TERMS and CONDITIONS June 2018
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS WEBSITE.
You are encouraged to print or otherwise make a copy of the Terms for your records. All Clear reserves the right to modify, suspend, terminate or restrict your use of any portion of this website at any time, without notice. Whenever these Terms are amended in a material way, a notice will be posted on this Site. Your continued use of the Site will signify your acceptance of the change in the Terms.
The current version of the Terms will normally be available for your reference from a link at the bottom of the home page of this Site.
If You choose to use this Site and access Our services, All Clear will regard this as definitive evidence of your agreement and acceptance that these terms govern Your and All Clear’s rights and obligations to each other.
All Clear will provide the Customer with our Services on the following terms and conditions unless All Clear agrees, in writing, to vary these terms and conditions. All Clear reserves the right to change these terms and conditions at any time. You are advised to check these terms and conditions before each dealing you have with All Clear.
(a) An “Affiliate” of a Person means and includes any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Person. For purposes of this definition, “control,” when used with respect to such other Person, means the power to direct the management and policies of such other Person, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise; and the terms “controlling” and “controlled” have the meanings relative to the foregoing.
(b) “Authorised Representative” means any director, officer, employee, agent, or other representative of All Clear or an Affiliate of All Clear.
(c) “Content” means documentation, marks, images, charts, graphs, graphics, designs, photographs, audio and video clips, software, and HTML, XML and similar code.
(d) “Customer” means the entity to which the accompanying tender, quotation, letter, text or email is addressed.
(e) “Confidential Information” means all information in relation to a disclosing party, its business, operations, products, processes, customers, suppliers or contractors which is or might reasonably be considered by the disclosing party to be confidential, including all technical data, formulae, specifications, diagrams, plans, drawings, sketches, designs, business plans and reports, business methods and systems, business records, production information, unpublished financial accounts and reports, discount and supply agreements, subcontractor list, customer lists, except to the extent that such information is lawfully in the public domain.
(f) “Consequential Loss” means loss or damage from a breach of contract, tort (including negligence), under statute or any other basis in law or equity including, but without limitation loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of access to markets, loss of goodwill, loss of business reputation, future reputation or publicity, damage to credit rating, loss of use, and indirect, remote, abnormal or unforeseeable loss, or any similar loss whether or not in the reasonable contemplation of the parties at the time of this Arrangement.
(g) “Documentation” means, if issued by All Clear, any tutorial, frequently asked questions, help files, and other information that may be made available by links on this Site or through a help desk on the operation and administration of this Site.
(h) “Fee” shall mean our fee for providing the Services
(i) “Force Majeure Event” means any event or circumstance beyond the reasonable control of All Clear, including without limitation any act of God, strike, boycott, lockout or other industrial disturbance, default of suppliers or sub-contractors, lightning, fire, storm, flood, earthquake, inclement weather, act of war (declared or undeclared), blockade, insurrection, riot or other civil disturbance, inability to obtain equipment, labour or essential materials, act of any government or authority, including refusal or delay in obtaining any necessary consent, approval or licence, or accident, explosion or breakage.
(j) “Intellectual Property” means all intellectual property and proprietary rights (whether registered or unregistered) owned by All Clear prior to performance of the Services, developed by All Clear in performance of the Services or developed by All Clear outside of, or after, performance of the Services, and without limitation includes business names, trade or service marks, any right to have information (including confidential information) kept confidential, patents, patent applications, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, databases, know-how, logos, designs, design rights, copyright and similar industrial or intellectual property rights.
(k) “Marks” means trademarks, service marks, logos and names and titles, of and associated with All Clear or an Affiliate of All Clear.
(l) “Person” means any individual, partnership, limited liability company, corporation, trust, estate, association, or any other legal or commercial entity.
(m) “Report” has the meaning given to it in Section 4.
(n) “Services” shall include all services provided by All Clear to the customer as described in the accompanying tender, quotation, letter, text or email and shall include without limitation the provision of testing, analysis, provision of reports and feedback.
(a) All Clear will provide the Services described in the accompanying tender, quotation, letter, text or email to the Customer which together with these terms and conditions will hereafter be called the ‘Arrangement’.
(b) This Arrangement will be binding on the Customer from the date the Arrangement is accepted by the Customer in the Arrangement section below. However, the placement of the order for or receipt of samples for analysis based on this Arrangement will constitute acceptance of the Arrangement by the Customer.
