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1.    Definitions

Certificate means the certificate of approval issued to the applicant by NMI.

Confidential information of the applicant means any information pertaining to the measuring instrument or module or to the application for a certificate of approval except to the extent that the information is:

(a)     independently developed or known by NMI (including because it is in the public domain); or
(b)     required to be disclosed to internal management personnel of the Commonwealth, solely to enable effective management or auditing of contract related activities; or
(c)     required to be disclosed by the Commonwealth to the responsible Minister; or
(d)     required to be disclosed by the Commonwealth in response to a request by a House or a Committee of the Parliament of the Commonwealth; or
(e)     allowed to be disclosed under the National Measurement Regulations 1999 (Cth).
(f)     Otherwise required to be disclosed or retained by law.

Module means an element or component of a measuring instrument that performs a specific metrological function that can be separately examined and is subject to specified partial error limits.

Report means the report containing the results of the services.

Report copyright or Certificate copyright means copyright in the report or certificate.

2.    Measuring instrument(s) or module(s) of a measuring instrument

The applicant:

a)    must organise and pay the costs of transport of the measuring instrument or module to and from NMI;
b)    bears all the risk of loss or damage of the measuring instrument or module while in transit or at NMI;
c)    must provide the measuring instrument or module properly packaged and in good order;
d)    must ensure that the measuring instrument or module is clearly and permanently marked with a distinguishing number or symbol to ensure easy identification; and 
e)    must ensure that where the measuring instrument is packaged, each package contains the following information:

i.    name, address and telephone number of the application, including details of a technical contact person;
ii.    contents of the package

3.    NMI’s obligations and acknowledgements 

NMI:

a)    provides the service to the applicant in accordance with its usual professional standards;
b)    where the measuring instrument or module is provided by the requested date, use reasonable efforts to deliver a certificate or report within reasonable time;
c)    where an application does not proceed in accordance with regulation 58(4) of the National Measurement Regulations 1999 (Cth), due to a delay in the submission of materials required from the applicant as specified in 4(e) and for which valid notice has been given, will regard the application as discontinued or abandoned; and
d)    reserves the right to pack and return to the applicant, at the applicant’s expense on reasonable terms, measuring instruments or parts thereof not removed from NMI after three months from the date of any such notification.

4.    Applicant Obligations and Acknowledgements

The applicant:

a)    declares that the measuring instrument or parts thereof have been designed and constructed to the relevant Australian safety standards, that these standards have been clearly specified in or with the application, and where appropriate, that the measuring instrument or parts thereof comply with the relevant safety test scheme;
b)    accepts that all advice given by NMI is given in good faith and only for use by the applicant in its dealings with NMI in whatever capacity (whether specified in the contract or otherwise), and such advice is based on the information supplied by the applicant, the accuracy of which NMI shall not seek to verify;
c)    accepts that this Agreement may not be assigned without NMI’s prior consent;
d)    shall be responsible for:

i.    the erection, calibration and disassembly of the instrument; and
ii.    the provision of any facilities, as determined by NMI, that are required for testing.

e)    acknowledges that an application may be discontinued in the following instances, if:

i.    a sample instrument or full documentation is not received within three months of being requested; or
ii.    an applicant fails to reply to an examination report within one month of its date of issue; or
iii.    an applicant fails to rectify the non-compliance of the instrument within an additional two months from the reply to the examination report; or
iv.    an applicant fails to supply illustrations suitable for the draft certificate and technical schedule within two months of the date of the covering letter to the draft;


f)    acknowledges that an extension of time to the limits specified above in clause (e) may be considered in some circumstances and on the individual merits of the application;
g)    acknowledges that the NMI may require the applicant to pass a credit check or otherwise make a prepayment to the NMI prior to assessing an application for pattern approval;
h)    shall be liable for the costs for all work done up to that point in time, where an application is considered to be discontinued in accordance with clause (e) above, and the fees will be payable on NMI’s payment terms (clause 6(d));
i)    uses the report and/or certificate copyright at its own risk and indemnifies NMI for all harm (including costs on a solicitor and own client basis) that NMI may suffer as a result of any claim by a third party involving the applicant’s use of such documentation;
j)    agrees to indemnify NMI and its officers and employees (those indemnified) against any loss (including legal costs and expenses) or liability (including consequential loss or damage) incurred by any of those indemnified and that arises under this Agreement from any claim, suit, demand or proceeding by any person against any of those indemnified;
k)    must, if required in writing by NMI, maintain and provide evidence of adequate professional indemnity, product liability and third party liability insurance to cover its obligations and exercise of rights under this contract;
l)    ensures that all measuring instruments or modules manufactured to a pattern and installed for use for trade or other legal purposes:

