Terms and Conditions

Terms and Conditions for Participation in the LHAAC Sampling Scheme

1. General

1.1. These Terms and Conditions (Terms), in conjunction with Part VIIIA of the Health (Miscellaneous Provisions) Act 1911 (Act), govern the participation of local governments in the scheme for the provision of analytical services for use by local governments under the Act (Scheme), operated by the Local Health Authorities Analytical Committee, a WA state government Committee and body corporate established under section 247A of the Act (Committee).

1.2 References in these Terms to sections are to sections of the Act.

1.3 The Terms:

(a) are determined by the Committee in the exercise of its function to formulate and operate the Scheme under section 247C(1)(a); and
(b) have effect as conditions applicable to participation in the Scheme by a local government.

1.4 A local government is a participant in the Scheme, and subject to compliance with these Terms, where the local government has:

(a) either:

(i) given notice in writing to the Committee that it desires to participate in the Scheme under section 247D(1); or
(ii) paid the annual compulsory fee to access analytical services, as determined by the Committee; or
(iii) been directed by the Chief Health Officer under section 247D(2) to participate in the Scheme; and

(b) not withdrawn from the scheme by obtaining consent in writing of the Chief Health Officer and giving written notice to the Committee under section 247D(3).

(Participant)

2. Scheme Services

2.1 The Committee has statutory authority in the exercise of its functions under Part VIIIA of the Act to collect data, conduct sampling, and report findings in accordance with applicable laws.

2.2 The Committee will provide the following services to Participants under the Scheme:

(a) facilitation of laboratory analysis and reporting for submitted samples;
(b) contract management and administration of Contracted Panel Analysts;
(c) payment of analytical service cost for samples submitted through the Scheme on behalf of Participants;
(d) provision of financial subsidy/contribution to assist Participants with transporting samples to Perth-based laboratories for analysis;
Local Health Authorities Analytical Committee
c/o Building 19, ECU Joondalup Campus, 270 Joondalup Drive, Joondalup WA 6027
(e) technical support and data interpretation;
(f) provision of regulatory or compliance documentation as required; or
(g) training and other professional development opportunities for local government employees.

2.3 Services will be provided in accordance with applicable legislative standards, industry best practices, and the Committee’s and analysts’ service protocols.

3. Fees and Payment

3.1 The Committee has statutory authority to fix fees paid by local governments for participation in the Scheme under section 247C comprising:

(a) an annual compulsory fee payable by each local government who is or has been a Participant in the Scheme, as determined by the Committee (Annual Fee); and
(b) fees to be paid for analytical services rendered by the Committee under the Scheme to a Participant under section 247C(1) (Service Fees).

3.2 The Annual Fee and Service Fees (Fees) shall be determined by the Committee annually and notified to all Participants in accordance with clause 14 no later than 31 July.

3.3 Fees must be paid within 30 days of issuance of an invoice unless otherwise agreed by the Committee in writing.

3.4 Failure to pay any Fees due in accordance with clause 3.3 will constitute a breach of section 247D(4)(a) and any outstanding Fees may be recovered by the Committee, as a debt due, in any court of competent jurisdiction pursuant to section 247D(4).

3.5 The Committee may suspend the provisions of services under the Scheme to any Participant who has failed to pay Fees due in accordance with clause 3.3.

3.6 Participants acknowledge and agree that the Annual Fee is payable by a Participant regardless of whether analytical services were rendered to the Participant by the Committee during the period to which the Annual Fee relates.

4. Data Ownership and Use

4.1 Samples (custody and destruction).

(1) Physical samples submitted under the Scheme are provided to the Analysts appointed by the Committee (Analyst) for the purpose of facilitating analysis and reporting under the Scheme. The Analysts will have custody and control of samples while they are held for Scheme purposes.

(2) Unless otherwise agreed in writing with the relevant Participant, samples may be consumed in testing and/or disposed of in accordance with laboratory requirements, applicable law and the Committee’s protocols.
Local Health Authorities Analytical Committee
c/o Building 19, ECU Joondalup Campus, 270 Joondalup Drive, Joondalup WA 6027

4.2 Results and reports

(1) Results, reports and other deliverables produced under the Scheme (Deliverables) will be made available to the relevant Participant.

(2) Subject to clause 4.3, the Committee grants each Participant a perpetual, non-exclusive, royalty-free, non-transferable licence to use, reproduce and disclose the Deliverables for the Participant’s governmental functions, including (without limitation): regulatory compliance; statutory enforcement and investigations; prosecution support; procurement/contractor management; internal governance and audit; reporting to elected members; and responding to lawful information requests (including under the Freedom of Information Act 1992).

4.3 Committee use, aggregation and publication

(1) The Committee may use, store and analyse Scheme data and Deliverables for the purposes of administering, monitoring and improving the Scheme, quality assurance, and meeting any statutory or reporting obligations.

(2) The Committee may publish or otherwise disclose Scheme information in aggregated and/or de-identified form for research, policy development and public reporting, provided that (so far as reasonably practicable) the Committee does not identify an individual Participant, premises, person, or specific sample source unless:

(a) disclosure is required or authorised by law; or
(b) the relevant Participant has consented in writing.