- Provision of Services:
(a) All Clear will provide the Services by exercising the same degree of skill, care and diligence that would be exercised by professional service providers in similar circumstances.
(b) The Customer acknowledges that it is the Customer’s sole responsibility to make its own assessment of the suitability for any purpose of the Services, detection limits and confidence intervals inherent in All Clear’s standard testing methodology, the All Clear Report and its contents.
(c) If the Customer requires the Services to be performed by specific test method, or requires detection limits and/or confidence intervals different to those inherent in All Clear’s standard testing methodology, then the Customer must instruct All Clear of such a variation prior to All Clear performing the Services.
(d) All Clear may delegate the performance of all or part of the Services to an agent or a subcontractor and the Customer consents to All Clear disclosing all information (including Confidential Information) of the Customer to that agent or subcontractor necessary for the performance of the Service by the agent or subcontractor.
(a) All Clear will endeavour to provide results in the form of a report, within two working days from the date the sample reaches the Laboratory for analysis.
(b) Any reports, findings, results, statement, certification issued by All Clear (All Clear Report) is issued on the basis of testing of samples or materials, information, or documents provided by, or on behalf of, the Customer. The Customer will indemnify and hold harmless All Clear, its officers, employees, agents and subcontractors for any claim whatsoever in relation to any All Clear Report arising from unclear, erroneous, incomplete, misleading or false information provided to All Clear; or arising from any incorrect or defective materials or samples provided to All Clear.
(c) Each All Clear Report is:
I. Issued on the testing of samples or specific materials using detection limits and confidence intervals inherent in All Clear’s testing methodologies; and
II. Contains All Clear’s results and opinions (if provided) on those samples or specific materials only.
(d) Each All Clear Report is solely for the benefit of the Customer, its officers and employees, and subject to the following terms:
I. The All Clear Report has been commissioned by the Customer on the terms and conditions contained in this Arrangement;
II. Moral rights in the All Clear Report are owned by All Clear;
III. The All Clear Report has been prepared at the request of the Customer for the Purpose agreed between the Customer and All Clear. The Customer may disclose the report to a third party for that purpose only, but All Clear does not accept any responsibility or liability (including, without limitation, liability for negligence) to that third party. Any disclosure to a third party must be of the whole of the All Clear report, including All Clear’s disclaimer notice which is substantially the same as the terms outlined in this clause 10(c).
IV. While All Clear has taken all due care to ensure that the information contained in the All Clear Report is true and correct and is not misleading or deceptive, neither All Clear, nor any of its officers, employees or agents make any representations or warranties, express or implied, other than to the Customer, as to the accuracy of the information contained therein. Except insofar as liability under any law cannot be excluded, and subject to clause 5, All Clear accepts no responsibility arising in respect of the information contained in the All Clear Report for errors or omissions (including responsibility to any person by reason of negligence); and
V. All Clear reservices its right to review, update or supplement any All Clear Report. Any further information will be provided subject to the terms of this Arrangement.
(e) The Customer will not reproduce or publish extracts of any All Clear Report without the prior written consent of All Clear, and subject to terms outlined in clause 11(d).
(f) The Customer indemnifies All Clear, its directors, employees, agents, consultants, contractors, successors in title and assigns against any claim made against any or all of them by third party; or any reproduction or publication of an extract of any All Clear Report.
(g) The Customer acknowledges and agrees that any action, inaction, or decision of the Customer in response to the All Clear Report will be determined by the Customer. Neither All Clear nor any of its officers, employees, agents or subcontractors will be liable to the Customer or any third party for any action or inaction of the Customer in response to any All Clear report.
(h) All Clear will retain Customer data and Confidential Information for a minimum of 3 years from date of the final All Clear Report.
- Fees and Payment
(a) All Clear reserves the right to review prices at any time if significant changes to All Clear’s costs are incurred that are beyond All Clear’s control. Such changes may include but are not limited to, changes in legislative requirements, Customer variations to sample numbers, analytes requested, turnaround time required, or reporting requirements.
(b) Payment for Services shall be made in full prior to All Clear going to site (Due Date) or immediately upon making a booking whichever is the earliest of the two options, unless negotiated otherwise prior to the placement of an order or submission of samples. Any such variance from the standard payment terms must be stipulated separately in writing in the Arrangement. For approved customers, payment shall be made according to an approved payment term. If you wish to become an approved client, complete the credit application form here and submit it to us.
(c) All prices quoted by All Clear are exclusive of GST (or other value added tax if relevant) unless stated otherwise.
