenses, commercial agents' commission, out of pocket expenses, bank fees, freight, insurance and interest in attempting to recover or recovery of such overdue amount shall become payable by the Customer.

Charge

  1. 13.The Customer declares that in consideration of the Company having agreed to or agreeing to sell goods to extend credit, he/she/it shall charge in favour of the Company all his/her/its estate and interest in any land and in any other assets (whether tangible or intangible) in which the Customer now has any legal or beneficial interest or in which the Customer later acquires any such interest including that where the Customer is/are or becomes a trustee of a trust (whether or not such trust is disclosed herein) and consents to the lodging by the Company of a caveat or caveats which note the Company's interest in the Customer's interest in the real property, whether the property is held alone or jointly by the Customer.

Retention of title

  1. 14.The Customer agrees that all goods supplied by Company to the Customer shall remain the property of the Company and property in all goods supplied shall not pass to the Customer until such time as the Company has
    1. a.been paid in full for all goods supplied; and
    2. b.received payment of all other sums that are owing by the Customer to the Company; and
    3. c.the moneys owing referred to in (1) and (2) above have been collected and cleared by the Company.
  2. 15.Where the Company has not been paid in full for any goods supplied to the Customer and/or in full for any other amounts which are due for payment by the Customer to Company, then
    1. a.the Customer shall hold any such goods which it has been supplied by the Company upon trust and as a fiduciary for the Company and shall store and identify all such goods in a manner that clearly shows the Company ownership;
    2. b.the Customers must not sell any goods supplied without the prior written consent of the Company or except in the ordinary course of the Customer's business;
    3. c.the Customer shall have no right or claim to any right or interest in the goods to secure any liquidated or unliquidated debt or obligation that the Customer owes or may owe to the Company;
    4. d.the Customer may not claim any lien over the goods;
    5. e.the Customer agrees that it shall not create any absolute or defeasible interest in the goods in relation to any third party except as may be authorised by the Company; and
    6. f.without prejudice to the Company's rights as an unpaid seller or any of its other rights or remedies to retake possession of the Company goods from the Customer, the Customer hereby agrees to deliver up goods to the Company upon demand by the Company and otherwise agrees the Company may recover possession of the goods at any site owned, possessed or controlled by the Customer and the Customer agrees the Company has an irrevocable licence to do so.
  3. 16.Where (a) title has not passed to the Customer in goods supplied by the Company to the Customer; and (b) those goods are sold to a third party by the Customer, then the proceeds of such a sale by the Customer, to the extent that they are deemed to equal in dollar terms to the amount owing by the Customer to the Company on any account at the time of receipt of such proceeds, shall be held upon trust by the Customer for the Company in a separate account until such a time as full payment is made of all amounts owing by the Customer to the Company.
  4. 17.The Customer agrees to indemnify and hold harmless the Company against all loss and damage incurred or sustained by the Company as a result of or in relation to the exercise of the Company's retention of title rights.

Personal Properties Securities Act 2009 (cth) ("PPSA")

  1. 18.You hereby acknowledge that these Terms and Conditions of credit constitute a Security Agreement which creates a Security Interest in favour the Company and in all goods including services previously supplied by the Company to you and all after acquired goods including services supplied to you by the Company to secure the payment from time to time and at a time, including future advances.
  2. 19.You acknowledge and agree that by agreeing to these Terms and Conditions of credit, you grant a Security Interest (by virtue of retention of title clause in these Terms and Conditions of credit) to the Company and in all goods including services previously supplied by the Company to you and these Terms and Conditions of Credit shall apply notwithstanding anything express or implied to the contrary.
  3. 20.You agree to grant the Company a Purchase Money Security Interest ("PMSI")
  4. 21.You agree to do anything that we reasonably require to ensure that the Company has at all times continuously perfected security interest over all the Customer's present and after-accquired property.
  5. 22.You consent to the Company effecting a registration on the PPSA register (in any manner we consider appropriate). without notice to you, in relation to any security interest contemplated by these terms and conditions and you agree to provide all assistance reasonably required to facilitate this. You waive the right to receive notice of a verification statement in relation to any registration on the register.
  6. 23.You must not assign or grant a security interest in respect of any accounts owed to you in relation to the goods without our prior written consent.
  7. 24.You undertake to:
    1. a.promptly sign any further documents and/or provide any further information (such information to be complete accurate and up-to-date in all respects) which we may reasonably require to:
      1. i.register a financing statement or financing ohange statement in relation to a security interest on the Personal Property Securities Register;
      2. ii.register any other document required to be registered by the PPSA;
    2. b.Indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any goods changed thereby;
    3. c.not register a financing change statement in respect of a security interest without the prior written consent of the Company;
    4. d.not register, or permit to be registered, a financing statement or financing change statement in relation to the goods in favour of a third party without the prior written consent of the Company; and
    5. e.immediately advise the Company of any material change in your business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
  8. 25.If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these terms and conditions you agree that sections 95, 96, 117, 118, 121, 125, 130, 132, 135, 142 and 143 of the PPSA will not apply to the enforcement of these terms and conditions.
  9. 26.PPSA; Notices or document required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.
  10. 27.The following words have the respective meaning given to them in the PPSA; account, proceeds, purchase money, register, registration, security interest and verification statement.

