Terms and Conditions

These Standard Terms and Conditions made by ExcelPlas (the “Company”) and the Client comprises the entire agreement between the parties (the “Agreement”) unless there is already in place a properly executed agreement between the Client and ExcelPlas.

1. Interpretation

In this Agreement unless otherwise provided will be:

“Client” means the company or person that the Company is carrying out the services for.

“Charges” means the fees, expenses and other sums payable by the Client to the Company under this Agreement.

“Company Personnel” means an employee and/or a sub-contractor of the Company engaged in performing the Services;

“Confidential Information” means this Agreement and all information disclosed by one party to the other or otherwise received by the other in the negotiation, entering into and performance of this Agreement, which is expressly marked as confidential or which concerns the technology, know how, methodology of supply, business, developments and finances of that party or of the suppliers, customers or clients of that party;

“Intellectual Property Rights” means all patents, trademarks, trade or business names, design rights, copyright, database rights, know-how and domain names (whether or not any of these is registered and including all applications for registration of any of them) and all other rights of a similar nature or having equivalent or similar effect to any of those which may subsist anywhere in the world;

“Materials” means any documents, information or other materials used, developed, created or provided by a party in connection with this Agreement (including reports, preparatory works, drafts, working papers, correspondence and advice);

“Services” means the services supplied by the Company to the Client under this Agreement.

2. Term

2.1 This Agreement shall take effect as from the date of instruction and shall continue in force until completion of the Services unless terminated earlier in accordance with clause 11.

3. The Company’s Obligations

3.1 The Company agrees to carry out the Services and shall use its reasonable endeavours to carry out the Services in a timely manner.

3.2 The Company shall comply with all laws and regulations relating to its business and which may, directly or indirectly, impact upon the provision of the Services.

3.3 The Company confirms that the conclusions and recommendations contained in any report will be reasonable and appropriate at the time of issue of the report. However, please note that fundamental input assumptions upon which this report is based may change with time. It is the Client’s responsibility to ensure that input assumptions remain valid.

3.4 All reports are based in part on information which was provided to the Company by the Client and/or others. While the Company uses all reasonable endeavours to ensure accuracy it does not warrant this. All reports must be read in their entirety.

3.5 The Company may, at its discretion, engage specialist laboratories or other appropriately qualified third-party service providers to perform all or part of the Services where specialised testing, equipment, expertise or resources are required. The Company would provide those parties with samples, materials and required testing as necessary for the performance of the Services. No confidential information will be provided to these service providers.

4. The Client’s Obligations

4.1 The Client shall provide all complete and accurate information and assistance necessary to enable the Company to provide the Services.

4.2 The Client shall comply with all laws and regulations relating to its business and which may, directly or indirectly, impact upon the provision of the Services.

4.3 The Client shall validate the suitability of any material recommendations contained in reports by conducting proper product field trials to establish ‘fitness for purpose’ to their satisfaction.

5. Charges and Payment Terms

5.1 The Charges are exclusive of GST or its equivalent and any other applicable taxes for which the Client is legally liable, which are payable by the Client at the rate and in the manner prescribed by law.

5.2 The Company shall invoice the Client for its Charges for time, expenses and materials (together with GST where appropriate).

5.3 The Client shall reimburse the Company for all reasonable disbursements and expenses incurred in connection with the Services. A 15% administration surcharge will apply to all disbursements and expenses unless otherwise specified in the quotation.

5.4 The Charges are based on the agreed scope of Services or quote provided. Any additional work requested by the Client, including work undertaken after a report has been issued, will be charged at the Company’s prevailing hourly rates for time spent in excess of 20 minutes, unless otherwise agreed in writing. Where the requested work constitutes additional scope, the Company may, at its discretion, provide a separate quotation for the additional Services.

5.5 Unless otherwise specified in the quotation or agreed in writing, the Company will invoice international clients in United States Dollars (USD).

5.6 Where the Client requests that samples, materials or specimens be retained beyond the Company’s standard retention period of 14 days after report submission, the Company may charge storage fees at its prevailing rates. Storage fees shall be invoiced in advance and are payable prior to the commencement of the storage period. For ongoing storage arrangements, the Company may invoice storage fees periodically for time blocks of 6 months in advance.

5.7 Where samples, materials or specimens require disposal, the Company may charge the Client for any reasonable costs incurred in connection with their handling, transportation, destruction or disposal.

5.8 Unless otherwise specified in this Agreement or agreed in writing by the Company, invoices for the Services are payable in full and in cleared funds prior to the commencement of the Services. The Company shall have no obligation to commence the Services until payment has been received in full.

5.9 Where the Company has agreed in writing to provide credit terms, the Client shall pay each invoice submitted to it by the Company, in full and in cleared funds, within 30 days of receipt.

