Agrifood T&C's 2014

AGRIFOOD TECHNOLOGY TESTING AND ANALYSIS TERMS AND CONDITIONS 1. 1.1 Application of these Terms and Definitions Subject to clause 2, these conditions apply to the supply by Australian Wool Testing Authority Ltd (AWTA Ltd) trading as Agrifood Technology (ABN 43 006 014 106) (we or us) of the testing, analysis and/or related services (Services) described in the accompanying quotation (if provided) (Quotation) to the customer identified in the Quotation (you). Any other conditions will apply only if and to the extent that they are accepted in writing by us. You will be deemed to have accepted the Quotation and these conditions (Contract Terms) and we will each be deemed to be bound by the Contract Terms if you supply to us material for testing and/or analysis (Testing Material): (a) (b) 1.3 1.4 after your receipt of the Contract Terms, subject to clause 2.2; or prior to your receipt of Contract Terms and you fail to notify us in writing of non-acceptance of the Contract Terms within 5 business hours following your receipt of the Contract Terms. 1.2 We may refuse to supply the Services if you deliver Testing Material to us after the expiry date specified in the Quotation. "Consumer" means: (a) (b) (c) an individual acquiring goods or services wholly or predominantly for personal, domestic or household use or consumption; or a person acquiring goods or services at a price not exceeding $40,000; or a person acquiring goods or services ordinarily acquired for personal, domestic or household use or consumption. 2. 2.1 2.2 2.3 2.4 2.5 Entire Agreement Clause 2.2 and 2.3 shall not apply to a Consumer. Unless agreed in writing, these are the only terms and conditions that apply to each agreement between us for the provision of Services. These terms supersede and exclude all prior and other discussions, representations and arrangements relating to the Services. Where you are not a Consumer, these terms will apply to the exclusion of all other terms and conditions for the provision of the Services. We may amend these terms at any time by notifying you, including in any one or more of the following ways: (a) (b) (c) printing the amended terms and supplying them with a quotation; referring to the amendments and/or printing the amended terms in a newsletter or Fees List; or posting the amended terms on our internet site (www.awta.com.au). Your continued use of our Services after such notice will constitute acceptance of the amendment. 3. 3.1 Warranties, Guarantees and Liability This clause does not apply to a Consumer with the exception that clause 3.4 shall apply where the testing services are acquired at a price not exceeding $40,000 and are not of a kind ordinarily acquired for personal, domestic or household use or consumption. We will carry out the Services with due professional care and skill. Other than the warranties contained in 3.2, to the maximum extent permitted by law, all warranties and guarantees expressed or implied by statute, common law, equity, trade, custom or usage or otherwise in relation to the provision of the Services, are expressly excluded. Where the exclusion of any of the warranties and guarantees referred to in this sub-clause would be illegal, our liability for breach of such warranty or guarantee is limited in the manner set out in sub-clause 3.4. 3.2 3.3 AWTA Ltd Page 2 of 5 3.4 AWTA Ltd's liability for its breach of sub-clause 3.2 or a non-excludable consumer guarantee implied into these terms by law is limited to any one of the following as determined by us: (a) (b) the supplying of the Services again; or the payment of the cost of having the Services supplied again. 3.5 To the extent permitted by law and not withstanding anything else contained in these terms, where you are not a Consumer, we exclude all liability whatsoever to you arising out of or in any way connected with the Services including without limitation for any loss of profits, loss of business revenue, failure to realise expected profits or savings, overhead costs, loss of goodwill, loss of reputation, loss of value in any intellectual property, damages or liquidated sums payable pursuant to other agreements, other economic losses or any consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort. Prices and Payment The prices payable by you for the supply of the Services are those specified in the Quotation, subject to any variation in accordance with clauses 6 and 9 (Prices). We may invoice you the Prices at any time after completion of the Services and you must pay our invoice within 30 days of the end of the month in which our invoice is issued. All quotations and payments will be in Australian dollars unless otherwise agreed by both parties. If you exceed our payment terms we may refuse to conduct further Services for you and any related party until payment in full is made or alternative payment methods are arranged and agreed between us. Taxes Unless otherwise specified in the Quotation, the Prices do not include GST, sales, value added or any other applicable government tax or duty, which will be added to the Prices and will be additionally payable by you at the same time payment of the Prices is due. In the case of GST, we agree to ensure that our invoice delivered to you in accordance with clause 4 constitutes a "tax invoice" for the purposes of applicable GST legislation. 4. 4.1 4.2 4.3 5. 6. 