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Chemical and biological analysis services terms and conditions

1.    Application

The lodgement of an order or receipt of samples for the provision of chemical analysis services by either the Analytical Services Branch or the Chemical & Biological Metrology Branch of NMI (‘Services” ) constitutes an acceptance of the following terms and conditions (this ‘Agreement’). 

Each person whose signature appears on an order form or who otherwise submits an order or sample in respect of the Services, warrants and guarantees that he or she has been duly authorised and has full authority to enter into this Agreement on behalf of the party requesting the provision of the Services (the ‘Client’).

2.    Services

Unless otherwise agreed in writing and duly signed by NMI, the following terms and conditions apply to the Services conducted by NMI, resulting from engagement of NMI either by accepting a quotation and/or submission of samples to NMI. The Client agrees to be bound by and comply with these terms and conditions. Any terms and conditions you notify to NMI, will apply only if and to the extent that NMI duly executes an agreement in writing.

NMI reserves the right to review prices at any time if: (a) significant changes to its costs are incurred beyond its control i.e. changes to legislative requirements or variations in tax or excise rates; or (b) any of the assumptions set out in the quotation prove to be incorrect.

Alterations to the scope of the quoted Services (including changes to timeframe of the Services, sample numbers, limits of reporting, agreed analyte suite etc), prior to commencement of the Services, may require a review of the quotation.

Alterations to Client requirements requested after commencement of the testing process may incur an administration fee of $33, inclusive of GST, plus charges for extra service delivery costs incurred by NMI, if any to be determined in NMI’s sole discretion.

Records will be kept for the required minimum period unless otherwise requested and agreed to by NMI.

Estimations of measurement uncertainty (MU) are available upon request.

3.    Business hours

The Services will be provided by NMI during normal business hours Monday to Friday (excluding public holidays), unless otherwise agreed.

Any Services conducted outside NMI premises will be performed Monday to Friday (excluding public holidays) between 9am and 5pm, unless otherwise agreed.

4.    Turnaround times

Any samples received after 1630 hrs Monday to Friday or on Public Holidays are deemed to have been received the following working day.

It is the Client’s responsibility to ensure that NMI has access to all information and premises necessary to commence the Services as agreed.
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

GST at the applicable rate (currently 10%) will be charged in addition to the quoted prices. NMI will issue valid tax invoices and adjustment notes as per requirements of GST legislation.

A handling fee per invoice and a minimum invoice fee will apply where applicable. The fees are stated in the quotation, otherwise the standard minimum fee, inclusive of the handling fee, is $275 (Incl. GST). The minimum fee for submissions under the Imported Food Inspection Scheme is $110 (Incl. GST.

The establishment of a trading account is subject to the completion and NMI’s acceptance, of an account application form.

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.

Terms of payment are strictly 30 days from date of invoice.

When making a payment, the Client must quote relevant reference numbers and the invoice number.

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 Westpac Bank, accruing daily; and
b)    withhold any future deliveries pending monies due.

6.    Treatment of samples

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 quotation.

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.

NMI reserves the right for samples deemed hazardous by NMI to be refused and returned to the Client at the Client's expense.

Where a formal request is made, NMI may return samples to the Client, at the Client's expense. Returned items are subject to laboratory storage and processes, potentially rendering them unfit for commercial purposes or consumption.

The Client acknowledges that during 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 conduct of the Services.

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.

Unless NMI has otherwise agreed in writing, NMI may in its discretion store, experiment on, destroy or dispose of samples.

Where possible a representative sample will be kept for a period of one (1) month from the date of final report. NMI will charge for costs incurred for longer term storage, or for disposal of noxious samples.

7.    Intellectual property rights

‘Intellectual Property Rights’  means 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.

NMI will own the legal title to the final report until such time as full payment for the Services is received, beyond which time legal title in the final report will transfer to the Client.

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

In circumstances where NMI, its proprietor, its officers, employees or agents agree or are 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 agreement

For the purposes of the confidentiality clause below, ‘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 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 under the Privacy Act 1988 (‘Personal Information’); and

includes but is not limited to information which is:

d)    not already in the public domain as at the date of this Agreement and does not become part of the public domain other than by breach of this Agreement;
e)    not required to be disclosed to internal management personnel of receiver to enable effective management or auditing of Agreement related activities;
f)     not required to be disclosed by the Commonwealth in response to a request by a House or a Committee of the Parliament of the Commonwealth;
g)    not otherwise required by law to be disclosed.

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 agreed Services to be undertaken

Each Party acknowledges and agrees that damages may be inadequate compensation for breach of this Agreement 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.

This clause 9 survives expiry or termination of this Agreement.

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
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, other than to the extent such privacy code or policy is inconsistent with the privacy code or policy as disclosed by the disclosing party;
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.    Force majeur

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.

11.    Limitation of liability

To the full extent permitted by law NMI and its affiliates exclude 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 Service or the refund of the Service fee.

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, neither NMI nor any of its affiliates will 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 arising howsoever arising or in connection with the Services or this Agreement.

The Client hereby releases and indemnifies and shall continue to release and indemnify NMI, its affiliates, officers, employees and agents 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.

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, its affiliates, officers, employees or agents; and
b)    the Services are performed on the condition that the Client will not hold NMI, its affiliates, officers, employees or agents liable for any loss or damage howsoever arising  or the use of or reliance upon the report or its contents.

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.

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.

12.    General

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 date of the lodgement of an order or receipt of samples for NMI /Order Form by and on behalf of NMI to the Client of any nature whatsoever.

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.

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.

This Agreement is governed by the laws of New South Wales.

Last updated: 8 December 2020

Content ID: 64440