Failure to meet payment terms agreed upon, resulting in an overdue invoice will incur an additional administrative fee applicable following the scope below:

• For invoices totaling an amount below $1,000 (GST inclusive), the fee will be $30 (excluding GST) per month of arrears.
• For invoices totaling an amount from $1,000 to below $3,000 (GST inclusive), the fee will be $50 (excluding GST) per month of arrears.
• For invoices totaling an amount $3,000 (GST inclusive) or more, the fee will be $80 (excluding GST) per month of arrears.

This fee covers administration costs engaged in recovery of arrears.

Disputes regarding invoiced amounts must be raised within seven (7) business days following the date of invoice.

5.10 Time for payment shall be of the essence of this Agreement.

5.11 Without prejudice to any other right or remedy, if any amount due is not paid by the Client by the due date, the Company may withhold commencement of the Services, suspend the Services, withhold reports, test results and deliverables or terminate this Agreement in accordance with clause 11.

5.12 All Charges and other amounts due to either party under this Agreement shall be paid in full without any set-off, deduction or withholding and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. Further all payments to be made to the Company under this Agreement shall be made free and clear of and without deduction for or on account of tax.

5.13 The Company has the right to increase the Charges on an annual basis and shall inform the Client in writing of any changes.

6. Warranties

6.1 The Company warrants that:

1. it shall perform the Services with reasonable skill, care and diligence; and
2. the Services and Materials shall not in any manner or way infringe or violate any Intellectual Property Rights, Confidential Information, nor any contractual, employment or property rights, duties of non-disclosure or other rights of third parties.
3. the testing herein is based upon accepted industry practice as well as the test methods identified in the relevant report. Test results relate solely to the specific samples tested and do not apply to any other samples, materials or specimens not tested.

6.2 The Client warrants that:

1. all information disclosed or to be disclosed by the Client necessary for the provision of the Services by the Company is or shall to the best of its knowledge and belief, be true, accurate and not misleading in any material respect; and
2. its provision of materials to the Company in connection with the Services shall not in any manner infringe or violate any Intellectual Property Rights of the Company, or any company within its group or those of its subsidiaries, Confidential Information nor any contractual, employment or property rights, duties of non-disclosure or other rights of third parties.
3. any samples, materials or specimens provided to the Company are representative of the matters in respect of which the Client seeks to rely upon the Services or any test results and, where applicable, are of sufficient quantity and statistical significance for that purpose.

6.3 Each party warrants that it has full capacity and authority to enter into this Agreement.

7. Limitation of Liability

7.1 Notwithstanding any other provisions of this Agreement, neither party excludes or limits its liability for death or personal injury caused by its negligence or for fraud or in respect of any other liability arising out of or in connection with this Agreement which cannot be excluded or restricted by law.

7.2 Subject to clause 7.1, each party’s total liability to the other (whether in contract, tort (including negligence) breach of statutory duty or otherwise) arising out of or in connection with the performance or contemplated performance of this Agreement shall be limited to USD 1,000,000 (One Million US Dollars) or three times the total professional fees paid by the Client for the Services whichever is less.

7.3 Neither party shall be liable to the other (whether in contract, tort (including negligence), breach of statutory duty or otherwise) arising out of or in connection with this Agreement for any loss of profit, production, data, goodwill, contract or business opportunities or anticipated savings or benefits or for any type of indirect, incidental, special or consequential loss, even if that loss or damage was reasonably foreseeable or that party was aware of the possibility of that loss or damage arising.

7.4 The Company neither accepts responsibility nor makes claim as to the final use and purpose of the test results.

7.5 If the Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.

7.6 The Company limits reproduction of their reports without prior approval of the Company. The Company accepts no liability or responsibility to any third party who benefits from or uses the Services or uses the test results provided by the Company. The Client agrees to indemnify the Company from and against all liabilities, losses, damages, costs and expenses the Company reasonably incurs in connection with any claims against the Company resulting from a breach by the Client of the provisions of this clause or from any claim by any third party against the Company.

8. Insurance

8.1 The Company shall maintain, throughout the term of this Agreement, Professional Indemnity insurance with minimum cover of US$1,000,000 (one Million United States Dollars) in aggregate per year. The Company will on request from the Client, provide confirmation that such insurance is in place.

9. Intellectual Property

9.1 The Company shall retain ownership of all Intellectual Property Rights in any reports created by the Company and/or Company Personnel under this Agreement. The Company hereby grants the Client a non-exclusive, non-transferable licence to use such reports for its own internal purposes and for the purposes for which they were delivered.

10. Confidentiality

10.1 Neither party (each, a “Recipient”) shall use or divulge or communicate to any person any Confidential Information of the other party (the “Disclosing Party”).

