Terms and Conditions | Azuma Design

1 Application of Terms
1.1 These Terms govern the provision of Services to you.
1.2 Unless expressly agreed in writing, we are unable to accept or agree to be bound by any additional or alternative terms or conditions included in, attached to, or referenced in, any purchase order or other document you provide to us following acceptance of these Terms.
1.3 Where there is any inconsistency between these Terms and any Credit Facility, the provisions of the Credit Facility prevail insofar as the inconsistency.

2 Quotations
2.1 Unless expressly stated otherwise, any quotation issued by us:
(a) is based on the information provided to us by you and may change if the details of the resulting Order are inconsistent with the information forming the basis of the quote;
(b) unless stated otherwise, assumes that the test as described will be run or completed once only;
(c) is not an offer capable of acceptance;
(d) does not in and of itself constitute an obligation on us to perform any Services to you;
(e) is exclusive of GST;
(f) remains valid and current for a period of thirty (30) days from the date of the quotation, unless sooner withdrawn by us in writing ; and
(g) assumes that all Services will be performed at our nominated testing facility during Business Hours.
2.2 Performance of the Services and subsequent results during the testing process might affect the time required to complete the Services and increase the original quotation.
2.3 You acknowledge that the quotation may not accurately reflect the actual cost of the Service and that amendments to the quotation will require authorisation from an authorised representative.
2.4 A quotation may include additional terms or conditions, which will supplement these Terms. Where a quotation includes additional terms or conditions which contradict these Terms, the terms or conditions contained in that quotation prevail insofar as the inconsistency.

3 Formation of contract
3.1 We cannot perform Services for you until a binding contract incorporating these Terms (as amended or varied in writing if applicable) is formed.
3.2 A contract incorporating these Terms (as amended or varied in writing if applicable) for the performance of Services by us to you is formed, and you have accepted these Terms, when:
(a) You make a Booking Request for Services with us and pay the deposit (20% of the GST inclusive price of the Order unless otherwise agreed in writing); and
(b) And we have either:
(i) Accepted your Booking Request and scheduled a time for Services to commence in writing (issuing a tax invoice for payment of the full amount is deemed written acceptance of a Booking Request); or
(ii) Performed the Services to you on account in accordance with the provisions of a Credit Facility or as otherwise agreed in writing.
3.3 If you cancel a booking request before we accept the Booking Request and schedule a time for the Services, we will refund you any deposit to you within 14 days of cancellation.
3.4 If you cancel a Booking Request for Services after we accept your Booking Request and schedule a time for the Services to be performed or otherwise after the formation of a contract for provision of Services, then unless we are in breach of that contract:
(i) the deposit will be forfeited and retained by us; and
(ii) where our reasonable costs incurred in connection with the Services up until the date of cancellation exceed the forfeited deposit, we may demand payment of our additional costs to be paid within 14 days.
3.5 If we cancel a Booking Request for Services we will refund the deposit paid within 14 days of cancellation.

4 Price
4.1 Unless otherwise agreed in writing, the price payable for the Services is the price stated in any quotation provided by us to you (provided that the details of the Booking Request are consistent with the information forming the basis of the quotation).
4.2 We will give 7 days’ notice of any change or update to our price list, schedule or rates. Any updated price list or schedule or rates will apply to all Orders received following expiry of the 7 days’ notice period.
4.3 The price may increase if additional Services (for example, a repetition of the test following a fail result) are performed at your request or the request of your representative attending our testing facility.
4.4 You represent and warrant that your representative/s attending our testing facility to view the Services is duly authorised to give us instructions and incur further costs on your behalf.
4.5 Where your duly authorised representative/s attending our testing facility to view the Services requests additional Services (for example, a repetition of a test), we reserve the right to refuse to perform those additional Services at our sole discretion.
4.6 Any Services required outside of Business Hours will incur an overtime fee.

5 Transport and risk
5.1 You are responsible for all shipping, transport and delivery costs of any item or product provided to or from our testing facility for completion of the Services.
5.2 Risk for the item or product remains with you whilst in transit to or from our nominated testing facility for completion of the Services. Risk for the item or product remains with you whilst present at our nominated testing facility for completion of the Services.
5.3 You acknowledge that during the performance of the Services the item or product being tested may be damaged, broken or subjected to increased wear and tear. You unconditionally release us from any liability resulting from any damage, breakage or increased wear and tear occurring during or as a result of any testing processes completed during the performance of the Services. You acknowledge that we have relied on your acknowledgement and release when agreeing to enter a contract with you and perform the Services.