i.    comply with the certificate of approval, its technical schedule, the drawings and documentation retained by NMI; and
ii.    do not deviate in any significant structural or metrological fashion from the sample instrument or its approved variants; and

m)    acknowledges that NMI: 

i.    may by notice in writing delay the performance of its obligations under this contract as a result of its limited resources, other research priorities, or delays by the applicant in providing the instrument or parts thereof; and
ii.    is not liable for any failure to carry out part or all of its obligations under this contract if that failure is due to any cause beyond the reasonable control of NMI.

5.    Ownership and Rights to Use

NMI:

a)    assigns ownership of the certificate or report to the applicant; and
b)    retains ownership of the certificate or report copyright but, with effect immediately after NMI has been paid the fee, grants the applicant:

i.    subject to paragraph (ii), a non-exclusive, royalty free licence to use the certificate for the purpose of reporting measurement results for compliance with national measurement and other legislation, the applicant’s own internal and research activities; and
ii.    a right to reproduce the certificate or report, but unless NMI agrees otherwise the documentation may only be reproduced in full.

6.    Payment 

a)    an application processing fee is charged on receipt of an application by NMI.
b)    the application processing fee is payable according to the payment terms set out in clause (d) and is non-refundable.
c)    fees are charged according to the schedule of fees outlined in regulation 90B and schedule 13 of the National Measurement Regulations 1999 (Cth) and are normally billed as modules are completed. Prepayment may be required according to the terms set out in clause 7.
d)    all fees are payable according to NMI’s payment terms, that is by the date specified on the invoice, which is normally within 30 days of the date of the invoice issued by NMI. NMI reserves the right to amend these terms.
e)    the information given in the schedule of fees may be used to estimate the cost of pattern approval before submitting an instrument for evaluation. As the schedule of fees is designed to cover the work done by NMI, the total cost may depend on factors including, but not limited to the following:

i.    the type of instrument or module;
ii.    the number of variants required;
iii.    the number of re-examinations needed;
iv.    the number of tests required; and
v.    the complexity of the instrument or module.

f)    where an application does not proceed for any reason, including in accordance with regulation 58(4) of the National Measurement Regulations 1999 (Cth), as specified above under clauses 3(c) and 4(e):

i.    the applicant will be liable for the costs for all work done up to that point in time; and
ii.    the fees will be payable on NMI’s payment terms.

7.    Prepayment

a)    NMI may at its discretion require prepayment and will proceed to process the application only where prepayment is received;
b)    if prepayment is required, NMI will provide to the applicant an estimate of the expected cost of pattern approval calculated in accordance with clause 6(e) (estimated fees);
c)    the NMI will issue an invoice to the applicant for the estimated fees. Estimated fees are payable according to NMI’s payment terms set out in clause 6(d);
d)    where an application does not proceed for any reason, including in accordance with regulation 58(4) of the National Measurement Regulations 1999 (Cth), as specified above under clauses 3(c) and 4(e):

i.    the applicant will be liable for the costs for all work done up to that point in time; and
ii.    subject to clause 6(b), NMI will refund the balance, if any, of estimated fees paid in accordance with clause (c) to the applicant.

e)    where the actual costs of processing an application are less than the amount of the prepayment made in accordance with clause (c), then, subject to clause 6(b), NMI will refund the balance of estimated fees paid.

8.    Confidential information

NMI agrees:

a)    to keep confidential the confidential information; and
b)    to use the confidential information only to perform its obligations under this contract.

9.    Limitations of liability

NMI:

a)    excludes all terms, conditions and warranties implied by custom, the general law or statute except any implied condition or warranty the exclusion of which contravene any statute or causes any part of this contract to be void (non-excludable condition);
b)    limits its liability to the applicant for breach of any non-excludable condition, at NMI’s option, to NMI re-performing services or refunding the fee;
c)    limits its liability to the applicant for any claim (whether arising in contract, in tort, or by statute) for loss or damage suffered by the applicant in any way relating to this contract to the amount of the fee (clause 4(h) overrides this clause to the extent of any inconsistency); and
d)    excludes all liability to the applicant for consequential damage (including lost revenue, profit and data) suffered by the applicant in any way relating to this application or to NMI carrying out services for the applicant.

