1.1 “BIG BEAR” means Big Bear Refrigeration Air Conditioning Pty Ltd its successors and assigns or any person and/or entity acting on behalf of and with authority of Big Bear Refrigeration Air ConditioningPty Ltd.
1.2 “Client” means the person/s and/or entity purchasing goods and/or services.
1.3 “Price” means the price for the Goods and/or Services provided by BIG BEAR as agreed between BIG BEAR and the Client.
1.4 “Goods and/or Services” means all Goods and Services supplied by BIG BEAR at the Client’s request to the Client or to any third party designated by the Client to accept goods and/or services from BIG BEAR on the Client’s behalf (where the context so permits the terms Goods or Services shall be interchangeable for the other).
1.5 “Third-Party Trades People” means licensed Electricians, Plumbers, Carpenters, plus any other Third-Party Trades Person(s) that is/are required to complete the work requested by the Client.
1.6 “Materials” means any /and all products and equipment required by BIG BEAR to complete the work required by the Client.
2. Application of provisions
2.1 These conditions supersede all previously agreed terms for the supply of goods and/or services by BIG BEAR and may only be altered by written agreement signed by both BIG BEAR and the Client.
2.2 The placing of an order for goods and/or services, after these conditions have been made available to the Client, will constitute acceptance by the Client Jointly and severally of these terms and conditions as the terms and conditions upon which goods and/or services are rendered to the Client.
3. Pricing. A price as stated in the BIG BEAR Estimation remains in effect for Thirty (30) days from date of issue or otherwise as stated in BIG BEAR estimation and are in AUD (Australian Dollars) ex GST.
3.1 The Client must pay the price for the goods and/or services (including any GST) quoted by BIG BEAR where no price is quoted, the current price (including any GST) charged by BIG BEAR at that time.
3.2 Estimated prices are subject to change. A Purchase Order from a client must be matched to BIG BEAR Estimation.
3.3 BIG BEAR reserves the right to amend the price if:
(a) the Client requests a variation to the Goods and/or Services originally estimated and/or any special instruction or modifications to plans or specifications from the Client. Any and all such changes shall require a separate purchase order from the Client and a revised estimation from BIG BEAR. If BIG BEAR has already commenced procurement of Materials and/or goods against the Client’s original order, then the Client shall be liable to make payment to BIG BEAR for all unused Materials and/or goods from the original order.
(b) any and all unforeseen issues that may impact causing the need for BIG BEAR’s estimation to be adjusted to cover the additional cost of such unforeseen issues.
(c) in the event of increases to BIG BEAR which are beyond BIG BEAR’s control in the cost of taxes, levies, freight and insurances, labour and Materials.
3.4 Hourly rates where applicable shall be advised at time of estimation.
4.1 At BIG BEAR sole discretion a non-refundable deposit may be required upon acceptance of BIG BEAR estimation of an amount equal to no less than ten percent (10%) of the estimated price.
4.2 Payment terms shall be as shown in BIG BEAR’s estimation and may be as follows:
(a) on delivery of Goods and/or Services,
(b) by way of instalments /progress payments in accordance with BIG BEAR payments schedule as detailed on BIG BEAR’s estimation,
(c) the date specified on any invoice as being the due date for payment,
(d) net against invoice,
(e) Seven (7), Fourteen (14), Twenty-One (21), Thirty (30) days from date of invoice,
(f) A payment term that has been negotiated and agreed between the Client and BIG BEAR at the time of the Client making application to BIG BEAR for a Commercial Credit Account.
4.3 Payment may be made by electronic funds transfer (on-line banking) and/or Credit Card. Payment by credit card will attract a surcharge of a minimum of One and a half percent (1.5%). BIG BEAR reserves its right to increase and/or decrease the surcharge rate in line with market fluctuations. BIG BEAR accepts both Mastercard and Visa (cards accepted may vary from time to time at BIG BEAR’s option).
4.4 BIG BEAR shall be protected for payments under Section 13 of the NSW Building and Construction Industry Security of Payment Act 1999 as amended 2002 and any subsequent amendments.
