These terms and conditions, together with any proposal, estimate or fee quote, Certificate Issuance etc. form the agreement between you (the Client) and the KCS Group of Companies (KCS) providing the services contemplated therein.
1.1 In this Agreement the following words and phrases shall have the following meanings unless the context otherwise requires:
(a) Agreement means this agreement entered into between KCS and the Client;
(b) Charges shall have the meaning given in Clause 5.1;
(c) Confidential Information means all information in whatever form or manner presented which: (a) is disclosed pursuant to, or in the course of the provision of Services pursuant to, this Agreement; and (b) (i) is disclosed in writing, electronically, visually, orally or otherwise howsoever and is marked, stamped or identified by any means as confidential by the disclosing party at the time of such disclosure; and/or (ii) is information, howsoever disclosed, which would- reasonably be considered to be confidential by the receiving party. (d) Intellectual Property Right(s) means copyrights, trademarks (registered or unregistered), patents, patent applications (including the right to apply for a patent), service marks, design rights (registered or unregistered), trade secrets and other like rights howsoever existing (e) Report(s) shall have the meaning as set out in Clause 2.3 below;
(f) Services means the services set out in any relevant KCS Proposal, any relevant Client purchase order, or any relevant KCS invoice, as applicable, and may comprise or include the provision by KCS of a Report; (g) Proposal means the proposal, estimate or fee quote, if applicable, provided to the Client by KCS relating to the Services; 1.2 The headings in this Agreement do not affect its interpretation.
2. THE SERVICES
2.1 KCS shall provide the Services to the Client in accordance with the terms of this Agreement which is expressly incorporated into any Proposal KCS has made and submitted to the Client. 2.2 In the event of any inconsistency between the terms of this Agreement and the Proposal, the terms of the Proposal shall take precedence. 2.3 The Services provided by KCS under this Agreement and any memoranda, laboratory data, calculations, measurements, estimates, notes, certificates and other material prepared by KCS in the course of providing the Services to the Client, together with status summaries or any other communication in any form describing the results of any work or services performed shall be only for the Client’s use and benefit. 2.4 The Client acknowledges and agrees that if in providing the Services KCS is obliged to deliver a Report to a third party, KCS shall be deemed irrevocably authorised to deliver such Report to the applicable third party. 2.5 The Client acknowledges and agrees that any Services provided and/or Reports produced by KCS are done so within the limits of the scope of work agreed with the Client in relation to the Proposal and pursuant to the Client’s specific instructions or, in the absence of such instructions, in accordance with any relevant trade custom, usage or practice. The Client further agrees and acknowledges that the Services are not necessarily designed or intended to address all matters of quality, safety, performance or condition of any product, material, services, systems or processes tested, inspected or certified and the scope of work does not necessarily reflect all standards which may apply to product, material, services, systems or process tested, inspected or certified. The Client understands that reliance on any Reports issued by KCS is limited to the facts and representations set out in the Reports which represent KCS review and/or analysis of facts, information, documents, samples and/or other materials in existence at the time of the performance of the Services only. 2.6 Client is responsible for acting as it sees fit on the basis of such Report. Neither KCS nor any of its officers, employees, agents or subcontractors shall be liable to Client nor any third party for any actions taken or not taken on the basis of such Report. 2.7 In agreeing to provide the Services pursuant to this Agreement, KCS does not abridge, abrogate or undertake to discharge any duty or obligation of the Client to any other person or any duty or obligation of any person to the Client.
3. KCS WARRANTIES
3.1 KCS warrants exclusively to the Client:
(a) that it has the power and authority to enter into this Agreement and that it will comply with relevant legislations and regulations in force as at the date of this Agreement in relation to the provision of the Services; (b) that the Services will be performed in a manner consistent with that level of care and skill ordinarily exercised by other companies providing like services under similar circumstances; (c) that it will take reasonable steps to ensure that whilst on the Client’s premises its personnel comply with any health and safety rules and regulations and other reasonable security requirements made known to KCS by the Client in accordance with Clause 4.3(f); (d) That the Reports produced in relation to the Services will not infringe any legal rights (including Intellectual Property Rights) of any third party. This warranty shall not apply where the infringement is directly or indirectly caused by KCS’s reliance on any information, samples or other related documents provided to KCS by the Client (or any of its agents or representatives).
