TERMS AND CONDITIONS

These are the Terms and Conditions on which BACD Pty Ltd ACN 663 835 827 (ABN 18 663 835 827) trading as Cooling Tower Solutions will carry out work for you.

1. DEFINITIONS

For the purposes of these Terms and Conditions:

• “Additional Fees” means the fees applicable to Work not foreseen or not requested by the Client before commencement of the Work including:

• Do and Charge Work;
• after hours work as specified in clause 7;
• latent conditions or obstacles requiring the hire of special equipment to complete the Work or the delay to completion of the Work; and
• travel expenses including but not limited to airfares, car hire, petrol, accommodation, per diem allowance and other similar expenses reasonably incurred by the Contractor.
  • “Business Premises” means 1/26 Octal Street, Yatala QLD 4207.
  • “Contractor” means BACD Pty Ltd ACN 663 835 827 (ABN 18 663 835 827) trading as Cooling Tower Solutions, its successors and assigns or any person acting on behalf of and with the authority of the Contractor.
  • “Client” is the Customer named on the quote provided by the Contractor to the Client.
  • “Do and Charge Work” means Work performed under direction of the Client without a formal quotation or variation.
  • “Fees” means the fees payable by the Client as set out in any quotation or tender provided by the Contractor and accepted by the Client in accordance with clause 2.3, as varied in accordance with clause 4 and includes any Additional Fees and Cancellation Fees.
  • “Goods” means replacement parts and components for cooling towers and associated systems supplied by the Contractor to the Client and as described on the Contractor’s quotes, tax invoices and other paperwork.
  • “PPSA” means the Personal Property and Securities Act 2009 (Cth).
  • “Site” means the place where the Contractor’s work will be carried out.
  • “Work” means the performance of maintenance, repair and replacement services for cooling towers and associated systems and the fabrication and installation of related components as more particularly described in the quote or scope of works provided to the Customer and as varied in accordance with clause 4.

2. FEES
   • The Client shall receive a quote or scope of works specifying the Work to be undertaken by the Contractor in order to fulfill the Client’s instructions.
   • Should the Contractor be required to perform the Work at a Site that requires it to travel more than 100 kilometres from the Business Premises, Additional Fees will apply and will be included in the quote or scope of works.
   • Prices shall be valid for thirty (30) days unless otherwise agreed in writing.
   • The Client shall accept the quote or scope of works by signing and returning a copy to the Contractor, emailing the Contractor or continuing to instruct the Contractor to carry out Work.
   • The Client acknowledges that where the Contractor’s costs in connection with any quote or scope of works increase as a result of the introduction of new, or changes to existing government taxes or charges or prime cost items or provisional sums, the Client will be liable for such increases and any quote or tender is provided subject to such variations.
3. PAYMENT
   • Fees are payable within thirty (30) days after receipt of the Contractor’s tax invoice, except Cancellation Fees which are payable within 7 days after receipt of the Contractor’s tax invoice.
   • The Contractor may elect to issue invoices at the completion of Work or by periodic progress payments.
   • The Contractor reserves the right to cease Work until any overdue Fees are paid.
   • Interest on any overdue Fees will accrue daily from the date when payment becomes due until the date of payment at a rate of 6% above the cash rate published by the Reserve Bank of Australia.
4. VARIATIONS
   • The Client may request a variation to any Work that the Contractor has previously provided a quote or scope of works in relation to, by notice in writing to the Contractor. If the Contractor accepts such variation, the Contractor will advise the Client of the Fees applicable to such Work.
   • If the Client requests the Contractor to carry out Do and Charge Work and it is not possible to comply with clause 4.1, the Contractor will be at liberty to charge the client for such Work and will use best endeavours to confirm the fees applicable to the Do and Charge Work in writing as soon as practicable.
   • Where the Contractor has travelled more than 100 kilometres from the Business Premises to complete the Works, the Contractor will be entitled to charge further Additional Fees for any increased travel expenses arising from the scope of Work being varied in accordance with this clause 4.
5. CANCELLATION
   • Without prejudice to the Contractor’s other remedies, the Contractor will be entitled to cancel all or any part of the Works which remain unperformed and all amounts owing to the Contractor will, whether or not due for payment, become immediately payable in the event that:
     • any Fees become overdue or in the Contractor’s opinion the Client will be unable to meet its payments as they fall due; or
     • the Client becomes bankrupt or a receiver or liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; or
     • the Contractor is unable or unwilling to carry out the Work for any reason.
   • The Client shall reimburse the Contractor for any costs, losses or expenses incurred by the Contractor should the Client cancel or vary an accepted quote or scope of works (“Cancellation Fees”).
   • Where the Work is cancelled, postponed or rescheduled within two (2) days prior to the intended commencement date of the Work, the Contractor will be entitled to charge to the Client any Additional Fees incurred by the Contractor as a result of the cancellation, postponement or rescheduling.
   • Where Additional Fees apply in the form of travel expenses are required to carry out the Work, and the Work is cancelled, postponed or rescheduled, the following will apply:
     • where the Contractor is required to cancel its travel expenses, and it is unable to recover any expended fees from any third party (for example, airlines or hotel suppliers), the Contractor is entitled to recover payment of such travel expenses from the Client;
     • where the Contractor incurs additional travel expenses for the rescheduling of any required travel, the Contractor is entitled to recover payment of such travel expenses from the Client; or
     • where the Contractor is able to recover any travel expenses already charged to the Client, the Contractor shall reimburse the Client for any Additional Fees already paid.

