Terms and Conditions

Terms And Conditions

By submitting a credit application, ordering Goods or services, and/or accepting a Quotation from Spanlift, the Customer
agrees that the following terms and conditions shall apply to the supply.

1. Definitions

In these terms and conditions and (unless the context otherwise requires):

  • 1.1.

    ACL is an abbreviation of the Australian Consumer Law and includes all applicable State, Territory and
    Commonwealth law(s), including without limitation, Schedule 2 of the Competition and Consumer Act 2010 (Cth)
    as amended from time to time.

  • 1.2.

    Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of
    revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or
    damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and
    whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise;

  • 1.3.

    Consumer means a consumer as that term is defined in section 3 of the ACL;

  • 1.4.

    Contract Documents means these terms and conditions, the plans, specifications, professional reports, the
    Quotation and other documents detailing what Spanlift is to do for the Customer;

  • 1.5.

    Day means a calendar day;

  • 1.6.

    Goods means all goods supplied by Spanlift to the Customer at the Customers request from time to time, and
    where the context requires, installed by Spanlift on Site.

  • 1.7.

    Target Finish Date is the date set out in this Contract;

  • 1.8.

    Local Authority means the local council and/or any other government agencies with power to affect the Work;

  • 1.9.

    Milestone means the milestone dates set out in Item 5 of the Quotation;

  • 1.10.

    Customer means the person/s submitting the credit application and/or ordering Goods and/or Services as
    specified in any invoice, document or order, and it includes the Customers personal representatives, successors
    and permitted assigns.

  • 1.11.

    PMSI means a purchase money securities interest and has the meaning given in section 14 of the PPSA;.

  • 1.12.

    PPSA means the Personal Property Securities Act 2009 (Cth);

  • 1.13.

    Price means the Price payable for the Goods and/or Services as agreed between Spanlift and the Customer in
    accordance with clause 4 below;

  • 1.14.

    Related Corporation has the meaning given to the term related body corporate in section 50 of the
    Corporations Act 2001 (Cth);

  • 1.15.

    Site is the site described in the Quotation

  • 1.16.

    Small Business means a small business that meets the criteria of section 23(4)(b) of the ACL;

  • 1.17.

    Spanlift means Spanlift Australia Pty Ltd ACN 117 534 773 its successors and permitted assigns, trading as but
    not limited to Gorilla Products Australia, Poultry House, and/or Spanlift;

  • 1.18.

    Target Start Date is the date set out in this Contract;

  • 1.19.

    Quotation means the quotation prepared by Spanlift referenced in this contract or attached to these Contract
    Documents;

  • 1.20.

    Variation means a change in the Work, or additional work;

  • 1.21.

    Work means the installation of the Goods as described in the Contract Documents;

2. General

  • 2.1.

    The Customer is taken to have accepted and is immediately bound, jointly and severally, by the Contract
    Documents if the Customer accepts the Quotation, makes a payment or accepts delivery of the Goods.

  • 2.2.

    Each Quotation, once accepted, together with the Contract Documents shall be deemed to form a separate
    contract between Spanlift and the Customer.

  • 2.3.

    Unless otherwise specifically agreed in writing by Spanlift, where any terms and conditions of the Customers
    order are inconsistent with these terms and conditions, then these terms and conditions will prevail. Any variations
    or additions to these terms and conditions not expressly agreed to in writing by Spanlift are expressly rejected.

  • 2.4.

    Spanlift may vary these terms and conditions by notice in writing to the Customer (which notice may be given via
    Spanlifts website).

  • 2.5.

    If the Customer is a Consumer or a Small Business, then the Customer may consider the variation and, if not
    acceptable, may elect not to proceed with the purchase of the Goods ordered before the date of the variation and
    which would be subject to the variation.

  • 2.6.

    If the Customer is not a Consumer or a Small Business, the Customer agrees that Goods delivered and/or
    ordered after the date of the notice of the variation will be subject to the variation and acceptance of the Goods or
    the placing of the order shall be deemed to be an acceptance of such varied terms and conditions.

3. Change in Control

  • 3.1.

    The Customer shall give Spanlift not less than fourteen (14) days prior written notice of any proposed variation to
    any of the information supplied by the Customer to Spanlift or in the structure or nature of the Customers
    business (including but not limited to, changes in the Customers ownership structure, address, contact phone or
    fax number/s, or legal name). The Customer shall be liable for any loss incurred by Spanlift as a result of the
    Customers failure to comply with this clause.

4. Price and Payment

  • 4.1.

    At Spanlifts sole discretion the Price shall be either:

    • 4.1.1.

      as indicated on any invoice provided by Spanlift to the Customer; or

    • 4.1.2.

      Spanlifts quoted price (subject to clause 4.2) which will be valid for the period stated in the Quotation or
      otherwise for a period of thirty (30) days; or

    • 4.1.3.

      price ruling by Spanlift at the date of delivery/collection.

  • 4.2.

    If the Customer causes any disruption, delay or other hindrance to Spanlift in the performance of the Work, there
    will be a Variation and clause 5 applies.

