Disclaimer

Annexure 1

  1. Unless otherwise agreed in writing, all services MinAnalytical Laboratory Services Pty Ltd (the Company) is engaged to perform will be performed in accordance with these general conditions (General Conditions). All offers or tenders of service or requests for services are made subject to these General Conditions.
  2. The placement by a client (the Client) of an order for an analysis of samples, or receipt by the Company of samples for analysis, will constitute acceptance of these General Conditions by the Client .
  3. The Company will provide services in accordance with:
    • the specific instructions of the Client as confirmed by the Company;
    • the General Conditions and any specific terms included by the Company in the Company’s Standard Order Form, Sample Submission Form and/or Standard Specification Sheet if used; and
    • such methods  as the Company shall consider appropriate on technical, operational and/or financial grounds.
  4. All enquiries and orders for the supply of services must be accompanied by sufficient information specifications and instructions to enable the Company to evaluate and/or perform the services required.
  5. Documents reflecting engagements contracted between the Client and third parties, or third parties’ documents, such as copies of contracts of sale, letters of credit, bills of lading, etc., are (if received by the Company) considered to be for information only, without extending or restricting the services to be offered by or the obligations accepted by the Company as agreed with the Client.
  6. The Company will provide the services by exercising the same degree of skill, care and diligence that would be exercised by professional service providers in similar circumstances.
  7. The Company will issue reports and certificates of inspection which reflect statements of opinion made with due care within the limitation of instructions received but the Company  is under no obligation to refer to or report upon any facts or circumstances which are outside the specific instructions received.
  8. Reports or certificates issued following testing or analysis of samples contain the Company’s specific opinion on those samples as received only but do not express any opinion upon the bulk from which the samples were drawn.  If an opinion on the bulk is requested special arrangements must be made in advance with the Company for the inspection and sampling of the bulk.
  9. The Client will:
    • ensure that instructions to the Company and sufficient information are given in due time to enable the required  services to be performed effectively;
    • procure all necessary access for the Company’s representatives to enable the required  services to be performed effectively;
    • supply, if required, any special equipment and personnel necessary for the performance of the required services;
    • ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services and will not rely, in this respect, on the Company’s advice whether requested or not;
    • take all necessary steps to eliminate or remedy any obstruction to or interruptions in the performance of the required services;
    • give written notice of all known safety or health hazards and special procedures applicable to the safe handling, testing, storage, transport and disposal of samples submitted. The Company may in its absolute discretion, refuse to provide services where it determines the provision of such services may pose a health or safety hazard; and
    • fully exercise all its rights and discharge all its liabilities under any related contract whether or not a report or certificate has been issued by the Company, failing which the Company shall be under no obligation to the Client.
  10. The Company may with the consent of the Client (such consent not to be unreasonably withheld) subcontract the performance of the whole or any part of the services to any agent or subcontractor.
  11. Unless otherwise agreed, sample disposal is the responsibility of the client. Samples shall be stored free of charge for a period of sixty (60) days after provision of the invoice. Upon expiration of the free storage period, storage fees and/or disposal charges shall apply.
  12. The Company may assign or subcontract the storage and handling of pulps and rejects under this Agreement without prior written approval of the Client.
  13. Upon completion of testing the Company shall provide a report to the Client on the results of the testing. Where requested by the Client, provisional results may be provided however the Client agrees that those results shall be subject to confirmation in a final report.
  14. The Company agrees to take reasonable measures to ensure that the results of any inspection or testing on behalf of the Client and any other information provided to the Company are kept confidential provided that this provision will not apply where the results or other information are in the public domain.
  15. Where the Company is only able to witness an analysis by the Client‘s or by any third party’s laboratory the Company will provide confirmation that the correct sample has been analysed but will not otherwise be responsible for the accuracy of any analysis or results.
  16. In the event that any unforeseen circumstances or circumstances beyond the control of the Company result in increased costs, time or expenditure in the provision by the Company of the services, the Company shall be entitled to review its rates and charge such reasonable additional charges as required to cover any such increase.
  17. It is the client’s sole responsibility to make its own assessment of the suitability for any purpose of the services provided by the Company, any reports produced by the Company and their contents.
  18. To the full extent permitted by law the Company excludes all warranties, terms, conditions or undertakings, (terms) whether expressed or implied, in relation to the services, any reports, or their contents. Where any legislation implies any terms in this Agreement that cannot be modified or excluded then such terms shall deem to be included. However, to the full extent permitted by law, the Company’s liability to the Client is limited at the Company’s option to the re-performance of the service or the refund of any payment made by the Client for the services.
  19. The Client hereby releases and indemnifies and shall continue to release and indemnify the Company, its officers, employees and agents from and against all actions, claims, proceedings or demands (including any costs and expenses in defending or servicing same) which may be brought against it or them, in respect of:
    •  any loss, death, injury, illness or damage to persons or property and whether direct or indirect (except to the extent caused or contributed to by their negligence); and
    • in respect of any breach of any industrial or intellectual property rights, howsoever arising out of the use of the services or any reports prepared by the Company.