4.4 Confidentiality, access and retention

(1) Each party must handle Scheme data and Deliverables in accordance with clause 6 (Confidentiality) and applicable law.

(2) The Committee may retain Scheme data and Deliverables for as long as reasonably necessary for the Scheme purposes and to comply with applicable record-keeping obligations.

4.5 Intellectual property
Nothing in these Terms transfers intellectual property rights except for the licences expressly granted in this clause 4.

5. Participant obligations

5.1 Participants in the Scheme submitting samples for analysis shall comply with any protocols or procedures communicated by the Committee to Participants from time to time. This includes but is not limited to:

(a) the use of correct sampling method and containers;
(b) the use of appropriate packaging/transport requirements (including dangerous goods compliance where relevant);
(c) the correct and complete completion of chain-of-custody documentation (including appropriate sample submission forms with minimum information metadata to accompany all submitted samples);
(d) ensuring local government staff are adequately trained and/or competent to take and submit samples for analysis;
Local Health Authorities Analytical Committee
c/o Building 19, ECU Joondalup Campus, 270 Joondalup Drive, Joondalup WA 6027
(e) adhering to time limits for submitting samples as required or imposed by the Committee or its Analysts.

6. Confidentiality

6.1. The Committee will take reasonable steps to maintain the confidentiality of data and reports provided to each Participant, subject to applicable law.

6.2. Nothing in these Terms prevents the Committee from disclosing information in relation to:

(a) services provided to Participants; or
(b) the Scheme,
where required by law, including to regulators or as part of a public reporting obligation.

7. Limitation of Liability

7.1 No reliance / information purpose

(1) The Scheme services and any reports, results or other deliverables provided under the Scheme are provided for the purpose of assisting Participants in the performance of their statutory and regulatory functions.

(2) Participants remain responsible for their own assessment, decisions and actions taken in reliance on Scheme services or deliverables (including any enforcement, compliance or procurement decisions).

7.2 Exclusion of implied terms
To the extent permitted by law, the Committee excludes all warranties, representations, conditions or other terms not expressly stated in these Terms.

7.3 Non-excludable rights
Nothing in these Terms excludes, restricts or modifies any guarantee, right or remedy that cannot lawfully be excluded, restricted or modified. To the extent liability cannot be excluded, the Committee’s liability is limited (at the Committee’s option) to re-supplying the relevant services or paying the reasonable cost of re-supplying those services.

7.4 Consequential loss
The Committee is not liable for any indirect or consequential loss, including loss of revenue, profit, business, goodwill or opportunity, arising from or in connection with participation in the Scheme or these Terms.

7.5 Participant-caused loss
The Committee is not liable to the extent any loss arises from or is contributed to by:

(a) the Participant’s sampling method, handling, packaging or transport of samples;
(b) any failure to comply with chain-of-custody or acceptance requirements notified by the Committee or the analyst; or
(c) incomplete, inaccurate or misleading information provided by the Participant.
Local Health Authorities Analytical Committee
c/o Building 19, ECU Joondalup Campus, 270 Joondalup Drive, Joondalup WA 6027

7.6 Liability cap

(1) Subject to clause 7.3, the Committee’s total aggregate liability in connection with all claims by a Participant arising out of or in connection with these Terms in any Fee year is limited to the Annual Fee paid (or payable) by that Participant for that Fee year.

(2) For the avoidance of doubt, the cap in subclause (1) applies to all causes of action (including contract, tort (including negligence), statutory claims or otherwise).

8. Term and Termination

8.1. These Terms remain in effect for each Participant for as long as the Scheme remains in operation under the Act.

8.2. Termination of participation in the Scheme is not permitted unless:

(a) the Participant ceases to exist as a legal entity; or
(b) the Participant has:

(i) obtained consent in writing from the Chief Health Officer to withdraw from the Scheme in accordance with section 247D(3); and
(ii) serves notice in writing to that effect upon the Committee; or

(c) the Act is repealed or amended so as to:

(i) terminate the Scheme; or
(ii) permit termination of a Participant’s participation in the Scheme and the Participant lawfully exercises that right of termination.

9. Amendments

9.1 The Committee may amend these Terms at any time, subject to notice being provided to Participants in writing or via the Committee’s official website in accordance with clause 14.

9.2 Amendments take effect on the date specified in the notice, or if no date is specified, on the date the notice is issued.

10. Severability

10.1 If any provision of these Terms is invalid, illegal or unenforceable, it is to be read down to the extent necessary to be valid and enforceable. If it cannot be read down, it is severed and the remainder of these Terms continues in full force and effect.

11. Priority and inconsistency

11.1 Nothing in these Terms limits, varies or excludes the operation of the Act or any other applicable law.

11.2 If there is any inconsistency between:

(a) the Act (including any applicable regulations or binding directions made under it);
(b) these Terms; or
(c) any Scheme protocols, procedures, guidance materials or forms (including any published on the Committee’s website),
Local Health Authorities Analytical Committee
c/o Building 19, ECU Joondalup Campus, 270 Joondalup Drive, Joondalup WA 6027
the order of priority is (a), then (b), then (c), to the extent of the inconsistency.