  • 4.3.

    Spanlift reserves the right to change the Price if a variation to Spanlifts Quotation is requested. Any variation by
    Spanlift from the plan of scheduled works or specifications (including, but not limited to, any variation due to
    fluctuations in the currency exchange rate or as a result of increases to Spanlift in the cost of materials and
    labour) will be charged in addition to the original quoted price on Spanlifts Quotation, and will be shown as
    variations on the invoice. Payment for all such variations must be made in full at their time of completion.

  • 4.4.

    If the Customer is a Consumer or a Small Business, then the Customer may consider the variation referred to in
    clause 4.2 and, if not acceptable, may elect not to proceed with the purchase of the Goods ordered before the
    date of the variation but which are intended to be subject to the variation.

  • 4.5.

    At Spanlifts sole discretion a non-refundable deposit may be required.

  • 4.6.

    Spanlift may give the Customer an invoice that is a progress claim for the Milestone that has been substantially
    completed.

  • 4.7.

    Time for payment for the Goods being of the essence, the Customer must pay Spanlift the Price, and for any
    Variation, on the date/s determined by Spanlift, which may be:

    • 4.7.1.

      on delivery/collection of the Goods;

    • 4.7.2.

      the date specified on any invoice or other form as being the date for payment.

  • 4.8.

    Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of
    3%+GST of the Price for AMEX cards and 1.3%+GST of the Price for any other cards), or by any other method as
    agreed to between the Customer and Spanlift.

  • 4.9.

    The Customer must pay the Price and the GST thereupon without set-off, deduction, withholding or counterclaim.

  • 4.10.

    Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to
    Spanlift an amount equal to any GST Spanlift must pay for any supply by Spanlift under this or any other
    agreement for the sale of the Goods and/or Services. In addition the Customer must pay any other taxes and
    duties (including, but not limited to, customs duty, packaging costs, freight charges or bank charges) that may be
    applicable in addition to the Price except where they are expressly included in the Price.

  • 4.11.

    Any amounts received by Spanlift may be applied at Spanlifts discretion: first against interest, fees, charges,
    collection expenses and legal expenses; and second, towards any amount that the Customer owes to Spanlift
    from time to time.

  • 4.12.

    Spanlift will be entitled to set off against any money owing to the Customer amounts owed to Spanlift by the
    Customer on any account whatsoever.

5. Variations

  • 5.1.

    The Customer may instruct Spanlift to carry out a Variation.

  • 5.2.

    If Spanlift believes any instruction by the Customer involves a Variation even though the Customer does not state
    that it is an instruction to carry out a variation, then it will be considered a Variation.

  • 5.3.

    Upon receiving instruction from the Customer:

    • 5.3.1.

      Spanlift may provide to the Customer an estimate of the costs (including delay costs, if any) of the
      Variation.

    • 5.3.2.

      Spanlift must also proceed with the Variation unless otherwise instructed by the Customer.

    • 5.3.3.

      if clause 5.2 applies, Spanlift must not proceed without first notifying the Customer that Spanlift believes
      the instruction involves a Variation.

  • 5.4.

    The procedure in clause 5.3 is not required for variations which Spanlift can automatically do under clauses 4.2 ,
    8.3.4 , 8.4 , 8.5.2 , 24.2 , 24.6 , 24.7 , or 25.2 .

  • 5.5.

    If specified materials become difficult to obtain, Spanlift may use substitute materials of the same or higher quality
    and specification. In that case there will be a Variation and clause 5 will apply.

  • 5.6.

    If the engineer requires a Variation, then clause 5 will apply.

6. Pricing and payment of Variations

  • 6.1.

    Spanlift may claim full payment, or progressive payment, as appropriate, for Variations when lodging claims under
    clause 4 .

  • 6.2.

    Unless Spanlift and Customer agree the price for any Variation, the price will be fixed by Spanlift in the following
    way

    • 6.2.1.

      if specific rates or prices have been agreed, by applying those rates or prices;

    • 6.2.2.

      otherwise by applying reasonable rates and prices and adding 20% for profit and overheads.

  • 6.3.

    GST will be added to the total amount under 5.2.1. and 5.2.2.

7. Delivery of Goods and Risk

  • 7.1.

    Delivery (Delivery) of the Goods is taken to occur at the time that Spanlift (or Spanlifts nominated carrier) leaves
    Spanlifts premises to deliver the Goods to the Customers Site. If no address is nominated, then delivery will be
    deemed to occur at the time when the Goods are ready for collection from Spanlifts premises.

  • 7.2.

    At Spanlifts sole discretion, and unless otherwise specified, the cost of Delivery is in addition to the Price.

  • 7.3.

    Spanlift may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in
    accordance with the provisions in these terms and conditions.

  • 7.4.

    Any delivery time or date given by Spanlift to the Customer is an estimate only and Spanlift shall not be liable to
    the Customer for any failure to deliver or for delay in delivery of Goods occasioned by strike, lockout or other
    industrial dispute, shortage of stock, shortage of labour, lack of skilled labour, delays in transit, fire, flood, hostility,
    civil commotion or any other cause whatsoever whether or not beyond the control of Spanlift.

