TestSafe - General Terms and Conditions
This Agreement constitutes the general terms and conditions, as varied or supplemented by the attached Cost Estimate, applying to the performance of Services undertaken by TestSafe Australia (“TestSafe”).
This Agreement does not commence until TestSafe receives a purchase order (or, if approved by TestSafe, a written confirmation) from the Customer and, where required, any upfront payment to TestSafe.
TestSafe is a research, testing and certification facility that is a branch of SafeWork NSW ABN 81 913 830 179 the Regulator under the Work Health and Safety Act 2011 (NSW) of 919 Londonderry Rd Londonderry.
The Secretary of the Department of Customer Service, and known as SafeWork NSW ABN 81 913 830 179 (“SafeWork NSW”) is the relevant contracting party that enters into contractual relations with the Customer. References in these General Terms and Conditions to “TestSafe” should be taken to be references to SafeWork NSW.
“Agreement” means the entirety of this Agreement and the Cost Estimate.
“Business Day” means any day that is not a Saturday, Sunday or legal public holiday in New South Wales.
“Biological Specimen” means a living or dead organism or any part of the body, structure, tissues, or products of such an organism.
“Chemical Substance” means any naturally occurring or artificial element, compound or mixture in any physical state which is in a form suitable for chemical analysis, but does not include any Equipment or a Biological Specimen.
“Confidential Information” means information of a confidential nature that is (a) provided by the Customer to TestSafe in relation to the Testable Item or (b) that is specifically identified or created by TestSafe in the course of delivering the Services to the Customer (including any Report), but does not include any information that is in the public domain (other than as a result of a breach of this Agreement by TestSafe) or which TestSafe has created or acquired independently of its delivery of the Services to the Customer.
" Cost Estimate" means the written cost estimate given by TestSafe to the Customer and which is intended to serve as a specific description of the Services that TestSafe will perform for the Customer and a general indication of the charges that TestSafe will make for its Services.
“Customer” means the person who acquires, or proposes to acquire, the Services, and includes any person who acts as the Customer’s representative for the purpose of this Agreement.
"Equipment" means any equipment or item specified for testing or certification in the Cost Estimate, as selected and supplied by the Customer, and includes any kind of physical product, machine, device or thing, and such hardware, data, software, fìrmware, programs, documentation, drawings, plans, manuals, specifications or records contained in or accompanying the Equipment as may be necessary to enable TestSafe to deliver the Services or perform its obligations under this Agreement.
“Design” means a drawing, outline, plan diagram or other depiction of a piece of Equipment (whether or not the Equipment has been physically made or provided to TestSafe) and includes any writing, calculation or specifications that accompany the Design.
“Intellectual Property Rights” means in relation to any information or document (in whatever form) referred to in this Agreement and existing in any part of the world, any patent, copyright, trademark, trade name, design, trade secret, know how, or rights in confidential information and all other intellectual property rights (whether registered or unregistered) and including all applications and rights to apply for any of the same whether arising before or after the execution of this Agreement.
“Purchase Order” means a document authorised by a Customer and delivered to TestSafe that confirms that the Customer intends to pay for Services provided by TestSafe.
“Report” means any written material prepared by TestSafe which records or provides any information or an assessment, analysis or conclusion on any matter requested by a Customer as part of the Services and includes, without limitation, a certificate, certification assessment or similar document.
"Services" means the services as selected by the Customer which are specified in the Cost Estimate. The Services may involve research, testing or certification (including the preparation of a Report) relating to a Biological Specimen, Chemical Substance, Design or Equipment.
“Testable Item” means a Biological Specimen, Design, Chemical Substance or Equipment.
“TestSafe” includes SafeWork NSW and the officers, employees, subcontractors, agents and other representatives of TestSafe and/or SafeWork NSW (as the context requires).
