1. Interpretation
In these terms and conditions, except where the contrary intention is expressed, the following definitions are used:
Business Day: a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the act is to be performed or where the Notice is received.
Customer: the person specified on an Order Form for Reference Materials (or if there is no Order Form, the person placing the order for Reference Materials, or on whose behalf the order for NMI Reference Materials is placed, with NMI).
Contract: the agreement, comprising the documents specified in clause 3.1, concluded between NMI and the Customer for the supply of Reference Products as amended from time to time in accordance with clause 3.2.
Dispatch Date: the Business Day that NMI dispatches Reference Materials to the Customer.
Fees: the amount specified in the Order Form.
NMI: the Commonwealth of Australia, as represented by the National Measurement Institute, a division of the Department of Industry, Science and Resources.
Order Form: the order document and payment form.
Reference Material: any reference material supplied by NMI.
2. Interpretation
In these terms and conditions, except where the contrary intention is expressed:
- the singul includes the plural and vice versa, and a gender includes other genders;
- another grammatical form of a defined word or expression has a corresponding meaning;
- a reference to a clause, paragraph or schedule is to a clause or paragraph of, or schedule to, this Agreement;
- a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- a reference to time is to Sydney, Australia time;
- a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assignees and substitutes;
- a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
- if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
- headings
- are for ease of reference only and do not affect interpretation
3. Priority of contract documents
3.1 If there is inconsistency between any of the documents forming part of this Contract, those documents will be interpreted in the following order of priority to the extent of any inconsistency:
- Order Form; and
- NMI Terms & Conditions for the Supply of Reference Materials.
3.2 No variation can be made to these terms and conditions without written consent of NMI.
4. Supply of reference materials
4.1 NMI will provide the Reference Materials to the Customer in consideration for the Customer paying the Fee to NMI, subject to the provisions of this agreement.
4.2 NMI shall use reasonable endeavours to dispatch the Reference Materials to the Customer on the date specified in the order for Reference Material dispatch.
5. Order and payment of the fees
5.1 The Customer must pay the Fees for an order of any Reference Materials strictly within 30 days of the date of an invoice issued by NMI in respect of that order.
5.2 Each person whose signature appears on the Order Form, warrants and guarantees that he or she has been duly authorised and has full authority to enter the Contract on behalf of the Customer.
5.3 The return of the Order Form and payment of the Fees for a Reference Material constitutes an acceptance of the Contract.
5.4 Where Reference Materials are considered temperature or time sensitive by NMI they shall be dispatched by courier (the cost to be borne by the Customer in accordance with clause 6 below).
6. Invoicing for additional fees
6.1 The Customer may incur fees in addition to the base Fees for the supply of Reference Materials by the NMI including where:
- The Customer incurs fees for the temperature sensitive or time sensitive delivery of Reference Materials;
- The NMI incurs custom or import duty liabilities when delivering the Customer’s Reference Materials; and
- The Customer requests a replacement Reference Material where the original item requires replacing after it has been received by the Customer.
6.2 NMI will provide the Customer with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 6.
6.3 All invoices issued to the Customer will be stated and paid in Australian dollars.
6.4 Payment of additional fees will be made by the Customer to the NMI within 30 days of the date of NMI’s invoice.
6.5 When making a payment, the Customer must quote relevant reference numbers and the invoice number.
7. Failure to pay
7.1 If the Customer does not make payment of NMI’s invoice by the due date, NMI reserves the right to do any or all of the following:
- charge interest on the outstanding amount at the rate of 2% per year above the Small Business Overdraft Rate of Westpac Bank, accruing daily; and
- withhold any future deliveries pending monies due.
8. Cancellation
8.1 The Customer can cancel an order by notifying the NMI in writing prior to the Dispatch Date and receive a refund in an amount equal to the Fee.
8.2 For avoidance of doubt, the customer may not cancel an order after the Dispatch Date. After the Dispatch Date, the Customer is liable to pay NMI 100% of the Fees and additional Fees under Clause 6 above. No refunds will be issued, unless NMI determines in its sole discretion to issue a refund in whole or in part.
9. Delivery of reference material
9.1 The Customer must provide NMI with any import or quarantine permits that might be necessary to deliver the Reference Material.
9.2 The Customer will be responsible for paying any customs or import charges levied.
9.3 The cost of Reference Material delivery by courier (for items considered temperature or time sensitive by NMI or otherwise requested by the Customer) will be borne by the Customer.
