Big Man Plumbing

Big Man Plumbing Services Pty. Ltd. Terms & Conditions

1. Definitions

1.1 “BPS” means Bigman Plumbing Services Pty Ltd (as trustee for Sam Stafford Family Trust) T/A Bigman Plumbing Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Bigman Plumbing Services Pty Ltd (as trustee for Sam Stafford Family Trust) T/A Bigman Plumbing Services Pty Ltd.

1.2 “Customer” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.

1.3 “Works” means all Works or Materials provided by BPS to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.4 “Price” means the Price payable for the Works as agreed between BPS and the Customer in accordance with clause 4 below.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts provision of, any Works.

2.2 These terms and conditions may only be amended with BPS’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and BPS.

2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Change in Control

3.1 The Customer shall give BPS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by BPS as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

4.1 At BPS’ sole discretion the Price shall be either:
(a) as indicated on invoices provided by BPS to the Customer in respect of Works provided; or
(b) BPS’ quoted Price (subject to clause 4.2) which shall be binding upon BPS provided that the Customer shall accept BPS’ quotation in writing within thirty (30) days.

4.2 BPS reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable designs, plans and/or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring/cabling, etc.) which are only discovered on commencement of the Works; or
(d) in the event of increases to BPS in the cost of labour or Materials, which are beyond BPS’ control.

4.3 At BPS’ sole discretion, a deposit may be required prior to commencement of the Works.

4.4 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by BPS, which may be:
(a) on completion of the Works;
(b) by way of instalments/progress payments in accordance with BPS’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by BPS.

4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card, or by any other method as agreed to between the Customer and BPS.

4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to BPS an amount equal to any GST BPS must pay for any provision of Works by BPS under this or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5. Provision of the Works

5.1 Subject to clause 5.2, it is BPS’ responsibility to ensure that the Works start as soon as it is reasonably possible.

5.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that BPS claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond BPS’ control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify BPS that the site is ready.

5.3 BPS may provide the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.4 Any time specified by BPS for provision of the Works is an estimate only and BPS will not be liable for any loss or damage incurred by the Customer as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Works to be provided at the time and place as was arranged between both parties. In the event that BPS is unable to provide the Works as agreed solely due to any action or inaction of the Customer then the Customer shall be liable to pay BPS liquidated damages to cover any loss incurred by BPS.

6. Risk

6.1 BPS shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

6.2 BPS shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, BPS accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

6.3 The Customer acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipe work and therefore where BPS is requested to merely clear such blockages, BPS can offer no guarantee against reoccurrence or further damage. In the event of collapse during the pipe clearing process, BPS will immediately advise the Customer of the same and shall provide the Customer with an estimate for the full repair of the damaged pipe work.

6.4 The Customer acknowledges and agree that where BPS has performed temporary repairs that:
(a) BPS offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) BPS will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required.

6.5 The Customer acknowledges that:
(a) BPS is only responsible for components that are replaced by BPS and does not at any stage accept any liability in respect of previous goods and/or services supplied by any other third party that subsequently fail and found to be the source of the failure;
(b) where the Customer has supplied goods for BPS to complete the Works, the Customer acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those goods; and
(c) BPS shall not be liable for any loss or damage to the Works (or any part thereof) howsoever arising where sub-clauses (a) and (b) applies.

6.6 The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and that any plumbing connections (including, but not limited to, pipes, couplings and valves) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing or dangerous access to crawl spaces or the roof) that BPS, or BPS’ employees, reasonably form the opinion that the Customer’s premises is not safe for the Works to proceed then BPS shall be entitled to delay the provision of the Works (in accordance with the provisions of clause 5.2 above) until BPS is satisfied that it is safe for the installation to proceed.

7. Access

7.1 The Customer shall ensure that BPS has clear and free access to the work site at all times to enable them to undertake the Works. BPS shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of BPS.

8. Compliance with Laws

8.1 The Customer and BPS shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

8.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.

9. Underground Locations

9.1 Prior to BPS commencing the Works the Customer must advise BPS of the precise location of all underground services on the work site and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the work site.

9.2 Whilst BPS will take all care to avoid damage to any underground services the Customer agrees to indemnify BPS in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.

10. Title

10.1 BPS and the Customer agree that the Customer’s obligations to BPS for the provision the Works shall not cease (and ownership of the Materials shall not pass) until:
(a) the Customer has paid BPS all amounts owing to BPS; and
(b) the Customer has met all other obligations due by the Customer to BPS in respect of all contracts between BPS and the Customer.

10.2 Receipt by BPS 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 BPS’ ownership or rights in respect of the Materials, and this agreement, shall continue.

10.3 It is further agreed that, until ownership of the Materials passes to the Customer in accordance with clause 10.1:
(a) the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to BPS on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for BPS and must pay to BPS the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed. The production of these terms and conditions by BPS shall be sufficient evidence of BPS’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with BPS to make further enquiries.
(c) unless the Materials have become fixtures the Customer irrevocably authorises BPS to enter any premises where BPS believes the Materials are kept and recover possession of the Materials.
(d) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of BPS.
(e) BPS may commence proceedings to recover the Price notwithstanding that ownership of the Materials has not passed to the Customer.

11. Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

11.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials that have previously been provided, and that will be provided in the future, by BPS to the Customer.

11.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which BPS may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii); (b) indemnify, and upon demand reimburse, BPS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of BPS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of BPS.

11.4 BPS and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

11.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by BPS, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Customer shall unconditionally ratify any actions taken by BPS under clauses 11.3 to 11.5.

11.9 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.