1.2 Interpretation within this agreement
In this Agreement, except where the context otherwise requires:
(a) a reference to this Agreement includes any variation, and includes where the Agreement has been assigned, novated, or otherwise transferred, in accordance with this Agreement,
(b) a reference to any law will be deemed to extend to include a reference to all laws amending, consolidating, replacing or overruling that Law from time to time,
(c) the singular includes the plural and vice versa,
(d) a reference to one gender includes every other gender,
(e) a reference to a person (including TestSafe or the Customer) will be taken to include any natural or legal person and their successors and permitted assigns,
(f) ‘include’ ‘includes’ and ‘including’ means ‘including without limitation’,
(g) “absolute discretion” means absolute and unfettered discretion,
(h) the headings and index in this Agreement are for convenience only and do not affect the interpretation of this Agreement,
(i) in the construction and interpretation of this Agreement, no rule of construction applies to the disadvantage of TestSafe on the basis that TestSafe initiated or drafted the Agreement or any part of it,
(j) a reference to a person which has ceased to exist or has been reconstituted, amalgamated or merged, or other functions of which have become exercisable any other person or body in its place, must be taken to refer to the person or body established or constituted in its place by which it said functions have become exercisable,
(k) where the Customer is comprised of more than one person, each obligation of the Customer will bind those persons jointly and severally and will be enforceable against them jointly and severally, and
(l) a reference to “$”, money or currency is a reference to Australian dollars unless the parties expressly agree otherwise.
2. SCOPE OF AGREEMENT
2.1 Subject to the terms and conditions of this Agreement, TestSafe agrees to provide the Services to the Customer. TestSafe’s role is confined to certifying that a particular Testable Item is in compliance with an industry or statutory standard (or another objective criterion expressly agreed in writing by TestSafe). TestSafe will not give advice, opinions or consulting services to the Customer.
3. REQUEST FOR SERVICES
3.1 Prior to the provision of Services by TestSafe the Customer must submit a written request for the Services (which may be made by email or other electronic means). TestSafe may reject the request for Services in its absolute discretion, or if the request is accepted TestSafe will prepare a Cost Estimate and return to the customer.
3.2 Estimates are valid for a period of 60 days (unless otherwise indicated) from the date of written estimate after which prices may change.
3.3 If the Customer accepts the Cost Estimate the Customer must provide TestSafe a Purchase Order (or, if approved by TestSafe, a written confirmation). On receipt of the Purchase Order TestSafe will raise an invoice for the Services to be provided. The Services will not commence until payment of the invoice is made or unless TestSafe advises the Customer that upfront payment is not required to commence the Services.
3.4 TestSafe will provide the Services described in the Cost Estimate in accordance with this Agreement. The Cost Estimate may contain text concerning the type of Services, the manner and timing of the delivery of the Services and the charges for Services, but does not modify the terms of this Agreement, unless the parties expressly agree in the Cost Estimate to do so.
3.5 This Agreement will not have any legal effect unless and until the Customer provides a Purchase Order and upfront payment unless TestSafe provides a written confirmation that an upfront payment is not required to commence the Service.
3.6 Any changes required by the Customer (at any time) to the Services must be notified to TestSafe in writing and may incur additional costs to those in the Cost Estimate. If the Customer does not agree to pay additional costs then TestSafe may not be able to complete the Services to the Customer’s expectations, or at all. TestSafe retains the right to be paid for Services which it actually performs in accordance with the Customer requests, even if the Customer requests a change to the Services. TestSafe may suggest changes to the Services to the Customer, but TestSafe is not obliged to perform those changed Services unless the Customer has given its written agreement to those changed Services.
3.7 TestSafe does not warrant that its supply of the Services is exclusive to the Customer, and TestSafe expressly reserves the right at any time to provide Services of any description (including services that are the same as, or similar to, the Services) to other customers, to itself, or to any other person (including public authorities of the New South Wales government).
3.8 The Customer is liable to pay for all Services performed by TestSafe in accordance with the Customer’s instructions, even if the Services cannot be completed for any reason (including situations in which the Customer’s Testable Item or instructions are not accurate, legible, complete or are delayed). TestSafe will follow a Customer’s instructions on their own terms and is not obliged to advise the Customer as to how any Testable Item or instructions may be improved or made more suitable for testing.