3.2 KCS makes no other warranties, express or implied. All other warranties, conditions and other terms implied by statute or common law (including but not limited to any implied warranties of merchantability and fitness for purpose) are, to the fullest extent permitted by law, excluded from this Agreement. No performance, deliverable, oral or other information or advice provided by KCS (including its agents, sub-contractors, employees or other representatives) will create a warranty or otherwise increase the scope of any warranty provided.
4. CLIENT WARRANTIES AND OBLIGATIONS
4.1 The Client represents and warrants:
(a) that it has the power and authority to enter into this Agreement and procure the provision of the Services for itself; (b) that it is securing the provision of the Services hereunder for its own account and not as an agent or broker, or in any other representative capacity, for any other person or entity; (c) that any information, samples and related documents it (or any of its agents or representatives) supplies to KCS (including its agents, sub-contractors and employees) is, true, accurate representative, complete and is not misleading in any respect. The Client further acknowledges that KCS will rely on such information, samples or other related documents and materials provided by the Client (without any duty to confirm or verify the accuracy or completeness thereof) in order to provide the Services; (d) that any samples provided by the Client to KCS will be shipped pre-paid and will be collected or disposed of by the Client (at the Client’s cost) within thirty (30) days after testing unless alternative arrangements are made by the Client. In the event that such samples are not collected or disposed by the Client within the required thirty (30) days period, KCS reserves the right to destroy the samples, at the Client’s cost; and that (e) Any information, samples or other related documents (including without limitation certificates and reports) provided by the Client to KCS will not, in any circumstances, infringe any legal rights (including Intellectual Property Rights) of any third party. 4.2 In the event that the Services provided relate to any third party, the Client shall cause any such third party to acknowledge and agree to the provisions in this Agreement and the Proposal prior to and as a condition precedent to such third party receiving any Reports or the benefit of any Services. 4.3 The Client further agrees:
(a) to co-operate with KCS in all matters relating to the Services and appoint a manager in relation to the Services who shall be duly authorised to provide instructions to KCS on behalf of the Client and to bind the Client contractually as required; (b) to provide KCS (including its agents, sub-contractors and employees), at its own expense, any and all samples, information, material or other documentation necessary for the execution of the Services in a timely manner sufficient to enable KCS to provide the Services in accordance with this Agreement. The Client acknowledges that any samples provided may become damaged or be destroyed in the course of testing as part of the necessary testing process and undertakes to hold KCS harmless from any and all responsibility for such alteration, damage or destruction; (c) to provide instructions and feedback to KCS in a timely manner;
(d) to provide KCS (including its agents, sub-contractors and employees) with access to its premises as may be reasonably required for the provision of the Services and to any other relevant premises at which the Services are to be provided; (e) prior to KCS attending any premises for the performance of the Services, to inform KCS of all applicable health and safety rules and regulations and other reasonable security requirements that may apply at any relevant premises at which the Services are to be provided; (f) to notify KCS promptly of any risk, safety issues or incidents in respect of any item delivered by the Client, or any process or systems used at its premises or otherwise necessary for the provision of the Services; (g) to inform KCS in advance of any applicable import/ export restrictions that may apply to the Services to be provided, including any instances where any products, information or technology may be exported/ imported to or from a country that is restricted or banned from such transaction; (h) in the event of the issuance of a certificate, to inform and advise KCS immediately of any changes during the term of the certificate which may have a material impact on the accuracy of the certification; (i) to obtain and maintain all necessary licenses and consents in order to comply with relevant legislation and regulation in relation to the Services; (j) that it will not use any Reports issued by KCS pursuant to this Agreement in a misleading manner and that it will only distribute such Reports in their entirety; (k) in no event will the contents of any Reports or any extracts, excerpts or parts of any Reports be distributed or published without the prior written consent of KCS (such consent not to be unreasonably withheld) in each instance; and (l) that any and all advertising and promotional materials or any statements made by the Client will not give a false or misleading impression to any third party concerning the services provided by KCS. 4.4 KCS shall be neither in breach of this Agreement nor liable to the Client for any breach of this Agreement if and to the extent that its breach is a direct result of a failure by the Client to comply with its obligations as set out in this Clause 4. The Client also acknowledges that the impact of any failure by the Client to perform its obligations set out herein on the provision of the Services by KCS will not affect the Client’s obligations under this Agreement for payment of the Charges pursuant to Clause 5 below.
