1.1 Definitions
In this document, unless the context requires otherwise: “Agreement” means this agreement and includes the Schedule and any Statement of Work or Annexure (where applicable). “Business Day” means any day other than a Saturday, Sunday or public holiday in Sydney, New South Wales, Australia. “Calibration” means the procedure used to adjust an instrument so that it will be accurate within the manufacturer's specifications. “Claim” means any claim, notice, demand, action, proceeding, litigation, investigation or judgment, however it arises and whether it is present or future, fixed or unascertained, actual or contingent. “Contract Date” means the date of this Agreement specified in item 1 of the Schedule. “Customer” means the person or organisation specified in item 2 of the Schedule and “you” or “your” has a corresponding meaning. “Equipment” means the equipment, on which the Services will be provided, particularised in item 4 of the Schedule. “Fees” means the fees specified in item 5 of the Schedule. “Force Majeure Event” means any act, event, occurrence or cause reasonably beyond its control including but not limited to act of God, war (whether declared or not), sabotage, riot, insurrection, terrorism, civil commotion, labour disturbance, failure of telecommunications or Internet services, interruption of utility services, national emergency (whether in fact or in law), martial law, fire, flood, cyclone, earthquake, landslide, pandemic (for eg COVID19) or explosion affecting or referable to a party’s obligations under this Agreement. “GST” has the same meaning as expressed in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). “Loss” means any claims, demands, costs, charges, loss or expenses and includes legal fees on a solicitor-client basis. “New Product” means any equipment or goods purchased from Smart or equipment or goods purchased from and installed by Smart. “Personal Information” means Personal Information as defined in the Privacy Act 1988 (Cth). “Services” means the service(s) particularised in Item 3 of the Schedule provided to you in accordance with the terms and conditions of this Agreement. “Smart” means Smart Calibration Pty Ltd (ABN 25 638 899 279) of Unit 6B, 163 Prospect Highway, Seven Hills NSW 2147 and “us”, “we” or “our” has a corresponding meaning. “SoW” means a statement of work which is a separate document made part of this Agreement that details additional services.
1.2 Words and expressions
In this document, unless the context requires otherwise: (a) a word which denotes the singular denotes the plural and vice versa; (b) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; (c) words importing persons include a partnership and a body whether corporate or otherwise; (d) a reference to a thing or an amount is a reference to the whole and each part of it; (e) a reference to legislation or a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument made under it; (f) no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of that provision or this Agreement; (g) examples are illustrations only and do not limit general words; (h) a reference to “$”, “A$” or “dollar” is a reference to Australian currency; (i) a reference to a time is a reference to Australian Eastern Standard Time or Australian Eastern Daylight Time, whichever is appropriate; (j) mentioning of anything after the word “include”, “includes” or “including” does not limit what else might be included; and (k) headings are for convenience only and do not affect interpretation;

2.1 The terms and conditions contained in this Agreement apply to the provision of the Services.

3.1 We will carry out the Services expressed in Item 3 of the Schedule.
3.2 We will provide the Services with all reasonable care, competence and diligence.
3.3 We will assign sufficient personnel to provide the Services.
3.4 When providing the Services, we shall at all times employ appropriate techniques and standards.

4.1 You must provide us with reasonable access to your premises if we are carrying out the Services at your premises.
4.2 You must pay us our invoice by no later than the due date as particularised in our invoice.

5.1 You agree to pay us the Fees as specified in item 5 of the Schedule.
5.2 Fees will be invoiced on the basis set out in item 5 of the Schedule.
5.3 Notwithstanding clause 5.1, you agree for Smart to charge you an additional charge if: (a) you request any changes or variations to the Services; (b) there is a change, addition, variation of the Equipment in item 4 of the Schedule; (c) we determine during calibration that any of the Equipment requires our repair service or a major adjustment required to bring that piece of Equipment to specifications; and (d) we determine during the repair service that any of the Equipment requires additional repairs or replacement.
5.4 If Smart does not receive payment by the due date, the amount specified on the customer’s overdue invoice will be considered a debt due and payable and: 5.4.1 interest at 1% per month will accrue on the amount of the outstanding invoice from the date the invoice becomes overdue; 5.4.2 an administration fee of $330 will apply and shall be added to any letter of demand issued by Smart and/or Smart’s legal representative; and 5.4.3 Smart will have the right to institute debt recovery and the customer agrees to be liable for all Smart’s debt recovery costs including legal expenses, court fees and administration fees.

6.1 New Product Any New Product purchased from Smart, retains the manufacturers’ standard warranty from the purchase date, after which all liability of Smart ceases. Any warranty claim must be accompanied by proof of purchase, and full details of the alleged defect.
6.2 Joint warranties Each party represents and warrants to the other party as at the Contract Date that: (a) it is duly incorporated and the execution, delivery and performance of this Agreement does not violate its constitution; (b) it has read and understood the terms of this Agreement and had the opportunity to obtain legal advice about the terms of this Agreement; (c) it has the power and has taken all corporate and other action required to enter into this Agreement and to authorise the execution and delivery of this Agreement and the performance of its obligations; and (d) this Agreement constitutes a valid and legally binding obligation that is enforceable against it.

