Terms and Conditons of supply

TERMS & CONDITIONS of SUPPLY
ESSENTIAL ELECTRICAL WHOLESALERS PTY LTD
(ABN 21 161 454 799)

1. Application of Terms & Conditions

a) These Terms & Conditions of Sale apply to and govern all tenders, quotations, orders and contracts submitted and entered into by Essential Electrical Wholesalers Pty Ltd (ABN 21 161 454 799) (defined as “EEW”) whereby goods and/or services are supplied, provided and/or delivered by EEW to a purchaser (“Agreement”).
b) Any order or offer made by any purchaser for goods and/or services shall not be binding on EEW until accepted by EEW in writing or in such manner as EEW in its sole discretion determines.
c) A tender or quotation submitted by EEW in respect of the supply of goods and/or services may at any time prior to acceptance of an offer by EEW be varied or withdrawn by EEW.
d) Any quotation or tender submitted by EEW shall remain valid for 30 days from the date of such quotation or tender.
e) The placing of an order by a purchaser for the supply by EEW of goods and/or services shall constitute an acceptance by the purchaser of these Terms & Conditions of Sale.
f) The Terms & Conditions of Sale represent the entire agreement between EEW and the purchaser.
g) The Terms & Conditions of Sale prevails over any purchaser’s terms and conditions contained in any document between EEW and the purchaser and supersede all prior discussions and arrangements. No purchase order or other document issued by the purchaser will vary the Agreement.
h) Orders cannot be cancelled except by arrangement and agreement by EEW or in accordance with clause 1(i).
i)  For all orders under $1,000.00 a non-refundable deposit of 30% will be payable by the customer at the time the order is placed.  This deposit will be forfeited if the order is subsequently cancelled and will be applied to freight/stocking/resale costs to be reasonably met by EEW in those circumstances.
j) For all orders over $1,000.00 a deposit will be set by EEW at the time the order is taken. The customer cannot subsequently cancel the order after it is made.

2. Price
a) Unless stated otherwise, the prices quoted by EEW for the supply of goods and/or services exclude goods and services tax (GST). The purchaser must pay GST (where required by legislation), without deduction or set off of any other amount, at the same time as paying the price.
b) If a government or statute imposes, alters or repeals any tax or other levies in connection with the manufacturing, export, sale or delivery of goods and materials (including but not limited to raw materials), EEW reserves the right to vary the price accordingly at any time or alternatively rescind the Agreement after providing written notice to the purchaser.
c) Unless otherwise stipulated all references to dollars are references to the lawful currency of Australia. All prices are subject to change without notice.
d) The prices quoted by EEW include the cost of packing the goods in accordance with EEW’s standard practice. If the purchaser requires the goods to be provided in any other manner the cost of the packing shall be the responsibility of the purchaser. EEW will not be liable for any damage or loss occurring as a result of goods being packed in accordance with the purchaser’s instructions.

3. Payment
a) The purchaser shall be invoiced at the time of delivery of goods, the supply of services or when the purchaser is notified that the goods are available for dispatch.
b) In circumstances where a credit facility has been granted by EEW to the customer (and all ancillary paperwork has been duly signed and returned to EEW) all invoices subsequently issued by EEW are due and payable within 30 days from month of invoice (“Due Date”), unless agreed otherwise in writing by EEW.
c) If the purchaser does not pay in full by the Due Date, EEW may charge interest calculated monthly on the outstanding amount at the rate of the maximum per annum Reference Lending Rate published by the Commonwealth Bank of Australia plus 2% from the Due Date until the amount is paid in full. Payments received by EEW shall be credited first against any interest accrued.
d) The purchaser cannot set off or deduct from the amount payable to EEW any amount under this Agreement.
e) The purchaser shall pay EEW all expenses and costs (including debt collection agency fees and solicitors costs) which may be incurred in the recovery of any overdue amounts from the purchaser.
f) In circumstances where a credit facility has not been granted by EEW to the customer, payment terms are strictly cash on delivery.

