STANDARD TERMS OF BUSINESS

 

Envirolab Services (NZ) Limited T/A LABTEC

  1. GENERAL
    1. This document contains the Terms and Conditions (“Terms”) under which Envirolab Services (NZ) Limited T/A LABTEC provides chemical analysis; product development, testing and production; contamination testing; and regulatory assistance services (“Services”) to entities seeking those Services (“Clients”). These Services include any specific expected turnaround times set out in the Quotation for Analysis and / or Pricelist.

    1. All Services carried out by LABTEC are on the basis set out below, unless otherwise varied by Special Terms agreed to in writing. In the event of any conflict between these Terms and any subsequent written contract between the parties, the terms of the subsequent written contract shall prevail.

    1. No order for Services or any Special Terms relating to that order will be deemed to have been accepted by LABTEC unless LABTEC has confirmed acceptance of the order or the Special Terms in writing. In these Terms, “in writing” means any confirmation by LABTEC in writing delivered personally or sent by post, facsimile or email.

  1. SERVICES AND PERFORMANCE

    1. In these Terms, “Services” means the items described in Clause 1.1, which LABTEC agrees to provide to the Client in writing.

    1. LABTEC will provide reasonable skill, care and effort in performing the Services using resources reasonably available to LABTEC.

    1. LABTEC will use its reasonable efforts to achieve specific expected turn-around times in a timely and efficient manner but will not be liable for any failure to do so.

    1. The Client acknowledges that LABTEC may elect not to supply services if LABTEC considers that the provision of Services may pose a safety risk, hazard or where Materials are not fit for chemical analysis (including but not limited to insufficient sample size, or improper sample containers) or are prohibited in New Zealand.

    1. Any reports issued by LABTEC relate exclusively to the samples provided for chemical analysis and product development.

    1. Any physical product supplied remains the property of LABTEC until full payment for goods is received.

  1. CONTRACT

    1. The lodgement of an order or the Submission Form by a client constitutes a contract between LABTEC and the Client on the Terms contained in this document and the Pricelist, as varied from time to time. 

  1. CONFIDENTIALITY

    1. In the course of performing Services, LABTEC and the Client may exchange proprietary or confidential information. The parties will identify, in writing, such information as confidential and/or proprietary.

    1. Reports and general assistance relating to product development are provided only to the Client or those designated by the Client, unless otherwise required by the law.

    1. LABTEC will exercise reasonable endeavours to maintain the Client’s confidentiality with regard to business or technical information it receives in connection with its performance of Services for the Client. LABTEC will use the information it receives from or about a Client solely for the purpose of providing Services to the Client, providing the Client with information (including by email) about any other products or services that either LABTEC, any of LABTEC's associated entities, related companies, affiliates or subsidiaries can provide to the Client, or for other marketing purposes, and/or otherwise in accordance with the Privacy Statement contained in the Client's Application for Commercial Credit Account.

    1. The Client shall treat all information and data it receives about LABTEC as proprietary and confidential. The Client shall maintain in strict confidence all such information, including but not limited to information concerning technology, procedures, and methods used by LABTEC, formulas, trade secrets, ideas, computer programs and inventions. The Client shall not disclose, and shall prevent disclosure of, confidential information to any third party without prior written permission being granted by LABTEC.

    1. The Client agrees to not use reporting or data in any manner that may harm the reputation or business of LABTEC.

    1. This provision does not prevent either party from disclosing and / or using information or data:

          1. Known to the receiving party before being obtained or derived from the transmitting party;
          2. That is available to the public without the receiving party’s fault at any time before or after it is acquired by the transmitting party;
          3. That is obtained or acquired in good faith by the receiving party from a third party who has the same information in good faith and who is not under obligation to the receiving party with respect thereto;
          4. Where a written release is obtained by the receiving party from the transmitting party;
          5. After five (5) years from the receipt of such information; or
          6. When required by process of law; provided, however, upon service of such process, the recipient thereof shall notify the other party and afford it an opportunity to resist such process.