7.1 To the full extent permitted by law, we expressly exclude all terms, representations and warranties that otherwise would be implied by law into this Agreement.
7.2 Where any term or condition imposing liability is implied through the operation of any law, and that term or condition cannot be excluded, our liability for a breach of such a term or warranty will be limited, at our option, to any one of the following: (a) the supplying of the Services again; or (b) the payment of the cost of having the Services supplied again.
7.3 In the event that we are held or found to be liable to you for any matter relating to or arising in connection with this Agreement, whether based on an action or Claim in contract, negligence, tort or otherwise, our maximum aggregate liability will be an amount equal to the fees paid by you to us in this Agreement.
7.4 Notwithstanding anything else in this Agreement, we expressly exclude liability: (a) for indirect, special, incidental, or consequential loss or damage which may arise in respect of this Agreement; (b) for loss of profit, loss of business, loss of revenue, loss of goodwill or loss of anticipated savings.
7.5 Except to the extent required by any applicable law or regulation, including but not limited to the Competition and Consumer Act 2010 (Cth), the remedies expressed in this paragraph are your sole and exclusive remedies, and our sole and exclusive liability.

8.1 It is your responsibility to deliver and pick-up the Equipment from our premises.
8.2 If you request for a courier to deliver or pick-up the Equipment from our premises, or request for us to arrange for a courier to deliver or pick-up the Equipment from our premises, then we shall not be liable for any damage or loss whatsoever in the course of transit.

9.1 You agree and acknowledge that we shall have a right to retain possession of the Equipment as a form of security until you pay in full our Fees for the Services.

10.1 Each party must hold the confidential information received from the other party in strict confidence and not disclose or cause or permit the disclosure of the confidential information, except as required by law or as necessary in order to carry out its obligations under these terms.

11.1 Disclosure and use of any Personal Information by the parties is subject to the Privacy Act 1988 (Cth).
11.2 Each party will comply with the privacy laws applicable to that party’s performance of its obligations under this Agreement.
11.3 You expressly acknowledge and consent to: (a) us transferring and disclosing Personal Information provided by you to third party service providers located outside of Australia to the extent required as part of our information technology arrangements; and (b) such third party service providers storing and processing such Personal Information provided by you on servers outside of Australia.

12.1 We may terminate this Agreement immediately by written notice: (a) if you commit a breach of a material provision of this Agreement which: (i) if capable of being remedied, is not remedied within 14 Business Days of notice from us specifying the breach and requiring it to be remedied; or (ii) is not capable of remedy.
12.2 You may terminate this Agreement: (a) immediately by written notice if we commit a breach of a material provision of this Agreement which: (i) if capable of remedy has not been remedied within 30 days of notice from you specifying the breach and requiring it to be remedied; or (ii) is not capable of remedy.
12.3 Either party may terminate this Agreement by notice in writing immediately: (a) if the other party is subject to bankruptcy or insolvency proceedings or, becomes insolvent, makes any composition or arrangement with or assignment for the benefit of its creditors, or goes into either voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or anything analogous to the foregoing occurs in respect of that party; or (b) if either party is unable to perform for a period of 60 days or more due to the occurrence of a Force Majeure Event.

13.1 If this Agreement is terminated, you will immediately pay to us the amount of all Fees due for payment.
13.2 Following termination, we: (a) may charge a reasonable sum for work performed which has been authorised by you in respect of which no sum has been previously charged; (b) will be regarded as discharged from any further obligations under this Agreement; and (c) may pursue any additional or alternative remedies provided by law.
13.3 Termination of this Agreement does not affect any accrued rights or remedies of either party.
13.4 All provisions of this Agreement relating to the protection of Confidential Information and limitation of liability will remain in full force and effect and survive termination of this Agreement.

14.1 Method All notices, requests, demands, consents, approvals, offers, agreements or other communications (“Notices”) given by a party under or in connection with this Agreement must be: (a) in writing; (b) signed by a person duly authorised by the sender or, where transmitted by e mail, sent by a person duly authorised by the sender; (c) directed to the intended recipient's address; and (d) hand delivered, sent by prepaid post or transmitted by e mail or facsimile to that address.
14.2 Receipt A Notice given in accordance with this clause is taken as having been given and received: (a) if hand delivered, on delivery; (b) if sent by prepaid post: (i) within Australia, on the second Business Day after the date of posting; (ii) to or from a place outside Australia, on the seventh Business Day after the date of posting; (c) if transmitted by e mail, on transmission; or (d) if transmitted by facsimile, at the time recorded on the transmission report indicating successful transmission of the entire notice, but if the delivery or transmission is not on a Business Day or is after 5.00pm (recipient’s time) on a Business Day, the Notice is taken to be received at 9.00am (recipient’s time) on the next Business Day.

15.1 Entire agreement This Agreement constitutes the entire agreement between the parties. All prior discussions, undertakings, agreements, representations, warranties and indemnities are replaced by this Agreement and have no further effect.
15.2 Variation This Agreement may only be varied by any Special Conditions expressed in Item 6 of the Schedule.
15.3 Severability If any part or all of any provision of this Agreement is, or becomes, illegal or unenforceable it will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
15.4 Assignment Neither party may assign its rights and remedies nor transfer its obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld.
15.5 Survival Subject to the terms of this Agreement, where survival of any term or condition of this Agreement is not inconsistent with the termination of this Agreement, the obligations of each party in relation to that term or condition survive termination.
15.6 Waiver Waiver of any power or right under this Agreement: (a) must be in writing signed by the party entitled to the benefit of that power or right; and (b) is effective only to the extent set out in that written waiver.
15.7 Rights, remedies additional Any rights and remedies that a person may have under this document are in addition to and do not replace or limit any other rights or remedies that the person may have.
15.8 Counterparts This Agreement may be executed in any number of counterparts, each signed by one or more parties. Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one and the same Agreement.
15.9 Governing law This Agreement is governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the exclusive jurisdiction of the courts of that State.