5. CHARGES, INVOICING AND PAYMENT
5.1 The Client shall pay KCS the charges set out in the Proposal, if applicable, or as otherwise contemplated for provision of the Services (the Charges) within 30(thirty) days after issuance of our invoice(s). 5.2 The Charges are expressed exclusive of any applicable taxes. The Client shall pay any applicable taxes as applicable on the Charges at the rate and in the manner prescribed by the law enforced by the Government of India, on the issue by KCS of a valid invoice. 5.3 The Client agrees that it will reimburse KCS for any expenses incurred by KCS relating to the provision of the Services and is wholly responsible for any freight or customs clearance fees relating to any testing samples. 5.4 The Charges represent the total fees to be paid by the Client for the Services pursuant to this Agreement. Any additional work performed by KCS will be charged on a time and material basis. 5.5 KCS shall invoice the Client for the Charges and expenses, if any. The Client shall pay each invoice within thirty (30) days of receiving it. 5.6 If any invoice is not paid on the due date for payment, KCS shall have the right to charge, and the Client shall pay, interest on the unpaid amount, calculated from the due date of the invoice to the date of receipt of the amount in full at a rate equivalent to 24% per cent per annum.
6. INTELLECTUAL PROPERTY RIGHTS AND DATA PROTECTION
6.1 All Intellectual Property Rights belonging to a party prior to entry into this Agreement shall remain vested in that party. Nothing in this Agreement is intended to transfer any Intellectual Property Rights from either party to the other.6.2 Any use by the Client (or the Client’s affiliated companies or subsidiaries) of the name “KCS ” or any of KCS’s trademarks or brand names for any reason must be prior approved in writing by KCS. Any other use of KCS’s trademarks or brand names is strictly prohibited and KCS reserves the right to terminate this Agreement immediately as a result of any such unauthorised use.
6.3 The Client agrees and acknowledges that KCS retains any and all proprietary rights in concepts, ideas and inventions that may arise during the preparation or provision of any Report (including any deliverables provided by KCS to the Client) and the provision of the Services to the Client. 6.4 KCS shall observe all statutory provisions with regard to data protection including but not limited to the provisions of the Data Protection Act 1998. To the extent that KCS processes or gets access to personal data in connection with the Services or otherwise in connection with this Agreement, it shall take all necessary technical and organisational measures to ensure the security of such data (and to guard against unauthorised or unlawful processing, accidental loss, destruction or damage to such data).
7.1 Where a party (the Receiving Party) obtains Confidential Information of the other party (the Disclosing Party) in connection with this Agreement (whether before or after the date of this Agreement) it shall, subject to Clauses 7.2 to 7.4: (a) keep that Confidential Information confidential, by applying the standard of care that it uses for its own Confidential Information.
TERMS & CONDITIONS OF THE KCS GROUP OF COMPANIES
(b) use that Confidential Information only for the purposes of performing obligations under this Agreement; and
(c) not disclose that Confidential Information to any third party without the prior written consent of the Disclosing Party.
7.2 The Receiving Party may disclose the Disclosing Party’s Confidential Information on a “need to know” basis:
(a) to any legal advisers and statutory auditors that it has engaged for itself; (b) to any regulator having regulatory or supervisory authority over its business;
(c) to any director, officer or employee of the Receiving Party provided that, in each case, the Receiving Party has first advised that person of the obligations under Clause 7.1 and ensured that the person is bound by obligations of confidence in respect of the Confidential Information no less onerous than those set out in this Clause 7; and (d) where the Receiving Party is KCS, to any of its subsidiaries, affiliates or subcontractors.
7.3 The provisions of Clauses 7.1 and 7.2 shall not apply to any Confidential Information which:
(a) was already in the possession of the Receiving Party prior to its receipt from the Disclosing Party without restriction on its use or disclosure;
(b) is or becomes public knowledge other than by breach of this Clause 7;
(c) is received by the Receiving Party from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or (d) is independently developed by the Receiving Party without access to the relevant
Confidential Information. 7.4 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, any regulatory authority or the rules of any stock exchange on which the Receiving Party is listed, provided that the Receiving Party has given the Disclosing Party prompt written notice of the requirement to disclose and where possible given the Disclosing Party a reasonable opportunity to prevent the disclosure through appropriate legal means. 7.5 Each party shall ensure the compliance by its employees, agents and representatives (which, in the case of KCS, includes procuring the same from any subcontractors) with its obligations under this Clause 7. 7.6 No license of any Intellectual Property Rights is given in respect of any Confidential Information solely by the disclosure of such Confidential Information by the Disclosing Party. 7.7 With respect to archival storage, the Client acknowledges that KCS may retain in its archive for the period required by its quality and assurance processes, or by the testing and certification rules of the relevant accreditation body, all materials necessary to document the Services provided.