9.4 Reference Material lost or damaged after receipt by the Customer will be replaced at the Customer’s expense.
9.5 Subject to condition 9.7 and 9.8 below any Reference Material lost or damaged in transit or arriving at the premises of the Customer in an unsafe condition shall, if such unusable condition arises as a result of negligence of NMI be promptly replaced free of charge, by NMI. NMI reserves the right to inspect any such Reference Material. The Customer shall not dispose of any such Reference Material without written permission of NMI, and if requested return such Reference Material to NMI at its reasonable expense which NMI will reimburse.
9.6 While NMI will make every attempt to clearly label and attach any relevant documentation supplied by the Customer, NMI is not in any way liable for damage to any Reference Material which arises as a result of the Reference Material being delayed in customs and excise (for whatever reason). Similarly (and in accordance with condition 15), NMI is not liable for any loss (whether direct or indirect howsoever arising) if a Customer cannot return any Reference Material by the deadline specified in the instructions, which arises as a result of the any Reference Material being delayed in customs and excise.
9.7 The Customer shall inform NMI if any Reference Material has not arrived within 4 days of the stated dispatch date if the material was sent by courier unless it has been informed by NMI that the test material has been delayed. NMI is not responsible for replacement or investigation of the loss of any Reference Material if the Customer has not informed NMI within 4 days of the stated dispatch date that any Reference Material has not arrived.
9.8 NMI is not responsible for replacement of any Reference Material if the Customer has not informed NMI that they are in unusable condition within 3 days of receipt. The Customer shall be deemed to have accepted any Reference Material in useable condition after such time.
10. Certificates
10.1 NMI will provide the Customer with a Certificate in respect of each Reference Material together with the supply of each Reference Material stated in the Order Form.
11. Risk
11.1 Property in the Reference Materials shall pass to the Customer when received by the Customer.
11.2 Notwithstanding that the property in the Reference Materials may not have passed to the Customer, the risk in the Reference Materials shall pass to the Customer as soon as the Reference Materials have been dispatched to the Customer.
12. Goods and services tax
12.1 The Customer shall pay to NMI, in addition to the Fee, a sum equal to the Goods and Services Tax chargeable on the value of the supply of any goods and services provided to the Customer in accordance with the Contract where applicable
13. Waiver
13.1 The failure of either party at any time to enforce any provision of the Contract shall in no way affect its right thereafter to require complete performance by the other party, nor shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself.
14. Severability
14.1 If any condition, clause or provision of the Contract not being of a fundamental nature be held to be unlawful or unenforceable by a court in any proceedings relating to the Contract the validity or enforceability of the remainder of the Contract shall not be affected thereby.
15. Limitation on liability
15.1 Except in the case of death or personal injury caused by the NMI’s negligence, the liability of the NMI under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Customer to the NMI under this agreement.
15.2 Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise, for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
15.3 If NMI is not able to distribute any Reference Material due to any circumstance, the Customer may elect to:
- a refund of the fee paid for that Reference Material; or
- a credit equivalent to the Fee for that Reference Material to be used within 18 months of the Customer being notified that the original Reference Material is unable to be distributed to the Customer.
15.4 In default of any notification having been received by NMI of the option selected by the Customer in accordance with Clause 15.3 within 30 days of the stated dispatch date for the order option (b) will be deemed to have been selected by the Customer.
16. No reliance
16.1 Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
17. No warranties
17.1 Save as expressed in the Contract, NMI grants no warranties in relation to any Reference Material and all other conditions warranties, stipulations or other statements whatsoever whether express or implied, by statute, at common law or otherwise howsoever relating to any Reference Material are hereby excluded. In particular, (but without limitation to the foregoing), no warranties granted regarding:
- fitness for purpose, performance, use, quality or merchantability of any Reference Material, whether express or implied, by statute at common law or otherwise howsoever; or
- provision of any Reference Material by a given date or any other date, whether stated in the Order Form or elsewhere.
18. Force majeure
18.1 Neither NMI nor the Customer shall be considered in breach of the Contract for non-performance, part performance, defective performance or delay in performance which is directly caused by or is a result of any circumstance beyond the reasonable control of the parties.
19. Ownership of intellectual property
19.1 The NMI shall retain all rights of ownership, title, copyright and intellectual property rights in any Reference Material.
20. Entire agreement
20.1 The Contract contains the whole agreement between the parties and supersedes all representations, undertakings, understandings or other statements whether written or oral made prior to the date of the Order Form by and on behalf of NMI to the Customer of any nature whatsoever.
21. Governing law and jurisdiction
21.1 The laws of New South Wales apply to the Contract.