P & R ELECTRICAL WHOLESALERS PTY LTD
ABN 27 007 820 868 – ACN 007 820 868

INTERPRETATION:

“charge month” means, unless otherwise agreed by you and us, the calendar month following the delivery of goods;

“consumer” means a person who is taken to be a consumer under section 4B of the CCA;

“CCA” means the Competition and Consumer Act 2010 (Cth);

“force majeure event” means an event or circumstance which a party did not cause; to which that party did not materially contribute; and which that party is unable to prevent or materially influence;

“GST” means the Goods and Services Tax assessable under the GST Law; “GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all administrative rulings;

“the parties” means both you and us;

“the goods” shall include any electrical component, electrical products, electrical related products or components, and any other products or components supplied by us to you and, where the context permits or requires it, includes services supplied by us to you;

“these conditions” means all the terms and conditions of sale that comprise this document;

“we”, “us”, “our” each mean the supplier of goods, P. & R. Electrical Wholesalers Pty Limited ABN 27 007 820 868 (P&R) of 603 North East Road, Gilles Plains SA 5086 (which can be contacted on 08 8369 9000) including its subsidiaries (including but not limited to Electricalxpress Pty Ltd ACN 111 999 636), contractors, servants, agents and employees; and

“you”, “your” each mean the person or company to whom the goods are supplied including that person’s or company’s employees, contractors, servants and/or agents.

In these conditions, unless the contrary intention appears:

  • any legislation includes any subordinate legislation and amendments; and
  • a clause is a clause of these conditions.

1.   GENERAL

  • Unless otherwise agreed in writing by you and us, and subject always to the requirements of relevant legislation, these conditions apply to all contracts of sale between you and us.
    • Your acceptance of the goods will be conclusive evidence that these conditions bind you and us.
    • Where we give you a quotation, these conditions apply, so far as the context permits, to any transaction conducted after you accept the quotation or you and we agree in writing to any variations to the quotation.
    • We may assign our rights under these conditions without your consent. You may not assign your rights under these conditions without our prior written consent.
    • A waiver by us of any of our rights under these conditions must be in writing and does not prejudice our rights in respect of any subsequent breach of these conditions by you. A failure or delay in enforcing a right under these conditions does not constitute a waiver.
    • Any provision of, or the application of any provision to, these conditions or a right, power, authority, discretion or remedy of a party under these conditions that is prohibited in any jurisdiction is ineffective only to the extent of that prohibition.
    • If any part of these conditions is or becomes void, illegal or unenforceable, that part will be severed from these conditions and does not affect the validity of the remaining provisions of these conditions.
    • We may vary these conditions at any time. You will be notified of any variations in writing.
    • We reserve the right to contact you only by electronic methods, and are under no obligation to provide postal correspondence.

2. PRECEDENCE

These conditions, to the extent of any inconsistency, prevail over the provisions contained in any other agreement between the parties.

3. GOVERNING LAW

  • These conditions are governed by, and are to be construed in accordance with, the laws of the State of South Australia and the parties submit to the non- exclusive jurisdiction of the courts in that State.
  • Each and every contract of sale between the parties to which these conditions apply is made in the State of South Australia.

4.YOUR ACCOUNTABILITY

  • If you are a company, we reserve the right to request an indemnity and/or personal guarantee from your directors.
    • We deem each and every purchase made on this account as a declaration of solvency.

5. VALIDITY

Where these conditions form part of a quotation:

  • Our quotation is not an offer. A contract of sale arises out of our acceptance of your order, and we reserve the right to reject any orders received.
    • Any delivery time quoted is an estimate only.
    • The quotation is subject to alteration or withdrawal at any time by us in writing.
    • The quotation will only be valid for 30 days from its date.
    • The quotation is based on information and plans provided by you at the time of your first request for a quotation;
    • If we accept your order arising from our quotation, such that there is a contract of sale then:
      • any variations to the contract must be agreed to by us in writing;
      • any variations to the contract will modify the costings provided in our quotation and you will be liable to pay any additional costs arising from the variation.
      • you are liable to pay for the goods listed in our quotation;
      • we reserve the right to request a part/progress payment or a deposit at the commencement of the contract of sale.
    • Unless otherwise agreed in writing between you and us, the prices quoted do not include GST or any other Government imposts and charges which will be payable by you.

6. INFORMATION AND DRAWINGS

  • All descriptive specifications, illustrations, drawings, data, dimensions and weights given to you are approximate only, are intended to be general descriptions only, and do not form grounds for any claim against us.
    • Descriptions, illustrations and performances contained in catalogues, price lists, and other advertising matter do not form part of the contract of sale.
    • Where you supply specifications, drawings or other particulars, our quotation is calculated on estimates of quantities required. If adjustments to this estimate are necessary, the quotation will be adjusted proportionally.