12. Subcontracting and third-party services

12.1 The Committee may engage third parties (including laboratories, couriers and specialist service providers) to perform any part of the Scheme services.

12.2 The Participant acknowledges that third-party providers may impose reasonable requirements (including packaging, chain-of-custody and sample acceptance criteria) and the Participant must comply with those requirements to the extent notified by the Committee.

13. Relationship of parties
Nothing in these Terms creates a partnership, joint venture, employment or agency relationship between the parties. Neither party may bind the other party.

14. Notices

14.1 Form of Notice
A notice or other communication given under or in connection with these Terms (Notice) must be:

(a) in writing; and
(b) delivered by one of the following methods:

(i) email;
(ii) pre-paid post; or
(iii) hand delivery.

14.2 Participant Notices
Any Participant queries or notices under these Terms to the Committee must be directed to:
Local Health Authorities Analytical Committee
Address: c/o Building 19, Edith Cowan University, Joondalup Campus
270 Joondalup Drive Joondalup WA 6027
Email: LHAAC@ecu.edu.au

14.3 Committee Notices

(1) Notices from the Committee to individual Participants may be:

(a) sent by pre-paid post to the Participant’s postal address;
(b) hand delivered to the Participant’s administration office address; or
(c) emailed to the Participant’s official email address,
as notified on the Participant’s official website or advised by the Participant to the Committee from time to time.

(2) Notices from the Committee to all Participants may be given by:

(a) any of the service methods referred to in subclause (1); or
Local Health Authorities Analytical Committee
c/o Building 19, ECU Joondalup Campus, 270 Joondalup Drive, Joondalup WA 6027
(b) publication on the Committee’s website at www.lhaac.org.au.

14.4 When Notices are taken to be received

(1) Email: if sent by email, a Notice is taken to be received at the time it is sent, unless the sender receives an automated message (or other notification) that the email was not delivered, in which case it is taken not to have been received.

(2) Hand delivery: if delivered by hand, a Notice is taken to be received when delivered to the recipient’s address.

(3) Post: if sent by pre-paid post within Australia, a Notice is taken to be received on the fifth Business Day after posting.

(4) If a Notice is taken to be received on a day that is not a Business Day, it is taken to be received on the next Business Day.

(5) In this clause 14, “Business Day” means a day other than a Saturday, Sunday or public holiday in Western Australia.

14.5 Change of details
A party may change its contact details for Notices by giving the other party a Notice of the updated details. A party must ensure its contact details remain current (including monitored email inboxes).

14.6 Informal communications
For avoidance of doubt, day-to-day operational communications (including sample logistics and routine Scheme administration) may occur by email or other channels nominated by the Committee from time to time. However, a Notice for the purposes of enforcing rights or obligations under these Terms must comply with this clause 14.

15. Dispute resolution

15.1 Good faith resolution
If a dispute arises between the Committee and a Participant in connection with these Terms or the Scheme (Dispute), either party may give the other written notice specifying the nature of the Dispute.

15.2 Initial escalation
Within 10 Business Days of receiving a notice under clause 15.1, each party must nominate a senior officer with authority to resolve the Dispute and the nominated officers must meet (in person or by electronic means) and use reasonable endeavours to resolve the Dispute in good faith.

15.3 Escalation to Committee
If the Dispute is not resolved within 20 Business Days after the meeting under clause 15.2, the Dispute may be referred for consideration by the Committee (or a delegate of the Committee) for determination or further direction.
Local Health Authorities Analytical Committee
c/o Building 19, ECU Joondalup Campus, 270 Joondalup Drive, Joondalup WA 6027

15.4 No bar to statutory action
Nothing in this clause 15 prevents the Committee from exercising any statutory power, function or discretion, including compliance, enforcement or recovery action, at any time.

15.5 Urgent relief
Nothing in this clause 15 prevents either party from seeking urgent interlocutory or injunctive relief from a court of competent jurisdiction.

15.6 Continuity of obligations
While a Dispute is being resolved, each party must continue to perform its obligations under these Terms to the extent reasonably practicable.

16. Governing law and jurisdiction

16.1 Governing law
These Terms, the Scheme and any dispute or claim arising out of or in connection with them (including non-contractual matters) are governed by the laws of Western Australia.

16.2 Jurisdiction
Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia and the courts competent to hear appeals from those courts.

16.3 Service of process
Without limiting any other method of service permitted by law, each party agrees that service of court documents may be effected in accordance with the Notices clause of these Terms.

16.4 No fettering of statutory powers
Nothing in these Terms limits or fetters the exercise of any statutory power, function or discretion of the Committee or any other public authority.

16.5 Non-contractual claims
This clause 16 applies to all matters arising under or in connection with these Terms, whether in contract, tort (including negligence), statute or otherwise.