4.5 Unless otherwise stated the price is ex GST. In addition to the price the Client must pay an amount equal to any GST BIG BEAR must pay for the supply by BIG BEAR under this or any other agreement for the sale of Goods and/or Services. The Client must pay GST, without deduction or set off of any other amounts at the same time and on the same basis as the Client pays the Price. The Client must in addition pay any other taxes, duties or levies that may be applicable in addition to the Price except where they are expressly included in the price.
5. Schedules for commencement of services and supply of goods to be purchased and supplied by BIG BEAR on behalf of and to the Client
5.1 On acceptance of BIG BEAR’s estimation BIG BEAR shall advise the Client a proposed date for commencement of work subject to:
(a) the availability of Third-Party Trades People when required;
(b) timely delivery of Materials and/or Goods required to complete the works required by the Client.
5.2 Force Majeure; Neither party shall be held responsible for any delay or failure in performance of any part of any transaction between BIG BEAR and the Client to the extent such delay or failure is caused by events beyond such party’s reasonable control, including, but not limited to such as fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, terrorism, insurrection, sabotage, epidemic, quarantine restriction, labour dispute/Labour shortage, inability to secure Materials, transportation embargo or failure or delay in transport, act or omission (including laws, regulations, disapprovals or failures to approve) of any third person (including but not limited to, subcontractors, customers, government or government agencies). Each party will endeavour to give the other party reasonable notice of delay.
6.1 The risk of damage or loss of Materials and/or Goods passes to the Client on delivery to the Client’s premises and/or installation at the Client’s premises and as such the Client must insure the Goods on or prior to delivery.
6.2 In the event that the Client requests BIG BEAR to leave the Goods and/or Materials at an unattended location or outside the Client’s premises then such Goods shall be left at the Client’s sole risk.
7.1 The Client shall ensure that BIG BEAR or any person and/or entity acting on behalf of and with authority of BIG BEAR has free and clear access to the work site at all times to enable BIG BEAR to undertake the services in accordance with BIG BEAR’s estimation and the Client’s specifications. BIG BEAR shall not be liable for any loss or damage to the site (Including, without limitation, damage to pathways, driveways and concreted or paved or grass areas) unless due to the negligence of BIG BEAR.
8. Compliance to Laws
8.1 The Client and BIG BEAR shall comply with the provisions of all regulations, statutes and bylaws of government, local and other public authorities that may be applicable to the Services.
8.2 The Client and BIG BEAR shall comply with all State and Territory laws and the laws of The Commonwealth of Australia.
8.3 The Client shall be responsible for obtaining (at the Client’s expense) all licenses, approvals and permits that may be required for the services.
8.4 The Client agrees that the site will be fully compliant with any work health and safety laws relating to building and construction sites plus any other relevant safety standards or legislation.
9.1 It is agreed by BIG BEAR and the Client that ownership of the Goods shall not pass until
(a) the Client has paid all monies owing to BIG BEAR and
(b) the Client has met all its other obligations to BIG BEAR.
9.2 Payments shall not be deemed to have been received until that form of payment has been honoured, cleared or recognised by BIG BEAR.
9.3 It is further agreed by the Client and BIG BEAR that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 the client is only a bailee of the Goods and must return the Goods to BIG BEAR on request,
(b) the client holds the benefit of the insurance of the Goods in trust for BIG BEAR and in the event the of the Goods being lost, damaged or stolen, the Client must pay to BIG BEAR the proceeds of any insurance,
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. In the event that the Client disposes, sells or parts with possession of the Goods then the Client must hold the proceeds of any and/all such action in trust for BIG BEAR and must pay or deliver the proceeds to BIG BEAR on demand,
(d) the Client irrevocably authorizes BIG BEAR without impediment to enter any premises where BIG BEAR believes the Goods are located and recover possession of the Goods,
(e) BIG BEAR reserves the right to recover possession of any Goods in Transit regardless of whether delivery has occurred or not,
(f) the Client shall not charge or grant an encumbrance over the Goods nor grant or give away any interest in the Goods while they remain the property of BIG BEAR,
(g) BIG BEAR may commence proceedings to recover the Price of the Goods sold not withstanding that ownership has not passed to the Client.
