In these terms and conditions, except where the contrary intention is expressed, the following definitions are used:
Business Day: a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the act is to be performed or where the Notice is received.
Customer: the person specified on an Order Form for National Measurement Institute (NMI) products (or if there is no Order Form, the person placing the order for NMI products, or on whose behalf the order for NMI products is placed, with NMI).
Contract: the agreement, comprising the documents specified in clause 3.1, concluded between NMI and the Customer for participation in Proficiency Testing Schemes and supply of products, Contractor, as amended from time to time in accordance with clause 3.2.
Confidential Information: means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this Contract that:
(a) is identified by notice in writing to the other party after the date of this Contract as confidential information for the purpose of this Contract;
(b) a party knows or ought to know is confidential; or
(c) is ‘Personal Information’ as defined under the Privacy Act 1988 (‘Personal Information’),
But does not include data obtained from Proficiency Testing Schemes that is used in accordance with clause 20.2.
Dispatch Date: the Business Day that NMI dispatches Proficiency Test Items as part of the Proficiency Test to the Customer as detailed on the order form.
Fees: the amount specified in the Order Form.
Final Report: a detailed report which includes laboratory codes, test results and a discussion of test results.
Interim Report: a report issued with the primary purpose of providing each Customer with an early indication of performance.
Intellectual Property Rights: all intellectual property rights, including:
(a) copyright, patents, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere, whether or not such rights are registered or capable of being registered.
Material: includes property, information, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.
NMI: the Commonwealth of Australia, as represented by the National Measurement Institute, a Division of the Department of Industry, Science, Energy and Resources.
NMI Guidelines: the NMI Quality Manual as edited from time to time in accordance and compliance with the ISO/IEC 17043 “Conformity assessment — General requirements for proficiency testing” and the international IUPAC/AOAC/ISO harmonised “Protocol for the Proficiency Testing of Chemical Analytical Laboratories”.
Order Form: the letter and attachments containing the participation and payment form.
Pre-Existing Material: Material owned by the Customer before entering into this Contract.
Proficiency Tests: the distribution of one or more proficiency test items, and the evaluation and reporting of results to the participants.
Proficiency Test Item: a sample, product, artefact, reference material, piece of equipment, measurement standard, data set or other information used for proficiency testing.
Proficiency Testing Scheme: a system for objectively checking laboratory results by means of an external agency including comparison of a laboratory’s results at intervals with other laboratories establishing trueness and accuracy.
Reference Material: reference material and certified reference material, supplied by NMI.
Test Report: the individual performance summary report prepared by NMI that describes the outcome of a Proficiency Test for that particular Customer.
Third Party Material: Material owned by a third party that is included, used, embodied in or attached to analysis results submitted to NMI.
In these terms and conditions, except where the contrary intention is expressed:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph or schedule is to a clause or paragraph of, or schedule to, this Agreement;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to time is to Canberra, Australia time;
(f) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assignees and substitutes;
(g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(i) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
(j) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
(k) headings are for ease of reference only and do not affect interpretation.
3. Priority of contract documents
3.1 If there is inconsistency between any of the documents forming part of this Contract, those documents will be interpreted in the following order of priority to the extent of any inconsistency:
(a) Order Form;
(b) NMI Service Terms & Conditions for Chemical Proficiency Testing Schemes schedules;
(c) any attachments to the Order Form; and
(d) documents incorporated by reference in this Contract.
3.2 No variation can be made to these terms and conditions without written consent of NMI.
4.1 NMI will provide the Proficiency Tests to the Customer in consideration for the Customer paying the Fee to NMI, subject to the provisions of this agreement.
4.2 NMI shall use reasonable endeavours to dispatch the Proficiency Test Items to the Customer on the date specified in the order for test material dispatch.
5. Order and payment of the fees
5.1 Terms of payment are strictly 30 days from date of invoice.
5.2 Each person whose signature appears on the Order Form, warrants and guarantees that he has been duly authorised and has full authority to enter the Contract on behalf of the Customer.
5.3 The return of the Order Form and payment of the Fees for a Proficiency Test constitutes an acceptance of the Contract.
5.4 Where additional test reports and/or additional Proficiency Test Items are requested by the Customer, the Customer shall bear the cost of supplying those test reports and/or additional Proficiency Test Items and NMI shall use its best endeavours to dispatch such within 7 days from receipt of the order.
5.5 Where Proficiency Test Items are considered temperature or time sensitive by NMI they shall be dispatched by courier (the cost to be borne by the Customer in accordance with clause 6 below).
6. Invoicing for additional fees
6.1 The Customer may incur fees in addition to the base Fees for a Proficiency Test including where:
(a) The Customer requests additional Proficiency Test Items;
(b) The Customer incurs fees for the temperature sensitive or time sensitive delivery of Proficiency Test Items;
(c) The NMI incurs custom or import duty liabilities when delivering the Customer’s Proficiency Test Items; and
(d) The Customer requests replacement Proficiency Test Items where the original item requires replacing after the item has been received by the Customer.