The Competition and Consumer Act 2010 (cth) and Fair Trading Acts

  1. 28.Nothing in these terms and conditions are intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

Risk & Waiver

  1. 29.Risk in respect of goods passes to the Customer at the time of delivery. No waiver of these terms and conditions shall be valid and operate unless such waiver is in writing and signed by an authorised representative of the Company.

Release

  1. 30.To the maximum extent permitted by law, the Customer releases and discharges the Company from all liability whether in contract, tort or otherwise for any loss, damage (including consequential loss or damage), expense of any kind arising directly or indirectly out of the supply of goods. The Customer indemnifies and keeps the Company indemnified against any liability, loss, damage, expense, cost, claim or proceedings arising directly or indirectly out of or in connection with the supply of goods or any other cause whatsoever.

Event of Insolvency

  1. 31.In addition to any other terms, the Company may terminate this agreement immediately if the Customer has a liquidator, provisional liquidator, administrator, controller, receiver or receiver and manager appointed, breaches an essential item, breaches a term that is capable of remedy (other than an essential term) but which is not remedied within 7 days of demand by the Company, commits a breach that is not capable of remedy or any guarantor purports, threatens or does withdraw the provision of a guarantee.

Jurisdiction

  1. 32.The Customer unconditionally submits to this agreement and terms and conditions being governed by and construed in accordance with the laws of the state of Victoria and, where applicable, the Commonwealth of Australia, and the Customer submits to the exclusive jurisdiction of the courts of Victoria.

Change in ownership structure

  1. 33.This agreement is made in respect of the owners and/or directors of the Customer as at the date of application. The Customer agrees to notify the Company in writing within seven (7) days of any change whatsoever in ownership structure and further indemnify the Company against any loss or damage that may result from the Customer's failure to notify the Company of any such change. If there is a change in the Customer's ownership of which the Company in its discretion deems to be material, the Company may suspend or withdraw all credit facilities and require the Customer to submit a new application.

Privacy & protection of information - Privacy Act 1988

  1. 34.The Company is committed to protecting the privacy and confidentiality of information it collects from retailers. The Company is also bound by the Privacy Act 1988 (as amended) and therefore must comply with the National Privacy Principles which govern the collection, use, handling and disclosure of personal and sensitive information.
  2. 35.The Company requires information from the Customer, the guarantors and directors to properly assess the Customers application for a commercial credit trading account and/or to assess the credit worthiness of any guarantor. If the Company is unable to obtain all the relevant information it requires it may not be able to approve the Customers application for a trading account. Accordingly, the Company asks the Customer, the guarantors and directors to provide their consent for the Company to obtain information about the Customer, the guarantors and directors and about each of their credit history and for the Company to sue and/or disclose such information for the purposes of assessing the Customers application and, if approved, for monitoring the Customers account. The Company may, in the course of assessing the Customers account application and/or monitoring the Customers account if approved, obtain information about the Customer, the guarantors and directors & disclose information about the Customer, the guarantors and directors to a Credit Reporting Agency, credit providers whom may have provided credit to the Customer, the guarantors and directors and other suppliers whom may have supplied goods to the Customer, the guarantors and directors on credit.
  3. 36.The information obtained by the Company will be held by the Company and each of the Customer, this guarantor and directors can obtain details of the information held by the Company by contacting the Company. Under the Privacy Act 1988 (as amended), the Customer, the guarantors and directors each have the right;
    1. a.to have access to your personal information except in certain circumstances where denial of access to your information is allowed under the Privacy Act 1988 (as amended);
    2. b.to have any amendment made to your information so that such information is complete, accurate and up-to-date; and
    3. c.where the Company denies access to your information, to receive a reason for any such denial.

Active Electrical Distributors Pty Ltd · ABN 29 005 246 799 · ACN 071 595 741

See also our Terms of Guarantee & Indemnity.