4. Delivery
a) Unless otherwise agreed, where the purchaser has nominated an address for delivery, EEW shall deliver the goods to that nominated address.
b) EEW shall not be responsible for unloading goods at the point of delivery
c) The purchaser undertakes to provide adequate and proper facilities for the reception and storage of goods and warrants that those facilities comply with all relevant statutes or regulations, including health and safety regulations, and that all necessary permits and licenses have been obtained.
d) Where goods are delivered to a nominated address, EEW shall be deemed to have delivered the goods in accordance with the Agreement if it obtains a receipt or signed delivery docket for the goods from any person at that address.
e) If a nominated address is unattended or if delivery cannot otherwise be effected or the goods cannot be dispatched due to any act, matter or thing beyond the control of EEW, EEW in its sole discretion may store the goods at the purchaser’s risk and expense or take such other steps as it considers appropriate in the circumstance.
f) EEW reserves the right to refuse to supply goods and/or services under an Agreement if a purchaser is in default of any of its payment obligations under any one or more Agreements. g) EEW may supply goods and/or services in instalments and these Terms & Conditions of Sale shall apply to each and every supply of goods and/or services.
h) The risk of loss or damage to goods shall pass to the purchaser at the time of delivery. EEW is not liable to the purchaser for any loss or damage or deterioration of the goods after delivery.
i) Any delivery or completion date stated by EEW is to be used as an estimate only. EEW shall make all reasonable efforts to meet any date for supply of goods and/or services agreed between EEW and the purchaser. Where a delay to supply goods and/or services occurs, in no event shall EEW incur any liability for failure to supply goods and/or services by an agreed time.

5. Claims and returns where goods are defective
a) The purchaser may have rights against EEW if the goods and/or services supplied by EEW fail to meet a consumer guarantee under the Australian Consumer Law (“ACL”). This may include the right to a repair, replacement or refund. To the extent permitted by the ACL, EEW’s liability for any such loss or damage shall be, at EEW’s option limited to, the replacement or repair of goods or the cost of such goods to be replaced or repaired.
b) The purchaser must notify EEW in writing within 7 days of delivery if the goods delivered to the purchaser do not match the order.
c) The purchaser must notify EEW immediately in writing of any defect in the goods received. The purchaser may not be entitled to a refund or replacement under the ACL if the good is not rejected within a reasonable period, the purchaser has lost, destroyed or disposed of the good, or the good has been damaged after delivery.
d) Goods may only be returned for credit upon the written agreement of EEW and within 30 days from the date of the original invoice. In all cases the original invoice must be quoted and return freight must be prepaid by the purchaser. All goods returned for credit must be in their original pack and in a re-saleable condition
e) EEW reserves the right to charge 20% of the invoice value as a restocking fee on goods accepted for credit.
f) Goods specifically ordered by EEW for the purchaser will not be accepted for credit unless EEW expressly agrees otherwise.
g) Cable specifically cut by EEW for the purchaser will not be accepted for credit.
h) EEW will only accept goods returned to it for credit by prior agreement or to the extent that goods supplied by EEW do not correspond with the goods ordered by the customer.  Except in the case of goods incorrectly supplied, EEW will refund the purchase price or credit the customer's account (as applicable) with the purchase price of the goods.
i) All goods which are to be returned must be returned within 14 days of the delivery to EEW and must be in their original packaging as purchased/delivered, in its original state, not tampered with and free from all defects.
j)No freight charges will be met by EEW unless prior arrangement has been made in writing with EEW.