6.1 Testing Material You must supply to us the quantities of Testing Material specified on the quotation to enable us to properly perform the Services. You warrant that you are the owner of the Testing Material and/or are fully authorised to engage us to supply the Services in relation to the Testing Material. You are responsible (at your cost) for the delivery of all Testing Material to us. You are responsible for ensuring that all Testing Material is properly representative and for retaining any duplicate or controlled samples. We will not be responsible for accidental damage to Testing Material. You must ensure that the Testing Material corresponds with the description detailed in the Quotation. If you supply to us Testing Material that does not correspond with the description detailed in the Quotation, you acknowledge that we may be prevented from supplying the Services affected thereby by the Completion Time and you agree that we may vary the Prices to cover all extra costs reasonably determined by us as arising from the Testing Material not corresponding with the description in the Quotation. You acknowledge that Testing Material may be altered, damaged or destroyed during the performance of the Services. Unless we agree otherwise in writing, we shall not be obliged to return Testing Material remaining after performance of the Services to you. We may, in our discretion, store, experiment on, destroy or otherwise deal with Testing Material as we see fit. Completion Time If in the Quotation we specify a time for completion of the supply of particular Services (Completion Time), we agree to use all reasonable endeavours to complete the relevant Services within the Completion Time. You acknowledge that the Completion Time will not commence to run until the business day after the day you deliver the relevant Testing Material to our premises. You must only deliver Testing Material to us during business hours. If on a particular business day you deliver Testing Material outside business hours and we accept that delivery, the Testing Material will be deemed to have been delivered on the next business day. While we make all reasonable endeavours to complete the Services promptly, we are not liable for any loss arising from delay in carrying out the Services or producing a report or letter of opinion. 6.2 6.3 6.4 6.5 7. 7.1 7.2 AWTA Ltd Page 3 of 5 7.3 8. Where a completion time is not specified by us, we will make reasonable endeavours to complete the Services within a reasonable time from the receipt of the Testing Material by us. Hazardous Material On or before the provision of Testing Material to us, you must give us written notice of all safety or health hazards and special procedures relevant to the handling, testing, storage, transport and disposal of that Testing Material (including procedures arising where the Testing Material has been genetically modified). We reserve the right to refuse to perform the Services and terminate the applicable contract between us where we, in our reasonable opinion, consider that the performance may pose a safety risk or health hazard or that compliance with any required procedures will place an undue or unforseen burden on us. 9. 9.1 Urgent Analysis Where, in a particular Quotation, we specify a Completion Time and you subsequently request us to complete our supply of Services within a shorter time period, we will use all reasonable efforts to do so where our capacity allows. Where we comply with a request of the type referred to in clause 9.1, you agree that we may impose, in accordance with our standard commercial rates, a surcharge on the Prices otherwise payable in respect of the relevant Services. Our current standard surcharge rate is 40%, but we reserve the right to alter this rate as we, in our discretion, determine. Acknowledgements You acknowledge that you rely on all conclusions reached, and results advised by us in connection with our supply of the Services (including any conclusions or results detailed in any written reports produced by us) at your own risk entirely. You acknowledge that we have not made any statement or other representation, not expressly stated in these terms which has induced you to enter into the Services. Whilst we licence you to reproduce our written reports, you agree that any such reproduction must be a complete reproduction of the reports without any amendments or additions. Any extract, abstract or interpretation of a report or letter of opinion must be approved by us in writing prior to its release. A report, letter of opinion, the names Agrifood Technology and AWTA Ltd may be used in advertising, providing the content and format of the advertisement have been approved in advance by the Managing Director of AWTA Ltd. We retain copyright in all written material produced in the supply of the Services. Test Results If you specifically request a particular test as part of the Services and do not make known to us the particular purpose for the test, we are not liable for any loss you suffer because we perform that test when another test would have been more suitable given the quality or characteristic which you wish us to test or the end use which you intend for the material represented by the Testing Material. If you do not specifically request a particular test, you are responsible for providing clear, accurate and comprehensive instructions, including descriptions of the Testing Material whether in writing or orally (as evidenced by our file note), on the following: (a) (b) the quality or characteristic which you wish us to test; and the end use and/or the particular purpose intended for the material represented by the Testing Material. 9.2 10. 10.1 10.2 11. 