  1. BILLING AND PAYMENT

    1. All new Clients may be required to fill in an Application for a Commercial Credit Account Form, and supply trade references before Services will be undertaken, or arrange for payment prior to results being released.

    1. All Services provided by LABTEC shall be performed in accordance with the quote (“Quote”) or the current published Pricelist provided by LABTEC to the Client. An agreement by LABTEC and the Client to proceed in the absence a Quote shall be performed and billed in accordance with LABTEC’s Pricelist on the date the parties agreed to proceed.

    1. LABTEC will issue an invoice, based upon the Quote or Pricelist, whichever is applicable. LABTEC terms are strictly that all Services may be made by Internet transfer or Electronic Funds Transfer (“EFT”). No payment shall be deemed to have been received until LABTEC has received cleared funds. LABTEC holds no responsibility for an increased lead time to account for this clearing of payment.

    1. A minimum invoice amount of NZ$100.00 + GST applies to all Services. 

    1. Payment for all Services will be paid on the 20th calendar day of the month following the date of LABTEC's invoice.

    1. Payment will be made without deduction, set off or counter claim and the Client cannot retain or defer payment on account of any dispute with LABTEC.

    1. In the event that LABTEC is acting as a sub-contractor of a Client, that Client is responsible for payment of LABTEC invoices regardless of non-reimbursement or late reimbursement by their Client.

    1. Credit approved Clients outstanding for 90 days or more may, at the discretion of LABTEC, be automatically stopped/flagged and no further credit will be given.

    1. LABTEC may at its option issue a monthly interim invoice for work greater than one month's duration. The Client may be required (at LABTEC's option) to pay interest (as well as all legal and credit recovery costs resulting from late or non-payment) at a rate of 5% above the average monthly base commercial lending rate from time to time charged by LABTEC's bank on any moneys outstanding from the due date until the date of payment, but without prejudice to LABTEC's other rights or remedies in respect of the Customer's default in failing to make payment on the due date. Interest shall be calculated monthly and shall be payable on demand.

    1. If the Client is in breach of these Terms or any other contract with LABTEC, LABTEC will, without prejudice to its other rights or remedies, terminate its obligations under these Terms, and/or withhold or suspend the provision of Services under these Terms or any other contract, and/or withdraw any certification or accreditation issued to the Client under these Terms or any other contract.

    1. In the event that any unforeseen circumstances or expenses arise in the undertaking of Services, LABTEC will endeavour to inform the Client of any additional costs incurred by LABTEC, and unless the Client advises LABTEC not to undertake any further works, the Client will be responsible for any additional costs.

  1. GST

    1. Where required GST ("Goods and Services Tax") at the applicable rate will be charged in addition to the quoted prices and will be shown as a separate item on tax invoices and adjustment notes.

  1. SUSPENSION OR TERMINATION OF SERVICE

    1. The Client may direct LABTEC to suspend a portion or all of the Services to be performed. In such a case, the Client is responsible for all Services performed up to the time LABTEC becomes aware of the Client’s desire to discontinue the Services. Any uncompleted Services will be billed on a pro-rated basis, as determined by LABTEC.

    1. All directions by a Client to suspend Services must be issued to LABTEC in writing.

    1. LABTEC may by notice in writing served on the Client terminate LABTEC's obligations under these Terms:

  1. At the option of LABTEC, in accordance with Clause 5.10;
  2. Upon mutual agreement of the parties; or
  3. If the Client commits any act of bankruptcy; enters into any arrangement with its creditors; a resolution is passed or proceedings commence for the liquidation of the Customer; a receiver, statutory manager or similar functionary is appointed in respect of all or any of its assets; or (in the case of a company) does any act which would render it liable to be liquidated.

    1. Termination will not affect the rights of either party in respect of any breach of these Terms in existence prior to termination.

  1. PROFESSIONAL PRACTICE

    1. LABTEC employees will undertake the Services in accordance with accepted industry practices and standards.

    1. LABTEC seeks to ensure that all Services will be performed in a timely and professional manner and that all findings are technically valid.

