(1)    DEFINITIONS

In these terms and conditions: “Company” means Space Rescue Pty Ltd ABN 33 137 159 276 and its successors, transferees or assignees. “the Customer” means any party who purchases Goods from the Company; “Goods” means supplies, stock-in-trade, consumables, services, Standard Products, Special Products, Modified Products and merchandise supplied by the Company to the Customer; “GST” means GST as defined in A New System (Goods and Services Tax) Act 1999 as amended from time to time (“GST  Act”) or any replacement or other relevant legislation and regulations; “Modified Product” refers to a limited range of Standard Products with a design modification as specified by the Company. “Special Product” means any product manufactured to the Customer’s specifications; “Standard Product” means any product with a product code issued by the Company;

(2)    BINDING TERMS AND CONDITIONS

The only terms in connection with the supply of Goods by the company to the Customer which are binding upon the Company are: 1.  Those set out in these terms and conditions or otherwise agreed to in writing by the Company;  and 2.  Those, if any, which are imposed by law and which cannot be excluded.

(3)    PRICES AND ORDERS

1.  The Company’s price is not an offer to sell but is an invitation to treat only and the Company reserves the right to accept or reject in its absolute discretion any orders that may be received by it.

2.  Prices, products and specifications shown, and any scheduled rates are subject to alteration without notice.  Further the customer agrees that the price may be determined or adjusted in accordance with the rise and fall formula set out in clause 22.

3.  Unless specified in writing by the Company these terms and conditions and any price estimates provided do not take into account any additional costs incurred by the Company as a result of the requirements of any enterprise bargaining agreement between the Customer or any contractor and its employees that may affect the cost of the services to be provided by the Company.   The price may be increased to take into account the additional costs incurred by the Company.

4.  If the Company accepts an order it must supply the Goods at the price shown in the price list current when the Company accepts the order, unless otherwise agreed in writing.

5.  If the Company issues an order acknowledgement to the Customer then the Customer must advise the Company of any discrepancies within 48 hours from its receipt.

6.  All offers or quotations of the Company shall last no longer than one (1) day unless otherwise specified in writing and shall become binding only upon receipt by the Company of an unconditional written acceptance from the Customer as the Company may require.

7.  If required, the Customer must, prior to the acceptance by the Company of any offer to purchase Goods, provide the Company with 3 trade references which must be satisfactory to the Company in its sole and absolute discretion.

8.  If a Customer wishes to modify or cancel an order then it may only do so in the manner specified from time to time by the Company.  All requests to cancel or modify existing orders must be made in writing.  The Customer acknowledges that the extent to which an order can be modified or cancelled, if at all, depend on the type of product and the stage that the order has reached in the Company’s system.

9.  Prices quoted are on the basis of the whole quantity being supplied unless otherwise stated.

10.  GST is shown separately on the invoice where applicable.

(4)     GOODS AND SERVICES TAX

1.  Save for defined terms in these terms and conditions, capitalized expressions in this clause bear the same meaning as those expressions in the GST Act.

2.  Except where express provision is made to the contrary, and subject to this clause, any amount that may be payable under or in connection with these terms and conditions is exclusive of any GST.  If a party makes a Taxable Supply under or in connection with these terms and conditions for a Consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable in respect of the Taxable Supply.

3.  Each party agrees to do all things, including providing tax invoices, that may be necessary or desirable to enable or assist the other party to claim any input Tax Credit, adjustment or refund in relation to any amount of GST paid or payable in respect of an supply made under or in connection with these terms and conditions.

4.  To the extent that one party is required to reimburse another party for costs incurred by the other party, those costs do not include any amount of GST in respect for which the party is entitled to claim as an Input Tax Credit.

(5)    DELIVERY

1.  Unless otherwise specified in writing, delivery is to the Customer’s business premises or delivery point provided access is reasonable in the opinion of the Company, and all delivery costs are paid by the Customer.

2.  The Customer shall at its own expense facilitate the off-loading of the Goods at the place of delivery.

3.  The Customer may arrange to collect the Goods at its own cost during the Company’s normal business hours.

4.  Time of delivery is at the sole discretion of the Company and if a delivery date is specified that date is an estimate only and the Company is not liable for any delay in delivery.

5.  The Company shall not be liable for any losses, damages or expenses sustained by the Customer or any other person in consequence of delay in delivery or collection of the Goods or completion of work for any reason whatsoever and if such delivery or collection or completion is delayed at the request of the Customer or owing to his inability to accept the Goods for any reason or owing to some other cause beyond the control of the Company where the Company is able to deliver same or carry out such work then the Customer shall be liable for extra charges, losses or expenses incurred by the Company.

6.  If the Company is unable to supply the Customer’s total order these terms and conditions continue to apply to the Goods supplied.