4. FEES AND CHARGES
4.1 ln consideration of TestSafe agreeing to provide the Services, the Customer agrees to pay TestSafe the charges for the Services calculated in accordance with the Cost Estimate for the work performed. If TestSafe has reason to believe that the charges will exceed the estimated charges (if any) contained in the Cost Estimate, TestSafe will seek the Customer’s written consent to provide the Services that may result in the additional charges.
4.2 TestSafe may issue an invoice for upfront payment prior to the commencement of any Services. TestSafe may issue progressive invoices while performing the Services until the completion of the Services. The Customer must pay each invoice by the due date contained in the invoice failure to do so will result in TestSafe ceasing to provide the Service until payment is received and may result in additional costs to resume the Service. TestSafe may not deliver a Report in whole or in part until the Customer has made full payment for Services.
4.3 TestSafe may make an additional charge in relation to retesting, reassessment, additional services eg addressing non-conformances raised during quality audit, and or delays due to non-compliant, faulty, modified or defective Equipment, or due to delays by the Customer in providing necessary Equipment, documentation or information.
4.4 Unless other arrangements have been approved by TestSafe in writing, the Customer will pay all applicable invoices before TestSafe is obliged to deliver a Report to the Customer.
4.5 The Customer agrees to pay all taxes (including goods and services tax), duties, and government fees and levies that are applicable to TestSafe’s supply of the Services to the Customer.
4.6 The Customer shall pay interest at 2% above the overnight bank rate imposed by the Reserve Bank of Australia on all overdue payments, calculated from the due date until payment is made. Where overdue payments have not been paid within 28 days of an applicable invoice, TestSafe may commence enforcement action for the unpaid moneys. The Customer shall pay all reasonable debt recovery costs including all legal, administration and collection costs.
5. DELIVERY, RETURN AND COLLECTION OF EQUIPMENT
5.1 Whether or not the purpose of the provision of the Services is wholly or partly to test or certify the Equipment, the Customer accepts full responsibility and liability for any Testable Item which it manufactures, supplies, sells or offers for sale and which does or does not comply with any applicable standards, legislation or industry practice in any country.
5.2 The Customer will be responsible for delivering to and collecting from TestSafe's premises, at the Customer's cost and risk, any Testable Item that may be the subject of the Services being provided by TestSafe. Delivery includes the use of shipping services and couriers. TestSafe shall not be responsible for any delay in the provision of the Services caused by late arrival, faulty, non-compliant or defective Equipment, or due to inadequate instructions for use of the Equipment.
5.3 At the expiration or termination of this Agreement the Customer shall be responsible for the prompt removal of all Testable Item from TestSafe's premises at the Customer's cost and risk, including the use of shipping services and couriers. Testable Item will be available for collection during TestSafe's usual business hours. Alternatively, TestSafe may agree to deliver the Testable Item to the Customer, in which case the Customer will bear all the costs, expenses and risks associated with such delivery. Delivery of Testable Item by TestSafe to a third party (including the use of shipping services or couriers) will be deemed to be return of the Testable Item to the Customer.
5.4 All Testable Items not collected within 21 days of the Customer being advised that it is available for collection will be held by TestSafe at the sole risk of the Customer and TestSafe reserves the right to levy a reasonable storage charge or waste disposal charges in respect of such Equipment.
6. TESTABLE ITEM DAMAGED OR DESTROYED AT TESTSAFE PREMISES
6.1 All Testable Items delivered to TestSafe's premises under this Agreement will be held by TestSafe for the performance of the Services at the Customer/s sole risk and TestSafe accepts no liability for such Testable Item, except where TestSafe is prevented by law from excluding such liability.
6.2 The Customer acknowledges that the Services may destroy or damage the Testable Item. The Customer agrees to hold TestSafe harmless and without liability against the Testable Item being destroyed or damaged while the Service is being provided, except where TestSafe is prevented by law from excluding such liability.
7. STATUS OF REPORTS AND INTELLECTUAL PROPERTY
7.1 When expressly agreed in a Cost Estimate (on request by the Customer), TestSafe will provide a Report in accordance with the standard of care described in clause 10 and subject to any assumptions and qualifications contained in the Report. However subject to clause 10 TestSafe gives no warranty in respect of any Report and accepts no liability whatsoever for errors or omissions in or relating to such a Report.
