Pesticide Residue Testing Service
1. Application of these Terms
1.1 These terms apply to each agreement (an “agreement”) for the
provision of a pesticide residue testing service (a “testing service”).
1.2 The parties to each agreement are Australian Wool Testing Authority Ltd
(“AWTA Ltd” or “we”) and the Client (“you”).
1.3 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 terms.
2. Requesting a Testing Service
2.1 A testing service can be requested at the time of coring for an IWTO
Greasy Wool Core Test Certificate or post sale. In either case, these
terms will apply.
2.2 Where AWTA Ltd does not have any or sufficient sample material to
conduct the testing service, AWTA Ltd will re-core the relevant bales to
provide sufficient material to conduct the testing service. Where we
re-core the bales, a Re-coring/Sampling fee will be levied and charged
in accordance with AWTA Ltd’s fees for “Machine Core
Sampling/Machine Grab Sampling” as published from time to time.
3. “Consumer” means:
(a) an individual acquiring goods or services wholly or predominantly
for personal, domestic or household use or consumption; or
(b) a person acquiring goods or services at a price not exceeding
$40,000; or
(c) a person acquiring goods or services ordinarily acquired for
personal, domestic or household use or consumption.
4. Entire Agreement
4.1 Clause 4.2 and 4.3 shall not apply to a Consumer.
4.2 Unless agreed in writing, these are the only terms and conditions that
apply to each agreement between us for the provision of testing
services.
4.3 These terms supersede and exclude all prior and other discussions,
representations and arrangements relating to the testing services.
4.4 Where you are not a Consumer, these terms will apply to the exclusion of
all other terms and conditions for the provision of the testing services.
4.5 We may amend these terms at any time by notifying you, including in any
one or more of the following ways:
(a) printing the amended terms and supplying them with a quotation;
(b) referring to the amendments and/or printing the amended terms in
a newsletter or Fees List; or
(c) 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 amendment.
5. Warranties, Guarantees and Liability
5.1 This clause does not apply to a Consumer with the exception that
clause 5.4 shall apply where testing services are acquired at a price not
exceeding $40,000 and are not of a kind ordinarily acquired for
personal, domestic or household use or consumption.
5.2 We will carry out the testing services with due professional care and skill.
5.3 Other than the warranties contained in 5.2, to the maximum extent
permitted by law, all warranties and guarantees expressed or implied by
statute, common law, equity, trade, custom or usage or otherwise in
relation to the provision of the Services, are expressly excluded. Where
the exclusion of any of the warranties and guarantees referred to in this
sub-clause would be illegal, our liability for breach of such warranty or
guarantee is limited in the manner set out in sub-clause 5.4.
5.4 AWTA Ltd’s liability for its breach of sub-clause 5.2 or a non-excludable
consumer guarantee implied into these terms by law is limited to any one
of the following as determined by us:
(a) the supplying of the testing services again; or
(b) the payment of the cost of having the testing services supplied
again.
5.5 To the extent permitted by law and not withstanding anything else
contained in these terms, where you are not a Consumer, we exclude all
liability whatsoever to you arising out of or in any way connected with the
testing services for any loss of profits, loss of business revenue, failure to
realise expected profits or savings, overhead costs, loss of goodwill,
loss of reputation, loss of value in any intellectual property, damages or
liquidated sums payable pursuant to other agreements, other economic
losses or any consequential or indirect losses of any kind howsoever
arising and whether caused by breach of statute, breach of contract,
negligence or other tort.
6. Testing Results
6.1 A test report applies only to the sample tested and is intended to provide
you with guidance information only and not for use in commercial
transactions.
6.2 AWTA Ltd is not liable for any claim which may arise from any person
acting on information contained in the report, including, without limiting
the generality of this sub-clause, any claim arising in respect to the
Eco-Label scheme.
6.3 You must not:
(a) alter or allow alteration of reports; or
(b) reproduce or allow the reproduction of reports except in full.
6.4 We disown all responsibility to any party in relation to a report which has
been altered.
7. Fees
7.1 We will calculate the fee according to:
(a) the AWTA Ltd Raw Wool Testing Fees list in force from time to
time and any additional fees set out on our Pesticide Residue
Analysis Test Request form; or
(b) contract fees agreed with the Client for non-standard testing
services.
7.2 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.
7.3 All payments must be made in Australian dollars unless otherwise
agreed.
8. Taxes
8.1 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.
9. Delay in Meeting Service Level
9.1 We will aim to post or transmit the test report to you within 7 working
days after receiving your instructions and samples into our laboratory.
9.2 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.
10. Liability
10.1 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.
10.2 You acknowledge that you rely on all results provided by us in connection
with a testing service at your own risk.
11. Dispute Resolution
11.1 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.
11.2 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.
12. Indemnity
12.1 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) a breach by you of an agreement;
(b) incurred by those indemnified in enforcing any rights under an
agreement with you; or
(c) a claim or liability arising from the possession of, or the acting
upon a report by a third party.
13. Termination
13.1 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.
14. Force Majeure
14.1 The testing services may be totally or partially suspended by us during
any period in which we may be prevented or hindered from testing,
delivery or supply through any circumstances outside our reasonable
control or where such testing, delivery or supply is rendered materially
more expensive by such circumstances.
14.2 Circumstances beyond our reasonable control shall include without
limitation, strikes, and other industrial action affecting AWTA Ltd, inability
to obtain any necessary materials or inputs, equipment, facilities or
services on usual terms, power or water shortage, accidents or
breakdowns of plant, machinery, software, hardware or communication
facilities.
14.3 We shall not incur any liability to you in respect of such suspension.
15. General
15.1 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.
15.2 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. Sub-contracting
We may, after notifying you, sub-contract all or part of the testing
services to an external laboratory. These Terms and Conditions (except
this clause) apply to testing services sub-contracted as if we had
performed all of the testing services ourselves.
17. Use of Information
17.1 We retain copyright in all material produced in the performance of the
testing services. We reserve the right to use and disseminate the
analytical results and information derived therefrom howsoever we see
fit, save that we will ensure that it does not identify you or the relationship
between you and the analytical results.
17.2 Information submitted to us with your sample may be stored and used by
us for the purpose of managing our business. This information will only
be used in relation to the operation of the business or as may be
required by law.
18. Governing Law
These Terms and Conditions are governed by the laws in force in
Victoria and you and us each submit to the non-exclusive jurisdiction of
the courts of that State. If any part of these Terms and Conditions are
rendered ineffective, void, voidable, illegal or unenforceable, that part
shall be severed therefrom and these Terms and Conditions shall be
read and construed for all purposes as if that part were not contained
therein.
19. Waiver
19.1 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.