10. Personal Property securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement and security interest have the meaning designated to it by the PPSA.
10.2 The client by agreeing to these terms and conditions acknowledges that these terms and conditions constitute a security agreement for the purpose of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by BIG BEAR to the Client.
10.3 The Client commits to:
(a) Sign and complete any further documents promptly and/or provide additional information that BIG BEAR may reasonably require to:
(i) register a financing statement or financing changes statement in relation to a security interest on the Personal Property Securities Register,
(ii) register any other documents that may be required to be registered by the Personal Property Securities Register.
(b) Indemnify, and on demand by BIG BEAR reimburse BIG BEAR for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA 2009 or releasing any Goods change thereby,
(c) not registering a financing change statement in respect of a security interest without the prior written consent of BIG BEAR,
(d) not register, or permit to be registered, a financing statement or a financing change in relation to the Goods in favour of a third party without the prior written consent of BIG BEAR,
(e) immediately advise BIG BEAR of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 Both BIG BEAR and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their right to receive notices under section 95, 118, 121(4), 130, 132(3) (d) and 132 (4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed in writing by BIG BEAR, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by BIG BEAR under clauses10.3 to 10.5
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Charge and Security
11.1 In consideration of BIG BEAR agreeing to supply the Goods and/or Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either currently or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies BIG BEAR from and against all BIG BEAR costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising BIG BEAR rights under this clause.
11.3 The Client irrevocably appoints BIG BEAR and each director of BIG BEAR as the Clients true and lawful attorneys to perform all necessary acts to give effect to the provisions of this Clause11 including, but not limited to, signing any documents on the Client’s behalf.
12. Competition and Consumer Act 2010 (“CCA”) Defects, Warranties and Returns.
12.1 Nothing in these Terms and Conditions is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
13. Intellectual Property
13.1 The Client warrants that all designs, specifications or instructions given to BIG BEAR will not cause BIG BEAR to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify BIG BEAR against any action taken by a third party against BIG BEAR in respect of any such infringement.
13.2 Where BIG BEAR has designed, drawn, developed, manufactured or developed, systems, goods and/or services for the Client, then the copyright in any designs, drawings, manufactured product, systems and documents relating to the said goods and/or services shall remain the property of BIG BEAR without exception.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of Payment, at the rate of two and a half percent (2.5%) per calendar month (and at BIG BEAR sole discretion such interest shall compound monthly at such rate) after as well as before any judgment.
14.2 If the Client owes BIG BEAR any money the Client shall indemnify BIG BEAR from and against all cost and disbursements incurred by BIG BEAR in recovering the debt (including but not limited to internal administration fees, debt recovery agency fees, legal cost on a solicitor and own client basis, court cost, BIG BEAR contract default fee, and bank dishonor fees).
14.3 Without prejudice to any other remedies BIG BEAR may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions BIG BEAR may suspend or terminate the supply of Goods to the Client. BIG BEAR will not be liable to the Client for any loss or damage the Client suffers because BIG BEAR has exercised its rights under this clause.
14.4 Without Prejudice to BIG BEAR’s other remedies at law BIG BEAR shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BIG BEAR shall, whether or not due for payment become immediately payable if:
(a) any money payable to BIG BEAR becomes overdue, or in BIG BEAR opinion the Client will be unable to make a payment when it falls due,
(b) the Client becomes insolvent, convenes a meeting with its creditors, or makes an assignment for benefit of its creditors, or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. Cancellations and delays
15.1 BIG BEAR may cancel any estimation and/or contract to which these terms and conditions apply or cancel any delivery at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving notice BIG BEAR shall repay to the Client any Money paid by the Client for the Goods and/or Services. BIG BEAR shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels and/or postpones delivery of the Goods and/or Services, the Client shall be liable for any and all loss incurred (whether direct or indirect) by BIG BEAR as a direct result of the cancellation and /or postponement (including, but not limited to, any loss of profits).