12. Security and Charge

12.1 In consideration of BPS agreeing to provide the Works, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

12.2 The Customer indemnifies BPS from and against all BPS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BPS’ rights under this clause.

12.3 The Customer irrevocably appoints BPS and each director of BPS as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Customer must inspect the Works on completion and must within seven (7) days of such time notify BPS in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or estimate. The Customer must notify any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow BPS to inspect and/or review the Works provided.

13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non- Excluded Guarantees”).

13.3 BPS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, BPS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Works. BPS’ liability in respect of these warranties is limited to the fullest extent permitted by law.

13.5 If the Customer is a consumer within the meaning of the CCA, BPS’ liability is limited to the extent permitted by section 64A of Schedule 2.

13.6 If BPS is required to rectify, re-provide, or pay the cost of re-providing the Works under this clause or the CCA, but is unable to do so, then BPS may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works which have been provided to the Customer which were not defective.

13.7 If the Customer is not a consumer within the meaning of the CCA, BPS’ liability for any defect or damage in the Works is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by BPS at BPS’ sole discretion;
(b) limited to any warranty to which BPS is entitled, if BPS did not manufacture the Materials;
(c) otherwise negated absolutely.

13.8 Notwithstanding clauses 13.1 to 13.7 but subject to the CCA, BPS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store the Works;
(b) the Customer using the Works for any purpose other than that for which they were designed;
(c) the Customer continuing to use the Works after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Customer or any third party without BPS’ prior approval;
(e) the Customer failing to follow any instructions or guidelines provided by BPS;
(f) fair wear and tear, any accident, or act of God.

13.9 Notwithstanding anything contained in this clause if BPS is required by a law to accept a return then BPS will only accept a return on the conditions imposed by that law.

14. Intellectual Property

14.1 Any designs, drawings, plans, schedules, specifications and technical data submitted or made available to the Customer by BPS, or Materials created for the Customer by BPS, shall remain the property of BPS and:
(a) the copyright in all such shall remain vested in BPS, and shall only be used by the Customer at BPS’ discretion; and
(b) the Customer shall be liable to BPS for any loss, damage, cost or expense incurred by BPS as a result of any unauthorised use or disclosure by the Customer of any such drawings, specifications and technical data.

14.2 BPS shall not be liable in respect of any claim which may be made against BPS for infringement of any letters, patent, registered design or copyright which may arise as a result of BPS providing the Works to the Customer in accordance with these terms and conditions, and the Customer agrees to indemnify, and keep indemnified, BPS from and against all or any such claims and against all loss, damage, costs and expenses incurred by or recovered against BPS in respect of any such claim.

14.3 The Customer agrees that BPS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or Materials which BPS has created for the Customer, or digital media of the Works undertaken by BPS.

15. Default and Consequences of Default

15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at BPS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2 If the Customer owes BPS any money the Customer shall indemnify BPS from and against all costs and disbursements incurred by BPS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BPS’ contract default fee, and bank dishonour fees).

15.3 Further to any other rights or remedies BPS may have under this agreement, if the Customer has made payment to BPS by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by BPS under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.

15.4 Without prejudice to any other remedies BPS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions BPS may suspend or terminate the provision of Works to the Customer. BPS will not be liable to the Customer for any loss or damage the Customer suffers because BPS has exercised its rights under this clause.

15.5 Without prejudice to BPS’ other remedies at law BPS shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BPS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to BPS becomes overdue, or in BPS’ opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

16. Cancellation

16.1 BPS may cancel any contract to which these terms and conditions apply or cancel provision of Works at any time before the Works have commenced by giving written notice to the Customer. On giving such notice BPS shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to BPS for Materials already procured. BPS shall not be liable for any loss or damage whatsoever arising from such cancellation.

16.2 In the event that the Customer cancels the provision of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by BPS as a direct result of the cancellation (including, but not limited to, any loss of profits).

16.3 Cancellation of orders for Materials made to the Customer’s specifications, or for nonstocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

17. Privacy Act 1988

17.1 The Customer agrees for BPS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by BPS.

17.2 The Customer agrees that BPS may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit
account, where the Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.

17.3 The Customer consents to BPS being given a consumer credit report to collect overdue payment on commercial credit.

17.4 The Customer agrees that personal credit information provided may be used and retained by BPS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.

17.5 BPS may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.

17.6 The information given to the CRB may include:
(a) personal information as outlined in 17.1 above;
(b) name of the credit provider and that BPS is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and BPS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of BPS, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

17.7 The Customer shall have the right to request (by e-mail) from BPS:
(a) a copy of the information about the Customer retained by BPS and the right to request that BPS correct any incorrect information; and
(b) that BPS does not disclose any personal information about the Customer for the purpose of direct marketing.

17.8 BPS will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

17.9 The Customer can make a privacy complaint by contacting BPS via e-mail. BPS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

18. Dispute Resolution

18.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

19. Building and Construction Industry Security of Payment Act 2002

19.1 At BPS’ sole discretion, if there are any disputes or claims for unpaid Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

19.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

20. General

20.1 The failure by BPS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BPS’ 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.

20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which BPS has its principal place of business, and are subject to the jurisdiction of the courts in that state.

20.3 Subject to clause 13, BPS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by BPS of these terms and conditions (alternatively BPS’ liability shall be limited to damages which under no circumstances shall exceed the Price).

20.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by BPS nor to withhold payment of any invoice because part of that invoice is in dispute.

20.5 BPS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

20.6 The Customer agrees that BPS may amend these terms and conditions at any time. If BPS makes a change to these terms and conditions, then that change will take effect from the date on which BPS notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for BPS to provide any Works to the Customer.

20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

20.8 The Customer 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.

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