  • 7.5.

    The Customer shall not be relieved of any obligation to accept or pay for Goods by reason of any delay in
    Delivery. To the extent permitted by law, Spanlift will not be liable for any loss or damage, including
    Consequential Loss or damage, arising from any delay in delivery to the Customer.

  • 7.6.

    The Customer authorises Spanlift to deliver Goods to the Site or the place nominated by the Customer and to
    leave the Goods at such place whether or not any person is present to accept Delivery. Spanlift shall not be liable
    on any basis whatsoever for loss suffered by the Customer after delivery.

  • 7.7.

    Spanlift shall not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated
    place for Delivery but if a signed receipt or other acknowledgment is obtained from someone believed by Spanlift
    to be authorised by the Customer to sign or otherwise take Delivery, then such signed receipt or other
    acknowledgement shall be conclusive evidence of the Customers acceptance of the Goods delivered.

  • 7.8.

    Risk of damage to or loss of the Goods passes to the Customer on Delivery.

  • 7.9.

    The Customer shall insure the Goods against theft or any damage until such Goods have been paid for in full by
    the Customer and Spanlift will be entitled to call for details of the insurance policy. If the Customer does not insure
    the Goods or fails to supply details of its insurance policy, the Customer will reimburse Spanlift for the cost of any
    insurance which Spanlift may reasonably arrange in respect of the Goods supplied to the Customer.

  • 7.10.

    If the Customer requests Spanlift to leave Goods outside Spanlifts premises for collection or to deliver the Goods
    to an unattended location, then such Goods shall be left at the Customers sole risk.

8. Specifications, materials and special orders

  • 8.1.

    All descriptions, specifications, illustrations, drawings, data, dimensions and weights contained in catalogues,
    price lists or other advertising matter of Spanlift or elsewhere are approximations only. They are intended by
    Spanlift to be a general description for information and identification purposes and do not create a sale by
    description.

  • 8.2.

    Dimensions for the Goods are as described in the Quotation. If the Customer has any specific critical dimensions
    the Customer must inform Spanlift before fabrication.

  • 8.3.

    For Goods supplied:

    • 8.3.1.

      Bay spacing is measured from centre of column to centre of column, span of building is measured from the
      outside face of columns. Mezzanines are designed to accommodate a 3KPA load unless otherwise
      specified.

    • 8.3.2.

      The building is designed for region A, terrain category 2.5 and an Importance level of 1 if for Agriculture or
      2 if for Industrial.

    • 8.3.3.

      The design is based on the Soil Type being stiff cohesive soil with undrained cohesion Cu>=50KPa as well
      as allowable soil bearing capacity>=120KPa.

    • 8.3.4.

      If soil testing, reports or a modified footing design are required there will be a Variation and clause 5 will
      apply.

    • 8.3.5.

      Wind bracing in roof and walls are an integral part of the design and will be placed where required. Under
      some circumstances this will be in open bay especially if the shed has no walls.

    • 8.3.6.

      Unless otherwise stated on the Quotation, Goods will be supplied by Spanlift within the tolerances in
      regard to quantity, weight, dimension, finish and chemical composition as specified in the relevant order or,
      if not specified, as consistent with usual industry practice.

    • 8.3.7.

      The Price assumes that the Work will be carried out on a level pad. The Price does not include any
      allowance for different length columns, openings or sheeting.

    • 8.3.8.

      The Customer is responsible for plans and computations for internal fit out, electrical, fire control, plumbing
      and earthworks.

  • 8.4.

    Spanlift will provide the Contract Documents, which include detailed plans, to the Customer for the Goods before
    manufacture. The Customer must inform Spanlift in writing within 48 hours of receipt of those plans if the plans do
    not suit the Customers needs. In that case, Spanlift will advise whether the request can be accommodated as
    specified and if Spanlift can, Spanlift will attend to the necessary changes. If that causes Spanlift to incur
    additional costs, there will be a Variation and clause 5 will apply. After that time, the Customer shall have no claim
    against Spanlift for any dimensional or specification issue and the Customer cannot refuse to accept Delivery of
    the Goods.

  • 8.5.

    With respect to the Contract Documents:

    • 8.5.1.

      Spanlift will immediately refer any ambiguity or discrepancy in the Contract Documents to the Customer.

    • 8.5.2.

      Any instruction given by the Customer arising out of such ambiguity or discrepancy will be a Variation and
      clause 5 will apply;

    • 8.5.3.

      If there is any inconsistency in the Contract Documents, the following order of precedence applies:

      • 8.5.3.1

        the Quotation;

      • 8.5.3.2

        the plans;

      • 8.5.3.3

        the specifications.

  • 8.6.

    Spanlift shall not be bound to accept any change in product dimension, materials or finish, a reduction in the
    quantity ordered or other particulars of an order for Goods after Spanlift has ordered special materials or
    commenced manufacture.

  • 8.7.