7.2 TestSafe retains all Intellectual Property Rights in relation to the Services and the Report. However, on full payment of the invoiced charges in accordance with clause 4, the Customer will receive a royalty-free, non-exclusive, worldwide licence (which may not be sub-licensed) to use and publish the contents of the Report This clause 7.2 does not affect the Customer’s Intellectual Property Rights in the Testable Item that existed before or independently of the delivery of the Services or Report.
7.3 The Report only relates to the particular Testable Item that is provided to TestSafe. If the Testable Item used or proposed to be used by the Customer has been varied from the Testable Item provided for testing or certification (whether by construction, performance, materials, components, firmware, software, or in any other way) then the Report provided by TestSafe cannot be relied upon as proof of compliance with any particular standard or legislation, or for suitability for any particular use, or that the Testable Item is safe.
7.4 The Customer must not make a representation (whether express or implied) to any third party, or to the public, that TestSafe has, by performing the Services or by providing a Report, endorsed or approved any activity or proposed activity of the Customer or any third party. Without limitation the foregoing, the Customer must not use Report (or any extract of the Report), or the name, trade mark or other intellectual property rights of TestSafe or SafeWork NSW in a manner that suggests endorsement or approval by TestSafe or SafeWork NSW, or that is otherwise contrary to law.
8. COMPLIANCE WITH LAW
8.1 The Customer shall indemnify and hold harmless TestSafe against all costs and liability incurred if TestSafe's possession or use of the Customer's Testable Item constitutes a breach of any relevant law.
8.2 TestSafe may deliver the Testable Item to a duly authorised law enforcement officer or government agency or provide such persons with access to such Testable Item if TestSafe receives a request or demand from such person for such delivery or access.
9.1 Subject to clause 9.2, TestSafe will not:
(a) use Confidential Information other than for the purposes of this Agreement or the delivery of Services, or
(b) disclose Confidential Information to any third party or the public, except:
(1) where the Customer consents to such use or disclosure, or
(2) as required by or under a law, or on request by a law enforcement or regulatory agency, or
(3) where such use or disclosure is reasonably necessary or desirable to deliver the Services, or
(4) where necessary for the archival, internal training, certification, auditing, or quality control purposes of TestSafe or the accreditation bodies that accredit TestSafe for the Services provided to the Customer or Services generally provided by TestSafe, or
(5) where necessary or desirable for enabling TestSafe to improve its techniques, processes or service delivery or businesses practices.
9.2 TestSafe’s duty of confidentiality in clause 9.1 does not:
(a) prevent TestSafe providing Services to other customers of TestSafe, including services that may be the same as, or similar to, the Services provided under this Agreement.
(b) prevent TestSafe or SafeWork NSW undertaking research, commercial activities or enforcement or regulatory functions,
(c) prevent TestSafe providing advice, information or services to other public authorities of the New South Wales government or another Australian jurisdiction, provided that, in each case, the Confidential Information is not disclosed, directly or indirectly, to that other person, except where required by or under a law or a request from a regulatory body. The Customer expressly acknowledges that TestSafe and SafeWork NSW are subject to the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998 and that they may be obliged to make disclosures of information (including Confidential Information) in accordance with such legislation.
10. WARRANTIES AND LIMITATION OF LIABILITY
10.1 TestSafe warrants that it will provide the Services with due care and skill. Where any legislation, including the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2011), implies in this Agreement any term, condition, guarantee or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition, guarantee or warranty, then, to the extent that the Services are not ordinarily acquired for personal, household or domestic use and/or the Services will cost more than $40,000, then TestSafe will limit its liability the cost of the Services actually provided to the Customer under this Agreement. In all other circumstances, TestSafe’s liability under such term, condition, guarantee or warranty shall be limited at the option of TestSafe, to any one or more of the following:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
In all other cases, or if the foregoing exclusion of liability described in this sub-clause 10.1 is, for any reason, not effective, then TestSafe limits its liability to the fullest extent permitted by law.
