1.1 This Agreement is taken to commence from the date of the lodgement of an order, acceptance of a quotation or receipt of samples from the Client (the ‘Order’) for the provision of Services to be performed by NMI (Commencement Date).
1.2 Each person whose signature appears on an order form or who otherwise submits an Order, warrants and guarantees that he or she has been duly authorised and has full authority to enter into this Agreement on behalf of the Client.
2.1 Unless otherwise agreed in writing and duly signed by NMI, the following terms and conditions apply to the Services conducted by NMI. The Client agrees to be bound by and comply with these terms and conditions. Any variation to the Agreement will apply only if and to the extent agreed in writing and duly executed by NMI and the Client.
2.2 NMI reserves the right to review the Fees at any time if:
(a) significant changes to its costs are incurred beyond its control (eg changes to legislative requirements or variations in tax or excise rates); or
(b) any of the assumptions set out in the Order prove to be incorrect.
2.3 Alterations to the scope of the Services (including changes to timeframe of the Services, sample numbers, limits of reporting, agreed analyte suite etc) must be made by the Client in writing. Upon receipt of the request, NMI will review the Fee and may provide an updated Fee for the Services. If the Client continues to provide instructions to NMI in respect of the Services, this will be deemed to be acceptance of the updated Fee.
2.4 Requests for alterations to the scope of the Services under clause 2.3 that are received by NMI after commencement of the testing process may incur an administration fee (or otherwise) as determined at NMI’s discretion.
2.5 Records will be kept for the required minimum period unless otherwise requested and agreed to by NMI.
2.6 Estimations of measurement uncertainty (MU) are available upon request.
3. Business hours
3.1 The Services will be provided by NMI during Business Hours, unless otherwise agreed.
4. Turnaround times
4.1 Any samples received outside of Business Hours are deemed to have been received the following Business Day.
4.2 Where testing is to be performed at the Client’s premises, it is the Client’s responsibility to ensure that NMI has access to all information and premises necessary to commence the Services as agreed.
4.3 The due date of the Services may be delayed where such information or access is not provided, or is judged by NMI to be inadequate for the Services to commence.
5. Accounts and payment
5.1 All Fees are GST exclusive unless otherwise stated. GST at the applicable rate (currently 10%) will be charged in addition to the Fees. NMI will issue valid tax invoices and adjustment notes as per requirements of GST legislation.
5.2 A handling fee per invoice and a minimum invoice fee will apply at NMI’s discretion. The fees are stated in the Order, otherwise the standard minimum fee, inclusive of the handling fee, is $275 (Incl. GST). The minimum fee for Orders under the Imported Food Inspection Scheme is $110 (Incl. GST).
5.3 The establishment of a trading account is subject to the completion and NMI’s acceptance of an account application form.
5.4 NMI reserves the right to undertake credit verification of all established accounts or to request up-front payment of the Services before the Services can commence.
5.5 Terms of payment are strictly 30 days from date of invoice.
5.6 When making a payment, the Client must quote relevant reference numbers and the invoice number.
5.7 If the Client 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 the Reserve Bank of Australia, accruing daily; or
(b) withhold any future deliveries or suspend any Services pending receipt of monies due.
6. Treatment of samples
6.1 Unless NMI has otherwise agreed in writing, the Client is responsible for collecting samples and for delivering samples for testing to the address nominated in the Order.
6.2 When providing samples to NMI, the Client must give written notice of all known safety or health hazards and special procedures relevant to the handling, testing, storage, transport and disposal of samples. The Client warrants that all such information is true and correct at the time of delivery to NMI. NMI reserves the right to refuse to conduct any test where NMI in its absolute discretion determines such testing may pose a safety or health hazard.
6.3 NMI reserves the right for samples deemed hazardous by NMI to be refused and returned to the Client at the Client’s expense.
6.4 Where a formal request is made within one (1) month of the date of the Final Report, NMI may return samples to the Client, at the Client’s expense. The Client acknowledges that returned samples have been subject to laboratory storage and processes, potentially rendering them unfit for commercial purposes or consumption.