    Where Spanlift is required to order special material or quantities for which a supplier of Spanlift requests minimum
    order quantities, the Customer may be requested to accept an increase of the minimum quantity required to be
    ordered by Spanlift to fulfil the order and if so requested the Customer shall be obliged to accept and pay for such
    increase.

  • 8.8.

    Notwithstanding any other provision of these terms and conditions, it is a term of the contract made between
    Spanlift and the Customer that Spanlift has discretion to refuse to supply Goods to the Customer (without liability
    to the Customer) where Goods are unavailable or insufficient for any reason whatsoever;

  • 8.9.

    Subject to the rights of Consumers, unless the Goods have been supplied to the Customer who is a Consumer or
    Small Business, the Customer agrees that it does not rely on the skill or judgment of Spanlift in relation to the
    suitability of any of the Goods for a particular purpose unless it has indicated that purpose in writing to Spanlift and
    Spanlift has acknowledged in writing that the Goods will be fit for the particular purpose

9. Default and Consequences of Default

  • 9.1.

    Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of
    payment, at a rate of one and a half percent (1.5%) per calendar month or part thereof, and the Customer shall be
    liable for, and expressly undertakes to pay, all such interest.

  • 9.2.

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

  • 9.3.

    If:

    • 9.3.1.

      Spanlift has any reasonable grounds to believe that the Customer may not be able to make due and
      punctual payment to Spanlift or there is any default or failure by the Customer in making due and punctual
      payment to Spanlift of any moneys owing by the Customer; or

    • 9.3.2.

      the Customer becomes bankrupt or insolvent, 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 ceases to
      carry on a business; or

    • 9.3.3.

      a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the
      Customer or any asset of the Customer. then, all amounts owing to Spanlift shall, whether or not due for payment, become immediately payable, and,
      without prejudice to Spanlifts other remedies at law, Spanlift shall be entitled to do any or all of the following:

    • 9.3.4.

      place on stop any credit facilities which may have been extended to the Customer;

    • 9.3.5.

      withdraw any credit facilities which may have been extended to the Customer;

    • 9.3.6.

      withhold any further delivery of Goods;

    • 9.3.7.

      in respect of Goods already delivered and/or installed, enter onto the Customers premises to recover and
      resell the Goods for its own benefit;

    • 9.3.8.

      recover from the Customer the cost of materials or goods acquired for the purpose of future deliveries; or

    • 9.3.9.

      exercise such rights as are afforded to Spanlift under the PPSA.

  • 9.4.

    In addition to any interest charges applied to overdue account Spanlift may charge an overdue administration
    charge of $15.00 for every payment made after the due date.

10. Title

  • 10.1.

    Spanlift and the Customer agree that legal and beneficial ownership of the Goods shall not pass until:

    • 10.1.1.

      the Customer has paid Spanlift all amounts owing to Spanlift; and

    • 10.1.2.

      the Customer has met all of its other obligations to Spanlift.

  • 10.2.

    Receipt by Spanlift 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 by Spanlift.

  • 10.3.

    It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 8.1 that:

    • 10.3.1.

      the Customer is only a bailee of the Goods and must return the Goods to Spanlift on request;

    • 10.3.2.

      the Customer holds the benefit of the Customers insurance of the Goods on trust for Spanlift and must
      pay to Spanlift the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

    • 10.3.3.

      the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the
      ordinary course of business and for market value;

    • 10.3.4.

      the Customer should not convert or process the Goods or intermix them with other goods but if the
      Customer does so then the Customer holds the resulting product on trust for the benefit of Spanlift and
      must sell, dispose of or return the resulting product to Spanlift as it so directs;

    • 10.3.5.

      the Customer irrevocably authorises Spanlift to enter any premises where Spanlift believes the Goods are
      kept and recover possession of the Goods;

    • 10.3.6.

      Spanlift may recover possession of any Goods in transit whether or not Delivery has occurred;

    • 10.3.7.

      the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away
      any interest in the Goods while they remain the property of Spanlift;

    • 10.3.8.

      Spanlift may commence proceedings to recover the Price of the Goods sold notwithstanding that
      ownership of the Goods has not passed to the Customer;

11. Personal Property Securities Act 2009 (PPSA)

  • 11.1.

    In this clause 9, financing statement, financing change statement, security agreement, and security interest has
    the meaning given to it by the PPSA.

  • 11.2.

    The Customer acknowledges and agrees that these terms and conditions constitute a security agreement and
    until Spanlift has received payment for all amounts owing to it by the Customer, Spanlift has a:

    • 11.2.1.

      PMSI in the Goods (and its proceeds) supplied presently and in the future by Spanlift to the Customer;

    • 11.2.2.

      Security Interest in relation to any other amounts owed by the Customer to Spanlift.

  • 11.3.

    The Customer undertakes to:

    • 11.3.1.

      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 Spanlift may reasonably require to:

      • 11.3.1.1

        register a financing statement or financing change statement in relation to a security interest on
        the Personal Property Securities Register;

      • 11.3.1.2

        register any other document required to be registered by the PPSA; or

      • 11.3.1.3

        ensure that a security interest is enforceable, perfected and otherwise effective, including to cure
        any defect in any registration.