6. CLIENT RESPONSIBILITIES
   • The Client shall provide exclusive Site access for the Contractor to complete any necessary Work and the Customer indemnifies the Contractor where any damage to property or person occurs as a result of the Site not being clear and safe.
   • The Client warrants that it holds appropriate insurance for the Site, including public liability insurance.
   • The Client must obtain any council or other approvals required for the Work unless that forms part of the Work.
   • The Client is responsible for ensuring overall compliance of their system, including abiding by any legislation, industry standard or direction by any authority relating to maintenance of the system or microbial control. The Contractor will not be held liable for any compliance issues unless the Contractor’s quote, scope of works or tax invoice expressly includes compliance matters.
7. CONTRACTOR’S TRADING HOURS

The Contractor’s normal trading hours are 6:00am to 6:00pm Monday to Friday. Work performed (at the Client’s request) outside those hours or on a public holiday will be at the Contractor’s discretion and will be subject to a surcharge (rates on application).

8. DEFECTS

The Client shall inspect all Goods and the Work on installation and shall within seventy-two (72) hours of installation notify the Contractor of any alleged shortage in quantity, damage, or failure to comply with any agreed scope of works (“Defects”).  The Client shall afford the Contractor an opportunity to inspect the Goods and Work within a reasonable time following installation if the Client believes the Goods or Work are defective in any way.  If the Client does notify the Contractor of any Defects in accordance with this clause, the Goods and Work will be presumed to be free from Defects and the Client will not be permitted to make any claim against the Contractor in relation thereto. The Contractor shall make good such Defects within twenty-eight (28) days of receiving a notification from the Client.

9. WEATHER DELAYS

In the event of adverse weather conditions which require the Work to be suspended, the Contractor will cancel, postpone or reschedule the Work (as it deems necessary in its sole discretion) and use its reasonable endeavours to complete the Work as soon as practically possible. Where the Contractor has travelled more than 100 kilometres from the Business Premises, the Client acknowledges that the Contractor will be entitled to charge further Additional Fees for the increased travel expenses as a result of the delays due to adverse weather conditions. The Contractor is not liable for any delays in completion of the Work due to adverse weather conditions.

10. DAMAGES

The Client must pay to the Contractor any costs, expenses or losses incurred by the Contractor as a result of the Client’s failure to comply with these Terms and Conditions (including debt collection and legal costs on a full indemnity basis).