7.  SPECIAL BUY-IN GOODS ORDERED BY YOU

  • Where you order any item/s from us that we do not have in stock, such that we are required to order the item/s from a third party, that order is non-cancellable and you remain liable to pay for the item/s once you have made the order.
    • Where you wish to make a claim for a special buy-in item supplied to you by us, it is subject to clause 15.

8. DELIVERY

  • We accept no responsibility either to deliver or to load goods at the point of dispatch, and the cost of transport to the address you nominate for delivery (“your site”) is at your expense.
    • We are deemed to have delivered the goods as soon as you are notified they are ready for delivery, at which point risk, and liability for loss and damage, is deemed to have passed to you, and payment is due in accordance with these conditions.
    • If we elect to arrange delivery, it is at your cost and risk. However, if we elect in writing to assume responsibility for the transport of the goods, we shall at our option repair or replace free of charge any of the goods lost or damaged in transit to your site, provided we are given written notice of such loss or damage within 3 days of delivery or within such shorter time as to enable us to comply with the carrier’s conditions of carriage.
    • We are not responsible for unloading the goods at your site.
    • Any delivery or completion dates or times stated are estimates only and we shall not be held liable for any consequences whatsoever, including loss and damage, for any delay, suspension or extension to such times.
    • Where applicable, delivery will be made in accordance with a written delivery schedule, mutually agreed with you at the time of placing the order.
    • Unless amendments to the delivery schedule are given by you in sufficient time to alter the production program and we have agreed such amendments in writing we reserve the right to continue to deliver according to schedule.
    • We are deemed to have delivered the goods if we obtain a receipt or signed delivery docket for the goods from any person at your site and payment is due accordingly.
    • You are deemed to have waived any claim for shortage of any goods delivered if such a claim has not been lodged with us in writing within 3 days from the date of delivery of the goods.
    • If you are unable to accept deliveries at your site, at your risk and expense, we may elect to either deliver the goods to your store (or any one of your stores, if you have more than one store) or place the goods in storage. In either event, delivery is deemed to have occurred at your site and payment is due in accordance with these conditions.
    • All charges relating to storage, insurance, handling, and subsequent delivery to your site or your store (or any one of your stores, if you have more than one store) will be charged directly to your account.
    • We may elect to supply goods in instalments and these conditions shall apply to each supply of goods by instalments as if each instalment constitutes supply under a separate agreement, and in particular, you will pay us for each instalment of goods so supplied irrespective of any failure or delay in the supply of any other instalment of goods.
    • We reserve the right to refuse to deliver/supply any goods if you have any monies outstanding beyond the date for payment on any account with us.

9. PRICES

All prices and price lists are subject to change without notice and goods will be sold at prices applying on the date of invoice. Prices include packing in accordance with our standard practice. Any additional packing or packing material requested by you or deemed necessary by us will be charged for in addition to the price quoted.

10.  GST AND GOVERNMENT IMPOSTS

  • Any government imposts and charges which may be incurred, become payable or are claimed against us in respect of the goods or a transaction between you and us relating to the goods will be charged to your account and we are able to recover the amount from you on demand.
    • If the supply of any goods by us to you is a taxable supply for the purposes of the GST Law, then:
      • you must pay to us the amount of GST payable in respect of those goods in addition to any amount or consideration otherwise payable for the goods; and
      • provided we deliver a tax invoice to you in respect of the supply of the goods by us the amount of GST payable in respect of the goods is payable by you to us on demand.

11. TERMS OF PAYMENT

  • 11.1.        All prices quoted are strictly net and the purchase price of the goods shall be payable before the 30th day of the charge month unless other terms of payment are expressly stated on the invoice to which the goods relate.
    • 11.2.        If we do not receive payment in accordance with clause 11.1 we may charge interest on the overdue amount at the rate of 12% per annum, calculated from the date of the invoice to the actual date of full and final payment (compound interest). Any payment made by you will be credited first against interest accrued.
    • All costs incurred by us relating to any action taken by us to recover monies due from you, (including without limitation, legal or other debt collection costs) will be payable by you on demand in addition to any amounts owed by you to us.
    • We may at any time in our sole discretion combine the amount payable to us for the goods with any other account between you and us or otherwise effect any set off without notice and no agreement to the contrary shall arise by implication. You must not set-off any amounts we owe you against any amounts you owe us.
    • You may pay by cash, cheque, credit card, debit card, BPAY, EFTPOS, Internet banking, direct deposit or direct debit.
    • You are deemed to have paid only when your payment is fully available and cleared in our bank account for us to use at our discretion.
    • Subject to clause 11.2, any payment by you will be credited first against your oldest overdue amount.