    • 11.3.2.

      indemnify, and upon demand reimburse, Spanlift 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 Goods charged thereby;

    • 11.3.3.

      not register a financing change statement in respect of a security interest without the prior written consent
      of Spanlift;

    • 11.3.4.

      not register, or permit to be registered, a financing statement or a financing change statement in relation to
      the Goods in favour of a third party without the prior written consent of Spanlift;

    • 11.3.5.

      immediately advise Spanlift 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.

  • 11.4.

    Spanlift 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 waives their rights to receive notices under sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4)
    and 135 of the PPSA.

  • 11.6.

    The Customer waives their 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 Spanlift, the Customer waives their right to receive a verification
    statement in accordance with section 157 of the PPSA.

  • 11.8.

    The Customer must unconditionally ratify any actions taken by Spanlift 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 the PPSA.

12. Security, Charge and Indemnity

  • 12.1.

    In consideration of Spanlift agreeing to supply the Goods, the Customer hereby charges in Spanlifts favour, all of
    its respective present and future rights, title and interests (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 agrees that, on demand by Spanlift, the Customer will immediately execute such mortgage or other
    instrument of security (Security Instrument), as Spanlift may require, and in the event that the Customer fails to
    do so with a reasonable time of being so requested, the Customer hereby irrevocably appoints each director of
    Spanlift as the Customers true and lawful attorney/s to execute and register any such Security Instruments
    including, but not limited to, signing any document on the Customers behalf. The Customer will not object to the
    lodgment by Spanlift of a caveat noting the interest given by this clause 10, or any other Security Instrument, on
    the title of the charged property.

  • 12.3.

    The Customer agrees to hold harmless and indemnify Spanlift, on a full indemnity basis, as a separate obligation
    against any liability (including but not limited to all losses, costs, charges, expenses, disbursements, collection and
    legal costs) incurred by, or assessed against, Spanlift in connection with:

    • 12.3.1.

      any advice, recommendations, representations or warranties with respect to the fitness for purpose of any
      Goods;

    • 12.3.2.

      the design of the Goods;

    • 12.3.3.

      the supply of Goods to the Customer;

    • 12.3.4.

      the carrying out of the Works;

    • 12.3.5.

      the Customers breach of any of these terms and conditions of trade;

    • 12.3.6.

      any cheque given by the Customer, or electronic banking transaction made by the Customer, being
      dishonoured for whatever reason;

    • 12.3.7.

      obtaining, or attempting to obtain, payment for any amount due by the Customer;

    • 12.3.8.

      otherwise arising out of the business relationship between the Customer and Spanlift;

    • 12.3.9.

      moneys paid by Spanlift with the Customers consent in settlement of a dispute that arises or results from a
      dispute between, Spanlift, the Customer, and a third party or any combination thereof, over the supply of
      goods and/or services by Spanlift to the Customer

    • 12.3.10.

      in connection with the enforcement or discharge of this clause, clause 11 and/or clause 12 .

  • 12.4.

    The Customer acknowledges that collection costs may be calculated on a commission basis at a percentage rate
    of up to 20% of the amount due and expressly agrees to pay for those expenses, irrespective of the amount of
    work actually performed by the collection agent.

13. Defects, Warranties and Returns

  • 13.1.

    The Customer must inspect the Goods on Delivery and must within two (2) days of Delivery notify Spanlift in
    writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or Quotation.
    Upon such notification the Customer must allow Spanlift to inspect the Goods. If the Customer fails to provide
    such notice then the Customer shall be deemed to have accepted the Goods.

  • 13.2.

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

  • 13.3.

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

  • 13.4.

    Notwithstanding clauses 13.1 to 13.3 but subject to the ACL:

    • 13.4.1.

      Spanlift shall not be responsible for the consequence of any representation made or technical advice given
      by its employees, agents or sub-contractors in connection with the design, installation and use of the
      Goods, and the Customer agrees that all such advice is accepted by the Customer entirely at the
      Customers risk;

    • 13.4.2.

      except as otherwise expressly specified in the terms of any applicable written warranty provided by
      Spanlift, Spanlifts liability to the Customer (whether arising under statute, contract, tort (including
      negligence), equity or otherwise) for any defect in the Goods, or the Works, is limited, at Spanlifts option,
      to:

      • 13.4.2.1

        in the case of Goods, the repair of the Goods, the replacement of the Goods or paying for the
        cost of repair or replacement of the Goods; or

      • 13.4.2.2

        in the case of the Works, the resupply of the relevant Works or paying for the cost of resupplying
        the relevant Works;

    • 13.4.3.

      and also subject to clause 13.4.2 , Spanlift is not liable to the Customer or anyone else in connection with
      the Goods or the Works or with these terms and conditions (including any changes to the terms and
      conditions), including without limitation for:

      • 13.4.3.1

        any losses, costs, damages, expenses, claims, demands, actions, suits or proceedings
        (including without limitation for damage to the Goods or injury to any person) arising from:

        • (i)

          the loading, unloading or delivery of the Goods;