6 Testing
6.1 You must provide us with all technical or design specifications, diagrams and drawings prior to the date on which commencement of the Services is booked to occur. Testing may be delayed or have inaccurate results if technical or design specifications, diagrams and drawings are not provided to us or where those provided to us are incomplete or inaccurate.
6.2 The performance of a test sample during the testing Services may result in an increase of the time required for the Services. Where the time required to complete the Services exceeds the time required on any Quotation, we reserve the right to charge for the additional time required to complete the Services on an hourly basis. Payment is required in accordance with clause 7.1.
6.3 Any changes, modifications or amendments to the Test Sample during testing Services will:
(a) Require you to update/amend the test drawings to reflect these changes, failure to do so will result in a delay in receiving the Test Report until all changes are reflected in the new Drawings. Changes may also impact pricing.
(b) Require us to repeat the testing Services on the test sample in accordance with the applicable methods stated in the applicable standards. (c) Impact the time required to complete the testing Services and increase the price.
6.4 Any representative attending our nominated testing facility to view performance of the Services must follow all safety instructions from us. You acknowledge that we may refuse to perform the Services or require your representative/s to leave the testing facility if safety instructions are not followed.
6.5 Safety instructions may include but are not limited to:
(a) wearing personal protective equipment; and
(b) standing in a particular location or not standing in a particular location
6.6 You acknowledge and agree that Azuma, at its sole discretion, is entitled to record, whether that be by audio and/or visual recording, the testing it undertakes, as part of the Services, in accordance with this clause. Azuma will store and use any recordings made for the purposes of training and marketing activities. You consent to the dissemination of any recording undertaken for these purposes. Azuma warrants that no products, branding or other identifiable information will be visible or disclosed in the dissemination of the recording.

7 Payment terms
7.1 Unless you have a Credit Facility which is not in default or alternative payment arrangements are agreed in writing:
(a) Where a Booking Request requires Services estimated to require less than 21 hours (3 Business Days):
(i) a non-refundable deposit of 20% of the GST inclusive price of the Services is payable on submitting the Booking Request for Services; and
(ii) the balance of the price of the Services and the price of any additional Services performed is payable 10 Business Days following the provision of the Services.
(b) Where a Booking Request requires Services estimated to require 21 business hours (3 Business Days) or more:
(i) a non-refundable deposit of 50% of the GST inclusive price of the Services is payable on submitting the Booking Request for Services, unless otherwise agreed in writing; and
(ii) the balance of the price of the Services and the price of any additional Services performed is payable 10 Business Days following the provision of the Services.
7.2 Payment options will be listed on our tax invoice. We reserve the right to change the payment methods that we accept at any time.
7.3 If payment by Visa or Mastercard credit or debit card is accepted, a payment surcharge for applicable payment transactions equal to the cost incurred by us to accept the payment will be charged.
7.4 GST on all taxable supplies is payable upon our issuing you a tax invoice relating to the taxable supply.
7.5 You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding (unless otherwise agreed in writing).
7.6 WARNING: Email is not a secure form of communication, if you receive payment instructions from us in any form (including in a tax invoice and including where those have been received by post) which you have not used before, it is strongly recommended that you contact us to verbally confirm those payment instructions. Any payment made to a fraudulent account (i.e. an account that does not belong to us) will not be deemed received by us. We are not responsible for any payment made to a fraudulent account.
7.7 You acknowledge that your obligation to make full payment for Services is not subject to a pass or positive test outcome. Full payment for the Services in accordance with these Terms is required even if the test result is a fail.

8 Test Reports and Disposal
8.1 Test reports or certificates will only be prepared after full payment is received in accordance with clause 7.
8.2 Unless otherwise agreed in writing, test reports will be prepared and issued within 5 Business Days following receipt of full payment for the Services (including any additional Services performed and invoiced).
8.3 Unless otherwise agreed in writing, you warrant that you will remove all test samples from our testing facility within 2 business days after the conclusion of the testing. Any test samples remaining at our testing facility after this time will be disposed of by us at your cost. Payment for disposal costs (if any) is required in full prior to preparation of the test reports.
8.4 If the quotation stipulates that we are responsible for disposal, the disposal fee will be included in the quotation and final invoice.
8.5 We agree to protect the confidentiality of your item or product subject to the Services and your intellectual property shared with us during the provision of the Services in accordance with our Accreditation for ISO 9001 and ISO/IEC 17025.
8.6 You acknowledge that any delay in providing us with technical or design specifications, diagrams and drawings or where applicable updated technical or design specifications, diagrams, drawings may delay our preparation of the test report.

9 Indemnity
9.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
(a) we will take reasonable steps to mitigate our loss and damages;
(b) we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
(c) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
9.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
9.3 Your liability to indemnify us is:
(a) a continuing obligation;
(b) separate and independent from all your other obligations; and (c) survives the termination or performance of any contract of which these Terms form part.