6. Warranty and Liability and specific warranties

a) With the exception of non-excludable rights under the Australian Consumer Law or analogous legislation (Consumer Guarantees), EEW excludes: (i) any term, condition or warranty that may otherwise be implied into this Agreement; (ii) any liability for loss or damage incurred as a result of or in connection with the negligence of EEW; and (iii) any liability for consequential loss.
b) Purchaser agrees that, other than a claim pursuant to a Consumer Guarantee: (i) EEW's liability for any cost, expense, loss or damage suffered or incurred by the Purchaser in connection with this Agreement however arising (including, without limitation, from or by the negligence of EEW) shall be limited to 5% of the invoice price of the relevant purchase or purchases; and the Purchaser agrees, regardless of any negligence on the part of EEW, to hold harmless and indemnify EEW from and against all liabilities, claims, damages, loss, cost and expenses of whatever nature which EEW may incur arising out of the supply of the goods to a third party
c) The purchaser confirms that: (i) it has not relied upon any statement made by or on behalf of EEW which has not been expressly included in the Agreement; and (ii) it has made its own assessment of the suitability of the goods or services.
d) All goods purchased from EEW will carry a warranty against defects for 24 months from the date of purchase (“warranty period”).  If the customer wishes to make a claim under this warranty, the defect must appear in the goods within the warranty period. The goods must be paid for in full before any warranty claim can be made. This warranty given by EEW in favour of the purchaser is subject to the goods being returned with a certified compliance certificate (to the satisfaction of EEW) confirming that the goods have been professionally and prudently installed by a licenced installer.
e) Lamps purchased from EEW by the customer are subject to the terms of this warranty in all respects save that the “warranty period” for such lamps is three (3) months from the date of purchase and does not extend to any breakage of such lamps.
f) Should the goods prove to be defective within the limited warranty period EEW will, at its discretion and provided that the defect is not due to the use, or misuse or installation of the goods or from fair wear and tear, replace or repair defective goods free of charge.
g) EEW reserves the right to repair all goods returned under this limited warranty in the first instance. 
h) If the goods returned to EEW (or to its nominated repair agent) under this warranty period are damaged or tampered with in any way, the terms of this warranty will not apply and a charge may apply to the customer for the repair, or investigations in respect, of the goods. 
i) No liability is taken by EEW if the goods are lost, damaged or stolen from EEW’s premises or in transit.  The customer shall be responsible for any transportation costs of the goods to and from EEW’s premises and for insuring the goods whilst in EEW’s possession.

7. Passing of Title and PPSA

a) Notwithstanding that the purchaser has possession of the goods, title to the goods remain with EEW, and no legal or equitable interest in the goods whatsoever will pass to the purchaser, until the full amount for the goods has been paid.
b) Until title passes to the purchaser, the purchaser holds the goods on EEW’s behalf as bailee and acknowledges that a fiduciary relationship exists between EEW and the purchaser.
c) The purchaser may dispose of the goods to a bona fide sub purchaser provided that such disposals are in the ordinary course of the purchaser’s business and that the purchaser assigns to EEW (the assignment being absolute and not by way of security) all monetary proceeds received by or on behalf of the purchaser in respect to the goods.
d) The purchaser agrees that: (i) it holds the proceeds of re-supply of all goods on trust for and as agent for EEW (ii) it must maintain records of all disposals of the goods and must permit inspection of these records by EEW promptly upon request, and (iii) it will indemnify EEW against any claim, action, damage, loss, liability, cost, expense that EEW suffers, incurs or is liable for in respect of EEW’s exercise of its rights under this clause7.
e) The purchaser acknowledges that these Terms & Conditions of Sale create a security interest in all goods supplied to the Personal Property Securities Act 2009 (CTH) (“PPSA”), and that EEW may register a financing statement to perfect its security interest in the goods delivered or to be delivered to the purchaser in accordance with the provisions of the PPSA. f) The purchaser shall provide all information, execution or arrange for execution of all documents and do all other things that EEW may require, to ensure that EEW has a perfected first ranking security interest in the goods under the PPSA.
g) The purchaser waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of EEW under the PPSA to the extent permitted by the PPSA.
h) Until the purchaser has made full payment for goods it shall not without the prior written consent of EEW, create a security interest in the goods or the sale proceeds of the goods to any third party or permit any lien over the goods or the sale proceeds of the goods.