(6)     ACCEPTANCE

1.  The Customer must inspect the Goods immediately upon delivery and must within 24 hours after the date of delivery give written notice to the Company, with particulars, of any claim that the Goods are not in accordance with the contract.  If the Customer fails to give such notice within such period then to the extent permitted by statute the Goods are deemed to have been accepted by the Customer and the Customer must pay for the Goods in accordance with the provisions of these terms and conditions.

2.  If the Customer is unable to receive an order then it must notify the Company.  Storage costs may apply.

(7)     RETENTION OF TITLE

1.  When Property Passes Property in the Goods supplied by the Company to the Customer under these terms and conditions does not pass to the Customer until the money owing for those Goods, and any other money owing by the Customer to the Company, has been paid.  The Customer in the meantime takes custody of the Goods and retains them as the fiduciary agent and bailee of the Company.

2.  Allocation of Payments Where the Customer does not make payment in respect of specific Goods, payment must be treated as having been made first in respect of Goods which have passed out of the possession of the Customer, and then in respect of whatever Goods are still in the possession of the Customer the Company elects

3.  Customer’s Obligations until Paid For Until the Goods have been paid for in full the Customer must store the Goods in such manner as to show clearly that they are the property of the Company.

4.  Company’s Authority to Inspect and Reclaim The Customer irrevocably authorizes the Company at any time, to enter any premises upon which the Company’s Goods are stored to enable the Company: a) inspect the Goods;  and/or b) if the Customer has breached the contract, to reclaim possession of the Goods.

5.  Goods Attached to Premises The Company’s property in the Goods it not affected by the fact that the Goods become fixtures attached to premises of the Customer or a third party, and if the Company enters those premises for the purpose of reclaiming possession of the Goods, and incurs any liability to any person in connection with the entry or reclamation, the Customer indemnifies the Company against that liability.

6.  Action before Property Passes The Company may commence legal action against the Customer if the Goods are not paid for in accordance with these terms and conditions or any separate arrangement for credit made by the Company with the Customer although property in the Goods has not passed to the Customer.

(8)    PAYMENT

1.  The Customer must make payment in advance of the date of delivery unless otherwise agreed in writing.

2.  Payment is deemed to be made: a)  if by means of direct debit – on the date the money is credited to the bank account nominated by the Company; b)  if cash is tendered – on the date it is tendered;  and c)  if a cheque (bank or otherwise) or other negotiable instrument is negotiated and cleared by the Company’s bankers.

3.  If the Customer defaults in making payment to the Company in accordance with these terms and conditions the Company may in its absolute discretion: a) charge the Customer interest calculated on the portion of the Customer’s account overdue at the rate of 0.5% per day from the date on which the default arose;  and b) require the Customer to reimburse the Company for all collection costs including legal costs incurred by the Company calculated on a solicitor and client basis as a consequence of the Company instructing its solicitor to provide advice to it in connection with the default and/or to institute such recovery process as the Company in its discretion decides. 

4.  Any payments tendered by the Customer to the Company must be applied as follows: a) first as reimbursement for any collection costs incurred by the Company in accordance with clause 8(3)(b); b) secondly, in payment of any interest charged to the Customer in accordance with clause 8(3)(a);  and c) thirdly, in satisfaction or part satisfaction of the oldest portion of the Customer’s account.

5.  Unless agreed otherwise, payment terms for: a) the supply of equipment are 100% payment of contract value prior to delivery b) the supply of equipment & installation (or other service works) are 90% initial payment (due at time of order placement) and 10% balance payment of contract value on day of completion. In lieu of this, the Company will accept a 50% initial payment (due at time of order placement), a 40% progress payment (due prior to the first delivery or service work being performed) and 10% balance payment of contract value on day of completion for orders with a contract value exceeding $15,000 excluding GST. c) Once practical completion has been reached, no more than 2.5% of the total contract sum may be withheld by the customer up until the day of completion.

6.  When the point of Practical Completion* has been reached, 97.5% or more of the total contract sum must have been paid by the customer. *Practical Completion is defined by the Company as the point when all installation works are complete or all but complete except for any defects or omissions which do not prevent the system from being used to at least 70% of its intended purpose.

7.  At the point of Completion, 100% of the total contract sum must have been paid by the customer.

(9)    RETURNS

Subject to the provisions of this clause 9:

1.  The Customer must not return any Goods to the Company unless specifically requested to do so by the Company.

2.  Orders accepted by the Company cannot be countermanded or delivery deferred or Goods returned except with the written consent of the Company and upon terms that will reimburse and indemnify the Company against all loss including profit on any part of the order that is cancelled.  Special Products not considered as standard by the Company will not be accepted for return by the Company.   Any costs incurred by the Company in connection with the storage of the Goods shall be paid by the Customer.

