Terms & Conditions
The following terms and conditions (Terms) apply in respect of all goods and services provided by S A Analytical Laboratory Supplies Pty Ltd ABN 36 132 336 906 trading as Summit Laboratory Supplies (we, us or our) to the client (you or your).
1 Application of Terms and Contract for Supplies
1.1 Unless we agree otherwise in writing, these Terms apply to all transactions involving the supply of goods and/or services (Supplies) by us to you (or for you), which may include laboratory testing, analytical services, sampling (including on-site sampling and environmental swabbing), consulting, reporting, storage of samples and related professional services.
1.2 By signing the documentation we provide specifying details of the Supplies requested (Submission Form), by ordering or accepting Supplies from us, or by providing goods to us for testing or the provision of other services, you will be deemed to agree to these Terms.
1.3 Upon our acceptance in writing of your order for Supplies, a contract will be formed between us and you for the provision of the Supplies (Contract) constituting solely of these Terms and (if and as applicable) the signed Submission Form, any written quotation, and/or other terms and conditions issued by us and accepted by you.
1.4 No terms or conditions sought to be imposed by you (including any that are incorporated into a tender, offer, counteroffer or proposal made by you) will apply, unless expressly accepted in writing by us.
1.5 Any quotation issued by us:
(a) is valid only for the period stated (or if no period is stated, then 30 days), unless we withdraw it earlier, and will lapse after that time; and
(b) is not an offer capable of unilateral acceptance by you, and a Contract will only be formed once we have confirmed your order in writing.
1.6 You may not cancel or vary a request for Supplies or a Contract without our prior written consent, and we may as a condition of granting such consent require payment of a cancellation fee.
2 Our Supplies
2.1 We will provide the Supplies, which may include the provision to you of reports, results or other documentation regarding the outcome of our services (including any deliverables specified in the Contract) (Deliverables), in accordance with the Contract and as agreed in writing between you and us.
2.2 We will use reasonable endeavours to:
(a) despatch goods forming part of the Supplies (Goods) or perform services forming part of the Supplies (Services) promptly, and to notify you of any delays; and
(b) provide the Supplies by any delivery date specified in the Contract, or (if not specified) a reasonable time after we have everything we require to perform or deliver the Supplies, however all dates and times are estimated only and we will not be liable for any delays for any reason whatsoever.
2.3 Time is not of the essence under the Contract.
3 Fees and payment
3.2 We may invoice you for the fees for the Supplies at any time after formation of the Contract.
3.3 You must pay the Fees for the Supplies in accordance with the payment terms specified in the Contract or our invoice, or (if not specified) then:
(a) within 7 days of the date of our invoice (if we have approved a credit account terms for you); or otherwise
(b) immediately on issue of our invoice.
3.4 Payment of all amounts due to us must be in the manner specified in the Contract or our invoice, or (if not specified) by credit card payment or as otherwise directed by us in Australian Dollars, and free of any deduction, withholding, counterclaim or set off on any account whatsoever.
3.5 We reserve the right to increase the Fees to reflect any increase in costs due to any factors beyond our reasonable control by providing reasonable advance written notice to you (where any such change will not be retrospective for any Supplies already performed or delivered).
3.6 We may grant, refuse, withdraw or vary (including to impose or vary a credit limit) a credit facility in our absolute discretion at any time, and if we withdraw or vary your credit facility, any credit advanced to you that is beyond the continuing credit terms will become immediately due and payable.
3.7 If any payments are overdue, you exceed your credit limit, or other circumstances arise that we reasonably consider cause an unacceptable risk to us:
(a) we may suspend or cease supply of Supplies;
(b) we may by notice to you limit or cancel any credit account terms;
(c) we may by notice to you deem that all amounts then owing are immediately due and payable (despite any applicable payment terms); and
(d) you must pay us on demand interest on overdue amounts you owe us at the rate that is 5% above the cash rate prescribed by the Reserve Bank of Australia per annum accruing daily from the due date for payment.
3.8 You authorise us to retain by way of lien any materials, funds, documents or other property that is from time to time in our possession or control until all amounts, interest and other amounts due from you on any account whatsoever have been paid to us.