10.2 Without limiting the generality clause 10.1, TestSafe shall not be under any liability to the Customer, or to any other person, in respect of any actual, potential or alleged loss or damage (including consequential or indirect loss or damage or loss of use, data profits, revenues, goodwill or opportunity, or increased cost of working, work stoppage, computer failure, failure to provide the Services or Report on time or at all, or any malfunction of the Equipment, even if TestSafe has been advised of the possibility of such loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of any failure or omission on the part of TestSafe to comply with its obligations under or in connection with this Agreement or any law (including any alleged or proved negligence of TestSafe).
10.3 This Agreement contains the entire Agreement of the parties with respect to the Services and the Customer warrants that it has not relied on any representation made by TestSafe or implied from any descriptions or illustrations or specification contained in any document including any catalogues or publicity material produced by TestSafe.
10.4 The Customer expressly acknowledges that, to the extent that it is lawful to do so and subject to clause 10.1, all terms, conditions, warranties or representations, whether express, implied, statutory or otherwise relating in any way to the Services, the Report or to this Agreement, are excluded.
10.5 Without limiting its other exclusions of liability in this Agreement, TestSafe fully and expressly disclaims and excludes any representation or warranty to the Customer or to any third party that the Services (including any Report by TestSafe):
(i) will be suitable or useful for the purposes of the Customer or any third party, even if the Customer or a third party has indicated to TestSafe how the Customer or the third party may use the Services or Report,
(ii) will confer any benefit, opportunity or advantage on the Customer or any third party (including, without limitation, any profits, revenues or savings that the Customer or a third party may enjoy or wish to acquire), or
(iii) contain any comment, advice, assurance or representation with respect to matters other than those expressly described or contained in the Services or Report.
10.5 The Customer warrants:
(a) that it is legally entitled to request the Services that it requests of TestSafe and that its request for Services is not contrary to any law and will not infringe the legal rights of any third party, and
(b) that is a legal entity, may lawfully enter into this Agreement and be bound by its terms.
11.1 The Customer shall indemnify TestSafe, its officers, employees, subcontractors and agents (together, the “TestSafe Parties”) during the term of this Agreement and thereafter from and against all losses, expenses, claims, proceedings, costs and damages (“Losses”) that may be brought or suffered by all or any of the TestSafe Parties or the Customer or its related bodies corporate and which are caused by or arise from the use or otherwise of the Testable Item, the Services or the Report, except only to the extent that such Losses arise due to the negligence or breach of statutory duty of any one or more of the TestSafe Parties. For the purpose of this clause 11.1, “Losses” includes (but is not confined to) expenses or liabilities incurred by a TestSafe Party because the Customer’s request for, or instructions in relation to, the Services was contrary to law.
11.2 The Customer shall also indemnify the TestSafe Parties during the term of this Agreement and thereafter from and against any claim, demand or action bought by any third party in relation to all losses, expenses, claims, proceedings, costs and damages (“Third Party Losses”) (including in relation to alleged breaches of the Intellectual Property Rights of third parties) that may be suffered or allegedly suffered by any third party and which are caused by or arise from the use or otherwise of the Testable Item, the Services or the Report, except only to the extent that such Third Party Losses arise due to the negligence or breach of statutory duty of any one or more of the TestSafe Parties.
12. FORCE MAJEURE
12.1 In the event that TestSafe shall be wholly or partially unable to carry out its obligations under this Agreement by reason of causes beyond its reasonable control ("Force Majeure"), then TestSafe will not be liable for any delay or failure to perform its obligations and will be excused from performing its obligations during the continuance of any such disability so caused. For the avoidance of doubt, Force Majeure may include a regulatory or other legally binding measure which forbids or hinders TestSafe performing the Services in whole or in part.