8.1 No amendment to this Agreement shall be effective unless it is in writing, expressly stated to amend this Agreement and signed by an authorised signatory of each party.
9. FORCE MAJEURE
9.1 Neither party shall be liable to the other for any delay in performing or failure to perform any obligation under this Agreement to the extent that such delay or failure to perform is a result of: (a) war (whether declared or not), civil war, riots, revolution, acts of terrorism, military action, sabotage and/or piracy;
(b) natural disasters such as violent storms, earthquakes, tidal waves, floods and/or lighting; explosions and fires;
(c) strikes and labour disputes, other than by any one or more employees of the affected party or of any supplier or agent of the affected party; or
(d) failures of utilities companies such as providers of telecommunication, internet, gas or electricity services.
9.2 For the avoidance of doubt, where the affected party is Intertek any failure or delay caused by failure or delay on the part of a subcontractor shall only be a Force Majeure Event (as defined below) where the subcontractor is affected by one of the events described above. 9.3 A party whose performance is affected by an event described in Clause 9.1 (a Force Majeure Event) shall:
(a) promptly notify the other party in writing of the Force Majeure Event and the cause and the likely duration of any consequential delay or non-performance of its obligations; (b) use all reasonable endeavours to avoid or mitigate the effect of the Force Majeure Event and continue to perform or resume performance of its affected obligations as soon as reasonably possible; and (c) continue to provide Services that remain unaffected by the Force Majeure Event.
9.4 If the Force Majeure Event continues for more than sixty (60) days after the day on which it started, each party may terminate this Agreement by giving at least ten (10) days’ written notice to the other party.
10. LIMITATIONS AND EXCLUSIONS OF LIABILITY
10.1 Neither party excludes or limits liability to the other party:
(a) for death or personal injury resulting from the negligence of that party or its directors, officers, employees, agents or sub-contractors; or
(b) for its own fraud (or that of its directors, officers, employees, agents or sub-contractors). 10.2 Subject to Clause 10.1, the maximum aggregate liability of Intertek in contract, tort (including negligence and breach of statutory duty) or otherwise for any breach of this Agreement or any matter arising out of or in connection with the Services to be provided in accordance with this Agreement shall be the amount of Charges due by the Client to KCS under this Agreement.
10.3 Subject to Clause 10.1, neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for any:
(a) loss of profits; (b) loss of sales or business;
(c) loss of opportunity (including without limitation in relation to third party agreements or contracts);
(d) loss of or damage to goodwill or reputation; (e) loss of anticipated savings;
(f) cost or expenses incurred in relation to making a product recall; (g) loss of use or corruption of software, data or information; or
(h) any indirect, consequential loss, punitive or special loss (even when advised of their possibility).
10.4 Any claim by the Client against KCS (always subject to the provisions of this Clause 10 must be made within ninety (90) days after the Client becomes aware of any circumstances giving rise to any such claim. Failure to give such notice of claim within ninety (90) days shall constitute a bar or irrevocable waiver to any claim, either directly or indirectly, in contract, tort or otherwise in connection with the provision of Services under this Agreement.
11.1 The Client shall indemnify and hold harmless KCS, its officers, employees, agents, representatives, contractors and sub-contractors from and against any and all claims, suits, liabilities (including costs of litigation and attorney’s fees) arising, directly or indirectly, out of or in connection with: (a) any claims or suits by any governmental authority or others for any actual or asserted failure of the Client to comply with any law, ordinance, regulation, rule or order of any governmental or judicial authority; (b) claims or suits for personal injuries, loss of or damage to property, economic loss, and loss of or damage to Intellectual Property Rights incurred by or occurring to any person or entity and arising in connection with or related to the Services provided hereunder by KCS, its officers, employees, agents, representatives, contractors an sub-contractors; (c) the breach or alleged breach by the Client of any of its obligations set out in Clause 4 above;
(d) any claims made by any third party for loss, damage or expense of whatsoever nature and howsoever arising relating to the performance, purported performance or non-performance of any Services to the extent that the aggregate of any such claims relating to any one Service exceeds the limit of liability set out in Clause 10 above; (e) any claims or suits arising as a result of any misuse or unauthorised use of any Reports issued by KCS or any Intellectual Property Rights belonging to KCS (including trade marks) pursuant to this Agreement; and (f) any claims arising out of or relating to any third party’s use of or reliance on any Reports or any reports, analyses, conclusions of the Client (or any third party to whom the Client has provided the Reports) based in whole or in part on the Reports, if applicable. 11.2 The obligations set out in this Clause 11 shall survive termination of this Agreement.
