1) In these Terms and Conditions:

a) “Compliance Report” means Bristest’s written report, certifying the conditions of materials tested by Bristest:
i) which complies with the procedures and acceptance criteria of any relevant standard or standards; and
ii) where Bristest satisfies the accreditation requirements of NATA or such other relevant accrediting body agreed in writing between Bristest and the Client;

b) “contract” is each agreement for the sale of goods and / or the supply of services that arises upon Bristest’s acceptance of a purchase order or request in accordance with clause 2(b);

c) ”Client” shall refer to that person, firm, corporation or other legal entity requesting the work to be performed by Bristest

d) “Bristest” means BRISTEST Pty Ltd ACN 127 699 763 as defined in section 9 of the Corporations Act 2001

e) “Force Majeure Event” means any event or circumstance beyond the reasonable control of Bristest, including limitation any:
i) act of God;
ii) strike, boycott, lockout or other industrial disturbance;
iii) default of suppliers or subcontractors;
iv) lightning, fire, storm, flood, earthquake, inclement weather;
v) act of war (declared or undeclared), blockade, insurrection, riot or other civil disturbance;
vi) inability to obtain equipment labour or essential materials;
vii) act of any government orf authority, including refusal or delay in obtaining any necessary consent, approval or licence, or
viii) accident, explosion or breakage

f) “NATA” means National Association of Testing Authorities of Australia

g) “Proposal” is a written proposal by BRISTEST to the Client to supply goods or services to the Client on these Terms, and includes (without limitation) any estimate or quote

h) “POD” means the probability of detection in relation to testing services supplied by Bristest, being the statistical probability that a given test method or technique properly applied will detect a specific discontinuity;

i) “Terms” means these terms and conditions;

j) “Report” means any report provided by Bristest to the Client as part of the provision of services, and includes a Compliance Report

k) “Testing Errors” means the failure of testing services to meet the reasonable requirements of a specification or code applied by Bristest to the testing services after allowing for a permissible variability within the relevant test method and any acknowledged inability of the relevant test method to detect all defects all of the time.

2) Any purchase order or request by the Client for the provision of goods or services by Bristest:

a) is an offer by the Client which may be accepted or rejected by Bristest in its absolute discretion;

b) if accepted, gives rise to an agreement between Bristest and the Client for the supply of goods or services to the Client on these Terms

3) Any Quotation by Bristest for the supply of goods or services to the Client is open for 30 days (or such longer period agreed by Bristest in writing) and is not an offer to supply but is an invitation to treat only and, after the end of this period, Bristest reserves the right to:

a) vary or withdraw the Quotation; and

b) alter any price of fee on the Proposal for any reason, including to take into account exchange rate fluctuations and the cost of labour and materials

c) No order given to Bristest based upon a quotation shall be binding upon Bristest until accepted by Bristest in writing

4) The Client agrees to adhere to these Terms, which become binding on the Client when Bristest accepts the Client’s purchase order or request for goods or services. The only terms which are binding upon Bristest are:

a) those set out in these Terms or otherwise agreed to in writing by Bristest; and

b) those, if any, which are imposed by law and which cannot be excluded.
The Client agrees that these Terms apply to each contract and supersede and prevail over any other terms and conditions included in any purchase order, request, sales confirmation or other document or communication from the Client.

5) The Client is not entitled to any credit facilities until it receives notice in writing from Bristest stating that credit facilities have been granted. Until the Client receives such notice in writing from Bristest any goods or services that are supplied by Bristest to the Client shall be on the basis on 7 days Terms. In relation to the supply of services, “7days” means payment is required before delivery of Bristest’s Report, and Bristest is entitled to withhold from the Client delivery of the Report until payment.

6) The requirement for base term (7days) is not waived because Bristest supplies goods or services to the Client before credit facilities have been granted, and a waiver of the cash on delivery requirement is not effective unless it is in writing.

7) If Bristest agrees to supply goods or services to the Client on credit the following terms apply:

a) Payment must be made no later than 30 days after the date of Invoice by way of Electronic Funds Transfer to Bristest’s bank account as specified on the Invoice or Cheque posted to Bristest’s address

b) Payment is deemed to be made when the respective sums due have been received by Bristest’s bank in immediately available funds.

c) Time is of the essence in respect of the Client’s obligation to make payment

d) If the Client defaults in making payment to Bristest in accordance with these Terms Bristest may in its absolute discretion:
i) cease supplying any more goods or services until all outstanding Invoices are paid; and
ii) withhold the provision of any Report, retain custody of any materials, documents or other property of the Customer

e) Bristest will be entitled without notice to terminate any credit arrangement with the Client.

