1. Application of Terms
1.1 These Terms set out the contractual basis upon which we agree to supply you with Services and apply whenever Services are quoted for or supplied by us.
1.2 Any terms or conditions included in, attached to, or referenced in your Order, or any other document provided by you (including any purchase order terms subsequently given to us by you) deviating from, or inconsistent with, these Terms:
- (a) are rejected by us;
- (b) do not vary or supplement these Terms; and
- (c) do not form part of the Contract.
1.3 Each supply which we make in response to an Order will be regarded as a separate Contract, which is subject to these Terms.
2. Quotations
2.1 Quotations issued by us are estimates only and will not be construed as an offer or obligation to supply any Services.
2.2 Unless stated otherwise, quotations issued by us:
- (a) are exclusive of GST;
- (b) are exclusive of the costs of Delivering the Goods or performing additional Services as requested or accepted by you; and
- (c) remain valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn earlier.
2.3 Quotations issued by us may include additional terms or conditions which will supplement (and are intended to be read in conjunction with) these Terms.
2.4 Unless our quotation states otherwise, insofar as our quotation relates to the supply of Services, our quoted price will be based upon Services being supplied during Business Hours on Business Days. If requested by you, we may agree to supply Services outside of Business Hours or Business Days, in which case such Services will be deemed a variation and additional charges will apply.
2.5 We reserve the right to vary, withdraw, or extend the time for acceptance in respect of any quotation issued by us at any time prior to a Contract coming into existence in accordance with clause 3.4.
3. Formation of Contract
3.1 If you, following receipt of these Terms:
- (a) acknowledge your acceptance of these Terms; or
- (b) place an Order with us,
you will be deemed to have accepted these Terms.
3.2 Any Order placed by you constitutes an irrevocable offer to purchase Services from us.
3.3 We reserve the right to not accept your Order for any reason (and without any requirement to provide any reason). For clarity, nothing in these Terms obliges us to supply any Services at any time until a Contract has come into existence in accordance with clause 3.4.
3.4 A binding Contract will only come into existence if:
- (a) we accept your Order in writing or by electronic means; or
- (b) we supply you with any Services following receipt of your Order.
3.5 A Contract will be formed at the location of ours where we accept your Order.
3.6 You may not cancel an Order (or any part of an Order) once a Contract has been formed, except with our agreement in writing and then only on terms that you indemnify us from and against any loss (including loss of profit) and all costs (including our costs incurred in fulfilment of your Order) suffered or incurred by us as a result of your cancellation.
4. Price
4.1 Subject to the remainder of this clause 4, the price payable for the Services will be as agreed in writing, or, where the price has not been agreed prior, then the price will be in accordance with our then prevailing price list/rates as at the date of your Order.
4.2 If you request that any Services be supplied that are not strictly in accordance with the Contract, then such Services will constitute a variation and we will be entitled to vary our quoted price accordingly.
4.3 All variations must be agreed in writing prior to the Services that are the subject of the variation being supplied.
5. Payment Terms
5.1 Unless we have granted you a Credit Facility or otherwise instructed, all Services must be paid for before we deliver the Services.
5.2 Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
5.3 If we have agreed to accept payment by credit card, you agree to provide us with the credit card details necessary to effect payment.
5.4 We will be at liberty to charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
5.5 We reserve the right to require payment of a deposit. The amount of the deposit will be advised by us from time to time and will become immediately due and payable upon the formation of a Contract in accordance with clause 3.4 unless we advise you otherwise.
5.6 If GST is imposed on a taxable supply made by us to you under any Contract of which these Terms form part, the price of the taxable supply will be equal to the GST-exclusive consideration that you must pay to us for the taxable supply increased by an amount (the GST Amount) equal to the amount of GST payable upon that taxable supply. The GST Amount is, subject to us issuing an invoice to you, payable at the same time and in the same manner as the consideration to which it relates.
5.7 You must check all invoices and must notify us in writing of any errors or omissions within seven (7) days of the invoice date. If you do not notify us within this timeframe, the invoice will be deemed to be correct and accepted by you.
5.8 Any uncontested invoiced amount you are required to pay to us pursuant to any Contract of which these Terms form part must be paid free of any set off or counterclaim and without deduction or withholding.
5.9 Subject to clause 5.10, we will apply payments made by you or on your behalf as follows:
- (a) Firstly, in payment of any collection costs or legal costs we have incurred.
- (b) Secondly, in payment of any interest charged by us in accordance with clause 6.1(a).
- (c) Thirdly, in payment of any outstanding invoices (or part thereof) in an order determined by us in our sole discretion.