11.1 11.2 11.3 We are not liable for any loss you suffer because the test results fail to measure the desired quality or characteristic, and/or fail to be suitable given the end use intended for the material represented by the Testing Material. The test results relate only to the sample or samples tested. Due to the many scientific variables involved in carrying out our testing services, we do not warrant that any test results derived from a sample will be identical or substantially similar to test results previously derived from a similar sample, using the same testing service, by us or a third party. You acknowledge that the tests may involve an element of subjective judgement. We retain any intellectual property rights incorporated or comprised in any material created by us or on our behalf in the course of providing the Services and may use such material for any purpose. Claims You will be deemed to have accepted the provision of the Services free of defects or other non conformity with these Contract Terms unless we receive a substantiated written claim as to any defects or other non conformity within 7 days from our completion of the supply of the Services. 11.4 11.5 12. AWTA Ltd Page 4 of 5 13. Indemnity You must at all times indemnify us and our officers, employees, contractors and agents ("those indemnified") against any loss or liability (including reasonable legal costs and expenses) arising from any proceedings or debt recovery actions against those indemnified where such loss or liability was caused by: (a) (b) a breach by you of an agreement; or incurred by those indemnified in enforcing any rights under an agreement with you. 14. 14.1 Termination We may, without affecting any other rights we may have, terminate or suspend any contract between us with immediate effect by giving notice to you if: (a) (b) (c) (d) you breach any provision of the Contract Terms and fail to remedy the breach within 7 days after our notice requiring you to do so; you cease to be able to pay your debts as they become due; you become subject to any form of insolvency administration; or any step is taken by a mortgagee to take possession or dispose of the whole or any part of your assets. 14.2 If we exercise our rights pursuant to clause 14.1 above to terminate or suspend a contract, we will immediately be entitled to invoice you for work in progress under that contract at our current rates. This clause does not limit or affect any other remedy which may be available to us including seeking compensation for any loss or damage suffered by us. If at any time after placing an order for Services you purport to terminate and/or repudiate or cancel the Services, then without prejudice to any other rights or remedies which we may have, we are entitled to recover from you such proportion of the Prices as is equivalent to the proportion of work already performed to the total of the work required to complete the Services, together with an additional 10% of this amount, representing a "loss of bargain" component. A written statement by our authorised officer stating the proportion of the Prices to be paid under this clause is conclusive evidence of the amount payable by you. Force Majeure The Services may be totally or partially suspended by us during any period in which we may be prevented or hindered from testing, delivery or supply through any circumstances outside our reasonable control or where such testing, delivery or supply is rendered materially more expensive by such circumstances. Circumstances beyond our reasonable control shall include without limitation, strikes, and other industrial action affecting AWTA Ltd, inability to obtain any necessary materials or inputs, equipment, facilities or services on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication facilities. We shall not incur any liability to you in respect of such suspension. Dispute Resolutions The parties must attempt to resolve any dispute as quickly as possible, but if such dispute is not resolved within 20 business days of notification by one of the parties to the other of the particulars of the dispute, before issuing proceedings at court, either one of the parties may refer the dispute to mediation, administered by the Australian Commercial Disputes Centre in accordance with its guidelines for commercial mediation. Each of us must bear our own costs of the mediation. If the matter is referred to mediation under clause 16.1, neither one of the parties may commence court proceedings concerning a matter in dispute unless the matter has not been resolved within 90 days of the referral. General If part or all of any provision of these conditions or its application to any person or circumstance is illegal or unenforceable, the provision will be interpreted so as to ensure it is not illegal or unenforceable. If any provision or part of it cannot be so interpreted, the provision or part of it will be severed from these conditions and the remaining provisions of these conditions continue in force. Where you comprise two or more persons, an agreement or obligation to be performed or observed by you binds those persons jointly and each of them severally. 14.3 15. 15.1 15.2 15.3 16. 16.1 16.2 17. 17.1 17.2 AWTA Ltd Page 5 of 5 17.3 A reference in these conditions to a "business day" is a reference to a day other than a Saturday, Sunday or public holiday in the State the Services will be performed and a reference to "business hours" is a reference to the hours between 9.00 am and 4.30 pm on a business day. Governing Law The Contract Terms are governed by the law in force in Victoria and you and us each submit to the non-exclusive jurisdiction of the courts of that State. Sub-Contracting to External Laboratories We may, after notifying you, sub-contract all or part of any Services to an external laboratory. These terms (except this clause) apply to Services sub-contracted as if we had performed all of the Services ourselves. Waiver Our failure to act with respect to a breach by you or others of these Contract Terms does not waive our right to act with respect to subsequent or similar breaches. 18. 18.1 19. 19.1 20. 20.1