8. Drawings, Documentation, Information and variations

a) Any descriptive and shipping specifications, illustrations, drawings, data, dimensions and weights, either submitted by EEW with a quotation or tender or otherwise provided by EEW to the purchaser, are illustrative and approximate only and do not form part of any Agreement entered into between EEW and the purchaser unless expressly agreed in writing by EEW.
b) Any drawings or other documents submitted and any information supplied by EEW to the purchaser remains the property of EEW and constitutes confidential information of EEW (to the extent that it is not in the public domain) and the purchaser shall keep all such information confidential and shall not use such drawings, documents and information for any purpose other than that stipulated by EEW.
c) EEW reserves the right to, at any time, make such alterations to the specifications, design or construction of goods as EEW shall, at its sole discretion, deem fit, provided that the goods remain of merchantable quality and, only if the customer has reasonably made known to EEW the purposes for which it requires the goods, the goods shall remain sufficient for such purposes.
d) If any goods supplied to the customer are not the same as the samples, photographs or drawings supplied before an order is made (“the variance”) and the variance is no greater than 5% no responsibility will be taken for such occurrence or liability in the event of a cancellation.
e) Where EEW is acting as an agent for a manufacturer or supplier, EEW shall not be liable for any alteration or variation in the goods made by the manufacturer or the supplier.

9. Termination

a) EEW may terminate the Agreement without further notice if the purchaser: i) Is in breach of any term of the Agreement and fails to remedy the breach within 14 days’ notice in writing by EEW specifying the breach and requiring the purchaser to remedy it; ii) Has failed or refused to take delivery of goods and/or services, the subject of the Agreement, and such failure or refusal continues for a period of 14 days after EEW has notified the purchaser that the goods and/or services are ready for delivery, dispatch or supply, as the case may be; or iii) Is declared bankrupt, resolves to go into voluntary administration or liquidation or has a petition for bankruptcy or winding up presented against it or enters into a scheme of arrangement with its creditors or if any liquidator, administrator, receiver or official manager is appointed in respect of the purchaser or if anything analogous occurs in respect of the purchaser.
b) The purchaser must indemnify EEW for any loss or damage EEW suffers or incurs as a result of the termination due to the purchaser’s act or omissions, including but not limited to any costs and expenditure incurred due to the termination.

10. Intellectual Property

a) The supply of goods or services to the purchaser does not constitute a transfer of any intellectual property rights in the goods or services of any part thereof. The purchaser shall not do anything inconsistent with or in infringement of such intellectual property rights including but not limited to the de-compilation, disassembly and re-engineering thereof. b) Where EEW or its contract manufacturer provides the goods or services to the purchaser’s design and specifications the purchaser agrees to indemnify and keep indemnified EEW and its related corporations against all actions, claims, loss, damages, costs and fines that EEW and/or its related corporations may incur or suffer as a result of a claim by a third party that the manufacture and sale by EEW of the goods or any part thereof or the provision of the services infringes any intellectual property right of such third party.

11. Force Majeure

Should EEW be delayed, hindered, or otherwise prevented from complying with the terms of this Agreement by reason of events or circumstances beyond the reasonable control of EEW including but not limited to Acts of God, wars, riots, strikes, lockouts, trade disputes or labour disturbances, breakdown of plant or machinery, accident, storm, fire, flood, difficulties in obtaining materials, transport or labour or any other circumstances affecting the supply of goods or services, then EEW shall not be liable to the purchaser for any loss or damage which may be suffered by the purchaser whether as a direct or indirect result of any such occurrences.

12. Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of South Australia, Australia and parties agree to submit to the exclusive jurisdiction of the courts of South Australia.

Updated:  24 March 2015

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