AWTA > Terms & Conditions > Fleece Measurement
Force Majeure
Application of these Terms
These terms apply to each agreement (an “agreement”) for the provision of a fleece measurement testing service (a “testing service”).
The parties to each agreement are Australian Wool Testing Authority Ltd (“AWTA Ltd” or “we”) and the Client (“you”).
Any order which you place with us or receipt by you of test results constitutes notice and acceptance of these terms. We must agree in writing to any additional or different term.
Samples
You must ensure that each sample is accompanied by a completed Fleece Measurement Service Request form. We may choose to conduct our testing service for clients who provide instructions in a manner other than by a Fleece Measurement Service Request, however, we accept no liability for any claim arising from such actions on our part.
You must organise and pay the costs of transport of samples to and from AWTA Ltd, and must bear all risk of loss or damage of, or alteration to, samples while in transit or at AWTA Ltd.
All sample material remaining after testing becomes our property, which we may use in any way.
You are responsible for providing samples of the appropriate weight for each test requested by you, as set out on our Fleece Measurement Service Request form. If the sample is too small for us to perform all of the requested tests, we will select which test or tests to perform, at our discretion.
Test Results
We will carry out the testing service with due professional care and skill. However:
as we do not draw or supervise the drawing of the sample, we make no warranty, implied or otherwise, as to the source of the sample; and
as we do not perform the sampling and testing in accordance with the relevant IWTO Test Method and any directly associated Regulations, we do not certify the test results.
A test report applies only to the sample tested, and is intended to provide you with guidance information only. The following factors may affect the accuracy of the test results, and/or the extent to which the sample is representative of the fleece as a whole:
if you do not seal each sample in a plastic bag, to prevent moisture and also to keep the samples separate from each other;
if you have not drawn a midside sample; or
if the sample is smaller than the weight recommended by us for the relevant test.
AWTA Ltd is not liable for any claim which may arise from any person acting on information contained in the report.
You must at all times indemnify us and our officers, employees, contractors and agents against any loss (including reasonable legal costs and expenses) or liability arising from the possession of, or the acting upon a report by a third party.
You must not:
alter or allow alteration of reports; or
reproduce or allow the reproduction of reports except in full.
We disown all responsibility, to any party, in relation to a report which has been altered.
Fees
We will calculate the fee according to:
the AWTA Ltd Raw Wool Testing Fees list in force from time to time, and any additional fees set out on our Fleece Measurement Service Request form; or
contract fees agreed with the Client for non-standard testing services.
You must pay the fees within 30 days of the end of the month in which our invoice is issued, unless we have agreed in writing to some other arrangement.
All payments must be made in Australian dollars unless otherwise agreed.
Taxes
You must pay any tax, levy or impost imposed on the testing services provided under an agreement, including but not limited to any goods and services tax, in addition to our fees at the same time that you pay our fees.
Delay in Meeting Service Level
We will aim to post the test report to you on the fith day after receiving your instructions and samples into our laboratory. If you request, we will also email the results to you.
While we will make all reasonable endeavours to meet this service level, we cannot guarantee that we will do so. We are not liable for any loss arising from delay in meeting this service level.
Copyright and Use of Test Results
We retain copyright in all test results and other written material (the “material”) produced under an agreement, and, subject to the confidentiality obligation set out in clause 7.2, may use it for any purpose.
We will keep the material that identifies the Client confidential, except where:
it is already in the public domain; or
we are required to disclose it by law.
Liability
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 an agreement.
Subject to clause 9, we are not liable for any loss or damage whatsoever (including loss of profits or other consequential loss) arising in connection with an agreement (including because of negligence by us).
Implied Terms
Unless clause 9.2 applies, any condition or warranty which would otherwise be implied in an agreement is excluded.
Where legislation implies in an agreement any condition or warranty, AWTA Ltd’s liability for any breach of such condition or warranty is limited, at AWTA Ltd’s option, to one or more of the following:
the supplying of the testing service again; or
the payment of the cost of having the testing service supplied again.
Governing Law
Each agreement is governed solely by the law of the state of Victoria, Australia.
Dispute Resolution
The parties must attempt to resolve any dispute as quickly as possible. However, 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.
Should the matter be referred to mediation under clause 11.1, 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.
Severance
If any provision of these terms is held to be invalid or unenforceable, such provision will be struck out and the remaining provisions will remain in force.
Indemnity
You must at all times indemnify us and our officers, employees, contractors and agents (“those indemnified”) against any loss (including reasonable legal costs and expenses) or liability arising from any proceedings against those indemnified where such loss or liability was caused by:
a breach by you of an agreement; or
incurred by those indemnified in enforcing any rights under an agreement with you.
Termination
Without limiting the generality of any other clause in these terms, we may cease to fulfil work in progress or refuse to commence new work for you if you are in breach of any term of an agreement.
Amendment of these Terms
We may amend these terms at any time by notifying you, including in any one or more of the following ways:
printing the amended terms on our Fleece Measurement Service Request forms;
referring to the amendments and/or printing the amended terms in a newsletter or Fees List; or
posting the amended terms on our internet site (www.awta.com.au).
Your continued use of our testing services after such notice will constitute acceptance of the variation.
Non-performance by either of the parties of any obligation required by an agreement as a result of force majeure will be excused during the time and to the extent that such performance is prevented, wholly or in part, by force majeure.
Force majeure means a circumstance beyond the reasonable control of one of the parties which results in one of the parties being unable to observe or perform on time an obligation under the agreement. Such circumstances include but are not limited to acts of God, explosions, fires, and strikes.
Sub-Contracting to External Laboratories
We may, after notifying you, sub-contract all or part of any testing service to an external laboratory. These terms (except this clause) apply to testing services sub-contracted as if we had performed all of the testing services ourselves.
Waiver
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.