5.10 We may allocate (and re-allocate) any monies paid by you in a manner determined by us in our sole discretion.
6. Default
6.1 If you default in the payment of any invoice by the due date for payment, we are entitled to, without prejudice to any other rights we may have, do any or all of the following:
- (a) charge you interest on the outstanding debt at the rate of 10% per annum;
- (b) require pre-payment for any Services which have not yet been supplied; and
- (c) suspend or cease the supply of any further Services to you.
6.2 You agree to pay our costs and disbursements incurred in pursuing any recovery action, including mercantile agent costs, debt recovery fees, bank dishonour fees, and legal costs on a full indemnity basis.
7. The Supply of Services
7.1 You acknowledge and agree that:
- (a) the Services will be supplied in accordance with your instructions or, in the absence of such instructions, in accordance with such methods as we deem appropriate;
- (b) any estimate we give for the supply or completion of the Services is an estimate only and not a contractual commitment;
- (c) unless expressly agreed in writing, we make no representation or warranty that we will be capable of supplying or completing the Services within any timeframe you have stipulated;
7.2 You acknowledge and agree that we may charge you for additional Services that are reasonably required or arise out of or are connected to delivery of the Goods or Services.
7.3 You acknowledge and agree that you must:
- (a) inform us of any special on-site requirements with respect to delivery or performance of Services;
- (b) take all steps reasonably necessary to ensure that our personnel have the benefit of any safety protocols or protections where Site risks are not insignificant or improbable.
8. Samples
8.1 If no prior arrangements have been made in relation to the Samples, we will be at liberty to dispose of the Samples at any time after the Agreed Storage Period.
8.2 If you request that the Samples be returned to you, we may charge you, and you will be liable to pay all costs associated with returning those Samples to you.
9. Right of Lien
You acknowledge and agree that if you default in the payment of any invoice by the due date for payment, we will have a right of a lien over the Samples, any Reports, and any other documents or materials supplied by you to secure payment of all amounts due and owing to us.
9. Right of Lien
You acknowledge and agree that if you default in the payment of any invoice by the due date for payment, we will have a right of a lien over the Samples, any Reports, and any other documents or materials supplied by you to secure payment of all amounts due and owing to us.
10. Security Interest
10.1 In this clause 10, words and phrases which have a defined meaning in the PPS Act have the same meaning as in the PPS Act.
10.2 You acknowledge that by assenting to these Terms, you grant us a security interest.
10.3 You undertake to do anything required by us:
- (a) to enable us to effect and maintain one or more perfected security interests under the PPS Act;
- (b) to enable us to register a financing statement or financing change statement; and
- (c) to ensure that our security position and rights under the PPS Act are not adversely affected.
10.4 Unless you have obtained our prior written and fully informed consent, you undertake not to register a financing change statement in respect of a security interest contemplated or constituted by these Terms.
10.5 You:
- (a) waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act;
- (b) agree that, to the extent permitted by the PPS Act:
- (I) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of;
- (II) you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
10.6 You must, at our request, sign any documents, provide us with any relevant information, or do anything else we request to ensure that any security interest contemplated or constituted by these Terms is perfected in accordance with Part 2.2 of the PPS Act.
10.7 The Parties undertake to not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by Law.
10.8 Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.
11. Indemnity
11.1 You are liable for and indemnify us in respect of all Claims, damage, loss, and costs that we may suffer or incur at any time, directly or indirectly, arising out of or in connection with any default by you in the performance or observance of your obligations under any Contract of which these Terms form part.
11.2 Your liability to indemnify us will be reduced proportionally to the extent that any negligent act or omission by us or a breach of our obligations under any Contract has contributed to the Claim, damage, loss, or cost which is the subject of the indemnity.
11.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any Contract.
11.4 It is not necessary for us to incur any expense or make any payment before enforcing our rights of indemnity conferred by these Terms.
11.5 This clause 11 does not apply where the Contract is a Consumer Contract or a Small Business Contract.
12. Limitation of Liability
12.1 We will not be liable for any loss or damage suffered or incurred by you in connection with any incorrect information contained in an Order or otherwise provided to us by you or on your behalf.
12.2 Subject to clauses 12.1, 12.3, 12.4, and 12.6, our liability for any loss or damage, however caused, suffered or incurred by you arising out of or in connection with any Contract is limited to the sum paid to us by you in respect of that Contract prior to the date you first suffered loss or damage.
12.3 The limitation contemplated in clause 12.2 is an aggregate limit for all Claims, whenever made.
12.4 Subject to clause 12.6, we are not liable for any Consequential Loss, however caused, suffered or incurred by you arising out of or in connection with any Contract.