(10)    RISK

Goods supplied by the Company to the Customer are supplied on an ex-warehouse basis and are at the Customer’s risk immediately after they have left the warehouse or the Company’ premises.

(11)    EXCLUSIONS AND LIMITATIONS

1.  The only conditions and warranties that are binding on the Company in respect of: a) the state, quality or condition of the Goods supplied by it to the Customer;  and/or b) advice, recommendation(s), information or services supplied by it, its employees, servants or agents to the Customer regarding the Goods, their use and application, are those imposed and required to be binding by statute (including the Trade Practices Act (1974).

2.  To the extent permitted by statute the liability, if any, of the Company arising from the breach of the conditions or warranties referred to in clause 11(1) are, at the Company’s option, limited to and completely discharged: a) in the case of the Goods:

(i) the replacement of the Goods or supply by the Company of equivalent Goods;  or

(ii) the repair of the Goods;  or

(iii) the payment of the cost of replacement of the Goods or of acquiring equivalent Goods;  or

(iv) the payment of the cost of having the Goods repaired. b) in the case of advice, recommendation(s), information or services, by supplying the advice, recommendation(s), information or services again or the payment of the cost of having the services supplied again.

3.  Except as provided in this clause 11 all conditions and warranties implied by law in respect of the state, quality or condition of the Goods which may apart from this clause be binding on the Company are excluded.

4.  The Customer acknowledges that the Customer does not rely and it is unreasonable for the Customer to rely on the skill or judgment of the Company as to whether the Goods supplied are reasonably fir for any purpose for which they are being acquired, and that the sale is not a sale of Goods by description or sample.

5.  Except to the extent provided in this clause 11, the Company has no liability (including liability in negligence) to any person for:

a) any loss or damage consequential or otherwise suffered or incurred by that person in relation to the Goods and/or advice, recommendation(s), information or services supplied by the Company;  and

b) in particular without limiting  clause 11(5)(a) any loss or damage consequential or otherwise suffered or incurred by that person caused by or resulting directly or indirectly from any failure, defect of deficiency of any kind of or in the Goods and/or advice, recommendation(s), information or services supplied by the Company.

c) The Company shall in no circumstances be under any liability for injuries, expense, damages or consequential loss which may in any degree be attributed to the use of material or installations supplied by it but not manufactured by the Company or to the adoption of data, design materials or advice given as to the use of its products.

(12)    INDEMNITY

1. The Customer indemnifies the Company, regardless of any negligence on the part of the Company, against:

a) all losses incurred by the company;

b) all liabilities incurred by the Company;  and

c) all legal costs (on a solicitor and own client or full indemnity basis, whichever is greater) and other expenses incurred by the Company in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal), arising directly or indirectly as a result of or in connection with the supply of Goods by the Company to the Customer including as a result of any work done by the Company in accordance with the instructions or design of the Customer unless caused by willful misconduct on the part of the Company or any of its employees or agents acting within the scope of their employment; and

d) any false, misleading or deceptive representation or statement made the Customer in respect of the Company or the Goods.

2.  The Customer must pay to the Company all liabilities, costs and other expenses referred to in clause 12(1), whether or not the Company has paid or satisfied them.

(13)    PRIVACY

Where Goods are supplied to the Customer on credit the Customer irrevocably authorizes the Company, its employees and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Customer including (without limitation) making enquiries from persons nominated as trade referees, the bankers of the Customer or any other credit providers (“Information Sources”) and the Customer authorises the information Sources to disclose to the Company all information concerning the Customer which is within their possession and which is requested by the Company.

(14)       FORCE MAJEURE

If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.

(15)       ENTIRE AGREEMENT

These terms and conditions contain the entire agreement between the parties without prejudice to the rights of the Company at common law or equity.

(16)       COPYRIGHT

All drawings and specifications prepared by the Company are the property of the Company and the copyright is reserved accordingly and no copies shall be made or extracts taken without its prior written consent.

(17)    CANCELLATION

1.  The Company may by written notice immediately suspend or cancel performance of this contract if the Customer be declared bankrupt or if a company is subject to a winding-up order if a Receiver or Manager or Receiver and Manager of its assets be appointed or if any form of insolvency administrator or third party is appointed or if it shall breach or fail to perform any of these conditions or shall fail to rectify such breach or non-performance within seven (7) days after written notice and may by written notice terminate this contract forthwith but any such termination shall not affect any other rights or remedies which the Company may have in consequence or any such breach or non-performance.

2.  The Company shall be under no obligation to accept goods returned by the Customer and may do so only on terms to be agreed in writing in each individual case that may include a restocking, handling and/or administration fee.

