TERMS & CONDITIONS FOR RAW WOOL CERTIFICATE TESTING AND REPORT TESTING SERVICES
1. 1.1 1.2 1.3 1.4
Application of these Terms and Definitions These terms apply to each agreement (an "agreement") for the provision of a raw wool Certificate testing service or Report testing service (including a related sampling service and appraisal of wool type) (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 after receiving notice of these terms constitutes acceptance of these terms. We must agree in writing to any additional or different term. "Consumer" means: (a) (b) (c) an individual acquiring goods or services wholly or predominantly for personal, domestic or household use or consumption; or a person acquiring goods or services at a price not exceeding $40,000; or a person acquiring goods or services ordinarily acquired for personal, domestic or household use or consumption.
2. 2.1 2.2 2.3 2.4 2.5
Entire Agreement Clause 2.2 and 2.3 shall not apply to a Consumer. Unless agreed in writing, these are the only terms and conditions that apply to each agreement between us for the provision of a testing service. These terms supersede and exclude all prior and other discussions, representations and arrangements relating to the testing service. Where you are not a Consumer, these terms will apply to the exclusion of all other terms and conditions for the provision of a testing service. We may amend these terms at any time by notifying you, including in any one or more of the following ways: (a) (b) (c) printing the amended terms on our weight notes or Test 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 amendment. 3. 3.1 Warranties, Guarantees and Liability 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. We will carry out the testing services with due professional care and skill. 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 testing 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. 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) (b) 3.5 the supplying of the testing service again; or the payment of the cost of having the testing service supplied again.
3.2 3.3
3.4
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 a testing service
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including without limitation, 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. 4.1 4.2 Certificate Testing Services "Certificate testing service" means that we will certify that the test results are within the precision limits of the relevant IWTO Test Method. We will provide a Certificate testing service where we supervise or conduct the weighing of the bales and the drawing of the samples in accordance with the relevant IWTO Test Method and any directly associated Regulations. We will certify that the test results are within the precision limits of the relevant IWTO Test Method, but no other warranty is expressed or implied. A Certificate will be issued, reporting the results in accordance with the relevant Test Method(s) and any directly associated Regulations. On request, AWTA Ltd will make available sampling, weighing and/or testing details to any person who appears to be a bona fide bearer or transferee of an original Certificate or an official copy. Photocopies and other reproductions are not recognised as Certificates. A Client who requests that wool be sampled and tested must first sign a Declaration for IWTO Certificate Request, whereby it warrants that it will accurately describe the lot/s by stating the relevant IWTO Wool Preparation Category/ies. We can refuse to supervise the sampling of wool or we can invalidate a Certificate unless you provide us with information that satisfies us that the wool is accurately described. We are not liable for any loss you suffer if we refuse to supervise the sampling of wool or if we invalidate a Certificate. Where you supply us with data relating to Mulesing Status ("MS") or Dark and Medullated Fibre Risk ("DMFR") you warrant that the declared information is derived from a National Wool Declaration which has been signed by or on behalf of the wool producer. Where the accuracy of the declared information is disputed we may invalidate or cancel the relevant Certificate unless we are supplied with information that confirms that the declared information is correct. Where we cancel a Certificate we may reissue it as one where the MS or DMFR is described as not declared ("ND"). Subjective Appraisal (a) Where we provide a subjective appraisal of the wool type based on an assessment of the display sample taken in accordance with IWTO Standards as part of the Certificate testing service we will provide it in the form of an AWEX-ID. We will also provide you with the most current TEAM-3 processing predictions. Our Subjective Appraisal Guidelines as published by us from time-to-time apply to each such appraisal. We will guarantee that the AWEX-ID determined is a fair and adequate description of the non-measured wool characteristics as applied by a qualified AWEX-ID Appraiser. This guarantee does not extend to any other aspect of the service including processing quality and/or performance. Any queries as to the accuracy of the AWEX-ID determined by us will be dealt with in accordance with the Subjective Appraisal Guidelines as published by us from time-to-time. Where conciliation is necessary to resolve a dispute between us, it will be conducted by the Australian National Committee of IWTO. Where conciliation is unsuccessful in resolving the dispute, the matter will be referred to the Australian National Committee of IWTO Arbitration Panel and conducted under the arbitration rules specified in the IWTO Blue Book.