    1. A request by a Client to amend or alter a report or omit specific information will only be done in circumstances where there is a written request by the Client, there are valid technical grounds for doing so, and in accordance with LABTEC’s IANZ Accreditation, the new report notes that the previous report has been superseded and the reason for the change is noted in the new report.

    1. Any failure on the part of LABTEC to perform in accordance with industry standards will be corrected, provided such failure was a direct result of acts or omissions by LABTEC in respect of factors deemed to be within LABTEC’s Scope of Work pursuant to the contract and within LABTEC’s exclusive control.

    1. In circumstances where LABTEC has lost or damaged samples for chemical analysis and the Client is required to undertake or arrange resampling, LABTEC will reimburse the Client its reasonable costs of undertaking or rearranging resampling to a maximum of NZ$5,000.00 provided the client can demonstrate to LABTEC that those costs are in all circumstances actual and reasonable costs.

  1. SAMPLES

    1. Clients must provide, together with the submission of their samples, a completed and signed Sample Submission Form, as based on the chemical analysis requirements. Adequate instructions describing the type of analysis requested and a complete and thorough written disclosure of the known or suspected presence of any hazardous substances. Hazardous substances are those defined as by New Zealand law or regulations.

    1. The Client warrants that all relevant disclosures have been made to LABTEC about the presence of hazardous substances and agrees that it will be liable for, and will pay and indemnify LABTEC for, all costs and damages resulting from a Client’s failure to disclose to LABTEC that a sample contained or was suspected to contain a hazardous substance.

    1. Clients are liable for, and will pay and indemnify LABTEC for, all costs and damages resulting from their failure to comply with any law, regulation, code or ordinance regarding the sample.

    1. Clients are liable and will indemnify LABTEC all costs, expenses, claims and damages whatsoever resulting from any action or negligence on the part of the Client which interrupts LABTEC’s ability to process work, contaminates LABTEC’s laboratory, its instruments or work areas or necessitates any clean-up or recovery on the part of LABTEC.

  1. PRODUCT DEVELOPMENT AND PROGRESS REPORTING

    1. During the product development, testing and production phases, LABTEC will provide the Client with information concerning the progress of the work LABTEC is performing for the Client. LABTEC will notify the Client of any changes, concerns, problems or delays materially affecting performance.

 

    1. Once the work has in the opinion of LABTEC been completed, the client will be notified and be provided with the opportunity to review. The Client shall be deemed to have accepted the work performed by LABTEC unless within one (1) week of the date of notification, the Client notifies LABTEC to the contrary in writing and specifies in such notice the grounds for not accepting the work performed. The Client shall not refuse performance unless it substantially fails to conform to the briefed specifications.  

  1. METHODS

 

    1. LABTEC will use those analytical methodologies based on either published methods, client supplied methods or in-house developed methods that have been deemed fit for purpose.

    1. LABTEC may deviate from these methodologies where, in LABTEC’s judgment, it is necessary or appropriate to do so. The nature or composition of a sample are examples of factors that may require LABTEC to deviate from these methodologies. Any deviations from the analytical methodologies set forth above will be made in accordance with recognised industry standards, LABTEC’s quality assurance plans (“Quality Assurance Plan”) and/or any relevant referenced standard operating procedures. In some cases where no standardised method exists, LABTEC will conduct method development to establish a method.

  1. DATA QUALITY OBJECTIVES ("DQOs")

    1. Should the Client want LABTEC to perform in accordance with a mutually agreed upon DQO, the Client must seek agreement with LABTEC on such a plan before LABTEC receives the samples.

    1. Samples arriving prior to an agreement upon a DQO will be analysed under LABTEC’s standard Quality Assurance Plan then in effect.

    1. LABTEC will not be responsible for re-sampling or other costs for work that must be completed in order to comply with a DQO that is finalised subsequent to LABTEC receiving samples. DQO’s are generally only relevant to environmental samples.

  1. SHIPMENT
    1. LABTEC will ensure that any substances and/or containers shipped to a Client for purposes of facilitating sampling are shipped in compliance with all applicable laws, regulations and ordinances of any kind.

