1. Application of these Terms and Definitions
1.1 Subject to clause 2, these terms (“Terms”) apply to each agreement for the provision of a product testing service (including a related sampling service) or consulting service (an “agreement”).
1.2 The parties to each agreement are Australian Wool Testing Authority Ltd (“AWTA Ltd”) trading as AWTA Product Testing (ABN 43 006 014 106) (“we” or “us”) and the Client (“you”).
1.3 Any order which you place with us or receipt by you of test results after receiving notice of these terms constitutes acceptance of these terms. We must agree in writing to any additional or different term.
1.4 You will be deemed to have accepted these Terms and we will each be deemed to be bound by them if you supply to us material for testing and/or analysis or engage us to provide you with consulting work:
(a) after your receipt of the Terms, subject to clause 2.2; or
(b) prior to your receipt of the Terms and you fail to notify us in writing of non- acceptance of the Terms within 3 business hours following your receipt of the Terms.
1.5 “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.
2. Entire Agreement
2.1 Clause 2.2 and 2.3 shall not apply to a Consumer.
2.2 Unless agreed in writing, these are the only terms and conditions that apply to
each agreement between us for the provision of Services.
2.3 These terms supersede and exclude all prior and other discussions,
representations and arrangements relating to the Services.
2.4 Where you are not a Consumer, these terms will apply to the exclusion of
all other terms and conditions for the provision of the Services.
2.5 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.
3. Warranties, Guarantees and Liability
3.1 This clause does not apply to a Consumer with the exception that clause 3.4
shall apply where the 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.
3.2 We will carry out the Services with due professional care and skill and in
accordance with our NATA (National Association of Testing Authorities,
Australia) accreditation where applicable.
3.3 Other than the warranties contained in 3.2, 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 3.4.
3.4 AWTA Ltd’s liability for its breach of sub-clause 3.2 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 Services again; or
(b) the payment of the cost of having the Services supplied again.
3.5 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 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.
4. Samples
4.1 You warrant the suitability of the samples for the purpose of the testing service
and the accuracy of your description of the samples.
4.2 You must ensure that each package containing samples is accompanied by a
completed Test Request form.
4.3 You must organize 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. We accept no responsibility for alteration of samples
while in transit.
4.4 You acknowledge that samples may be altered, damaged or destroyed during
the conduct of the testing service.
4.5 All articles and sample material remaining after testing become our property.
Where practicable we will retain such articles and sample material not
consumed in the testing service for a period of at least 1 month. All articles and
sample material will be disposed of after this time.
4.6 You are responsible for ensuring that all samples are properly representative
and for retaining any duplicate or controlled samples.
5. Test Results
5.1 If you specifically request a particular test, 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 material represented by the sampled material.
5.2 If you do not specifically request a particular test, you are responsible for
providing clear, accurate and comprehensive instructions, including
descriptions of the samples, 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 material.
5.3 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 material, where that failure arises from incorrect, misleading or
incomplete instructions on your part.
5.4 We do not warrant that the test results will meet or exceed any specifications
hoped for by you.
5.5 (a) The test results relate only to the sample or samples tested.
(b) Due to the many 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.
(c) You acknowledge that the tests may involve an element of subjective
judgment.
6. Consulting Services
Where you request us to provide a consulting service, you are responsible for
providing clear, accurate and comprehensive instructions (including about the
objectives which you wish the consulting service to achieve) and all relevant
information and assistance. We are not liable for any loss you suffer because
the consulting service fails to achieve any objective.
7. Fees
7.1 We will calculate the fee according to one of the following:
(a) the AWTA Product Testing Fees List in force from time to time; or
(b) an agreed fee or quotation for the particular testing service, letter of
opinion or consulting service.
7.2 Unless clause 7.3 applies, payment is required prior to provision of the test
report, letter of opinion or consulting report, after we have issued our invoice
for the relevant amount.
7.3 If you have applied for and been granted a credit account with AWTA Ltd, you
must pay the fees within 30 days of the end of the month in which our invoice is
issued for the credit account to remain open.
7.4 All payments must be made in Australian dollars.
7.5 If you exceed our payment terms we may refuse to conduct further testing or
consulting services for you and any related party until payment in full is made or
alternative payment methods are arranged and agreed between us.
8. Taxes
You must pay any tax, levy or impost imposed on the 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. Delays
9.1 While we make all reasonable endeavours to complete testing services and
consulting services promptly, we are not liable for any loss arising from delay in
carrying out a testing service or consulting service or producing a test report or
letter of opinion.
9.2 Where a completion time is not specified by us, we will make reasonable
endeavours to complete the testing or consulting services within a reasonable
time from the receipt of the sampled material or consulting request.
10. Acknowledgement
You acknowledge that you rely on all conclusions reached and results advised
by us in connection with our supply of testing or consulting 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 an agreement with us.
11. Claims
You will be deemed to have accepted the provision of a testing service or
consulting service free of defects or other non-conformity with these 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
testing service or consulting service.
12. 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) a breach by you of an agreement; or
(b) incurred by those indemnified in enforcing any rights under
an agreement with you.
13. Test Reports and Letters of Opinion
You must not alter or allow alteration of test reports or letters of opinion. You
must not reproduce or allow the reproduction of test reports or letters of opinion
except in full.
14. Abstracts and Advertising
Any extract, abstract or interpretation of a test report or letter of opinion must be
approved by us in writing prior to its release. A test report, letter of opinion, the
names AWTA Product Testing and AWTA Ltd may be used in advertising,
providing the content and format of the advertisement have been approved in
advance by the Managing Director of AWTA Ltd.
15. Confidential Information
15.1 “Confidential information” means:
(a) any information disclosed to us by you which you designate as
confidential or which we know or ought to know is confidential;
(b) includes the information in test results, test reports, letters of opinion and
consulting reports;
(c) does not include information to the extent that the information is:
(i) independently developed or known by us (including because it is
in the public domain);
(ii) independently known to a third party who contacts us about the
information; or
(iii) required to be disclosed by law.