terms & conditions

Terms and Conditions of GUARANTEE & INDEMITY

In consideration of Active Electrical Distributors Pty Ltd (A.C.N 071 695 741) its successors and assigns (‘the Company”), and any of its “related entities” as that term is defined in the Corporations Act 2001 agreeing to provide goods and/or services to the Customer:

1. Due and punctual payment

I/We, the above mentioned Guarantor(s), hereby (jointly and severally in the case of more than one Guarantor) guarantee the due and punctual payment of all monies whether part, present or future be or become due and payable to the Company by the Customer under the Company's Terms and Conditions or whether arising in any other way on other account whatsoever.

2. Continuing guarantee

This guarantee shall be a continuing guarantee and shall remain in full force and effect and the Guarantor(s) shall remain liable notwithstanding the granting by the Company of time, credit or any other indulgence or concession to the Customer or the Guarantor(s) or the waiver by the Company of any breach by the Customer of its obligation to the Company or the liquidation of the Customer or the Customer having an Administrator appointed or entering into a Deed of Company Arrangement or the bankruptcy or death of the Guarantor(s) or any one of them and the liability of the Customer ceasing or becoming extinguished for any reason.

3. Demand for payment

I/We will make due and punctual payments to the Company upon demand being made by notice or letter given to the Guarantor(s) and such demand or notice or letter shall be deemed to be duly made or given in writing and left at or sent by prepaid post to the address of the Guarantor(s) as set out below.

4. If payments deemed void or illegal

If any payments made by the Customer and/or Guarantor(s) are deemed void or illegal and subsequently refunded, it shall be deemed not to have discharged the Agency's and/or Guarantor(s) liabilities in respect thereof.

5. Fees and additional costs

I/We declare that the Guarantor(s) shall pay all losses, damages, costs, fees, charges and expenses including legal costs on an Indemnity basis incurred by the Company arising out of and incidental to this Guarantee or any matter arising out of or incidental to this Guarantee or the performance or failure to perform by the Customer and/or the Guarantor of the covenants contained herein.

6. Interest

If the Guarantor(s) fails to comply with their obligations then the Guarantor shall, in addition to all monies owing by the Customer, will also be liable to pay interest at the rate fixed under section 2 of the Penalty Interest Rate Act 1983 (Vic) as amended, calculated from the date such amount falls due until it is received in full by us, without prejudice to all or any of our other rights and remedies. Any payment received will be applied first against any interest accrued, secondly in relation to all fees incurred and thirdly against overdue invoices.

7. Indemnity

I/We declare that if any of the obligation hereby guaranteed shall not be enforceable against the Customer purported to be primarily liable hereunder, this Guarantee shall be constructed as an Indemnity and the Guarantor(s) hereby indemnifies the Company in respect of any failure by the Customer or make payment or perform or observe any covenant, obligation, term or condition of this Guarantee and from and against all losses, damages, costs, charges and expenses of any kind which the Company may incur because of or arising out of the default by the Customer under the Company's Terms and Conditions or howsoever arising.

8. Charge

I/We declare that in consideration of the Company having agreed to or agreeing to sell goods or to extend credit to the Customer, the Customer and or the Guarantor(s) shall charge in favour of the Company all his/her/their estate and interest in any land and in any other assets (whether tangible or intangible) in which the Customer and or the Guarantor(s) now have any legal or beneficial interest or in which the Customer and or the Guarantor(s) later acquires any such interest including that where the Customer and or the Guarantor(s) 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 and or the Guarantor(s) interest in the real property, whether the property is held alone or jointly by the Customer and or the Guarantor(s).

9. Changes in company structure

I/We agree this guarantee shall not be affected by any changes in the constitution of the Customer and/or the Guarantor(s) by way of reconstruction, consolidation, absorption, merger or amalgamation. The Guarantor(s) will not be released from any of their obligation unless the Company has given the Guarantor(s) written notification of such release. The Guarantor(s) will be required to seek a release in writing within 7 days of any such changes. Further, the Guarantor(s) will indemnify the Company against any loss or damage that may result from the Guarantor's failure to notify us of any such change.

10. If payments deemed preferences

I/We agree to indemnify the Company and keep it indemnified from and against all losses, damages, costs, charges and expenses of any kind which the Company may incur because of or arising out of the failure by the Customer to pay any monies which are due and payable to the Company or because in or before any liquidation, bankruptcy or insolvency of the Customer an amount is paid to the Company which it is subsequently obliged to pay out on the ground that payment of the amount to it was a preference.

11. Proving debt in liquidation or bankruptcy

If the Customer is in liquidation or is bankrupt, the Guarantor(s) are not entitled to prove in the liquidation or bankruptcy in competition with the Company to diminish any dividend or payment which but for the Guarantor(s) proof the Company would be entitled to receive in the liquidation or bankruptcy or to asset any right of subrogation or indemnity in respect of any monies paid by the guarantor(s) to the Company until the Company have actually received 100 per cent in the dollar in respect of all monies due.

12. Jurisdiction

I/We unconditionally submit to this guarantee being governed by and construed in accordance with the laws of the state of Victoria and, where applicable, the Commonwealth of Australia, and I/We submit to the exclusive jurisdiction of the courts of Victoria.

By providing signature, I/WE agree to the Active Electrical Distributors Terms and Conditions of GUARANTEE & INDEMITY AND THE GUARANTOR(S) HEREBY DECLARE that I/WE understand the nature and effect of the Guarantee & Indemnity and that I/WE have had the opportunity of obtaining legal advice before signing this Guarantee & Indemnity.

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

See also our Terms & Conditions of Sale.