Terms and Conditions
- “Application” means any completed application presented to Big Iron by the Customer for the purchase of any goods and services on offer by Big Iron.
- “Big Iron” means Big Iron Limited, Reg No 956540.
- “Customer” means the person who orders or purchases Goods or Services from Big Iron, and where the Customer comprises two or more persons, means those persons jointly and severally.
- “Goods” means any goods provided and / or manufactured by Big Iron.
- “Order” means an offer to purchase Goods and / or Services from Big Iron by the Customer.
- “PPSA” means Personal Property Securities Act 1999.
- “Quote” means a written offer from Big Iron to the Customer to supply Goods and / or Services for a specified price subject to the terms and conditions of such offer.
- “Services” means all services which are supplied by Big Iron under any Contract or agreement with the Customer and will also include any goods supplied by Big Iron incidental to the Services.
2. QUOTES, ORDERS, PRICING & ESTIMATES
- 2.1 These terms and conditions of trade apply to all Goods and Services supplied by Big Iron including those supplied pursuant to a Quote. A Customer’s acceptance of a Quote constitutes agreement to purchase Goods and Services on these terms.
- 2.2 Big Iron may decline, in whole or in part, any Order in its sole discretion.
- 2.3 The price of Goods and Services is as specified in an accepted Order or accepted Quote as applicable.
- 2.4 Unless otherwise stated, prices stated do not include GST.
- 2.5 A Quote may be withdrawn or varied by Big Iron before it has been accepted in writing by the Customer.
- 2.6 All Quotes are based on rates and charges in effect at the date of the relevant Quote. Unless otherwise specified in the Quote, any increase in rates or charges (including without limitation sub-contracted labour, materials and fuel) shall result in an equivalent increase in the quoted price.
- 2.7 A Quote shall lapse if not accepted within 30 days from the date of the relevant Quote.
- 2.8 An estimate as to price is not binding on Big Iron.
- 2.9 Where a Quote includes an estimate of quantities and the actual quantity supplied is materially different from that estimated, Big Iron reserves the right to revise the quoted price.
- 2.10 Quotes are prepared in accordance with information provided to Big Iron by the Customer and Big Iron will not be liable nor will it be bound by the quote where:
(a) such information is inaccurate or any information is omitted; and / or
(b) the Customer makes any variations which result in the work or materials being different from that quoted for.
- 2.11 The issue of an Order from the Customer constitutes acceptance by the Customer of these Terms and Conditions of Trade even if the contrary is stated in the Customer’s Order or correspondence.
- 3.1 A deposit equivalent to the total cost of any Goods to be supplied is to be paid to Big Iron before any Goods and / or services are provided to the Customer.
- 3.2 Payment for services is to be made in accordance with any schedule of payment specified in the Schedule for the services and goods to be provided or if no such schedule exists, payment shall be made within 7 days from the date of invoice.
- 3.3 Payment by cheque or by any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system into the account of Big Iron.
- 3.4 The purchaser shall pay goods and services tax in respect of the supply of all Goods and Services.
- 3.5 If payment is not made in full by the due date, Big Iron is entitled to charge the Customer interest on the unpaid overdue balance from the due date for payment at the rate of 5% per annum above the current commercial overdraft rate charged by Big Iron’s bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by Big Iron.
- 3.6 The Customer shall be liable for any collection costs incurred by Big Iron in recovering any unpaid sums owing including, but not limited to, full solicitor / client costs.
4. IMMEDIATE PAYMENT
- 4.1 Notwithstanding clause 3, all payments shall become due to Big Iron in the event that a receiver is appointed over any of the Customer’s assets or undertaking, a liquidator is appointed or the Customer goes into voluntary liquidation, the Customer makes or attempts to make an arrangement or composition with creditors, or the Customer becomes insolvent within the meaning of the Insolvency Act 1967 or the Companies Act 1993, or commits any act of bankruptcy.