12.CREDIT CARD PAYMENT PROCESSING FEE

  • We reserve the right (in our sole discretion) to charge a credit card payment processing fee on payments made via Diners Club, MasterCard, American Express (Amex), or Visa credit or debit cards (“card”).
    • For 30 day accounts holders – if you pay your invoice(s) in full on or before the 15th day of the charge month, we will not charge any fees. If you pay your invoice(s) using a card on or after the 16th day of the charge month we reserve the right to charge the following:
      • for payments by Diners Club or American Express credit or debit cards, 2.65% of the amount(s) paid; and
      • for payments by Visa or MasterCard credit or debit cards, 1.65% of the amount(s) paid
    • For 60 day accounts holders, if you pay your invoice(s) in full on or before the 30th day of the charge month, we will not charge any fee. If you pay your invoice(s) using a card after the 30th day of the charge month we reserve the right to charge the following:
      • for payments by Diners Club or American Express credit or debit cards, 2.65% of the amount(s) paid; and
      • for payments by Visa or MasterCard credit or debit cards, 1.65% of the amount(s) paid
    • We may invoice you for a fee separately to the goods.
    • Any fee payable by you to us under this clause 12 is in addition to any other fee or charge we may add to your account. For example, we may charge you interest on outstanding amounts in accordance with these conditions in addition to the fee.
    • If we decide to introduce a fee other than or in addition to the fee described in this clause 12, we will notify you in writing at least 14 days before its introduction.

13. LIMITATION OF LIABILITY

  • These conditions do not, and no provision in these conditions will or purports to exclude, restrict or modify or have the effect of restricting, excluding or modifying:
    • the application in relation to the supply of goods and/or services under the CCA;
    • the exercise of any right conferred by any such provision; or
    • any liability of us for breach of conditions or warranty implied by any such provision.
  • To the extent permitted by law, all express or implied conditions, warranties, representations or remedies relating to the provision of goods or services pursuant to these conditions are excluded.
  • If a law implies or imposes a condition or warranty which cannot be excluded but in respect of which liability can be limited, our liability to you for breach of that condition or warranty is limited to, at our option:
      • in the case of goods:
        • replacing the goods or supplying equivalent goods;
        • repairing the goods;
        • paying for the cost of replacing the goods or buying equivalent goods; or
        • paying for the cost or repairing the goods, and
      • in the case of services:
        1. supplying the services again; or
        1. paying for the cost of supplying the services again.
  • If you are not a consumer, our liability for any defect or damage in the goods is:
      • limited to the value of any express warranty provided to you by us in our sole discretion;
      • limited to any warranty to which we are entitled, if we did not manufacture the goods; or
      • otherwise negated absolutely.
  • Subject to the CCA, we will not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • you failing to properly maintain or store any goods;
      • you using the goods for any purpose other than that for which they were designed;
      • you continuing the use of any goods after the defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • you failing to follow any instruction or guidelines provided by us;
      • fair wear and tear; and/or
      • any force majeure event.
  • In the case of second hand goods, unless you are a consumer, you acknowledge that you have had the opportunity to inspect the second hand goods prior to delivery and accept them with all faults and that to the extent permitted by law no warranty is given by us as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. You acknowledge and agree that we have agreed to provide you with second hand goods and calculated the price of the second hand goods in reliance on this clause.
  • If you are a consumer, and you wish to make a claim for damaged or defective goods under a warranty implied by law, you must:
    • notify us in writing (by giving such notice to our registered office) of any defect or damage to goods, detailing how the goods are damaged within 2 days of receiving the goods; and
    • bear the expense of claiming against any warranty (unless we must bear such expense by law, and in such case you must give us an itemised account of those expenses).
  • If you are a consumer, the benefits to you given by the statutory warranty under the CCA are in addition to other rights and remedies of yours under a law in relation to the goods to which the warranty relates.
  • If you are a consumer, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

14.  TERMINATION OF CONTRACT

  • We are entitled to immediately terminate any contract of sale if:
    • you are in breach of any of these conditions;
    • execution is levied on you property; or
    • you are declared bankrupt, resolve to go into liquidation or have a petition for bankruptcy or winding up presented against you or you enter into a scheme of arrangement with your creditors, or if any liquidator, provisional liquidator, administrator, receiver, receiver and manager or official manager is appointed in respect of you or if anything analogous occurs.
    • On termination of any contract of sale, any and all amounts owed by you to us become immediately due and payable.
    • If you have purchased goods from us and have not paid for them in full, you must pay all amounts due to us in respect of those goods or return the goods to us in satisfaction of the unpaid amount you still owe us.
    • All accounts are expected to have minimum purchases of $500 per month, if an account falls below this over a 12 month period, we reserve the right to cancel your credit account without notice and provide goods on a cash sale bases.
    • If your account remains inactive for a period of 12 months or more we reserve the right to remove your credit facilities without notice.