4 Taxes
4.1 Unless otherwise stated, the amounts payable by you to us for, or in connection with, any supply under the Contract do not include any GST, and you must pay us (at the same time and in the same manner as the Fees) an additional amount on account of GST equal to the Fees multiplied by the prevailing GST rate.
4.2 You must pay (or if we are required to pay, reimburse us) for all other taxes, duties and other government charges payable or assessed in connection with the Contract (including withholding taxes but excluding taxes assessed solely on our income).
5 Client Materials
5.1 We will use reasonable endeavours to safeguard any property you entrust to us, including products, samples, materials or substances you supply (or we collect for you) for testing purposes, and any information you provide (Client Materials), however we make no warranty or guarantee as to the security or safety of any Client Materials while the Client Materials are in our possession or control other than as expressly stated in the Contract.
5.2 You must ensure that the Client Materials are provided along with all particulars (including the information specified in the Contract) that we require as notified to you from time to time, and we are not liable for any error, omission, delay or additional cost arising from incorrect or incomplete Client Materials or instructions you provide.
5.3 We may reject Client Materials that are unsuitable in our reasonable assessment, including those that are compromised, leaking, incorrectly labelled or received outside required temperature conditions.
5.4 We may:
(a) dispose of or destroy any Client Materials 48 hours following issue by us of any final Deliverables; and
(b) in our discretion retain any Client Materials for up to 1 month following issue of any final Deliverables.
5.5 If the Contract specifies that you will collect Client Materials after completion of the Services:
(a) you must arrange to do so at a time agreed with us, and to bear any costs associated with taking possession of the Client Materials; and
(b) if you do not arrange to re-take possession of the Client Materials within a reasonable time, you agree that we may arrange for the Client Materials to be returned to you at your cost, or dispose of the Client Materials, in our discretion.
5.6 You acknowledge and agree that risk in all Client Materials remains with you at all times and we are not required to insure the Client Materials in our possession.
6 Goods
6.1 We will endeavour arrange delivery of the Goods to you at the location identified in the Contract and in accordance with your written instructions received at the time of your order.
6.2 Unless we otherwise agree in writing, you will be responsible for all freight, packaging and incidental costs associated with the transportation and delivery of the Goods.
6.3 Unless otherwise specified in the Contract or agreed in writing, the method of transportation of the Goods will be in our discretion.
6.4 We may deliver the Goods in multiple instalments and doing so will not breach the Contract or entitle you to cancel your order.
6.5 Risk in Goods will pass to you upon delivery of the Goods to you.
6.6 Title to the Goods will not pass to you until we receive payment in full for those Goods and all other Goods supplied to you, and if you sell or otherwise deal with any Goods before title has passed to you, you hold the proceeds on trust for us.
6.7 You acknowledge and agree that you are solely responsible for ensuring that the Goods are transported and stored in the manner necessary to comply with applicable regulations and to ensure that the Goods remain safe for consumption (if applicable).
7 Services
7.1 You acknowledge and agree that:
(a) the Services will relate to Client Materials specifically, and where the Client Materials represent a sample, the Deliverables may not apply to any remaining portion of the relevant goods;
(b) Deliverables do not (unless we agree in writing) constitute certification, regulatory approval or product endorsement;
(c) we will apply industry-standard methods and practices in conducting the Services, but may need to exercise a degree of professional scientific judgement in doing so and in using and analysing the Client Materials;
(d) your interpretation and use of the Services and any Deliverables is a matter for you, and we will bear no liability as a result of your interpretation of, reliance on, or any other use of the Services or any Deliverables;
(e) the Services provided will be only the scope agreed with us (and encapsulate only those tests agreed), and may not identify all issues or properties of concern in connection with the Client Materials; and
(f) the Supplies may not identify latent defects in the Client Materials; and
(g) we will not be liable to you in respect of Services or Deliverables if you do not notify us of your claim in writing within 30 days of the performance of the Services or your receipt of the Deliverables, and (where such claim is unresolved) you do not commence formal action within 12 months of the performance of the Services or your receipt of the Deliverables.