15.3 In the event the Client cancels and/ or postpones the date of commencement of work less than seventy two (72) hours prior to the proposed date of commencement of work and that BIG BEAR is unable to find alternative work for BIG BEAR’s workers and/or Sub-Contractors then the Client shall be liable to cover the employees cost at a rate of an amount equal to and not less than eight hundred dollars ($800.00) per employee per day.
15.4 In the event that BIG BEAR employees and/or Sub-Contractors arrive on site and find that the Materials that have been arranged for delivery by the Client and have not arrived on site but are due to be delivered within that day then BIG BEAR reserves the right to charge the Client an hourly rate for waiting time of not less than one hundred dollars ($100.00) per hour or part thereof per employee and/or Sub-Contractor.
15.5 Cancellation of orders for Goods made to the Client’s specifications will definitely not be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1 The Client agrees for BIG BEAR to obtain from a credit reporting agency credit report containing personal credit information about the Client in relation to credit provided by BIG BEAR.
16.2 The Client agrees that BIG BEAR may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit reporting agency for following purposes:
(a) to assess an application by the Client, and/or
(b) to notify other credit providers of a default by the Client, and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in Default with other Credit providers, and/or
(d) to assess the creditworthiness of the Client.
17. The Client understands that the information exchanged can include anything about the Client’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.1 The Client consents to BIG BEAR being given a consumer credit report to collect overdue payment on Commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.2 The Client agrees that personal credit information provided may be used and retained by BIG BEAR for the following purposes (and for other purposes as shall be agreed between the Client and BIG BEAR or required by law from time to time),
(a) the provision of Goods, and/or
(b) the marketing of Goods by BIG BEAR, its agents or distributors, and/or status in relation to the provision of the Goods, and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods, and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and/or
(e) enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.3 BIG BEAR may give information about the Client to a credit reporting agency for the following purposes
(a) to obtain a consumer credit report about the Client,
(b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.4 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number).
(b) details concerning the Client’s application for credit or commercial credit and the amount requested,
(c) advice that BIG BEAR is a current credit provider to the Client,
(d) advice of any overdue accounts, loans repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt recovery action has been commenced,
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies in respect of any default that has been listed,
(f) information that, in the opinion of BIG BEAR, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations),
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more have been dishonored more than once,
(h) that credit provided to the Client by BIG BEAR has been paid or otherwise discharged.
18.1 The failure by BIG BEAR to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BIG BEAR‘s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 BIG BEAR complies fully with Australian Standards and all government acts stated in these terms and conditions and shall comply with all subsequent amendments, alterations, additions and deletions in relation to those acts in the future.
18.3 Subject to clause 12 BIG BEAR shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit suffered by the Client arising out of a breach by BIG BEAR of these terms and conditions (alternatively BIG BEAR’s liability shall be limited to damages which under no circumstances shall exceed the price of the Goods).
18.4 The Client shall not be entitled to offset against, or deduct from the price, any sums owed or claimed to be owed to the Client by BIG BEAR nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 BIG BEAR may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 The Client agrees that BIG BEAR may amend these terms and conditions at any time; If BIG BEAR makes a change to these terms and conditions, that change will take effect from the date on which BIG BEAR notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for BIG BEAR to provide Goods and/or Services to the Client.
18.7 The Client acknowledges that BIG BEAR is entitled to presume that any person forwarding instructions from the Client’s office and/or place of business purporting to have the authority to bind the Client to a contract for the supply and delivery of goods and/or Services from BIG BEAR, has the authority they claim.
18.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.
18.9 If the Clients are a Trustee, the Directors warrant that they have the authority and power to enter transactions on behalf of the Trust and personally indemnify BIG BEAR and personally guarantee the performance of all of the Trust’s obligations.
18.10 The Client shall give BIG BEAR not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact Phone, Facsimile number email address, or business practice). The Client shall be liable for any loss by BIG BEAR as a result of the Client’s failure to comply with this clause.
18.11 These terms and conditions and any contract to which they apply shall be governed by the laws of NSW (New South Wales) in which BIG BEAR has its principal place of business and are subject to the jurisdiction of the courts in Parramatta NSW.