10.2 Each Recipient shall ensure that its employees, agents and sub-contractors are aware of and comply with the confidentiality and non-disclosure provisions contained in this clause 10 and each Recipient shall be liable to the Disclosing Party in respect of any loss or damage which the other may sustain or incur as a result of any breach of confidentiality by its employees, agents or sub-contractors.

10.3 If either Recipient becomes aware of any breach of its confidentiality obligations (including a breach by any of its employees, agents or sub-contractors) it shall promptly notify the Disclosing Party and give the Disclosing Party all reasonable assistance in connection with any proceedings which the Disclosing Party may institute to protect the confidentiality of its Confidential Information.

10.4 The restrictions contained in this clause 10 shall not apply to any Confidential Information which:

1. comes into the public domain otherwise than through a breach of this clause 10; or
2. is required by any court of competent jurisdiction or by a governmental or regulatory authority to be disclosed or where there is a legal right, duty or requirement to disclose.

11. Termination

11.1 Subject to clauses 11.2 and 11.3, this Agreement shall terminate automatically on completion of the Services.

11.2 This Agreement may be terminated by either party on giving 60 days’ written notice to the other party to expire at any time.

11.3 This Agreement may be terminated with immediate effect by either party by giving notice in writing:

1. if the other party passes a resolution for voluntary winding-up or a winding up order is made (except for the purpose of a bona fide amalgamation or reconstruction previously approved in writing by the first party); and
2. if a receiver, administrative receiver, administrator or manager is appointed or an encumbrancer takes possession of the undertaking or assets (or any part thereof) of the other party.

11.4 On termination of this Agreement for any reason:

1. the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices which are not the subject of a previous bona fide dispute and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
2. each party’s further rights and obligations shall cease immediately on termination, but termination shall not affect a party’s accrued rights and obligations at the date of termination and the provisions of clauses 1 (Interpretation), 5 (Charges), 7 (Limitation of Liability), 8 (Insurance), 9 (Intellectual Property), 10 (Confidentiality), 13 (Dispute Resolution), and 14 (General) shall remain in full force and effect.

12. Force Majeure

12.1 The Company shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

13. Dispute Resolution

13.1 Any dispute or difference between the parties in connection with this Agreement shall be escalated in the first instance to an agreed representatives of each party who shall use all reasonable endeavours to resolve the dispute. If the parties have not been able to resolve the dispute within ten working days of reference to the representatives, the parties shall refer the dispute to external mediation.

14. General

14.1 No waiver by either party in enforcing any of its rights under this Agreement shall prejudice its ability to enforce such rights or any of its other rights under this Agreement. No waiver shall be effective unless in writing and signed by the relevant party and expressly identified as a waiver by reference to this clause 14.1.

14.2 Nothing in this Agreement shall operate to limit or exclude any liability for fraudulent acts or omissions or fraudulent misrepresentations.

14.3 Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

14.4 Any provision of this Agreement which is declared unlawful, void or unenforceable by any competent authority or court shall to that extent be deemed severed and the other provisions of this Agreement shall continue unaffected.

14.5 The Client may not assign, transfer, charge or deal in any other manner with this Agreement nor any rights or obligations under it or purport to do any of the same, nor sub-contract any of its obligations under this Agreement to any third party or declare any trust in respect of this Agreement or any of its obligations under it in favour of any third party without the prior written consent of the Company. The Company, without prejudice to any other rights, may transfer, novate, assign, sub-contract or sub-license this Agreement or any of its rights or obligations hereunder to a third party.

14.6 No variation or alteration to this Agreement shall be effective unless in writing and signed by the Company and the Client and expressly identified as a variation or alteration of this Agreement. However, where written changes are permitted where they approved or agreed in writing or are in the form of, written confirmation in a quotation, email, letter of instruction or the Company’s applicable form shall be sufficient.

14.7 The Agreement shall be governed by the laws of the jurisdiction in which the Services are to be performed. The parties submit to the non-exclusive jurisdiction of the courts and any courts which may hear appeals from those courts in respect of any proceedings in connection with the Agreement.

14.8 Unless otherwise agreed in writing prior to the commencement of Services, all samples, materials and specimens submitted to the Company may be disposed of by the Company 14 days after the report has been issued.

14.9 Where the Client requests retention of samples beyond the period specified in clause 14.8, the request must be made prior to commencement of the Services and may be subject to storage fees in accordance with clause 5.6.

14.10 Where any samples, materials or specimens are of a size, weight, composition or nature that requires special collection, handling, transportation or disposal, the Company may require the Client to arrange collection or may arrange disposal and charge the Client for the reasonable costs incurred in accordance with clause 5.7. If the Client is required to arrange collection and fails to do so within the period specified by the Company, the Company may dispose of the relevant samples, materials or specimens at the Client’s cost.