6.5 The Client acknowledges that during the conduct of the Services the samples or parts of samples may be altered, damaged, lost or destroyed. NMI shall not be liable to the Client or any third party for any samples that are altered, damaged, lost or destroyed during the conduct of the Services.
6.6 The Client is responsible for ensuring that samples supplied for testing are representative of the product or material to be analysed and for retaining any duplicate or control samples.
6.7 Subject to clause 6.4, NMI may in its discretion store, experiment on, destroy or dispose of samples after the completion of the Services.
6.8 Where possible a representative sample will be kept for a period of one (1) month from the date of Final Report. NMI will charge the Client for costs incurred by NMI for longer term storage or for the disposal of noxious samples.
7. Intellectual property rights
7.1 All Intellectual Property Rights associated with sample analysis methods, processes and Reports are vested, and shall remain vested, in NMI. Neither the Client nor any other party may replicate or appropriate the method or any part thereof for any use, be it commercial or otherwise, without the express written consent of NMI’s General Manager or approved delegate.
8. Other services
8.1 In circumstances where NMI agrees or is required to provide information or appear as expert witnesses as an outcome of testing undertaken at NMI, an hourly fee will be charged to the Client, to be separately agreed and documented.
9. Confidential Information
9.1 The receiver may only use the Confidential Information for the purposes of this Agreement and must:
(a) not disclose the Confidential Information to any other person, except to its employees and consultants who have a need to know and who are aware and expressly agree that the Confidential Information must be kept confidential;
(b) at all times, safeguard the Confidential Information from access and use not authorised by this Agreement;
(c) return the Confidential Information to the discloser on request (except as required under applicable laws); and
(d) not make copies, adaptations, revisions, enhancements or modifications of the Confidential Information, or otherwise alter, adapt it, decompile it or reverse engineer it into any other form or media, except as required for the agreed Services to be undertaken.
9.2 Notwithstanding clause 9.1, a disclosure of Confidential Information will not be a breach of this Agreement where:
(a) the information is disclosed to internal management personnel of NMI to enable effective management or auditing of Agreement related activities;
(b) the information is disclosed by the Commonwealth in response to a house or a committee of the Parliament of the Commonwealth; or
(c) the information is otherwise required by law to be disclosed.
9.3 Each party acknowledges and agrees that damages may be inadequate compensation for breach of this clause 9 and, subject to the court’s discretion, the discloser may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be a breach of the terms of this clause 9.
9.4 This clause 9 survives expiry or termination of this Agreement.
9.5 If any information, provided by one party to the other party under this Agreement includes any Personal Information, the receiving party must:
(a) where the receiving party is specifically bound by privacy laws or data protection laws which regulate the collection, storage, use and disclosure of information, comply with those laws;
(b) where the receiving party is not specifically bound by privacy laws or data protection laws which regulate the collection, storage, use and disclosure of information, comply with all applicable such laws as may be in force from time to time as if it were subject to those laws;
(c) comply with any privacy code or policy which has been adopted by the disclosing party (and disclosed to the receiving party) as if it were bound by that code or policy;
(d) promptly notify the disclosing party of any complaint or investigation under, or relating to, any of the laws, codes or policies referred to in paragraphs (a), (b) and (c) above; and
(e) co-operate with the disclosing party in the resolution of any such complaint or investigation.
10. Privacy collection statement
10.1 NMI will use any personal information that it collects in the course of providing the Services or otherwise in the course of discharging its obligations under this Agreement in the manner set out in NMI’s analytical services privacy collection statement.
11. Force majeur
11.1 NMI shall not be responsible or liable for any delay to perform any of its obligations when such delay or failure to perform any of its obligations is caused by unforeseen circumstances beyond its reasonable control and without its fault or negligence, including, without limitation, Acts of God, fire, explosion, riot, sabotage, strike or other labour dispute, shortage of materials, transportation difficulties or compliance with any order, action, governmental officer, department, agency, authority or committee thereof that renders performance impracticable or impossible for NMI.