    1. The Client bears sole responsibility for determining the applicability of compliance with all laws, regulations or ordinances applicable to the shipment of samples back to LABTEC.

    1. The Client assumes full responsibility for any injury, harm, or damages arising out of the collection, handling, storage and shipment of explosive materials, biological agents, radioactive materials or other hazardous material to LABTEC.

  1. LICENSES AND CERTIFICATIONS

    1. The Client will provide LABTEC with notice in writing, prior to sample delivery acceptance (“Sample Delivery Acceptance”) of all licenses and certifications that it will require LABTEC to hold during performance of the Services by LABTEC for the Client. LABTEC will notify the Client of any revocation of a required licence or certification.

  1. RECORDS

    1. Samples and test items will be disposed of after three (3) years following completion of work (test report issue date) unless otherwise requested in writing.

  1. RISK OF LOSS

    1. The entire risk of loss or damage to samples remains with the Client. This includes subcontracted courier services by LABTEC. The Client will be responsible and LABTEC has no responsibility for the action or inaction of any Client or carrier shipping or delivering any sample to or from LABTEC’s premises.

  1. WARRANTIES, LIABILITY AND INDEMNITY

    1. To the maximum extent permitted by law, LABTEC does not make any express or implied warranties of any kind to the Client other than those that cannot be excluded by the laws and regulations in New Zealand.

    1. The Client acknowledges that Services are provided using the then current capability and state of technology and methods developed and generally applied by LABTEC and involve analysis, interpretations, consulting work and conclusions. LABTEC shall use commercially reasonable degree of care in providing Services.

    1. It is the Client’s exclusive responsibility to ensure that the parameters of the product development project are fully reflected in the brief. The consequences of any failure to do so financial or otherwise will be for the sole account of the Client.
    2. Reports are despatched on the basis of information, documents and/or samples provided by, or on behalf of the Client and solely for the benefit of the Client who is responsible for acting as it sees fit on the basis of such reports. Neither LABTEC nor any of its officers, employees, agents or subcontractors shall be liable to the Client or any third party for any actions taken or not taken on the basis of such reports nor for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to LABTEC.

    1. Subject to Clause 17.3, LABTEC is not liable for any loss of profits or any special, indirect, incidental or consequential damage, loss or injury of any kind suffered by the Customer arising directly or indirectly from any breach of LABTEC 's obligations under or in connection with these Terms or from any termination of these Terms or from any negligence, misrepresentation or other act or omission on the part of LABTEC, its servants, agents or contractors.

    1. Subject to Clause 8.5, the liability of LABTEC, whether in contract or pursuant to any cancellation of any contract or in tort or otherwise, in respect of all claims for loss, damage or injury arising from a breach of any of LABTEC 's obligations arising under or in connection with these Terms, from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission by LABTEC, its servants, agents or contacts shall not in aggregate exceed the lesser of the total fee for the particular Services or NZ$5,000.00 (as the case may be).

    1. LABTEC and the Client agree that any Services supplied pursuant to these Terms are for the purposes of a business and hence the statutory guarantees of the Consumer Guarantees Act 1993 do not apply. Should those statutory guarantees apply, these Terms shall be interpreted subject to the Consumer Guarantees Act 1993.

    1. Where the Services are not of the kind ordinarily required for personal, domestic or household use or consumption then the liability of the Contractor is limited to, at the discretion of the Contractor: (a) the supplying of the Services again; or (b) the value of the invoiced amount already paid.

  1. INSURANCE

    1. The Company shall maintain such insurances as are required by the nature of its business and the Services provided to the Client.

    1. LABTEC is neither an insurer nor a guarantor and disclaims all liability in such capacity. Clients seeking a guarantee against loss or damage should obtain appropriate insurance.

  1. INTELLECTUAL PROPERTY

    1. Intellectual property (‘IP’) shall mean all patents, copyright and related rights, trade marks, designs, plant variety rights, trade secrets, geographical Indications, Māori IP as defined under appropriate legislature in the jurisdiction of New Zealand.