7.2 If the Contract provides for us to perform Services at locations other than our own premises, you:
(a) must provide safe access and a safe working environment;
(b) must comply with all workplace health and safety obligations;
(c) must inform us of any known hazards; and
(d) acknowledge and agree that we do not warrant that samples we collect are representative of entire batches, production runs or facilities.
8 Defective Goods
8.1 Goods (including Deliverables) may be rejected only on the basis that they did not materially comply with the Contract, or we agree that they were in unsatisfactory condition or otherwise defective, at the time immediately before risk passes to you under the Contract (Defective Goods).
8.2 You may not return any Goods without our prior written consent, and all Defective Goods will be subject to inspection and assessment by us.
8.3 You must inspect all Goods promptly on delivery and notify us within 3 business days of delivery if you consider that any Goods may be Defective Goods, and if you do not so notify us within that period then the Goods will be deemed to comply with the Contract unless they contain latent defects.
8.4 You must permit us access to any claimed Defective Goods in order to inspect them for any alleged defects.
8.5 Our receipt or acceptance of any returned Goods does not constitute acceptance of a claim for Defective Goods.
8.6 You acknowledge and agree that, if the Goods are perishable, they will be fit for consumption for a limited time only due to their inherent nature.
8.7 Subject to clause 13, we will not be liable for and you irrevocably release us from any liability (whether in contract, tort, negligence, statute or from any other source) in connection with any Goods (including Defective Goods) that arises on or from 3 business days after their delivery to you.
9 Warranties
9.1 Each party warrants and represents that it has full power and authority to enter into the Contract and to perform and observe all of its terms and conditions, and that the Contract is binding on it and enforceable in accordance with its provisions.
9.2 You warrant and represent that:
(a) the Client Materials are complete, up-to-date and accurate (as applicable, in particular in respect of testing instructions, sample identification details, collection information and reporting requirements);
(b) the use by us of the Client Materials will not infringe the rights of any third party;
(c) the Client Materials will not include any material that is:
(i) illegal, contrary to or in breach of any laws;
(ii) contrary to any applicable industry codes or the requirements of any regulatory authority; or
(iii) dangerous, noxious, toxic, volatile, explosive or flammable or otherwise likely to cause harm, injury, loss, damage or liability, unless we have expressly consented in writing; and
9.3 We warrant and represent that in performing the Services and providing the Deliverables we will use our best endeavours to apply recognised and accredited testing standards in alignment with your specific testing requirements as documented in the Submission Form and Contract.
10 Intellectual Property
10.1 Nothing in the Contract constitutes a transfer, assignment or grant of any ownership rights in any intellectual property (which will be retained by the relevant owner) unless otherwise expressly stated.
10.2 For the avoidance of doubt, you retain ownership of all Client Materials, and we retain ownership of all our methodologies, standard operating procedures, technical know-how, improvements and developments.
10.3 We grant you a non-exclusive, non-transferable licence to use any Deliverables we provide to you for your internal business purposes and as contemplated by the Contract.
10.4 You may not alter, reproduce only part of, or use for any purpose other than permitted by the Contract (including promotional purposes) any Deliverables without our prior written consent.
10.5 All rights to use the Deliverables under clause 10.3 are subject to payment of all applicable Fees in accordance with the Contract.
11 Confidentiality
11.1 Subject to clause 11.2, each party must keep confidential any confidential information of the other party entrusted to it (including the Client Materials which is your confidential information, and the terms of the Contract which is our confidential information), and must ensure that their respective personnel do likewise.
11.2 A party may disclose a party’s confidential information:
(i) with the consent of the other party;
(ii) if the information is in the public domain (other than because the party has disclosed it in breach of the Contract);
(iii) if the party lawfully had the information before it was disclosed to it in connection with the Contract;
(iv) on a confidential basis to its advisers to enable them to advise in connection with the Contract (including its administration or enforcement);
(v) in connection with legal or other proceedings relating to the Contract or to which the Contract is relevant;
(vi) if required or permitted by the Contract to do so; or
(vii) if compelled by law or by an authority such as a government agency, regulatory authority, accreditation body (such as NATA, the Australian National Association of Testing Authorities), court, tribunal or stock exchange.