        • (ii)

          a failure to deliver, or delay in delivering, the Goods; or

        • (iii)

          the removal of defective Goods or the installation of replacement Goods;

      • 13.4.3.2

        any direct, indirect or Consequential Loss or damage, any loss of actual or anticipated savings,
        opportunity, revenue, profit or goodwill, or other economic loss; and

      • 13.4.3.3

        any claim, action or proceeding by a third party against the Customer (or any loss, damages or
        liability incurred or suffered by the Customer as a result of any such claim, action or proceeding);
        and

      • 13.4.3.4

        the Customer indemnifies Spanlift from and against all losses, damages, costs and expenses
        suffered or incurred by Spanlift, and all claims, demands, suits, actions or proceedings made or

        • brought against Spanlift, arising out of:

        • (i)

          Spanlifts use of or reliance on any materials, design, drawing or specification provided to
          Spanlift by the Customer (including any allegation or claim that any such use or reliance by
          Spanlift infringes the intellectual property rights of any person);

        • (ii)

          the Customer failing to properly maintain or store any Goods;

        • (iii)

          the Customer using the Goods for any purpose other than that for which they were
          designed;

        • (iv)

          the Customer continuing the use of the Goods after any defect became apparent or should
          have become apparent to a reasonably prudent operator or user;

        • (v)

          the Customer failing to follow any instructions or guidelines provided by Spanlift;

        • (vi)

          fair wear and tear, any accident, or act of God.

  • 13.5.

    Subject to this clause 11 and the terms of any applicable written warranty provided by Spanlift, Spanlift makes no
    warranties or other representations under these terms and conditions including but not limited to the quality or
    suitability of the Goods. All implied conditions, warranties, undertakings, inducements or representations whether
    express or implied, statutory or otherwise, relating to these terms and conditions or their subject matter are
    excluded to the maximum extent permitted by law.

14. Cancellation

  • 14.1.

    Spanlift may cancel any contract to which these terms and conditions apply or cancel supply of Goods at any time
    before the Goods are due to be delivered by giving written notice to the Customer. On giving such notice Spanlift
    shall repay to the Customer any money paid by the Customer for either the Goods or Services. Spanlift shall not
    be liable for any loss or damage whatsoever arising from such cancellation.

  • 14.2.

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

  • 14.3.

    Cancellation of orders for Goods made to the Customers specifications, or for nonstock list items, will not be
    accepted once manufacture has commenced, or an order has been placed by Spanlift with its suppliers.

15. Termination

  • 15.1.

    Spanlift may terminate any of this contract by written notice if:

    • 15.1.1.

      the Customer fails to make any payment due;

    • 15.1.2.

      the Customer takes possession of the work without Spanlifts consent;

    • 15.1.3.

      there is any other substantial breach of this contract by the Customer; and the Customer has not rectified the breach within 14 days of a written notice from Spanlift which specifies the breach complained of.

  • 15.2.

    The Customer may terminate this contract by written notice if there is a substantial breach of this contract by
    Spanlift, and Spanlift has not rectified the breach within 14 days of a written notice from the Customer which
    specifies the breach complained of.

  • 15.3.

    Either Customer, or Spanlift, may terminate this contract by written notice if the other:

    • 15.3.1.

      does an act of bankruptcy mentioned in s.40 of the Bankruptcy Act 1966 (Cth); or

    • 15.3.2.

      becomes an externally administered body corporate as defined in the Corporations Act 2001 (Cth).

  • 15.4.

    Either the Customer, or Spanlift, may terminate this contract by written notice if someone else lawfully takes
    possession of any of the others property.

  • 15.5.

    Termination does not affect rights rising from a breach of contract.

16. Assignment and subcontracting

  • 16.1.

    This contract cannot be assigned unless both the Customer and Spanlift agree.

  • 16.2.

    However, Spanlift may sub-contract the Work or any part of it.

17. Dispute resolution

  • 17.1.

    If a difference or dispute, together a Dispute, arises between the Customer and Spanlift in connection with the
    subject matter of this contract, including a dispute concerning a Claim:

  • 17.2.

    in tort;

  • 17.3.

    under statute;

  • 17.4.

    for restitution based on unjust enrichment or other quantum meruit; or

  • 17.5.

    for rectification or frustration, or any like claim available under the law governing the Contract;
    then either party shall, by hand or by certified mail, give the other a written notice of Dispute adequately identifying
    and providing details of the Dispute.

  • 17.6.

    Notwithstanding the existence of a Dispute, the parties shall, subject to any other relevant clauses in the Contract
    which permit the suspension of Work, continue to perform the contract.

  • 17.7.

    Within 14 days after receiving a notice of Dispute, the parties shall confer at least once to resolve the Dispute or to
    agree on methods of doing so. At every such conference each party shall be represented by a person having
    authority to agree to such resolution or methods. All aspects of every such conference except the fact of
    occurrence shall be privileged.

  • 17.8.

    If the Dispute has not been resolved within 28 days of service of the notice of Dispute, the parties will attempt to
    agree on a method by which the Dispute will be determined or resolved whether by way of expert or otherwise.

  • 17.9.

