Agrifood Technology Terms and Conditions
1. Application
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 (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.
2. Acceptance
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) after your receipt of the Contract Terms, subject to clause 2.2; or
(b) 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.
2.2 We may refuse to supply the Services if you deliver Testing Material to us after the expiry date specified in the Quotation.
3. 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 5 and 7 (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.
4. 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 by 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 3 constitutes a “tax invoice” for the purposes of applicable GST legislation.
5. Testing Material
5.1 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.
5.2 You are responsible (at your cost) for the delivery of all Testing Material to us.
5.3 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 situate at 260 Princes Highway, Werribee, Victoria. 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.
5.4 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 affected Services 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.
5.5 Unless we agree otherwise in writing, we shall not be obliged to return Testing Material to you. We agree to store Testing Material for a minimum storage period of 3 months, following completion of the Services. After that time we may, in our discretion, store, experiment on, destroy or otherwise deal with Testing Material as we see fit.
5.6 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. 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 that 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.
7. Urgent Analysis
7.1 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.
7.2 Where we comply with a request of the type referred to in clause 7.1, 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.
7.3 For the removal of doubt, you acknowledge that a request given by you under clause 7.1 will not be treated as notice of non-acceptance of Contract Terms under clause 2.2.
8. Acknowledgements
8.1 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 such written reports, you agree that any such reproduction must be a complete reproduction of the reports without any amendments or additions.
8.2 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 my 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.
9. Claims
You will be deemed to have accepted the provision of the Services free of defects or other non conformity with the 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.
10. Exclusions and Limitations
10.1 These conditions do not exclude, restrict or modify the application of any statutory provision (including a provision of the Trade Practices Act 1974) where to do so would:
(a) contravene that statute; or
(b) cause any part of these conditions to be void.
10.2 We exclude all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this clause to be void (Non-excludable Condition).
10.3 To the extent permitted by law, our liability to you for breach of any Non‑excludable Condition (other than an implied warranty of title) is limited, at our option, to refunding the price of the goods and/or services in respect of which the breach occurred or to providing, replacing or repairing those goods and/or providing those services again.
10.4 Except for liability for breach of any Non-excludable Condition and to the extent permitted by law:
(a) we exclude liability for loss of profits or consequential or indirect loss or damage howsoever arising;
(b) our total liability to you (including for any breach of any provision of a contract between us or any negligent act or omission by us) arising directly or indirectly in relation to the provision of any goods and/or services, is limited to the amount paid by you to us for those goods and/or services; and
(c) in circumstances where clause 10.4.2 cannot legally operate, our total liability to you (including for any breach of any provision of a contract between us or any negligent act or omission by us) arising directly or indirectly in relation to the provision of any goods and/or services, is limited to the agreed price of those goods and/or services.
11. Indemnity
You indemnify us against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against us) that we may sustain or incur as a direct or indirect result of the provision of the Services or a breach by you of any of the Contract Terms (including any warranty contained in these conditions).
12. Termination
12.1 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) 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;
(b) you cease to be able to pay your debts as they become due;
(c) you become subject to any form of insolvency administration; or
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of your assets.
12.2 If we exercise our rights pursuant to clause 12.1 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.
12.3 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.
13. Force Majeure
We will not be liable for any failure to perform or delay in performance of any obligation where such failure or delay is due to anything beyond our reasonable control, including but not limited to any act or omission by you, strikes, lockouts and other industrial action, raw material shortages, accidents, power failure or breakdowns of plant or machinery.
14. Dispute Resolutions
14.1 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.
14.2 If the matter is referred to mediation under clause 14.1, 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.
15. Test Results
15.1 If you specifically request a particular test as part of the Services, 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 sampled Testing Material.
15.2 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 filenote), on the following:
(a) the quality or characteristic which you wish us to test; and
(b) the end use intended for the sampled Testing Material.
15.3 We are not liable for any loss you suffer (including where we have recommended a test) 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 sampled Testing Material, where that failure arises from incorrect, misleading or incomplete instructions on your part.
15.4 The test results relate only to the sample or samples tested. Due to the may 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 AWTA Ltd or a third party. You acknowledge that the tests may involve an element of subjective judgement.
16. General
16.1 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.
16.2 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.
16.3 A reference in these conditions to a "business day" is a reference to a day other than a Saturday, Sunday or public holiday in Victoria and a reference to "business hours" is a reference to the hours between 9.00 am and 4.30 pm on a business day.
16.4 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.
16.5 All clients exceeding the payment terms set out on the quotation may be refused further analysis until payment in full or alternative payment methods are arranged and agreed by both parties.
16.6 We may amend these Terms and Conditions at any time by notifying you, including in anyone or more of the following ways:
(a) printing the amended terms and supplying them with a quotation;
(b) posting the amended terms on our internet site; or
(c) referring to the amendments and/or printing the amended terms in a newsletter or fees list.
Your continued use of the Services after such notice will constitute acceptance of the variation.
16.7 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.
16.8 Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.