12.2 TestSafe shall notify the Customer as soon as practicable of any anticipated delay due to Force Majeure. lf a delay due to Force Majeure exceeds 14 days, TestSafe may terminate this Agreement immediately on providing notice to the Customer. lf TestSafe gives such notice to the Customer:
(i) TestSafe shall refund monies previously paid by the Customer under this Agreement for which no Services have been provided; and
(ii) the Customer shall pay TestSafe a sum that is reasonable in relation to Services rendered or costs and expenses incurred prior to termination.
13.1 Either party may at any time by written notice terminate the Services with 7 days’ notice. TestSafe is entitled to payment for Services provided up to and including the date that it notifies the Customer of termination or that it receives notice of termination from the Customer (whichever is earlier).
14.1 Every notice, approval, consent or other communication ("Notice") issued by a party under this Agreement must be issued by a duly authorised representative of the sending party to a duly authorised representative of the other party ("Recipient"). The Notice must be in writing and must be given to the Recipient by being sent by email transmission, fax or by prepaid ordinary mail within Australia. A Notice is given, if sent by fax or email transmission during any business day in New South Wales ("Business Day"), when the sending party's electronic equipment reported that the email had been sent. lf the fax or email transmission was sent after 5:00pm on a Business Day or on a day other than a Business Day, the Notice is deemed to have been given on the next Business Day. A Notice is given, if sent by prepaid ordinary mail within Australia, on the date that is 2 Business Days after the date of posting.
14.2 Each party may vary its address or contact details by written Notice to the other party.
14.3 The relevant address and other contact details for TestSafe are:
ln the case of the TestSafe
Ground Floor, 919 Londonderry Road
LONDONDERRY NSW 2753
Phone (02) 4724 4900 (Monday - Friday 8:30am - 4:30pm)
ln the case of the Customer to the Customer’s contact details given in the Cost Estimate.
15.1 The Customer acknowledges that TestSafe may sub-contract the performance of part or all of this Agreement to another person (“subcontract”), but TestSafe will remain responsible for the conduct of the subcontractor (including procuring the subcontractor’s compliance with clause 9 (Confidentiality) as if the subcontractor were TestSafe). TestSafe does not need the Customer’s consent if TestSafe subcontracts any work relevant to this Agreement. TestSafe will inform the Customer of the identity of the sub-contractor.
16.1 No waiver by a party of any of its rights under this Agreement will prejudice its rights in respect of any subsequent breach of the Agreement by the other party. Any failure by a party to enforce any of the provisions of this Agreement, or any forbearance, delay or indulgence granted by a party to the other party, will not be construed as a waiver of its rights pursuant to the Agreement.
17.1 ln the event of any provision or provisions of this Agreement being invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from the said provision or provisions which will be deemed deleted.
18. GOVERNING LAW
18.1 This Agreement will be governed by and construed according to the law in force in the State of New South Wales, Australia from time to time, and the Parties submit to the exclusive jurisdiction of the courts of New South Wales in relation to any legal proceedings brought by a party in relation to this Agreement. The parties hereby waive any grounds to object to the application of New South Wales law or their submission to the courts of New South Wales.
18.2 This Agreement does not exclude any rights at law or in equity enjoyed by either party, unless expressly provided otherwise in this Agreement.
19. NOVATION AND ASSIGNMENT
19.1 This Agreement may not be assigned or novated by the Customer without the written consent of the other party. However, TestSafe may unilaterally assign or novate some or all of its rights, duties and functions under this Agreement upon giving reasonable written notice to the Customer.
20. DISPUTE RESOLUTION
20.1 If a dispute arises in relation to the Services, and the parties have not resolved the dispute within 14 days after one party gives written notice of the dispute to the other, the parties must endeavour to resolve the dispute through mediation, The mediator must be a person appointed by the Australian Commercial Disputes Centre (“Centre”) in Sydney and the mediation shall be conducted in accordance with the mediation rules of the Centre. lf the dispute is not resolved within 28 days after the appointment of a mediator, either party may, after giving written notice to the other party, commence court or arbitration proceedings. Nothing in this clause 20: (a) restricts the right of TestSafe or the Customer to seek urgent interlocutory relief or to terminate the Agreement in accordance with its terms or (b) prevents TestSafe seeking recovery of outstanding fees owed by the Customer.