    If the parties cannot agree on such a method within a period of 14 days, the parties shall be at liberty to issue
    proceedings in a court of competent jurisdiction.

  • 17.10.

    Nothing herein shall prejudice the right of a party to institute proceedings to enforce payment due under this
    contract or to seek injunctive or urgent declaratory relief.

18. Copyright

  • 18.1.

    Spanlift own all copyright created by Spanlift in the Contract Documents and the Work.

19. Privacy

  • 19.1.

    Spanlifts Privacy Policy, Credit Reporting Policy and Statement of Notifiable Matters, available on its website or
    upon request to Spanlift, are agreed to by the Customer.

  • 19.2.

    Spanlifts website may be hosted, or some data may be stored overseas. All personal information derived from
    Australia will still be treated in accordance with Spanlifts policies whilst being stored overseas.

  • 19.3.

    In accordance with Spanlifts Policies, the Customer agrees that Spanlift may use or disclose information to its
    suppliers and to third parties for the purpose of providing the Goods, providing information about Goods; sending
    information about Spanlift and/or Spanlifts services; performing administrative and marketing operations;
    complying with legislative and regulatory requirements or as otherwise permitted or authorised by law; considering
    any other application the Customer makes to Spanlift; managing Spanlifts rights and obligations in relation to
    external payment systems, e.g. credit card schemes and debit payment schemes; conducting market research or
    Customer satisfaction research; and developing and identifying products and services that may interest the
    Customer.

20. Notices

  • 20.1.

    All notices must be in writing.

  • 20.2.

    Notices can be given in person.

  • 20.3.

    Notices can also be left at a persons last known address.

  • 20.4.

    Notices can also be sent there by post, but they must be correctly addressed and posted.

  • 20.5.

    If posted, the notice is treated as given 2 business days after posting.

  • 20.6.

    Notices can be given by facsimile transmission.

21. Miscellaneous

  • 21.1.

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

  • 21.2.

    These terms and conditions and any contract to which they apply shall be governed by the laws of South
    Australia, and are subject to the non-exclusive jurisdiction of the Courts in that state.

  • 21.3.

    Spanlift may license or sub-contract all or any part of its rights and obligations without the Customers consent.

  • 21.4.

    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.

  • 21.5.

    Where the Customer is a trustee:

    • 21.5.1.

      The Customer agrees to produce a stamped copy of the trust deed (with all amendments) if and when
      requested by Spanlift.

    • 21.5.2.

      The Customer warrants that it has full power and authority to enter into these terms and conditions in its
      capacity as trustee of its trust.

  • 21.6.

    The Customer authorises Spanlift to enter the Site and access the Works after completion and the Customer
    agrees to do all things reasonably requested by Spanlift to enable photographs and video footage (including by
    drone) for promotion of Spanlift and the Goods.

IF THIS IS A CONTRACT FOR THE SUPPLY AND INSTALLATION OF THE GOODS, THE FOLLOWING TERMS ALSO
APPLY:

22. Obligations

  • 22.1.

    Spanlift will do the Work:

    • 22.1.1.

      for the Customer at the Site.

    • 22.1.2.

      properly and skillfully.

    • 22.1.3.

      as required by any statute;

    • 22.1.4.

      using good and proper materials.

  • 22.2.

    The Customer:

    • 22.2.1.

      promises that it has the right to build on the Site;

    • 22.2.2.

      must not give any instructions to Spanlifts suppliers or subcontractors or workers;

    • 22.2.3.

      must give instructions to Spanlift quickly once requested by Spanlift;

    • 22.2.4.

      is responsible to inform all neighbors to the Site if the Work might affect their properties;

    • 22.2.5.

      acknowledges that it has used its own knowledge, skill, and judgment in selecting the Goods and the
      specification of it;

    • 22.2.6.

      is responsible for ensuring that:

      • 22.2.6.1

        the Goods satisfy any specific clearance requirements;

      • 22.2.6.2

        the Goods will fit onto the Site;

      • 22.2.6.3

        the design, layout, orientation and dimensions of the Goods are correct and suitable to the
        Customers needs.

    • 22.2.7.

      is responsible for any loss caused due to the insolvency of any subcontractor nominated by the Customer
      to perform any part of the Work;

    • 22.2.8.

      once Spanlift has handed over the Works to the Customer:

      • 22.2.8.1

        is responsible for maintaining the Goods and ensuring that it has been assessed for risks;

      • 22.2.8.2

        must put in place any necessary or relevant controls or safety measures.

23. Planning and Consents

  • 23.1.

    Unless the Quotation states otherwise, the Customer is responsible for obtaining and paying for any planning,
    building or other consents for the Work.

24. Site Matters

  • 24.1.

    If requested by Spanlift, the Customer must provide details, and show Spanlift, the correct location of any Site
    boundaries.

  • 24.2.

    If there is doubt as to the Site boundaries, Spanlift will arrange for a surveyor to peg the Site and the position of
    the Work. This will be a Variation and clause 5 will apply;

  • 24.3.