8) Orders placed with, and accepted by, Bristest cannot be cancelled without Bristest’s written approval. That approval may be given or withheld in Bristest’ s absolute discretion, and may be given on conditions including the payment by the Client of reasonable and appropriate cancellation charges including, without limitation, mobilisation and travel costs.

9) The price at which goods are sold, and the fee for which services are supplied:

a) must be paid in accordance with the contract, without any deductions, set off or counterclaim; and

b) do not (unless otherwise stated or agreed in writing) include sales tax or any goods and service, consumption, value added or similar tax, which must be added to the price and free and paid by the Customer as part of the price and the fee.

10) Bristest may issue progress claim invoices for the supply of goods or services on a monthly basis, on or before the end of the month in which the goods or services are supplied, irrespective of whether all goods and services included in that contract have been supplied.

11) Where a contract is for services charged on a time basis, travel time from Bristest’s to the Client’s premises is payable by the Client at the rate set out in the contract or if no rate is set out , at the rate set out in Bristest’s invoice. Bristest is entitled to invoice the Client for reasonable travel, accommodation and meal costs of its employees, contractors and agents.

12) Unless otherwise agreed in writing between Bristest and the Client, fees for services do not include, and Bristest is entitled to increase and charge additional fees for:

a) services supplied outside an 8 hour shift on any given business day, or for services supplied on any day that is not a business day;

b) additional services required because of delay or interruption caused by the Client or where the Client provides incorrect or insufficient information;

c) Bristest being on standby because:
i) access to the Client’s premises or work site is impeded or unavailable for any reason including without limitation by reason of adverse environmental and weather conditions;
ii) services are suspended because those premises are unsafe; or
iii) there has been a delay in the availability of materials by the Client

d) Additional preparation required that the Client had not completed as per agreement;

e) storage of sample materials by Bristest at the Client’s request for a period in excess of 30 days after the provision of the Report on those materials;

f) attendance at site meetings, including without limitation for any induction, on-site training and testing required by the Client;

g) the provision of additional copies of any Report and reviewing and discussing Reports or Bristest’s findings with any third party; and

h) re-testing at the Client’s request at the rates set out in the contract, or if no rate is set out, at reasonable rates notified by Bristest to the Client.

13) Property in goods (including any Reports) supplied by Bristest to the Client under any contract does not pass to the Client until those goods (and Reports), and all other goods supplied by Bristest to the Client under individual contracts, have been paid for in full.

14) If services are to be supplied at the Client premises, the Client must ensure that its premises comply with the reasonable requirements of Bristest for the provision of the relevant services.
In particular, and without limitation:

a) the premises and the work site must be adequately lit and comply with all health and safety laws and relevant standards;

b) the Client must provide:
i) toilet and other reasonable amenities including, if required by Bristest, a site office with telephone and secure storage facilities;

c) the Client must take out and maintain a public liability insurance policy for the premises covering any contractors and sub-contractors employed by the Client or Bristest loss of or damage to property and death of or injury to person for an amount of not less than $5,000,000 in respect of any one claim.

15) If the services involve the provision of a Report:

a) Bristest need only supply one copy of the Report;

b) Save as set out in clause 15(f), the Report is for the Client’s benefit only and is not to be relied on by any other person;

c) the Report relates only to Bristest’s finings in relation to sample material tested and is based on the assumptions set out in the Report;

d) Bristest prepares the Report on the basis of instructions and sample material received from the Client and therefore Bristest does not make any representation or give nay opinion in relation to materials that have not been tested by Bristest.

e) save as set out in clause 15(f) Report must not be published, disseminated, transmitted or reproduced in any form or by any process without Bristest’s prior written consent.

f) Compliance Report may be disseminated, transmitted or reproduced provided that:
i) the Compliance Report is duplicated in full, including any disclaimer of liability by Bristest;
ii) a copy of these Terms is provided to such person(s) in advance of the relevant dissemination of the Compliance Report and the Client specifically brings clause 15(f) to the attention of such person(s); and
iii) the Client procures that such person(s) do not publish, disseminate, transmit or reproduce the Compliance Report in any form or by any process without Bristest’s prior written consent; and

g) if a person other than the Client is entitled to rely on the Compliance Report, then by accepting delivery of such Compliance Report such person agrees that it shall be bound by clauses 15, 16, 17, 18, 19, 20 and 21 of these Terms as if it was the Client and the liability of Bristest to such person shall be limited as set out in such clauses.

16) The Client does not acquire any intellectual property rights in any drawings, technical data or information that may have been made available to it. Bristest remains the exclusive owner of any intellectual or industrial property rights relating to the goods or arising out of the provision of services.