11. RETENTION OF TITLE
    • Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with the Contractor regardless of whether the Goods are on-sold by the Client, until all Fees are paid. Where Goods have been on-sold by the Client, the Client will be taken to hold the proceeds of sale of such Goods upon trust for the Contractor and to account to the Contractor for those proceeds. Any payment made by or on behalf of the Client which is later avoided shall be deemed not to discharge the Contractor’s title in the Goods nor the Client’s indebtedness to the Contractor and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
    • The Client acknowledges that it will be in possession of any Goods solely as bailee until all Fees are paid and until that time:
      • the Client must not encumber or otherwise charge the Goods; and
      • the Client shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or installation of the Goods to the Client.
    • The Client hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Goods from the Client and sell or dispose of them, where any Fees are not paid within the payment terms set out in clause 3 or the Contractor terminates under clause 5.1(b) and the Contractor shall not be liable to the Client or any person claiming through the Client and the Contractor shall be entitled to retain the proceeds of any Goods sold and apply same towards the Client’s indebtedness to the Contractor.
12. PPSR
    • In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
    • The Client acknowledges and agrees:
      • that these Terms & Conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds) previously supplied by the Contractor to the Client and to be supplied in the future by the Contractor to the Client;
      • that the Security Interest created by these Terms & Conditions is a continuing Security Interest in all present and after-acquired property of the Client, which will operate (despite any intervening payment or settlement of account) until the Contractor has signed a release; and
      • to waive its rights in relation to the sections listed in sub-section 115(1) of the PPSA (or as otherwise amended), which will not apply (to the extent, if any, mentioned) to the Security Agreement created by these Terms & Conditions.
    • The Client undertakes to:
      • sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that the Contractor may require to register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register, register any other document required to be registered by the PPSA, or correct a defect in a statement referred to in this clause 3(b);
      • indemnify, and upon demand reimburse, the Contractor for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any property charged thereby, and enforcing or attempting to enforce the Security any Interest created by these Terms & Conditions; and
      • not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods in favour of a third party, without the prior written consent of the Contractor; and
      • immediately advise the Contractor of any material change in its business details (including, but not limited to, its trading name, address, facsimile number) or business practices.

13. WARRANTY
    • Unless specifically included in the Contractor’s quote, scope of works or tax invoice, any compliance issues are expressly excluded from the Works.
    • Any warranty as to the Goods on the part of the Client shall be limited to the Warranty provided by the manufacturer to the Client on or before installation of the Goods. Any labour involved with warranty Work may incur charges as determined by the Contractor.
    • The Contractor warrants that the Work will be carried out in accordance with all relevant laws in an appropriate and skilful way, using materials that are good and suitable for the purpose for which they are intended to be used. The Contractor is not liable where the Work or the Goods are damaged as a result of the Customer failing to maintain the Work or the Goods as directed by the Contractor, as set out in any manufacturer recommendations, or as a reasonable person might do.
    • The Contractor reserves the right to make null and void the warranty should the Goods or the Work be modified, altered, damaged or put to any undue stress other than in the way the Goods or the system as a whole were designed to perform.
    • In respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Client’s claim.
14. LIABILITY
    • Non-excludable Rights

The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Client in relation to the provision of the Work which cannot be excluded, restricted or modified by the contract (“Non-excludable Rights”).

• Disclaimer of Liability

The Contractor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Contractor for a breach of a Non-Excludable Right is limited, at the Contractor’s option, to the supplying of the Work again or payment of the cost of having the Work supplied again.

• Indirect Losses

Notwithstanding any other provision of these Terms and Conditions, the Contractor is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Client for:

• any increased costs or expenses;
• any loss of profit, revenue, business, contracts or anticipated savings;
• any loss or expense resulting from a claim by a third party; or
• any special, indirect or consequential loss or damage of any nature whatsoever caused by the Contractor’s failure to complete or delay in completing the Work or to deliver the Goods.

• Force Majeure

The Contractor will have no liability to the Client in relation to any loss, damage or expense caused by the Contractor’s failure to complete the Work or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Contractor’s normal suppliers to supply necessary Goods or any other matter beyond the Contractor’s control.

15. PRIVACY
    • The Client hereby authorises the Contractor to collect, retain, record, use and disclose commercial and/or consumer information about the Client, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Contractor, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
    • The Contractor may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.
16. INTELLECTUAL PROPERTY
    • The Client agrees that the Contractor may take and use photos of any of part of the Work for promotional and portfolio purposes.
    • The Client authorises the Contractor to place its company logo and case study on its website or promotional collateral for promotional purposes.
    • Where the Contractor has designed unique components, then copyright in those designs will remain vested in the Contractor and will only be used by the Client with the consent of the Contractor (which it may grant at its discretion).
17. GENERAL MATTERS
    • Severability

Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.

• Governing Law and Jurisdiction

These Terms and Conditions are governed by the laws of the State of Queensland and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland.

• Subcontracting

The Contractor may sub-contract its obligations under these Terms and Conditions.

• Notices

Any notice provided under these Terms and Conditions must be in writing.

• Dispute Resolution

The parties agree to attempt in good faith to resolve any dispute regarding these Terms and Conditions.

If the dispute or difference is not resolved to the satisfaction of the parties within thirty (30) days, either party may refer the matter to a mediator.

Mediation shall be effected:

• by a mediator agreed upon in writing by the parties; or
• in the absence of such agreement, by a mediator appointed by the Queensland Law Society