5. SUSPENSION/CANCELLATION OF SERVICES
The Customer acknowledges and agrees that that Big Iron will have the right to:
- 5.1 Suspend and/or refuse to provide any service in the event of any non-payment or default by the Customer under the terms of this agreement.
- 5.2 Cancel registration of the Customer’s domain name in the event that same is part of the services to be provided by the Supplier;
- 5.3 Cancel and/or suspend (at Big Iron’s sole discretion) all web hosting facilities and related services together with any internet security, social media management, or data management services.
- 5.4 In the event of Big Iron exercising any of its rights to cancellation or suspension of services as set out above due to the Customers breach of any of these terms, Big Iron will give the Customer 14 (fourteen) calendar days’ notice prior to such cancellation and/or suspension.
6. PERSONAL GUARANTEE
- 6.1 Where the Customer is a company, the directors of the Customer, by signing in their personal capacity at the bottom of this document, undertake to personally pay Big Iron the unpaid overdue balance and any interest accrued immediately on Big Iron’s written request. The directors shall also be liable for full collection costs.
- 6.2 Where more than one director has signed, each shall be jointly and severally liable.
7. DELIVERY & RISK
- 7.1 Risk in any Goods purchased by the Customer shall pass upon delivery;
- 7.2 Big Iron undertakes to use all reasonable endeavours to deliver or perform the services and goods contracted for within the time requested, but the time of delivery or performance shall not be treated as a condition of sale. Big Iron shall not be liable in any way to the Customer or any other party for any loss resulting from the delay.
- 7.3 Big Iron reserves the right to perform the services by installments and each shall be deemed to be a separate contract governed by these terms.
- 7.4 Delivery shall occur when Big Iron (or any thirds party instructed by Big Iron) hands possession or control of the services to the Customer (or a third party on instruction of the customer) at which point the services shall be at the sole risk of the Customer. Big Iron not be liable for any damage to the services (where goods are involved) once risk has passed.
- 7.5 Big Iron shall not be liable for any loss or damage suffered by the Customer due to the non-performance , non-delivery, or delay in delivery of the services howsoever arising through no fault of Big Iron.
8. TITLE AND PASSING OF PROPERTY
- 8.1 Ownership and property in the goods supplied remains with Big Iron until the Customer has discharged all outstanding indebtedness for all goods supplied by Big Iron and the Customer agrees (for the purposes of s36(b) Personal Property Securities Act 1999) that this clause amounts to a retention of title clause creating a security interest in all goods supplied by Big Iron to the Customer while those goods are held as inventory by the Customer until the Customer has fully paid all outstanding indebtedness for all goods and services supplied by Big Iron. Further, the Customer hereby waives the right to receive a verification statement for the purposes of s148 of the Act and the Customer acknowledges that these terms and conditions of trade amount to a Security Agreement for the purposes of the Act which gives a right to the Company to register a financing statement.
9. CONSUMER GUARANTEES ACT 1993
- 9.1 Where Goods or Services are being supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 will not apply.
10. LIMITATION OF LIABILITY
- 10.1 The liability of Big Iron in respect of all claims for loss, damage or injury arising from breach of any of Big Iron’s obligations under this agreement or from any act or omission of Big Iron is limited, in each case, to the lesser of:
(a) replacement or repair of the affected Goods, or re-supply of the Services;
(b) payment of the actual cost of replacing or repairing the affected Goods, or re-supplying the Services; or
(c) the price of the affected Goods and Services
unless the Consumer Guarantees Act 1993 applies, in which case the remedies provided in that Act shall apply.
- 10.2 Big Iron shall not be liable for any direct or indirect loss or damage (including without limitation) loss of profits, savings, business interruption, or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Goods or Services by Big Iron, except as set out in clause 9.1. For the avoidance of doubt, where the Consumer Guarantees Act 1993 applies, Big Iron’s liability for consequential losses shall accord with the provisions in that Act.