10 Limitation of liability
10.1 No party is liable to the other party for any Consequential Loss, however caused arising out of or in connection with any contract for supply of which these Terms form part.
10.2 If the contract for provision of Services is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
(a) us supplying the Services again; or
(b) us paying you the reasonable cost of having equivalent Services provided by an alternative supplier.
10.3 Clause 9.2 does not apply where these terms are incorporated in a Consumer Contract or Small Business Contracts.

11 Termination
A party may, with immediate effect, terminate any contract for provision of Services of which these Terms form part by notice in writing, if the other party:
(a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
(b) has failed to pay sums due to the party in accordance with these Terms; or
(c) has indicated that it is, or may become, insolvent; or
(d) ceases to carry on business; or
(e) comprises an entity which is the subject of the appointment of receivers or managers; or
(f) comprises a natural person who:
(i) has committed an act of bankruptcy; or
(ii) has been made bankrupt;
(g) comprises a corporation which:
(i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or (iii) is subject to the appointment of liquidators or provisional liquidators.

12 Variation
We may amend these Terms in the future by giving you 14 days written notice. The amended Terms will apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.

13 Severance
If any part of these Terms is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.

14 Dispute Resolution
14.1 If a dispute arises between you and us, you must give us written notice of the dispute addressed to our business manager (Dispute Notice). The Dispute Notice must articulate by numbered paragraphs each ground of dispute and the reasons for that dispute. If applicable, the Dispute Notice should attach any relevant photographic or documentary evidence.
14.2 We will endeavour respond in writing to your Dispute Notice within 10 Business Days of receipt of the Dispute Notice.
14.3 Whilst we will respond in writing, our business manager or another staff member may contact you by telephone to discuss your Dispute Notice in good faith before providing our written response in accordance with clause 14.2. You acknowledge that if you refuse or are unable to discuss your Dispute Notice with us, our written response to our Dispute Notice may be delayed.
14.4 If you are not satisfied with our written response to your Dispute Notice, you must give us written notice of your objection to our written response within 5 Business Days of receipt of our written response (Objection). The Objection must articulate by numbered paragraphs referencing our written response and state each ground of dispute and the reasons for that dispute, including why you assert our written response is inadequate. If applicable, the Objection should attach any relevant photographic or documentary evidence not previously provided.
14.5 If no Objection pursuant to clause 14.4 is received within 5 Business Days of the date of our written response to your Dispute Notice (under clause 14.2), the dispute is deemed to be resolved.
14.6 Within 5 Business Days of receipt of your Objection, we may elect to:
(a) Schedule a conference to discuss your Objection in good faith with the view to resolving the dispute;
(b) Refer the dispute to mediation by a mutually agreed mediator, with the costs of the mediator and venue to be borne equally by you and us. If you and us cannot agree on a mediator within 10 business days, then we approach the President of the Law Society of New South Wales to appoint a mediator.

15 Governing law and jurisdiction
15.1 Our relationship is governed by and must be construed according to the law applying in the State of New South Wales.
15.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New South Wales with respect to any proceedings that may be brought at any time relating to our relationship.

16 Definitions
In these Terms, unless the context otherwise requires, the following apply.
16.1 Australian Consumer Law means the Competition and Consumer Act 2010 (Cth), as amended from time to time.
16.2 Booking Request means any request or Order made by you for Services from us.
16.3 Business Hours means between 08:00am to 4:00pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Services are agreed to be performed.
16.4 Claim includes (but is not limited to) a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a contract for supply.
16.5 Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
16.6 Credit Facility means any credit agreement account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Goods and Services and associated charges.
16.7 Dispute Notice means a written notice of dispute addressed to our business manager given to us pursuant to clause 14.1.
16.8 Objection means an objection to our written response to your Dispute Notice given to us pursuant to clause 14.4.
16.9 Order means a written order placed by you requesting that we provide Services and includes a Booking Request.
16.10 Services means all testing services performed by us, as described on our quotation, invoice, Booking Request or any other form issued by us.
16.11 Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.

17 Interpretation
In these Terms, unless the context otherwise requires:
17.1 A time is a reference to the time zone of Sydney, Australia unless otherwise specified.
17.2 $, dollar, or AUD is a reference to the lawful currency of Australia;
17.3 A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
17.4 A right includes a benefit, remedy, authority, discretion, or power.
17.5 The singular includes the plural and vice versa, and a gender includes other genders.
17.6 “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
17.7 If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
17.8 Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
17.9 If a party consists of two or more persons, they are bound by and have the benefit of these Terms jointly and severally.

AGREED AMENDMENTS AND VARIATIONS TO TERMS
Where amendments to our Terms or additional terms or conditions have been negotiated and agreed, they will appear here. If no amendments or additional terms and conditions have been negotiated or agreed, please cross out this section before signing.

Terms of Trade (“Terms”)

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