6.2 NMI will provide the Customer with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 6.
6.3 All invoices issued to the Customer will be stated and paid in Australian dollars.
6.4 Payment of additional fees will be made by the Customer to the NMI within 30 days of the date of NMI’s invoice.
6.5 When making a payment, the Company must quote relevant reference numbers and the invoice number.
7. Failure to pay
7.1 If the Customer does not make payment of NMI’s invoice by the due date, NMI reserves the right to do any or all of the following:
(a) charge interest on the outstanding amount at the rate of 2% per year above the Small Business Overdraft Rate of Westpac Bank, accruing daily;
(b) not perform any further Services (or any part of the Services); and
(c) withhold any future deliveries pending monies due.
8. Cancellation and withdrawal
8.1 The Customer can cancel an order and withdraw its data from a proficiency study by notifying the NMI in writing up until the date on which the Interim Report is issued to the Customer.
8.2 For avoidance of doubt, the customer may not withdraw its data from a proficiency study after NMI issues its Interim Report.
8.3 The Customer must provide the NMI with written notice of the cancellation.
8.4 The refund (if any) a Customer will receive after an order has been cancelled will be provided according to the following time frames:
(a) If the Customer cancels the order before the dispatch of the PT samples, a full refund will be given.
(b) If the Customer cancels an order after dispatch of the study samples, 100% of the price shall be paid by the Customer and no refunds will be issued.
9. Delivery of proficiency test items
9.1 The Customer must provide NMI with any import or quarantine permits that might be necessary to deliver the Proficiency Test Items.
9.2 The Customer will be responsible for paying any customs or import charges levied.
9.3 The cost of test material delivery by courier (for items considered temperature or time sensitive by NMI or otherwise requested by the Customer) will be borne by the Customer.
9.4 Proficiency test samples lost or damaged after receipt by the Customer will be replaced at a cost.
9.5 Subject to condition 9.7 and 9.8 below any Proficiency Test Items lost or damaged in transit or arriving at the premises of the Customer in an unsafe condition shall, if such unusable condition arises as a result of negligence of NMI, the postal system or the courier, be promptly replaced free of charge, by NMI. NMI reserves the right to inspect such Proficiency Test Items. The Customer shall not dispose of any such Proficiency Test Items without written permission of NMI, and if requested return such Proficiency Test Items to NMI at its reasonable expense which NMI will reimburse.
9.6 While NMI will make every attempt to clearly label and attach any relevant documentation supplied by the Customer, NMI is not in any way liable for damage to Proficiency Test Items which arises as a result of the Proficiency Test Items being delayed in customs and excise (for whatever reason). Similarly (and in accordance with condition 16.1), NMI is not liable for any loss (whether direct or indirect including loss of profit) if a Customer cannot return results of their analysis by the deadline specified in the instructions, which arises as a result of the Proficiency Test Items being delayed in customs and excise.
9.7 The Customer shall inform NMI if their test material has not arrived within 4 days of the advertised dispatch date if the material was sent by courier unless they have been informed by NMI that the test material has been delayed. NMI is not responsible for replacement or investigation of the loss of test material if the Customer has not informed NMI within 4 days of the advertised dispatch date that the test material has not arrived.
9.8 NMI is not responsible for replacement of Proficiency Test Items if the Customer has not informed NMI that they are in unusable condition within 3 days of receipt. The Customer shall be deemed to have accepted the Proficiency Test Items in useable condition after such time.
10.1 The Final Report is not confidential and will be a public document.
10.2 By submitting an Order, the Customer irrevocably consents to NMI publishing the Report, including on NMI’s website.
10.3 NMI will aim to produce a detailed final report within eight weeks of the closing date for submission of results, but this time period is subject to change.
10.4 NMI will publish the Final Report in electronic format as part of the Proficiency Testing Scheme. The Customer will bear the cost of any Final Report provided in hard copy format.
10.5 The Customer will have access to the Final Report for each Proficiency Test the Customer has ordered regardless of whether the Customer has returned results or not.
10.6 The Customer will also receive a Test Report detailing the individual performance of the Customer in the Proficiency Testing.
11.1 Property in the Proficiency Test Items shall pass to the Customer when received by the Customer.
11.2 Property in additional Proficiency Test Items or replacement Proficiency Test Items ordered under clause 9.4 shall not pass to the Customer until full payment of the price invoiced for the additional Proficiency Test Items has been received by NMI.
11.3 Notwithstanding that the property in the Proficiency Test Items may not have passed to the Customer, the risk in the Proficiency Test Items shall pass to the Customer as soon as the Proficiency Test Items have been received by the Customer.
12. Goods and Services Tax
12.1 The Customer shall pay to NMI, in addition to the price a sum equal to the Goods and Services Tax chargeable on the value of the supply of any goods and services provided to the Customer in accordance with the Contract where applicable.
13. Disclosure of information - privacy and confidentiality
13.1 NMI will comply with its obligations under the Privacy Act 1988 in relation to any personal information or sensitive information collected from the Customer in the course of the proficiency study.