  20. During the performance of the services the samples or parts thereof may be altered, lost, damaged or destroyed.  The Company shall not be liable to the Client or any third party for any samples so altered, lost, damaged or destroyed.
  21. All samples submitted to the Company remain the property of the Client. The Company shall not be liable for any claim whatsoever relating to deterioration, contamination, damage or loss of samples. The Client agrees to indemnify the Company in respect to all claims, demands or actions which may be made against the Company with respect to deterioration, damage or loss of samples.
  22. The Company may terminate this Agreement or suspend its obligations under this Agreement if: (a) monies payable to the Company by the Client are not paid on due date;  or, (b) other substantial breach by the Client of its obligations hereunder, which breach is not remedied within 30 days of written notice from the Company requiring the breach to be remedied.
  23. The Client may terminate its obligations under this Agreement in the event of a substantial breach by the Company of its obligations under these breaches, which breach has not been remedied within 30 days of written notice from the Client requiring the breach to be remedied.
  24. The Client will punctually pay within thirty (30) calendar days after the relevant invoice date the full amount of the invoice rendered by the Company. Interest of eighteen per cent (18%) per annum will be charged on all overdue amounts from date of invoice until full payment is received by the Company.
  25. GST
    • The consideration for a Supply under this Agreement (other than under this clause 25) is exclusive of any GST imposed on the Supply (If applicable).
    • If a Supply under this Agreement is subject to GST:
      • the Recipient of the Supply must pay, in addition to the other consideration payable or to be provided for the Supply, an additional amount equal to the GST; and
      • the Recipient must pay the additional amount to the supplier at the same time as the other consideration. However, the Recipient need not pay the additional amount until the supplier gives the Recipient a Tax Invoice.
    • If the additional amount differs from the amount of GST payable by the supplier on the Supply:
      • the supplier must promptly issue an Adjustment Note to the Recipient; and
      • an amount equal to the difference must be paid by the supplier to the Recipient, or by the Recipient to the supplier, as appropriate.
    • If any party is entitled to payment of any costs or expenses by way of reimbursement or indemnity, the payment must exclude any part of that cost or expense which is attributable to GST for which that party or the Representative Member of any GST Group of which that party is a Member is entitled to an Input Tax Credit.
    • In this clause, Adjustment Note, GST, GST Group, Input Tax Credit, Member, Recipient, Representative Member, Supply and Tax Invoice have the meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).
    • This clause 25 will survive the termination of this agreement.
  26. The Client shall not be entitled to retain or defer payment of any sums due to the Company on account of any dispute, cross claim or set off which it may allege against the Company.
  27. In the event of the Client makes any suspension of payment arrangement with creditors or commits any act of bankruptcy, insolvency, receivership or cessation of business, the Company shall be entitled to immediately suspend all further performance of its services without liability to the Client or any other party.
  28. In the event of the Company being prevented by reason of any cause whatsoever outside the Company’s control from performing or completing any service under this Agreement, the Client will pay to the Company:
    • the amount of all abortive expenditure actually made or incurred; and
    • a proportion of the agreed fee or commission equal to the proportion (if any) of the service actually carried out, and the Company shall be relieved of all responsibility whatsoever for the partial or total non-performance of the service.
  29. The Company shall be discharged from all liability to the Client for all claims for loss, damage or expense unless legal proceedings are brought within twelve (12) months after the date of the performance by the Company of the service which gives rise to the claim or in the event of any alleged non-performance within three (3) months of the date when such service should have been completed.
  30. The Client is responsible for obtaining insurance for fire and theft for samples, pulps and rejects that are in storage at a the Company’s premises or at a third party storage facility hired or subcontracted by the Company. The Company’s responsibility for Client’s goods is strictly limited to exercising reasonable care and diligence. All of the Company’s other obligations, undertakings, covenants, representations, warranties and conditions are excluded, unless they are expressly agreed to in writing by an authorised representative of the Company.
  31. Except as otherwise provided in this Agreement, the Client’s goods are stored at the Client’s exclusive risk of loss, damage or delay in delivery whatsoever, including, without limitation, loss, damage or delay caused through  any action or failure to act beyond the reasonable control of the Company, fire, theft, sprinkler or water damage,  and ordinary wear and tear in handling.
  32. No alteration, amendment or waiver of any of these General Conditions shall have any effect unless made in writing and signed by an officer of the Company.
  33. The Company shall have no responsibility for any action or inaction of any carrier, shipping or delivering any sample to or from the Company premises.
  34. All data will be retained for a five (5) year period. The Company may charge for retrieval of data if longer than three (3) months after the final report date.