12.5 Clauses 12.1 to 12.4 apply in connection with breach of a Contract, the anticipated breach of a Contract, and other conduct regardless of the seriousness or nature of that breach, anticipated breach, or other conduct.
12.6 If the Competition and Consumer Act 2010 or any other legislation provides that there is a guarantee in respect of any Goods or Services supplied in connection with any Contract and our liability for failing to comply with that guarantee cannot be excluded but may be limited, our liability for such failure is limited to, in the case of a supply of Goods, us replacing the Goods or supplying equivalent Goods, or in the case of a supply of Services, us supplying the Services again or paying the cost of having the Services supplied again.
12.7 You acknowledge and agree that the exclusions and limitations contemplated by this clause 12 are both fair and reasonable.
12. Limitation of Liability
12.1 We will not be liable for any loss or damage suffered or incurred by you in connection with any incorrect information contained in an Order or otherwise provided to us by you or on your behalf.
12.2 Subject to clauses 12.1, 12.3, 12.4, and 12.6, our liability for any loss or damage, however caused, suffered or incurred by you arising out of or in connection with any Contract is limited to the sum paid to us by you in respect of that Contract prior to the date you first suffered loss or damage.
12.3 The limitation contemplated in clause 12.2 is an aggregate limit for all Claims, whenever made.
12.4 Subject to clause 12.6, we are not liable for any Consequential Loss, however caused, suffered or incurred by you arising out of or in connection with any Contract.
12.5 Clauses 12.1 to 12.4 apply in connection with breach of a Contract, the anticipated breach of a Contract, and other conduct regardless of the seriousness or nature of that breach, anticipated breach, or other conduct.
12.6 If the Competition and Consumer Act 2010 or any other legislation provides that there is a guarantee in respect of any Goods or Services supplied in connection with any Contract and our liability for failing to comply with that guarantee cannot be excluded but may be limited, our liability for such failure is limited to, in the case of a supply of Goods, us replacing the Goods or supplying equivalent Goods, or in the case of a supply of Services, us supplying the Services again or paying the cost of having the Services supplied again.
12.7 You acknowledge and agree that the exclusions and limitations contemplated by this clause 12 are both fair and reasonable.
13. Intellectual Property Rights
13.1 All right, title, and interest in the Intellectual Property Rights in and to all Reports prepared by us (and all technical and analytical methods we use in preparing those Reports) are, and will at all times remain, our property.
13.2 Upon payment of all amounts owed to us, we will grant you a non-exclusive right to use the Reports.
13.3 You acknowledge and agree you have no right to use our Intellectual Property Rights, unless otherwise agreed in writing.
14. Privacy
14.1 You must comply with all Privacy Laws, and any reasonable direction of ours, in handling any Personal Information disclosed to or accessed by you in connection with any Contract of which these Terms form part, whether or not you are an organisation bound by the Privacy Laws.
14.2 Without limiting your obligations under clause 14.1, you must:
- (a) not use or disclose Personal Information other than for the purpose of performing your obligations under any Contract of which these Terms form part, unless required or authorised by Law;
- (b) upon request, promptly return any Personal Information to us upon termination or performance of any Contract of which these Terms form part; and
- (c) immediately notify us:
- (I) upon becoming aware of any breach of clauses 14.1 or 14.2; and
- (II) of any data breach affecting, or unauthorised access to or loss of, Personal Information held by you or your personnel.
14.3 Clauses 14.1 and 14.2 survive the termination or performance of a Contract.
15. Confidentiality
15.1 You agree to keep confidential, and not use or disclose, other than for your internal business purposes, any Confidential Information provided to or obtained by you before or after your entry into a Contract.
15.2 The obligations of confidence imposed on you by clause 15.1 do not apply to Confidential Information that is required to be disclosed by any applicable Law or under compulsion of a court, Government Authority, or the rules of any securities exchange (as long as you disclose the minimum amount required to satisfy the Law or rules, provide us with prior notice in writing, and take reasonable steps to maintain the confidence of such Confidential Information) or that is in the public domain otherwise than as a result of a breach of these Terms or other obligation of confidence.
15.3 Clauses 15.1 and 15.2 survive the termination or performance of a Contract.
16. Termination
16.1 We may, with immediate effect, terminate any Contract of which these Terms form part by notice in writing to you, if:
- (a) you commit a material or persistent breach of these Terms and do not remedy that breach (if capable of remedy) within seven (7) days of the date of a notice identifying the breach and requiring its remedy;
- (b) we are no longer able to, for whatever reason, supply you with the Services the subject of a Contract (or any part of those Services); or
- (c) you enter into liquidation, or if you are an individual, become bankrupt.