12. Limitation of liability
12.1 To the full extent permitted by law, NMI excludes all warranties, terms, conditions or undertakings (‘terms’), whether express or implied, in relation to the Services, the Report or its contents. Where any legislation implies any terms which cannot be excluded or modified then such terms shall be deemed to be included. However, (to the full extent permitted by law) NMI’s liability to the Client is limited at NMI’s option to the re-performance of the Services or the refund of the Fees.
12.2 Without limiting the generality of this clause, it is agreed that, to the full extent permitted by any applicable Commonwealth, State or Territory laws having jurisdiction, NMI will not be liable to the Client or any other person for any loss of profits or business whether directly or indirectly incurred or any special, indirect or consequential damages howsoever arising or in connection with the Services or this Agreement.
12.3 The Client hereby releases and indemnifies and shall continue to release and indemnify NMI from and against all actions, claims, proceedings or demands (including any costs and expenses in defending or servicing same) which may be brought or threatened against it or them, in respect of any loss, death, injury, illness or damage to persons or property, and whether direct or indirect and in respect of any infringement of any industrial or intellectual property rights, howsoever arising out of the use of the Report or the Services.
12.4 It is agreed that:
(a) the Client at its own risk uses the Report and its contents and any advice, opinions or information supplied by NMI; and
(b) the Services are performed on the condition that the Client will not hold NMI liable for any loss or damage howsoever arising or the use of or reliance upon the Report or its contents.
12.5 Each agrees 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. It is the responsibility of the Client to make its own assessment of the suitability for any purpose of the Services, any Report and its contents and any information or advice generated therefrom.
12.6 The Client will not represent in any way that NMI supports or endorses the Client’s business, goods or services, without NMI’s written consent. The Client will not make any press release or public statement about the Services or NMI without NMI’s written consent.
13.1 This Agreement contains the entire agreement between the parties and supersedes all representations, undertakings, understandings or other statements whether written or oral made prior to the Commencement Date by and on behalf of NMI to the Client of any nature whatsoever.
13.2 The failure of either party at any time to enforce any provision of this Agreement 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.
13.3 If any condition, clause or provision of this Agreement, not being of a fundamental nature, be held to be unlawful or unenforceable by a court in any proceedings relating to this Agreement, the validity or enforceability of the remainder of this Agreement shall not be affected.
13.4 This Agreement is governed by the laws of New South Wales.
The Order, these terms and conditions and any schedules and annexures.
A day that is not a Saturday, Sunday, public holiday in the place where the Services are to be performed.
From 9:00 am to 4:30 pm on a Business Day, unless otherwise specified on the Order.
The party requesting the provision of the Services.
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 Agreement that:
(a) is identified by notice in writing to the other party after the date of this Agreement as confidential information for the purpose of this Agreement;
(b) a party knows or ought to know is confidential; or
(c) is ‘Personal Information’ as defined in the Privacy Act 1988 (Personal Information),
but does not include information which is already in the public domain as at the date of this Agreement or which becomes part of the public domain other than by breach of this Agreement.
The fees to be paid by the Client for the delivery of the Services and includes the fees quoted for the Services and any additional fees payable in accordance with this Agreement.
The final Report produced by NMI.
A New Tax System (Goods and Services Tax) Act 1999 (Cth).
The meaning given to that term in the GST Act.
Intellectual Property Rights
All rights conferred under statute, common law and equity in and in relation to inventions, patents, patent applications, discoveries, registered and unregistered designs, registered and unregistered trade marks (including service marks), trade names, business names, logos and get-up, circuit layouts, confidential information (including trade secrets and know how), copyright and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
The Commonwealth of Australia as represented by the Department of Industry, Science and Resources acting through the National Measurement Institute, and includes its affiliates, officers, employees and agents.
An order for the Services and includes an order made by the lodgement of an order form or the acceptance of a quote by the Client or the submission of a sample or samples for testing by the Client.
A report produced by NMI as a result of the provision of the Services, including the Final Report.
The provision of chemical analysis services by NMI as requested by the Client and specified in the Order.