3.  Orders cannot be cancelled except with our agreement in writing and upon terms that will indemnify the Company against all losses and including adequate compensation.

4.  The laws of New South Wales and of the Commonwealth of Australia and the jurisdiction of the courts of NSW shall apply to the interpretation of these terms and conditions.

(18)    INSTALLATION

1.  Where this contract relates to the provision of Goods plus labour to carry out construction (“Construction Works”) the following additional conditions shall apply:

a) The Customer will at his own expense convey the Goods to a position within five metres from where construction is required or within such other distance as may be required by the Company.  Failure to do so may result in an additional labour charge.

b) Adequate power is to be made available within 5 metres from where construction is required or within such other distance as may be required by the Company.  Failure to do so may result in an additional labour charge.

c) The Customer will ensure the safe custody of and minimize deterioration to the Goods and the Company’s equipment on site and will protect the same by providing covered and secured water-proof storage accommodation.

d) The Customer will prior to the commencement date for construction ensure that: (i) the site is cleared and free from obstruction; (ii) electricity services are available;  and (iii) (unless the parties otherwise agree in writing) the Company is enabled to carry out the Construction Works as one uninterrupted operation to be completed during normal working hours.

e) The contract price is fixed on the basis that the floors upon which the Construction Works are to be performed are level and even. Any additional costs incurred to shim the installation due to an uneven or out of level floor surface in excess of plus or minus 2mn elevation variation over the entire floor area shall be paid by the Customer.

f) The Company is not responsible for the strength or structural condition of the floors or foundations upon which the construct works are erected and makes no representation and gives no warranty that such floors or foundations are suitable for the Construction Works thereon and shall not be liable for any damage or injury directly or indirectly attributable to any defects in or any structural movement collapse subsidence or failure of the said floors or foundations.

g) On completion any surplus Goods delivered by the Company shall remain the property of and be removed from the site by the Company.  Until such removal the Customer shall take reasonable precautions for the safe custody and protection of such surplus Goods.

h) The Customer shall provide adequate and suitable rubbish receptacles for the duration of the installation and be responsible for the removal of rubbish from the site.

i) If for any reason commencement of the Construction Works extends beyond two(2) weeks from the stipulated date the Company shall be entitled to receive from the Customer an interim payment or payments on account of the contract price and may render an interim invoice or invoices accordingly.

j) Unless otherwise expressly provided for the Company will not be responsible for any builder’s work or other work involving alterations to the structure of any premises at which work is to be undertaken by the Company.

k) Access will be required during the normal working day from 7.30am – 5.00pm and longer by arrangement if required to complete the work.  Failure to adhere to these hours may result in an additional labour charge.

l) The Customer will serve all notices and make applications for and obtain all such licenses, consents or approvals as are required under any building regulations or by-laws or any legislation for the time being in force prior to the carrying out of any Construction Works and the Customer shall be liable and indemnify and keep indemnified the Company against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach of this condition.

m) The Company is not responsible for the supply nor fitting of safety barriers around electrical cabling

2.  The laws of New South Wales and of the Commonwealth of Australia and the jurisdiction of the courts of NSW shall apply to the interpretation of this Contract.

3.  All notices to the Customer shall be deemed to be served if mailed in the ordinary course of post to its last known address.

4.  The Customer will ensure that employees and contractors of the Company engaged in the installation (“workers”) are safe and free from risks to their health and safety and without limiting the foregoing:

a) Provide a working environment which is safe and free from risks to health and safety;

b) Provide the workers with information and instruction in relation to risks to health and safety arising from the Customer’s premises;

c) Provide as a site induction to the workers upon arriving at the premises which amongst other things outlines the emergency procedures on site and the location of amenities on site (including first aid equipment and personnel);

d) Notify the Company immediately where the workers have been or are likely to be exposed to risks to their health and safety or where there is a material change in the premises, systems of work, plant or substances used at the premises which affects the health and safety of the workers.

5.  The Customer shall be liable for extra charges resulting from one or a number of site inductions where the accumulated duration is greater than 15 minutes.

6.  Where the customer is unable to provide free on-site parking, the Customer shall be liable for extra charges resulting from one or a number of parking transactions.

(19)       AUSTRALIAN STANDARD

Where the Goods include the Steel Storage Racking then the Customer shall operate and maintain the storage racking in accordance with the requirements of Australian Standard AS 4084 – 1993 including any amendments made to that Standard.

(20)       HEALTH AND SAFETY

The Customer warrants that:

1.  All Goods received pursuant to this agreement are safe and free from risk to health and safety;

2.  The Customer has received adequate information regarding the Goods to ensure their safe use, handling and storage; 3.  The Customer will ensure that the Goods are properly used so that they are free from risk to health and safety.