13.2 The identity of Customers will be treated as Confidential Information and not disclosed. NMI will protect the identity of Customers by assigning a random laboratory code to the Customer, including in the Final Report published under clause 10.2.
13.3 NMI agrees not to disclose to any person, other than the Customer, any Confidential Information relating to the Proficiency Testing without prior written approval of the Customer.
13.4 NMI’s obligation not to disclose Confidential Information of the other party will not be taken to have been breached to the extent the Confidential Information of the Customer:
(a) is disclosed by a party to its advisers or employees solely in order to comply with obligations, or to exercise rights, under this Contract;
(b) is disclosed to a party's internal management personnel, solely to enable effective management or auditing of activities related to this Contract;
(c) is disclosed by the Commonwealth to the responsible Minister;
(d) is disclosed by the Commonwealth, in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;
(e) is shared by the Commonwealth within the Department, or with another Commonwealth agency, where this serves the Commonwealth's legitimate interests;
(f) is disclosed by the Commonwealth to the Auditor-General, the Commonwealth Ombudsman or the Australian Information Commissioner;
(g) is required by Law to be disclosed; or
(h) is in the public domain otherwise than due to a breach of this Contract.
14.1 The failure of either party at any time to enforce any provision of the Contract shall in no way affect its right thereafter to require complete performance by the other party, nor shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself.
15.1 If any condition, clause or provision of the Contract not being of a fundamental nature be held to be unlawful or unenforceable by a court in any proceedings relating to the Contract the validity or enforceability of the remainder of the Contract shall not be affected thereby.
16. Limitation on liability
16.1 If the NMI performs the Services (or any part of the Services) negligently or in breach of this agreement, then, if requested by the Customer, the NMI will re-perform the relevant part of the Services, subject to paragraphs 16.1 and 16.4 below.
16.2 The Customer’s request referred to in paragraph 16.1 must be made within 6 months of date that NMI dispatches the Proficiency Test Items.
16.3 Except in the case of death or personal injury caused by the NMI’s negligence, the liability of the NMI under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Customer to the NMI under this agreement.
16.4 Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
16.5 If NMI is not able to distribute a scheduled Proficiency Test due to any circumstance, the Customer may elect to:
(a) a refund of the fee paid for that Proficiency Test; or
(b) a credit equivalent to one Proficiency Test to be used within 18 months of the Customer being notified that the original Proficiency Test is unable to be distributed to the Customer.
16.6 In default of any notification having been received by NMI of the option selected by the Customer, before the expiry of one month after the end of the program year in which the option arose option (b) will be deemed to have been selected.
17. No reliance
17.1 Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
18. No warranties
18.1 Save as expressed in the Contract, NMI grants no warranties in relation to CPT products or the supply of any analytical services or distribution of the Proficiency Test and all other conditions warranties, stipulations or other statements whatsoever whether express or implied, by statute, at common law or otherwise howsoever relating to the CPT products, analytical services or Proficiency Tests are hereby excluded. In particular, (but without limitation to the foregoing), no warranties granted regarding:
(a) Fitness for purpose, performance, use, quality or merchantability of the CPT products, whether express or implied, by statute at common law or otherwise howsoever.
(b) Provision of Proficiency Tests at a given completion date or any other date, whether stated in the Order Form or elsewhere.
19. Force majeure
19.1 Neither NMI nor the Customer shall be considered in breach of the Contract for nonperformance, part performance, defective performance or delay in performance which is directly caused by or is a result of any circumstance beyond the reasonable control of the parties.
20. Ownership of intellectual property
20.1 The NMI shall retain all rights of ownership, title, copyright and intellectual property rights in the test reports NMI produces in performing its functions under the Contract and in the NMI protocols. All analysis results submitted to NMI and the statistical outputs created from the Proficiency Testing Schemes shall at all times remain the property of NMI. NMI has the right to exploit all Intellectual Property Rights set out in this clause for its commercial purposes.
20.2 NMI may publish, present, or prepare analysis based on, containing, or referencing the consensus of data obtained from Proficiency Testing Schemes in the characterisation of a Reference Material. Nothing in this clause affects NMI’s ownership of all Intellectual Property Rights in any resulting analysis, document and/or publication.
20.3 To the extent that NMI needs to use any Pre-existing Material or Third Party Material provided by the Customer for the purpose set out in clause 20.2, the Customer grants to, or must obtain for, NMI for an indefinite period, a world-wide, royalty free, non-exclusive license (including the right to sublicense) to use, reproduce, adapt, modify and communicate that Pre-existing Material or Third Party Material for that purpose.
21. Entire agreement
21.1 The Contract contains the whole agreement between the parties and supersedes all representations, undertakings, understandings or other statements whether written or oral made prior to the date of the Customer’s application to participate in CPT schemes by and on behalf of NMI to the Customer of any nature whatsoever.
22. Governing law and jurisdiction
22.1 The laws of New South Wales apply to the Contract.