(d) All fees due and payable after the Due Date (Outstanding Amount) will be subject to the payment of interest at a rate of 1.5% per month of the Outstanding Amount from the Due Date up to and including the date of payment unless All Clear and the Customer otherwise agree in writing.
(e) The Customer will indemnify All Clear for any fees incurred by All Clear to recover the Outstanding Amount, including any solicitor fees, or collection agency fees.
(f) Prior to the supply of Services All Clear may require a non-refundable deposit from the Customer.
(g) If the Customer cancels a job within 24 hours prior to attendance, All Clear reserves the right to charge the Customer a cancellation fee.
(h) All Clear will work with the Customer to agree a mutually agreeable time and date to undertake testing. If this condition is breached by the Customer, the Customer will forfeit the Fee for a ‘no show’.
(i) Testing can be rescheduled in accordance with clause 2.b.
(a) All Clear may suspend or terminate its obligations under this Arrangement if (i) monies payable to All Clear by the Customer are outstanding by 20 days or more (unless otherwise agreed) after the date of invoice, (ii) other substantial breach by the Customer of their obligations under the Arrangement, which breach is not remedied within 10 days of written notice from All Clear requiring the breach to be remedied, (iii) by giving the Customer 30 days written notice of All Clear’s intention to terminate.
(b) The Customer may terminate its obligations under this Arrangement in the event of a substantial breach by All Clear of its obligations under the Arrangement, which breach has not been remedied within 30 days of written notice from the Customer to All Clear requiring the breach to be remedied.
(c) If All Clear, acting reasonably, suspects that the Customer is insolvent or is having difficulties paying its debts as and when they become due, or the Customer is insolvent, All Clear may give written notice to the Customer of All Clear’s intention to immediately suspend or terminate its obligations under this Arrangement.
(d) In the event of termination, All Clear is entitled to be paid for all work performed before the date of termination and for any unavoidable commitments entered into by All Clear before the date of termination.
- Limitation of Liability
(a) To the full extent permitted by law, All Clear excludes all warranties, terms, conditions or undertakings (Terms), whether expressed or implied, in relation to the Services, the All Clear Report, or its contents. Where any legislation implies any Terms in this Arrangement that cannot be modified or excluded then, such Terms shall deem to be included. However, to the full extent permitted by law, All Clear’s liability to the Customer for any breach of any Terms that cannot be excluded by law is limited at All Clear’s option to the re-performance of the Services or the refund of the fee for the Services.
(b) The Customer hereby releases and indemnifies and shall continue to release and indemnify All Clear, its officers, employees and agents from and against all actions, claims, (actual or threatened), proceedings or demands (including any costs and expenses in defending or servicing same) which may be brought against it or them, in respect of any loss (including Consequential Loss), death, injury, illness or damage to persons or property, and whether direct or indirect and in respect of any breach of any industrial or intellectual property rights, howsoever arising out of the use of, reliance on, or benefit of, the Services or any All Clear Report, except to the extent that the loss, death, injury, illness or damage to persons or property was directly caused by the negligence, wilful acts or omissions of All Clear or its employees.
(c) Notwithstanding any other provision in this Arrangement, the cumulative liability under this Arrangement to the Customer and any third-party claim is limited for any claim for loss or damage whatsoever, whether arising in tort or contract or any other cause of action, to the value of the Services provided by All Clear to the Customer.
(d) Without limiting the generality of clauses 5(a) and 5(b), it is agreed that, to the full extent permitted by any applicable laws having jurisdiction, All Clear will not be liable to the Customer or any other person for any special, indirect or Consequential Loss arising from the Customer’s use of, reliance on, or benefit of, the Services or any All Clear Report.
(e) The Customer acknowledges that during the performance of the Services, any samples supplied by, or on behalf of, the Customer or parts thereof may be altered, lost, damaged or destroyed. All Clear will not be liable whatsoever to the Customer or any third party for any samples so altered, lost, damaged or destroyed.
- Consumer Guarantees Act
(a) Services provided to all business customers or for commercial purposes are expressly excluded from all provisions under Consumer Guarantees Act 1993.
- Customer’s Obligations
(a) The Customer warrants they have obtained necessary permissions to arrange the test and are legally able to grant access to the property as the owner, tenant, property manager, real estate agent or owner’s agent.
(b) The Customer warrants the information provided is correct and not misleading.
(c) The Customer will ensure that all personnel, information, samples, test materials, access to facilities and infrastructure, assistance, records, documentation, and facilities needed by All Clear to perform the Services, are available when reasonably required by All Clear.