4.3 4.4
4.5
4.6
4.7
(b)
(c)
5. 5.1 5.2
Report Testing Services "Report testing service" means that we will not certify the test results, but will instead issue a Report. We will carry out a Report testing service if any of the following circumstances apply: (a) (b) (c) We conduct a dark and/or medullated fibre test; We do not draw or supervise the drawing of the sample (in which case we make no warranty, implied or otherwise, as to the source of the sample); We do not perform the sampling and testing in accordance with the relevant IWTO Test Method and any directly associated Regulations, whether because:
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(i) (ii)
(d)
we use a Test Method determined by ourselves; or we use a Test Method requested by the Client.
The Report includes test results issued by a test house other than AWTA Ltd. We cannot attest to the accuracy of the test results or to the test procedures employed, because the test results were not arrived at by sampling and testing procedures under our control or supervision.
5.3
A test Report applies only to the sample tested, is intended to provide you with guidance information only and not for use in commercial transactions. No responsibility can be accepted by AWTA Ltd 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 or liability (including reasonable legal costs and expenses) arising from the possession reliance upon and or use of a Report by a third party. Provisions Applicable to Both Certificate Testing Services and Report Testing Services All sample material remaining after testing becomes our property, which we may use in any way. Certificates and Reports are available in hard copy or electronic format under clause 10, at your option. You must not: (a) (b) alter or allow alteration of Certificates or Reports; or reproduce or allow the reproduction of Certificates or Reports except in full.
5.4
6. 6.1 6.2 6.3
We disown all responsibility, to any party, in relation to a Certificate or Report which has been altered. 7. 7.1 Fees We will calculate the fee according to: (a) (b) 7.2 the AWTA Ltd Raw Wool Testing Fees List in force from time to time; 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. We may charge interest on overdue invoices in the amount fixed from time to time under the Penalty Interest Rate Act (1983) (Vic). All payments must be made in Australian dollars unless otherwise agreed. We will not accept credit card payment of statements. 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.
7.3
8.
9. 9.1
Delay in Meeting Service Levels We offer 3 levels of service for IWTO Greasy Wool Core Test Certificates and IWTO Staple Test Certificates, Normal, Fast and Express, meaning that: (a) (b) (c) Normal: Fast: Express: all Test Certificates available within 5 days. 95% of Test Certificates available within 3 days with the residue within a further 24 hours; and 95% of Test Certificates available the following morning with the residue within 24 hours.
9.2 9.3
While we will make all reasonable endeavours to meet the service level selected by you, we cannot guarantee that we will do so. We are not liable for any loss or claim whatsoever arising from delay in meeting a service level. Even where a service level does not apply, we make all reasonable endeavours to complete testing services within a reasonable time from the receipt of the sample in the laboratory.
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10. 10.1 10.2
Electronic Data Interchange This clause applies where you use our Electronic Data Interchange ("EDI") system to access our database of test results and other data. While we make all reasonable endeavours to ensure that our database is accurate, complete and up to date, we cannot guarantee the integrity of the telecommunications line used to transmit the data to your computing system. We are not liable for any loss arising from problems with the line, including your inability to access our system or due to loss or corruption of data. You are responsible for the accuracy of any data that you transmit to us that is matched to test results. All data is provided on the EDI system in accordance with the Wool Industry EDP Communications Handbook. You are responsible for ensuring that your software is compatible with this format, and that it is capable of capturing all data. We are not liable for any loss you suffer because of problems with your software or your computing system, or any other problem outside our control. 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 11.2, may use it for any purpose. We will keep the material confidential, except where: (a) (b) (c) it is already in the public domain; we are required to disclose it by law; or we provide all or part of the material to a person presenting a Certificate or an official copy of a Certificate, in accordance with clause 4.4.
10.3
11. 11.1 11.2
12. 12.1 12.2
Client's Responsibility for Sampling Employees' Health and Safety You must take all reasonable care for the health and safety of our sampling employees when they are working on premises which you own or control. 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 injury to any of our employees because of negligence by you or your officers, employees, contractors or agents. Governing Law Each agreement is governed solely by the law of the state of Victoria, Australia.
13.
14. 14.1
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 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. 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.
14.2
15.
16.
Indemnity You must at all times indemnify us and our officers, employees, contractors and agents ("those indemnified") against any loss or liability (including reasonable legal costs and expenses) arising from any proceedings or debt recovery actions against those indemnified where such loss or liability was caused by: (a) (b) a breach by you of an agreement; or incurred by those indemnified in enforcing any rights under an agreement with you.
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17.
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.
18. 18.1
Force Majeure A testing service may be totally or partially suspended by AWTA during any period in which AWTA 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. Circumstances beyond the reasonable control of AWTA shall include without limitation, strikes, and other industrial action affecting AWTA, 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. AWTA shall not incur any liability to you in respect of such suspension. 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.
18.2
18.3 19.
20.
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.