17) The only conditions and warranties which are binding on Bristest in respect of:

a) the state, quality or condition of any goods supplied by it to the Client; and/or

b) any advice, recommendation(s), information, services or Reports supplied by it, its employees, contractors or agents to the Client,
are those set out in clause 18 and those:

c) imposed or implied by statute (including the Trade Practices Act 1974); and

d) the exclusion or modification of which is prohibited by statute

18) Bristest warrants that services supplied (including Reports) will be free from Testing Errors for a period of three months after date of supply. This warranty will not apply if:

a) goods or services are supplied by someone other than BRISTEST

b) there are Testing Errors arising directly or indirectly from a failure by the Client (or any other person) to provide correct specifications or test requirements, dimensions, materials or past history relating to the materials tested;

c) there is any maltreatment or interference with goods;

d) the Client has not prepared or inadequately prepared the testing materials; or

e) materials tested have since been subjected to adverse environmental conditions

19) To the extent permitted by statute the liability, if any, of Bristest arising from the breach of the conditions or warranties referred in clauses 17, 18 are, at Bristest’s opinion, limited to and completely discharged:

a) in the case of goods, by any of:
i) the repair of the goods; or
ii) the replacement of the goods or the supply of equivalent goods; or
iii) the payment of the cost of having the goods repaired or replaced or having equivalent goods supplied; and

b) in the case of advice, recommendation(s), information, services or Reports by any of:
i) supplying the advice, recommendation(s), information, services or Reports again; or
ii) the payment of the cost of having the advice, recommendation(s), information, services or Reports supplied again.

20) Except as provided in clause 17 all conditions and warranties implied by law in respect of:

a) the state, quality, suitability, merchantability, condition or fitness of any goods for any purpose; or

b) design, assembly, installation, materials or workmanship; or

c) the supply of services, which may apart from this clause be binding on BRISTEST are excluded

21) Except to the extent provided in clauses 17, 18, and 19 and to the extent that liability cannot be excluded under applicable law. Bristest has no liability (including, without limitation, liability arising out of Bristest’s negligence) to any person for

a) any physical or financial injury, loss or damage consequential or otherwise (including without limitation loss of profit or business interruption) suffered or incurred by that person in relation to the goods, their supply, assembly, installation, operation or application, or in relation to any advice, recommendation(s), information, services or Reports supplied by Bristest, its employees, contractors or agents; and

b) in particular, and without limiting clause 21(a), any loss or damage consequential or otherwise (including without limitation loss of profit or business interruption) suffered or incurred by that person caused by or resulting directly or indirectly from
i) any failure, defect or deficiency of any kind of or in the goods and / or advice, recommendation(s), information or services or Reports; or
ii) any conclusion drawn by, or expectation of, the Customer or any other person in relation to any Report or
iii) without in anyway limiting paragraph (ii), any expectation of the Customer (or any other person) that any tests carried out by Bristest will have a higher POD to that generally accepted in accordance with good industry practice, having regard to the variability in discontinuity, form, size, orientation or texture and the limitation of relevant test methods used in providing the services; and
iv) without limiting paragraph (ii), any expectation of the Customer (or any other person) that measurements referred to in a Report will have an uncertainty less than that referred to in any relevant standard.
and the Customer agrees that it has not relied on any representation given by Bristest in relation to any matter carried out pursuant to these Terms.

22) Bristest is entitled to:

a) retain sample materials for 30 days after the provision of the Report and dispose of those materials after that time;

b) charge a hire or rental fee (at Bristest’s cost of hire plus 15%) for any specialised equipment necessary for the supply of services

23) Bristest may sub-contract the whole or any part of the services to be supplied to the Client under the contract but in doing so, Bristest is not relieved of any of its obligations to the Client under the contract.

24) If Bristest is prevented in whole or in part from performing its obligations by a Force Majeure Event, performance of those obligations is suspended to the extent that performance of those obligations is suspended to the extent that performance is prevented by and any non-performance performance resulting from the Force Majeure Event will not be deemed to be a breach of the contract.

25) If a suspension under clause “24” exceeds 90 days, Bristest may immediately terminate the contract by written notice to the Client. In the event of termination, Bristest is entitled to be paid for all work performed before the date of termination and for any unavoidable commitments entered into by Bristest before the date of termination

26) The contract between Bristest and the Client is governed in all respects by the law of the State or territory in which the goods or services are principally supplied and of the Commonwealth of Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that state or territory and the Commonwealth of Australia.

27) In these Terms reference to a statue or a provision of a statue includes:

a) the statue or provision as amended from time to time;

b) a statue or provision enacted in replacement of the statue or provision; and

c) another regulation or statutory instrument made or issued under the statute or provision.