(d) The Customer will give written notices to All Clear of all known safety or health hazards and special procedures applicable to the performance of the Services and the safe handling, testing, storage, transport, and disposal of samples submitted to All Clear (including whether or not the disposal of samples may cause contamination) or the Customer’s facilities or infrastructure in which All Clear is partly or wholly performing the Services. All Clear may in its absolute discretion, refuse to provide part or all the Services where it determines that the provision of part or all the Services may pose a health or safety hazard.
(e) The Customer must take all necessary steps to remove or remedy any known safety or health hazards, or any obstacles to or anything that is likely to interrupt the performance of the Services by All Clear.
(f) The Customer shall indemnify All Clear and keep All Clear indemnified against, any claim, liability, loss (including consequential loss and loss of profit), damage or expense (including lawyer’s fees) made against, or suffered or incurred, by All Clear and arising from or out of any breach by the client of the warranty claimed in clause 6(a).
- Confidential Information
(a) Neither All Clear nor the Customer will disclose Confidential Information of the other party to any third party without the prior written consent of the other party, unless required by law or the rules of a relevant stock exchange.
(b) All Clear and the Customer will only use Confidential Information of the other party for the purpose of the supply of the Services.
(a) All Clear will hold all personal information collected in association with All Clear in accordance with the requirements of the Privacy Act 1993 including any information automatically retrieved during the Customer’s visits to this website (together “your information”).
(b) This website may solicit certain personal information from the Customer through features or activities.
(c) By accessing and browsing this website the Customer consents to the collection, use, disclosure, storage, and processing of the Customer’s information in accordance with clause 13.c.
(d) The Customer’s information will only be used for internal purposes, and to communicate with the Customer in relation to All Clear and relevant third party services, features and activities of this site, and for market research purposes. In communicating with the Customer for these purposes, the Customer consents to receiving communications from All Clear in any form including by email or text message.
(e) All Clear will not release the Customer’s information to any third party except where required to or permitted to by law, where the Customer has authorised us to do so, or where disclosure is connected to the purposes for which the Customer’s information was collected (including any purpose listed above). The Customer’s information will be retained only for as long as necessary to fulfil the purposes for which it was collected.
(f) The Customer may ask to see their information, and have it corrected, altered or deleted at any time by contacting All Clear at email@example.com.
(a) No claim relating to Services will be considered unless made within 14 days of provision of the Services.
(b) All Clear follows a pre-determined Disputes Resolution process. This process can be found here on the website.
- Intellectual Property
(a) All All Clear Intellectual Property will remain the property of All Clear Group Limited.
(b) All Clear grants to the Customer a world-wide, non-exclusive, royalty free licence to use All Clear Intellectual Property for the purpose agreed to between the Customer and All Clear to the extent that it is needed for the enjoyment and benefit of the Services.
(c) All Clear agrees to keep confidential all information relating to the Customer or any client of the Customer, which is at any time made available to All Clear.
(d) Any parties operating competing property testing services are expressly excluded from using All Clear resources and information either directly or through third parties. All Clear maintains the right to hold any parties breaching this term fully responsible for all costs and losses that may result.
- Force Majeure
(a) If All Clear is prevented in whole or in part from performing its obligations by a Force Majeure Event, All Clear may suspend performance of those obligations by giving written notice to the Customer. Any non-performance or delay in performance resulting from the Force Majeure Event will not be deemed to be a breach of this Arrangement.
(b) If a suspension under this clause 11 exceeds 90 days, All Clear may immediately terminate the Arrangement by written notice to the Customer. In the event of termination, All Clear is entitled to be paid for all work performed before the date of termination and for any unavoidable commitments entered into by All Clear before the date of termination.
- Health and Safety
(a) On entering the Customer’s premises to supply Services, All Clear will comply with all Department of Labour guidelines, Health and Safety at Work Act 2015 and the Customer will comply with any directions from All Clear in this regard, including both written and verbal directions.
(b) All Clear will take all practicable steps to ensure their own safety and the safety of others while on the premises.
(a) All Clear may assign or subcontract the storage and handling of samples under this agreement without prior written approval of the Customers, excluding transport.
(b) Any provision of this Arrangement that is illegal, invalid or unenforceable will be severed to the extent that it is illegal, invalid or unenforceable, with the remainder of the Arrangement continuing in full force.
(c) This Arrangement is governed by the law of the state, territory, or country in which the Services are provided, and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place.