11. INTELLECTUAL PROPERTY
- 11.1 All intellectual property rights that may exist in the Goods or arising out of the performance of the Services are and shall remain the property of Big Iron.
- 12.1 The Customer is not entitled to cancel an order without the written agreement of Big Iron where:
(a) manufacture of made to order Goods has commenced, and / or
(b) such order comprises Goods manufactured by a Third Party.
- 12.2 In the case of made-to-order Goods, Big Iron may require the Customer to make a full upfront payment for the Goods or to pay a substantial deposit before Big Iron commences manufacture of the Goods, and the Customer is liable to pay for the full amount of the Goods ordered, whether or not the Customer takes delivery of all such Goods.
- 13.1 Except as expressly set out in writing by Big Iron in respect of any services, Big Iron makes no representation, warranty or undertaking (whether express or implied) in relation to any services that it provides. To the maximum extent permitted by law, all such representations, warranties and undertakings are negative and excluded. The Customer acknowledges that it is not relying on Big Iron’s skill or judgment as to the suitability or otherwise of the services for any other purpose than as expressly set out in writing by Big Iron or as otherwise agreed in writing by Big Iron.
- 13.2 The Customer represents and warrants that all information provided in the Application is correct and that the Customer is acquiring the services for business purposes and that the Consumer Guarantees Act 1993 does not apply to the supply of the services.
- 13.3 Subject to any liability that cannot be excluded by law, Big Iron’s total aggregate liability shall be limited to the price paid by the Customer for the relevant services.
- 14.1 Unless otherwise agreed between the parties, Big Iron will supply the Goods and / or perform the services during the normal working hours of 8am to 5pm Monday to Friday excluding Public Holidays. Any costs attributable to Big Iron being required by the Customer to work outside such hours shall be payable by the Customer.
15. FORCE MAJEURE
- 15.1 No claim or liability will arise against Big Iron under these Terms or any Order or Quote, if and to the extent that Big Iron’s failure or omission to carry out or observe any provisions of these Terms or any Order or Quote arises by reason of force majeure. “Force majeure” means any event outside the reasonable control of Big Iron and includes, without limitation, fires or other casualties or accidents, power outages, acts of God, strikes and lockouts, severe weather conditions, pandemics, delay in supply of materials or unavailability of materials, war or other violence, or the introduction of any law, order, regulation, demand or requirement of any governmental agency.
- 16.1 The Customer grants to Big Iron a security interest in all present and after acquired services and goods supplied by Big Iron to the Customer and all proceeds of the services and goods for the purposes of the PPSA and as security for the payment of the services and any amount owing by the Customer to Big Iron from time to time.
- 16.2 On the request of Big Iron, the Customer shall execute all documents and do anything else required by Big Iron to give effect to these Terms and to ensure that the security interest created under these Terms constitutes and remains a first ranking perfected security interest over the services and goods.
- 16.3 The Customer shall notify Big Iron in writing of any change of its name at least 14 days prior to the date on which the change of name becomes effective;
- 16.4 The Customer shall provide any information Big Iron reasonably requires to complete a financing statements or a financing change statement; and
- 16.5 Waives any right to receive a copy of a verification statement under the PPSA.
- 16.6 The Customer agrees that nothing in sections 116, 120(2), 121, 127, 129 and 131 of the PPSA apply to these Terms.
- 16.7 The Customer agrees that its rights as debtor in sections 116, 120(2), 121, 127, 129 and 131 of the PPSA shall not apply to these Terms.
- 17.1 Big Iron’s failure or delay to exercise or enforce any right it has under these Terms shall not operate as a waiver of Big Iron’s right to exercise or enforce such right or any other right in the future.
- 17.2 Any provision in these Terms that is held to be invalid or unenforceable for any reason shall be severed from, and shall not affect the remaining provisions of, these Terms.
- 17.3 Big Iron may, in its sole discretion, amend these terms from time to time.
- 17.4 The attached Schedule for the goods and services to be provided forms part of these Terms and Conditions.