(b) A party disclosing under clause 11.2(vii) must, as far as practical, consult with the other party beforehand as to the content and timing of the disclosure.
12 Indemnity
12.1 You must indemnify us and our personnel from and against all loss, damage, cost and liability we may incur (including debt collection costs and our internal, administrative and legal costs on a solicitor and own client basis) arising directly or indirectly from:
(a) any breach of the Contract or any law by you or your personnel;
(b) any negligent, wilful, fraudulent, dishonest or otherwise wrongful act or omission by you or your personnel;
(c) site conditions that are unsafe or do not comply with clause 7.2;
(d) the death of, or personal injury to, any person, or any damage to or destruction of any property, caused by the Client Materials or any act or omission of you or your representatives or personnel; and
(e) misuse of any Deliverables, including use of them outside their stated or reasonably intended purpose.
13 Liability
13.1 We do not exclude, restrict or modify the application of any statute, the exercise of a right conferred by it or any liability for failure to comply with it (including the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law), where to do so would breach that statute or cause any part of the Contract to be void.
13.2 Subject to clause 13.1 and to the extent permitted by law, our liability for any breach of any express or implied provision of the Contract, any guarantee or warranty imposed under statute, or in respect of our supply of any Goods or Services is limited, at our option, to any one of the following:
(i) if the liability arose or breach occurred in respect of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) if the liability arose or breach occurred in respect of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
13.3 Except to the extent that clauses 13.1 and 13.2 apply and subject to clause 13.4, we exclude all:
(i) guarantees, warranties, terms and conditions implied or imposed by law, the general law, custom, or other source external to the Contract;
(ii) liability for injury to, death of, or loss of or damage to property of, any person;
(iii) liability for product recall costs;
(iv) contractual, statutory and tortious liability (including for negligence); and
(v) liability for all indirect, special, incidental, economic or consequential loss or damage, including loss of revenue, income, profits, production, data, goodwill, reputation, business, opportunities or anticipated savings, arising out of or relating to the Contract including our conduct such as the provision of any advice, assistance or recommendations.
13.4 Clause 13.3 does not exclude our liability for gross negligence, wilful misconduct or fraud.
13.5 Our total liability in connection with any Supplies, including for any negligent act or omission, will not exceed the total Fees paid by you to us for the Supplies to which the breach relates.
13.6 Without limiting the foregoing we will have no liability as a result of any act or omission of yours, ours or any other party on any account whatsoever with respect to any matter, circumstance or thing beyond our reasonable control.
14 Termination
14.1 Either party may terminate the Contract by written notice to the other party if:
(a) the other party fails to pay any money due for 14 days after the date that it is due;
(b) the other party breaches the Contract and the breach is incapable of remedy or is not remedied within 14 days of being notified of the breach; or
(c) any one or more of the following occurs:
(i) a meeting is convened, resolution proposed, petition presented or order made for the winding up of the other party;
(ii) an administrator is appointed to the other party or action is taken to make that appointment;
(iii) a receiver, receiver and manager, provisional liquidator, liquidator, or other officer of the Court, or other person of similar function is appointed regarding all or any material asset of the other party;
(iv) the other party ceases to carry on business;
(v) the other party enters into a compromise or arrangement with its creditors or a class of them;
(vi) a security holder, mortgagee or chargee has taken, attempted or indicated an intention to exercise its rights under any security of which the other party is the security provider, mortgagor or chargor;
(vii) the other party is or states that it is unable to pay its debts when they fall due; or
(viii) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
14.2 If the Contract is terminated:
(a) we may arrange for the Client Materials to be returned to you at your cost, or dispose of the Client Materials, in our discretion;
(b) all money owed to us under or in connection with the Contract for any Supplies supplied prior to termination will be immediately due and payable by you; and
(c) if you have made any payments for Supplies not supplied at the time of termination, we will refund such payments within 30 days of the date of termination.