16.2 For clarity, upon termination, a Contract is at an end as to its future operation, except for:
- (a) any Claim or enforcing any other right which arises upon, or has arisen before, the date of termination; and
- (b) any clause which is expressed to survive the Contract or impliedly does so.
17. Force Majeure
17.1 If a Party is wholly or partly unable to carry out any obligation under a Contract (other than a payment obligation) because of a Force Majeure Event and the affected Party:
- (a) gives the non-affected Party prompt notice of that Force Majeure Event including particulars of the event relied upon and so far as known the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
- (b) uses all reasonable diligence to remove or remedy that Force Majeure Event as quickly as possible,
that obligation is suspended to the extent that it is affected by the continuation of the Force Majeure Event.
17.2 Despite clause 17.1(a), the non-affected Party may terminate the Contract immediately by giving notice to the affected Party if the suspension of the affected Party’s obligation continues under clause 17.1(a) for more than one (1) month.
17. Force Majeure
17.1 If a Party is wholly or partly unable to carry out any obligation under a Contract (other than a payment obligation) because of a Force Majeure Event and the affected Party:
- (a) gives the non-affected Party prompt notice of that Force Majeure Event including particulars of the event relied upon and so far as known the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
- (b) uses all reasonable diligence to remove or remedy that Force Majeure Event as quickly as possible,
that obligation is suspended to the extent that it is affected by the continuation of the Force Majeure Event.
17.2 Despite clause 17.1(a), the non-affected Party may terminate the Contract immediately by giving notice to the affected Party if the suspension of the affected Party’s obligation continues under clause 17.1(a) for more than one (1) month.
18. Nature of Relationship
Nothing in these Terms, or any Contract of which these Terms form part, is to be construed as creating a relationship of agency, joint venture, partnership, or other relationship with duties or incidents different from those of parties to an arm’s length contract.
19. Variation
19.1 No proposed variation of these Terms will be binding upon us unless varied in writing and agreed by an authorised officer of ours. We may correct clerical errors (such as spelling mistakes, grammatical errors, or numerical errors) with or without notice to you.
19.2 We may amend these Terms at any time by notifying you in writing. The Terms (as amended) will apply to any Order placed by you following us notifying you of the amendments.
20. Assignment
Neither Party may assign its rights or obligations under any Contract of which these Terms form part without the prior written and fully informed consent of the other Party (which consent must not be unreasonably withheld).
21. Waiver
21.1 A waiver of any provision or breach of any Contract of which these Terms form part will only be effective if made by the affected Party in writing.
21.2 If a Party elects not to enforce its rights arising as a result of a breach of the Contract, that will not constitute a waiver of any rights in relation to any subsequent or other breach.
22. Severance
If any part of these Terms, or any Contract of which these Terms form part, is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the Contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
23. Entire Agreement
23.1 The Contract, together with the terms of any Credit Agreement (where applicable):
- (a) constitutes the entire agreement and understanding between the Parties;
- (b) excludes all implied terms; and
- (c) supersedes all previous negotiations, understandings, representations, warranties, memoranda, or commitments.
23.2 For the removal of doubt, all terms, conditions, warranties, indemnities, and statements (whether express, implied, written, oral, collateral, statutory or otherwise) which are not expressly set out in these Terms, or any Contract of which these Terms form part, are hereby expressly excluded and, to the extent they cannot be excluded, we disclaim all liability in relation to them.
24. Governing Law and Jurisdiction
24.1 These Terms, and any Contract of which these Terms form part, is governed by and must be construed according to the Law applying in the State of Queensland.
24.2 The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Queensland, and the courts competent to determine appeals from those courts, with respect to any proceedings that may be brought at any time relating to the Terms or any Contract of which these Terms form part.
25. Definitions
In these Terms, unless the context otherwise requires:
- Australian Consumer Law means the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
- Business Day means a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Services are supplied.
- Business Hours means 06:00am to 5:00pm.
- Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a Party to a Contract.
- Confidential Information includes any information relating to our business and affairs, designated as confidential, or that which is reasonably known to be confidential.
26. Interpretation
26.1 If there is any conflict or inconsistency between any of the documents which together govern the relationship between the Parties, it is agreed the order of precedence will be (highest to lowest):
- (a) any Credit Agreement;
- (b) any additional terms or conditions contained in our quotation;
- (c) these Terms; and
- (d) any other documents issued by us.
26.2 In these Terms, unless the context otherwise requires:
- (a) A reference to a time is a reference to Brisbane, Australia time unless otherwise specified;
- (b) Words such as "includes" and "including" are not words of limitation;
- (c) Headings are inserted for convenience only and do not affect the interpretation of these Terms.