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1. General
These Conditions are applicable to the legal relationship between the Company and each person who signs an Application Form of the Company (“the Client”).
These Conditions, the Codes of Practice referred to below and the Application Form together contain the entire agreement (“the Contract”) between the Client and the Company with respect to the subject matter hereof. No variation to the Contract shall be valid unless it is in writing and signed by or on behalf of the Client and the Company.
The Company shall carry out its services in accordance with the Codes of Practice in force from time to time (“the Codes of Practice”) of the accredited affiliate of the Company (“the Accredited Affiliate”) which is designated to issue the Certificate to the Client. The Codes of Practice shall be deemed to be incorporated in these Conditions, and so that (except as set out below) references in the Codes of Practice to a particular Accredited Affiliate shall include references to the Company. The Company shall supply to the Client a copy of the Codes of Practice in force as at the date of commencement of the Contract. If there is any conflict between the terms of the Codes of Practice and these Conditions, these Conditions shall prevail.
The Client acknowledges that, in entering into the Contract, it does not rely on any representation, warranty or other provision except as expressly provided in the Contract.
2. Services
The Company’s standard services include:
Product conformity and product/service certification under Clauses 2.1(b) and (c) may require that the Company also provides some of the services described under Clause 2.1(a). A product/service certification scheme under Clause 2.1(c) may involve one or more of the following operations:
For the services described under Clause 2.1(a), the Company shall inform the Client in writing of the expected date of commencement of assessment visits by the Company together with an indication of a provisional timetable for completion of the assessment program. However, time for commencement and duration of the assessment visits are not of the essence and the Company shall not be bound to complete the assessment program within the provisional timetable, but will use all reasonable endeavors to keep the Client informed from time to time about progress on the assessment program. On completion of the assessment program, the Company will prepare and submit to the Client a Report of the assessment, indicating whether or not a recommendation to issue a Certificate is to be made. Such recommendation is not binding on the Accredited Affiliate and the decision to issue a Certificate is at the sole discretion of the Accredited Affiliate. Copyright in the Report shall be and remain the property of the Company, but the Client shall be entitled to make up to 10 copies for its internal purposes only. |
3. Obligations of the Client
During the entire assessment program, the Client shall ensure that all necessary access, assistance, information and facilities are made available to the Company, including the assistance of properly briefed and authorized personnel of the Client. The Client shall in addition provide the Company free of charge suitable space for conducting meetings.
In order to allow the Company to comply with the applicable health and safety legislation, the Client shall provide the Company with all available information regarding known or potential hazards likely to be encountered by the Company personnel during assessment visits. The Company shall ensure that whilst on the Client’s premises, its personnel comply with all health and safety regulations of the Client.
4. Fees and Payment
The fees quoted to the Client consist of lump-sum amounts which cover all stages leading to completion of the assessment program and submission of the Report referred to in Clause 3.1 and of the periodic surveillance visits to be carried out by the Company for the maintenance of the Certificate. As fees are based on the charge rate applicable at the time of submitting a Proposal, the Company reserves the right to increase charges during the registration period. The Company may also increase its charges if the Client’s instructions are found subsequently to be not in accordance with the initial details supplied or used for the purpose of obtaining a fee quotation. Applicants and Certificate holders will be notified of any increase in fees.
Additional fees shall be charged for services that are not included in the agreed proposal and for surveillance visits required due to non-conformances being identified. These will include costs resulting from:
Additional fees will be payable at the Company’s charging rates in force from time to time in respect of any partial or full repeats of the assessment program which are required as set out in the Codes of Practice.
A copy of the Company’s prevailing charging rates is available on request from the Company.
All fees quoted are exclusive of travelling and subsistence costs (which will be charged to the Client at cost. All fees and additional charges are exclusive of any applicable Value Added Tax or similar tax in the country concerned.
Following completion of the assessment program and submission of the Report to the Client, the Company shall issue an invoice to the Client. Invoices for additional and further work will be issued on completion of the relevant task. All invoices are payable within 30 days of the date of each invoice.
Any use by the Client of any Report or Certificate or the information contained therein is conditional upon the timely payment of all fees and charges. In addition to the remedies set out in the Codes of Practice, the Company reserves the right to cease or suspend all work and/or cause the withdrawal of any Certificate for a Client who fails duly to pay an invoice.
5. Archival Strorage
The Company shall retain in its archive for the period required by law in the country of the Accredited Affiliate all materials relating to the assessment program and surveillance program relating to that Certificate.
At the end of the archive period, the Company shall transfer, retain or dispose of the materials at its discretion, unless instructed otherwise by the Client. Fees for carrying out such instructions will be invoiced to the Client.
6. Termination
The Client shall be entitled to terminate the Contract at any time by giving not less than thirty days’ notice in writing to the Company. If the Client terminates the Contract (other than by reason of default by the Company in its obligations) the Company shall be entitled to charge the Client reasonable fees at its prevailing rates and expenses in respect of work carried out by it for the Client prior to termination.
The Company shall be entitled, at any time prior to the issue of a Certificate, to terminate the Contract by giving not less than thirty days’ notice in writing to the Client. If the Company terminates the Contract (other than by reason of default by the Client in its obligations) the Company shall reimburse to the Client any sums paid by the Client to the Company less the application fee and any expenses incurred by the Company under the Contract, but the Company shall not be liable to make any other reimbursement or pay any other compensation to the Client.
7. Force Majeure
The Company shall not be deemed to be in breach of Contract by reason of any delay in performance or the non-performance of its obligations, and shall not incur any liability for delays, loss, damages, costs, claims, loss of profit or consequential loss, caused by or resulting from:
If any of the contingencies set out in Clause 7.1 results in a delay extending beyond six months, the Contract (upon notice of either the Company or the Client) shall be terminated.
8. Limitation of Liability and Indemnity
The Company undertakes to exercise due care and skill in the performance of its services and accepts responsibility only in cases of negligence.
Except in respect of liability for death or personal injury, the Company shall have no liability to the Client arising out of or in connection with the Contract and its performance by reason of any representation or the breach of any express or implied condition, warranty or other term of any duty at common law or under any statute for any indirect, special or consequential loss of the Client (including loss of profits), and the total liability of the Company to the Client in respect of any other loss shall be limited, in respect of any one event or series of connected events, to an amount equal to the fees paid to the Company under the Contract (excluding Value Added tax thereon).
The Client shall indemnify and hold the Company harmless from and against any and all claims or actions of third parties, arising directly or indirectly out of or relating to the services to be supplied by the Company pursuant to the Contract, and against any damages, losses, penalties, fines, costs, expenses or professional fees incurred by the Company in relation to such claims or actions.
The Company shall be discharged from all liability to the Client for all claims for loss, damage or expense unless suit is brought within one year after the date of the performance by the Company of the service which gives rise to the claim or in the event of any alleged non-performance within one year of the date when such service should have been completed.