15 Dispute resolution
The parties will endeavour to resolve any dispute by negotiation, and must not commence legal proceedings unless the dispute is not resolved within 14 days of being first notified by one party to the other.
16 Privacy
16.1 We may collect personal information in order to perform the Contract and supply the Supplies.
16.2 We may be unable to fulfil the Contract if you do not provide all personal information we request.
16.3 We do not usually disclose personal information to overseas recipients.
16.4 Our Privacy Policy contains information about how an individual may access personal information held by us and seek correction of such information, and it also contains information about how an individual may complain about a breach of the Australian Privacy Principles and how we will deal with such a complaint.
16.5 If you would like further information about how we handle personal information, please refer to our Privacy Policy or contact us: https://saals.com.au/#contact-us.
16.6 You acknowledge and agree that we may make enquiries about your financial situation and creditworthiness, including obtaining credit reporting information from credit reporting bodies. We may obtain such information from credit reporting bodies including Equifax and Experian. You acknowledge that those credit reporting bodies may include information about you in reports provided to other credit providers to assist them to assess your creditworthiness.
16.7 You understand that you have the right to request access to, and correction of, the credit reporting information held about you by those credit reporting bodies, and to make a complaint if you consider that your information has been mishandled. You also have the right to request that a credit reporting body not use your information for a period of time (for example, if you believe you have been a victim of fraud).
16.8 We may use de-identified data (excluding personal information) for various business purposes such as accreditation, quality assurance, validation, training and research purposes.
17 Special conditions
17.1 The Special Terms and Conditions set out in the Contract (if any) form part of the Contract and the parties must comply with the Special Terms and Conditions.
17.2 If there is any inconsistency between a provision of these Terms and a provision of the Special Terms and Conditions, the provision of the Special Terms and Conditions prevails to the extent of the inconsistency.
18 Miscellaneous
18.1 A notice to be given by a party to another party under the Contract must be in writing and addressed to the recipient as specified in the Contract (or as previously amended by notice in writing given by the recipient to the sender).
18.2 Any variation or modification of the Contract must be in writing and signed by both parties.
18.3 You may only assign or otherwise deal with your rights under the Contract with our prior written consent (where a change in control, as defined in the Corporations Act 2001, in relation to you is deemed to be an assignment requiring such consent).
18.4 We may assign any rights under the Contract to any legal entity that assumes all of our obligations under the Contract by giving 14 days’ notice to you (in which case you must promptly execute any documentation we reasonably require to give effect to that transfer, including a novation if we require).
18.5 We may subcontract or otherwise arrange for another person to supply any Supplies or to discharge any of our obligations under the Contract, and every right, exemption from liability and defence to which we are entitled under the Contract shall also extend to all subcontractors.
18.6 If there are two or more persons in a party to a Contract, each is bound jointly and severally.
18.7 We will not be liable to you or in breach of the Contract by reason of any delay in performing, or any failure to perform, any of our obligations in relation to any Goods, if the delay or failure was due to anything outside our reasonable control including, without limitation, fire, storm, flood, earthquake, explosion, accident, enemy acts, war, rebellion, insurrection, sabotage, epidemic or pandemic, quarantine restriction, labour dispute, labour shortage, transportation embargo or failure or delay in transportation.
18.8 Part or all of any clause of the Contract that is unenforceable or illegal will be severed from the Contract and will not affect the enforceability of the remaining provisions of the Contract.
18.9 A party’s failure to insist another party perform any obligation under the Contract is not a waiver of that party’s right to insist the other party perform, or to claim damages for breach of, that obligation, nor to insist the other party perform any other obligation, unless the waiving party acknowledges the waiver in writing.
18.10 Any provisions of the Contract which by their nature survive expiry or termination will continue upon expiry or termination.
18.11 The Contract constitutes the entire agreement between the parties about its subject matter and supersedes all previous representations, understandings and agreements in connection with that subject matter.
18.12 The Contract is governed by and construed in accordance with the laws of South Australia and the parties submit to the exclusive jurisdiction of the courts of South Australia.