TERMS & CONDITIONS OF TRADE
1. DEFINITIONS
1.1 ‘ESC’ and ‘Electrical Supply Corp’ shall mean Electrical Supply Corp Limited, or any agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from Electrical Supply Corp.
1.3 ‘Products’ shall mean:
1.3.1 all Products of the general description specified on the front of this agreement and supplied by Electrical Supply Corp to the Customer, and
1.3.2 all Products supplied by Electrical Supply Corp to the Customer, and
1.3.3 all inventory of the Customer that is supplied by Electrical Supply Corp, and
1.3.4 all Products supplied by Electrical Supply Corp and further identified in any invoice issued by Electrical Supply Corp to the Customer, which invoices are deemed to be incorporated into and form part of this agreement, and
1.3.5 all Products that are marked as having been supplied by Electrical Supply Corp or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Electrical Supply Corp, and
1.3.6 all of the Customer’s present and after-acquired Products that Electrical Supply Corp has performed work on or to, or in which goods or materials supplied or financed by Electrical Supply Corp have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 ‘Products’ shall also mean all products, goods, services and advice provided by Electrical Supply Corp to the Customer and shall include without limitation the supply of electrical products and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Products by Electrical Supply Corp to the Customer.
1.5 ‘Price’ shall mean the cost of the Products as agreed between Electrical Supply Corp and the Customer and includes all disbursements e.g. charges Electrical Supply Corp pay to others on the Customer’s behalf subject to clause 4 of this contract.
2. ACCEPTANCE
2.1 Any instructions received by Electrical Supply Corp from the Customer for the supply of Products shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Electrical Supply Corp to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products provided by Electrical Supply Corp to any other party.
3.2 The Customer authorises Electrical Supply Corp to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4. PRICE
4.1 Where no price is stated in writing or agreed to orally the Products shall be deemed to be sold at the current amount as such Products are sold by Electrical Supply Corp at the time of the contract.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Products that is beyond the control of Electrical Supply Corp between the date of the contract and delivery of the Products.
5. PAYMENT
5.1 Payment for Products shall be made in full on or before the 20th day of the month following date of the invoice (‘the due date’).
5.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Electrical Supply Corp in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required.
6. QUOTATION
6.1 Where a quotation is given by Electrical Supply Corp for Products:
6.1.1 Unless otherwise agreed the quotation shall be valid for ninety (90) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary,
6.1.3 Electrical Supply Corp reserve the right to alter the quotation because of circumstances beyond its control.
6.2 Where Products are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Products.
7. RISK
7.1 The Products remain at Electrical Supply Corp’s risk until delivery to the Customer.
7.2 Delivery of Products shall be deemed complete when Electrical Supply Corp gives possession of the Products directly to the Customer or possession of the Products is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to Electrical Supply Corp making time of the essence.
7.4 Where Electrical Supply Corp delivers Products to the Customer by instalments and Electrical Supply Corp fails to deliver or supply one or more instalments, the Customer shall not have the right to cancel the contract but shall have the right to claim compensation as a severable breach.
8. AGENCY
8.1 The Customer authorises Electrical Supply Corp to contract either as principal or agent for the provision of Products that are the matter of this contract.
8.2 Where Electrical Supply Corp enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
9. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1 Title in any Products supplied by Electrical Supply Corp passes to the Customer only when the Customer has made payment in full for all Products provided by Electrical Supply Corp and of all other sums due to Electrical Supply Corp by the Customer on any account whatsoever. Until all sums due to Electrical Supply Corp by the Customer have been paid in full, Electrical Supply Corp has a security interest in all Products.
9.2 If the Products are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Products shall remain with Electrical Supply Corp until the Customer has made payment for all Products, and where those Products are mixed with other property so as to be part of or a constituent of any new Products, title to these new Products shall deemed to be assigned to Electrical Supply Corp as security for the full satisfaction by the Customer of the full amount owing between Electrical Supply Corp and the Customer.
9.3 The Customer gives irrevocable authority to Electrical Supply Corp to enter any premises occupied by the Customer or on which Products are situated at any reasonable time after default by the Customer or before default if Electrical Supply Corp believes a default is likely and to remove and repossess any Products and any other property to which Products are attached or in which Products are incorporated. Electrical Supply Corp shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any whatsoever unless by statute such liability cannot be excluded. Electrical Supply Corp may either resell or repossess Products and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and credit the Customer’s account with the invoice value thereof less such sum as Electrical Supply Corp reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
9.4 Where Products are retained by Electrical Supply Corp pursuant to clause 9.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (‘PPSA’) and to object under s.121 of the PPSA,
9.5 The following shall constitute defaults by the Customer:
9.5.1 Non-payment of any sum by the due date.
9.5.2 The Customer intimates that it will not pay any sum by the due date.
9.5.3 Any Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products.
9.5.4 Any Products in the possession of the Customer are materially damaged while any sum due from the Customer to Electrical Supply Corp remains unpaid.
9.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customer’s assets.
9.5.6 A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days.
9.5.7 Any material adverse change in the financial position of the Customer.
9.6 If the Credit Repossession Act applies to any transaction between the Customer and Electrical Supply Corp, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
10. GENERAL LIEN
10.1 The Customer agrees that Electrical Supply Corp may exercise a general lien against any Products or property belonging to the Customer that is in the possession of Electrical Supply Corp for all sums outstanding under this contract and any other contract to which the Customer and Electrical Supply Corp are parties.
10.2 If the lien is not satisfied within seven (7) days of the due date Electrical Supply Corp may, having given notice of the lien at its option either:
10.2.1 Remove such Products and store them in such a place and in such a manner as Electrical Supply Corp shall think fit and proper and at the risk and expense of the Customer, or
10.2.2 Sell such Products or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
11. DISPUTES AND RETURN OF PRODUCTS
11.1 No claim relating to the Products will be considered unless made within five (5) days of delivery.
11.2 No Products will be accepted for return without prior approval of Electrical Supply Corp.
12. LIABILITY
12.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1956 and other statutes may imply warranties or conditions or impose obligations upon Electrical Supply Corp which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Electrical Supply Corp, Electrical Supply Corp’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
12.2 Except as otherwise provided by clause 12.1 Electrical Supply Corp shall not be liable for:
12.2.1 Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products provided by Electrical Supply Corp to the Customer, and
12.2.2 The Customer shall indemnify Electrical Supply Corp against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Electrical Supply Corp or otherwise, brought by any person in connection with any matter, act omission, or error by Electrical Supply Corp, it’s agents or employees in connection with the Products.
13. WARRANTY
13.1 Manufacturer’s warranty applies where applicable.
13.2 Any warranty that Electrical Supply Corp provide to the Customer will also form part of these terms and conditions of trade.
14. CONSUMER GUARANTEES ACT
14.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products from Electrical Supply Corp for the purposes of a business in terms of section 2 and 43 of that Act.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Electrical Supply Corp agreeing to supply Products and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Electrical Supply Corp the payment of any and all monies now or hereafter owed by the Customer to Electrical Supply Corp and indemnify Electrical Supply Corp against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
16. MISCELLANEOUS
16.1 Electrical Supply Corp shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
16.2 Failure by Electrical Supply Corp to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Electrical Supply Corp has under this contract.
16.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.4 The client shall not assign all or any of its rights or obligations under this contract without the written consent of Electrical Supply Corp.