15. GOODS RETURNED FOR CREDIT

  • We will not consider a claim in relation to damaged goods or shortage of length, quantity or weight unless notified in writing within 3 days of delivery.
    • We may allow credit at our sole discretion, but in any event we will not accept goods for credit after the expiry of 30 days from the date of the original invoice relating to the goods to be returned if you have a credit account with us and 14 days if you do not have a credit account with us.
    • “Special buy-ins” will be subject to the manufacturer’s and/or supplier’s conditions and fee structure.
    • We reserve the right to charge a restocking fee on goods accepted for credit.
    • In all cases of returning goods for credit, you must quote the original invoice or delivery docket and you must prepay return freight.
    • Goods returned for credit must be accompanied by the original invoice or delivery docket and must be in the original pack and in a completely resalable condition.

16.  RETENTION OF TITLE AND PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)

  • You agree that property in the goods shall not pass until all monies due to us by you are paid in full.
    • You intend to and do grant a purchase money security interest in the goods (and their proceeds) as security for payment of the purchase price in the goods and a general security interest in the goods (and their proceeds) that you have paid the purchase price for.
  • You must:
      • provide any further documents and/or provide further information, such information to be complete, accurate and up-to-date in all respects, which we may reasonably require to register a financing statement or financing change statement on the PPSA register;
      • indemnify, and upon demand, reimburse us for all expenses incurred in registering a financing statement or financing change statement on the PPSA register;
      • give us not less than 14 days prior written notice of any proposed change in your details, including but not limited to, changes in address, company name and/or contact details.
  • Unless otherwise agreed to by us in writing, neither you, nor we, shall disclose to an interested person information pertaining to our purchase money security interest or general security interest.
  • You waive your right to receive a verification statement under section 157 of the PPSA.
  • You agree, pursuant to section 115 of the PPSA and to the fullest extent permitted by law, you shall have no rights to receive:
      • a notice of removal of accession;
      • a notice of disposal of collateral;
      • a statement of account where there is no disposal of collateral; or
      • a notice of retention of collateral.
  • The parties agree that these conditions constitute a security agreement for the purposes of the PPSA.
  • It is further agreed, without prejudice to our rights under the PPSA, that:
      • until such time as ownership of the goods shall pass from us to you, we may give notice in writing to you to return the goods or any portion of them to us. Upon providing such notice, your rights to obtain ownership or any other interest in the goods shall cease;
      • if you fail to return the goods to us after being given notice to do so, then we may enter upon any premises owned, occupied or used by you, as your invitee, where the goods are reasonably thought to be situated and take possession of the goods, without being responsible for any damage thereby caused.
  • You are only a bailee of the goods and until such time as we have received payment in full for the goods then you shall hold any proceeds from the sale or disposal of the goods on trust for us in a separate account.
  • You shall not deal with the proceeds held in trust in any way which may be adverse to us.
  • Receipt by us of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then our ownership or in respect of the goods shall continue.
  • You shall not charge the goods in any way nor grant nor otherwise give any interest in the goods while they remain our property.
  • We may require payment of the price or the balance of the price due together with any other amounts due from you to us arising out of these terms and conditions, and we may take any lawful steps to require payment of the amounts due.
  • We can issue proceedings to recover the price of the goods sold notwithstanding that ownership of the goods may not have passed to you.
  • If there is, or it is reasonably expected there will be, a substantive change in your ownership, management, or legal entity, you must notify us immediately in writing and complete a new application form. Until such notification is received, we reserve the right to maintain any liability against you.

17. PRIVACY

  • 17.1 We are subject to the Privacy Act (1988), the Australian Privacy Principles and the Credit Reporting Privacy Code. That policy sets out: (1) the information about you that we collect and hold; (2) why we collect and hold it and for what purposes it is used; (3) how you may access the personal information, seek any correction of the information, (4) how you may complain about a failure of us to comply with the Privacy Act and the above Code, (5) how we will deal with the complaint and (6) information about credit reporting, including the credit reporting bodies we may disclose your credit information to. As set out in our privacy policy, we are likely to provide the personal information supplied by you to a credit reporting body (Veda Advantage Ltd and/or Dun & Bradstreet (Australia) Pty Ltd and/or CreditorWatch Pty Ltd). The information and matters that are notified to a credit reporting body are set out in our privacy policy and includes: information that identifies you (for example, legal name, address, date of birth, driver’s licence and contact details); trade reference details and information; payment defaults in relation to certain debts; and, any serious credit infringements. The privacy policy also sets out your rights to access the information and make requests to credit reporting bodies not to use or disclose the personal information in certain circumstances.

18.    FORCE MAJEURE

We are deemed not to be in default or breach of any contract or these conditions as a result of a force majeure event.