    The Customer must, before Works commence, inform Spanlift:

    • 24.3.1.

      of any easements or encumbrances on the Site;

    • 24.3.2.

      of any other matters material to the Site;

    • 24.3.3.

      of anything else Spanlift should know about the Site or its boundaries.

  • 24.4.

    The Customer is responsible for the accuracy of all information conveyed to Spanlift.

  • 24.5.

    The Customer is responsible for Spanlift always having all-weather access from a public road to every place on
    the Site including providing 5 metres of level ground around the perimeter of the building, where the Work is to be
    done. This means that Spanlift must be able to move all vehicles, machinery, equipment and materials freely over
    the Site. As an example, a problem may occur when bad weather causes boggy ground.

  • 24.6.

    Spanlift will do any work needed to get, and maintain, this access. This work will be a Variation and clause 5 will
    apply.

  • 24.7.

    If any variation is required due to unforeseen Site conditions Spanlift will do the Variation and clause 5 will apply.

  • 24.8.

    Before Delivery, the Customer shall cause the preparation and installation of a building pad on which the Goods
    are to be erected and such building pad shall comply with the engineers specification or AS3798/2007, whichever
    is more rigorous

  • 25.

    Possession of the Site

    • 25.1.

      The Customer must give Spanlift possession of the Site by the Start Date. The Site must be vacant (unless
      otherwise agreed in writing by Spanlift).

    • 25.2.

      Spanlifts possession of the site continues until it is returned to you under clause 28 .

    • 25.3.

      The Customer (if a natural person), and/or any person authorised by the Customer, can visit the Site. However,
      they must not disrupt the Work.

26. Time for doing the Work

  • 26.1.

    Spanlift will start the Work as soon as reasonable after the Start Date.

  • 26.2.

    The work must be practically complete by the Finish Date.

  • 26.3.

    However, the Finish Date will be put back by whatever time is reasonable if there is delay in the Work because of
    any event beyond Spanlifts control.

  • 26.4.

    Spanlift will make every reasonable effort to minimise the delay.

  • 26.5.

    Spanlift will keep the Customer reasonably informed about any delay.

  • 26.6.

    Once the period of the delay is reasonably ascertainable, Spanlift will notify the Customer of the period for which
    an extension of time is claimed by Spanlift.

  • 26.7.

    The Customer must pay Spanlift any costs incurred by Spanlift due to a delay for which an extension of time
    should properly be granted under this clause 20.

  • 26.8.

    Sometimes variations are required to footings (including service trenches) because of

    • 26.8.1.

      Site conditions which make digging difficult (for example, rock, loose soil or groundwater); or

    • 26.8.2.

      changed or new requirements of the Customers professional advisers.
      In these cases, Spanlift will do the Variation and clause 5 will apply.

  • 27.

    Local Authority requirements and changes in the law

    • 27.1.

      After the date of contract:

      • 27.1.1.

        the Local Authority may require a variation; or

      • 27.1.2.

        a Variation may be required because of changes to the law;

      • 27.1.3.

        In these cases, Spanlift will do the Variation and clause 5 will apply.

28. Practical completion

  • 28.1.

    Practical completion is when the work is substantially complete and reasonably fit for its intended use, and:

    • 28.1.1.

      Spanlift will notify the Customer when it believes the Work has reached practical completion and will give
      the Customer the final progress claim; and

    • 28.1.2.

      within 7 days, the Customer must advise Spanlift of the reasons why the Customer does not think the
      Work is practically complete; and

    • 28.1.3.

      if Customer believes that the Work is defective or incomplete, the Customer must give Spanlift a list of
      items claimed to be defective or incomplete; and

    • 28.1.4.

      insofar as Spanlift accepts responsibility, Spanlift must fix the items written in the list within a reasonable
      time after Spanlift is given the list;

    • 28.1.5.

      once Spanlift has fixed the items that Spanlift accept responsibility for (if any), Spanlift will give the
      Customer a fresh notice that the Work is practically complete; and

    • 28.1.6.

      within 7 days of the issue of the final progress claim, the Customer must pay the final progress claim.

    • 28.1.7.

      Spanlift will then hand over the Work, and return possession of the Site, to the Customer.

    • 28.1.8.

      after hand over if the Customer discover any defects in the work, the Customer must tell Spanlift and give
      Spanlift the opportunity to fix those defects within a reasonable time.

29. Insurance

  • 29.1.

    Spanlift will insure the Work until practical completion under a contract works policy.

  • 29.2.

    Spanlift will provide a copy of the policy to the Customer on request.

  • 29.3.

    Spanlift will have public liability insurance of at least $20,000,000.00.

  • 29.4.

    Spanlift will pay any Workcover levies which are Spanlift responsibility.

30. Stopping Work

  • 30.1.

    Without prejudice to any other rights Spanlift may have, Spanlift may stop the Work by written notice if the
    Customer breaches any terms and conditions.

  • 30.2.

    Stopping the Work does not affect Spanlifts rights to terminate under clause 15 .

  • 30.3.

    If the Customer corrects the breach before Spanlift terminates, Spanlift will re-start the Work within a reasonable
    time.