10.    Dispute resolution

a)    The parties intend to resolve disputes without starting arbitration or court proceedings. Accordingly, each party will negotiate in good faith to resolve any dispute that arises out of this contract and will involve in those negotiations a senior officer from NMI who has not been involved with the services.
b)    Disputes arising in relation to pattern approval will be conducted in accordance with regulation 85 of the National Measurement Regulations 1999 (Cth).
c)    Certain decisions that have been reconsidered under clause (b) may be further reviewed by application made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth). 

11.    Termination of contract

This contract will end:

a)    when NMI performs the services and receives all the fees payable for those services;
b)    if either party ends the contract, which can be done immediately by giving notice to the other party if the other party breaches any provision of this contract and fails to remedy the breach within 30 days of receiving notice requiring it to do so; or
c)    if NMI ends it which it can do by giving notice to the applicant if:

i.    it determines that the instrument or module is not suitable for providing the services;
ii.    it finds a defect or fault in the instrument or module; or
iii.    a measurement fails to comply with any specification provided by the applicant.

12.    Following termination of contract

Following termination of the contract:

a)    if the services have not been completed and prepayment has not been required in accordance with clause 7:

i.    NMI will issue an invoice to the applicant for any services performed to the date on which the contract ended;
ii.    the applicant must pay the fees within NMI’s payment terms; and
iii.    NMI will return any instrument or module in its possession to the applicant in accordance with the return instructions in the contract.


b)    if the services have not been completed and prepayment has been required in accordance with clause 7:

i.    NMI will notify the applicant of the actual costs incurred for any services performed to the date on which the contract ended;
ii.    NMI will refund the balance, if any, of estimated fees paid in accordance with clause 7(c) to the applicant; and
iii.    NMI will return any instrument or module in its possession to the applicant in accordance with the return instructions in the contract.

c)    the following clauses survive: clause 4(d) (Applicant Obligations), clause 5 (Ownership and Rights to Use), clause 8 (Confidential Information), clause 9 (Limitation of Liability), clause 10 (Dispute Resolution) and clause 13 (Use of Names and Publication).

13.    Use of names and publication

The applicant must obtain written consent from NMI before it:

a)    uses the names National Measurement Institute, NMI, or any logo of NMI; or
b)    makes a public statement about this contract.

14.    Notices and general

a)    A party notifying or giving notice under this contract must give notice to the other party via the contact details given for that party. If more than one means of contact is provided (example fax, email or postal address), a notice or other communication may be notified by any means of contact used.
b)    A notice under this Agreement must be in writing, forwarded to the address, facsimile number or email address of the recipient or the address last notified by the recipient to the sender.
c)    A notice will be deemed to be received:

i.    in the case of delivery in person, when delivered to the recipient’s address for service and a signature is received as evidence of delivery;
ii.    in the case of delivery by post, after three business days of posting;
iii.    in the case of delivery by facsimile, at the time of dispatch if the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the facsimile number of the recipient;
iv.    in the case of delivery by email, upon the sender’s computer confirming that the email has been delivered to the recipient’s email address or an hour after an email has been sent, except that, if the sender receives a message stating that the recipient is out of office or a message stating that the email has not been transmitted, the notice will not be deemed to be served.

d)    Notwithstanding clause (c), if delivery or receipt of a communication is on a day which is not a business day in the place to which the communication is sent or is later than 5pm (local time in that place), it will be deemed to have been duly given or made at 9am (local time at that place) on the next business day in that place.
e)    To avoid inconsistent provisions applying, no confirmation, shipment or delivery docket, invoice, terms and conditions of supply or other document issued by or on behalf of the applicant about the services will vary this contract.
f)    If part or all of any clause of this contract is illegal or unenforceable it will be severed from this contract and will not affect the continued operation of the remaining provisions.
g)    This contract:

i.    is governed by the laws in force in that State of New South Wales (the State) and the parties agree to submit to the jurisdiction of the courts of the State;
ii.    records the entire agreement between the parties and supersedes all earlier agreements and representations by the parties about its subject matter; and
iii.    may only be altered in writing signed by both parties.

15.    Force majeure

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 disputes, shortage of materials, transportation difficulties or compliance with any order, action, government officer, department, agency, authority or committee thereof that renders performance impracticable or impossible for NMI.

See also 

See how to apply for pattern approval.

Last updated: 29 May 2019

Content ID: 64441