    1. In accordance with Clause 2.6, all IP belonging to a party prior to entry into these Terms shall remain vested in that party. Nothing in these Terms is intended to transfer any IP rights from either party to the other.

    1. The names, trade marks and copyrights of LABTEC shall not be used by the Client except solely to the extent that the Client obtains the prior written consent of LABTEC and then only in the manner prescribed by LABTEC.

    1. The Client:

  1. Warrants that it has the right to authorise LABTEC to develop and manufacture products to the Client’s Specification;

  1. Agrees and acknowledges all IP in any reports, documents or any other material (in whatever medium) produced by LABTEC pursuant to these Terms and / or through LABTEC's provision of the Services shall belong to LABTEC. The Client shall have the right to use any such reports, documents or other material solely for the purposes for which such report, document or material was provided by LABTEC.

  1. Agrees and acknowledges that LABTEC retains any and all proprietary rights in processes, formulations, concepts, ideas and inventions that may arise during the preparation or provision of any report (including any deliverables provided by LABTEC to the Client) and the provision of the Services to the Client.

  1. SEVERABILITY

    1. The provisions of these Terms are severable.

    1. The invalidity or unenforceability, in whole or in part, of any provision, term or condition herein shall not invalidate the remainder of these Terms.

  1. WAIVER

    1. No waiver by either party of any provision, term or condition herein, or of any obligation hereunder shall constitute a waiver of any subsequent breach.

    1. All the rights, powers, exemptions and remedies of LABTEC remain in full force despite any neglect, omission or delay in the enforcement thereof. LABTEC is not deemed to have waived any provision or right, unless the waiver is in writing under signature of LABTEC or its authorised officer and any such waiver, unless the contrary is expressly stated, applies to and operates only in a particular transaction, dealing or matter.

  1. FORCE MAJEURE

    1. Force majeure shall mean an event, and the occurrence of such being beyond the reasonable control of the claiming party, and which renders the Client or LABTEC unable, wholly or in part to, to carry out Services, which inability could not have been prevented or overcome by the claiming party exercising reasonable foresight.  

    1. Without limiting Clause 2.3, LABTEC shall not be liable for any loss or damage from any delay or failure to perform or complete Services hereunder resulting directly or indirectly from an event of force majeure, including, but not limited to, acts of god (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods); war or apprehension of war (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition, embargo, acts or threats of terrorism, strikes, riots, lockouts; injunction, and interruption of transportation, accidents, inability to obtain supplies at reasonable prices; failure to obtain permits, licenses or registrations; electricity outage;  or any other circumstances beyond LABTEC’s control.

  1. ASSIGNMENT

    1. The Client must not assign all or any of the Client's rights or obligations under these Terms without the prior written consent of LABTEC.

  1. MISCELLANEOUS

    1. All notices shall be delivered by hand or be sent by facsimile, fast post or email. Any notice sent by facsimile will be deemed to have been received on the following business day in the place of receipt, any notice sent by fast post will be deemed to have been received two business days after posting and any notice sent by email will be deemed to have been received. Notices shall be given to the parties at the address, facsimile number or email addresses shown on the Work Order overleaf or such other addresses, facsimile numbers or email addresses as they may from time to time advised in writing.

    1. These Terms constitute the entire agreement between the Customer and LABTEC with respect to the matters contemplated by these Terms and supersedes all previous agreements, arrangements or understandings between the Client and LABTEC.

  1. ENTIRE AGREEMENT

    1. These Terms, together with any duly authorised and executed addendum, embody the entire agreement of the parties.

    1. These Terms supersede all previous verbal and written communications, representations and agreements between the Client and LABTEC.

    1. No modification or waiver of any provision of these Terms shall be binding on either party unless made in writing and executed by the Client and LABTEC.

  1. GOVERNING LAW AND JURISDICTION

    1. Should any dispute arise, the parties will attempt to resolve it in good faith by senior level negotiations (this may include mediation using the services of an agreed mediator).

    1. These Terms are governed by the laws and regulations of, and shall be resolved in the Courts of New Zealand.

15 October 2018