12. INSURANCE POLICIES
12.1 Each party shall be responsible for the arrangement and costs of its own company insurance which includes, without limitation, professional indemnity, employer’s liability, motor insurance and property insurance. 12.2 KCS expressly disclaims any liability to the Client as an insurer or guarantor.
12.3 The Client acknowledges that although KCS maintains employer’s liability insurance, such insurance does not cover any employees of the Client or any third parties who may be involved in the provision of the Services. If the Services are to be performed at premises belonging to the Client or third parties, KCS’s employer’s liability insurance does not provide cover for non-KCS employees.
13.1 This Agreement shall commence upon the first day on which the Services are commenced and shall continue, unless terminated earlier in accordance with this Clause 13, until the Services have been provided. 13.2 This Agreement may be terminated by:
(a) either party if the other continues in material breach of any obligation imposed upon it hereunder for more than thirty (30) days after written notice has been dispatched by that Party by recorded delivery or courier requesting the other to remedy such breach; (b) KCS on written notice to the Client in the event that the Client fails to pay any invoice by its due date and/or fails to make payment after a further request for payment; or
TERMS & CONDITIONS OF THE KCS GROUP OF COMPANIES
(c) either party on written notice to the other in the event that the other makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the other or the other ceases, or threatens to cease, to carry on business. 13.3 In the event of termination of the Agreement for any reason and without prejudice to any other rights or remedies the parties may have, the Client shall pay KCS for all Services performed up to the date of termination. This obligation shall survive termination or expiration of this Agreement. 13.4 Any termination or expiration of the Agreement shall not affect the accrued rights and obligations of the parties nor shall it affect any provision which is expressly or by implication intended to come into force or continue in force on or after such termination or expiration.
14. ASSIGNMENT AND SUB-CONTRACTING
14.1 KCS reserves the right to delegate the performance of its obligations hereunder and the provision of the Services to one or more of its affiliates and/ or subcontractors when necessary. Intertek may also assign this Agreement to any company within the KCS group on notice to the Client.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 This Agreement and the Proposal shall be governed by Indian law, New Delhi jurisdiction. The parties agree to submit to the exclusive jurisdiction of the court in New Delhi, India in respect of any dispute or claim arising out of or in connection with this Agreement (including any non-contractual claim relating to the provision of the Services in accordance with this Agreement).
16. MISCELLANEOUS Severability
16.1 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if this Agreement had been executed without the invalid illegal or unenforceable provision. If the invalidity, illegality or unenforceability is so fundamental that it prevents the accomplishment of the purpose of this Agreement, KCS and the Client shall immediately commence good faith negotiations to agree an alternative arrangement. No partnership or agency 16.2 Nothing in this Agreement and no action taken by the parties under this Agreement shall constitute a partnership, association, joint venture or other co-operative entity between the parties or constitute any party the partner, agent or legal representative of the other. Waivers 16.3 Subject to Clause 10.4 above, the failure of any party to insist upon strict performance of any provision of this Agreement, or to exercise any right or remedy to which it is entitled, shall not constitute a waiver and shall not cause a diminution of the obligations established by this Agreement. A waiver of any breach shall not constitute a waiver of any subsequent breach. 16.4 No waiver of any right or remedy under this Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing. Whole Agreement 16.5 This Agreement and the Proposal contain the whole agreement between the parties relating to the transactions contemplated by this agreement and supersedes all previous agreements, arrangements and understandings between the parties relating to those transactions or that subject matter. No purchase order, statement or other similar document will add to or vary the terms of this Agreement. 16.6 Each party acknowledges that in entering into this Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out or referred to in this Agreement) made by or on behalf of any other party before the acceptance or signature of this Agreement. Each party waives all rights and remedies that, but for this Clause, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance. 16.7 Nothing in this Agreement limits or excludes any liability for fraudulent misrepresentation. Third Party Rights 16.8 A person who is not party to this Agreement has no right to enforce any of its terms. Further Assurance 16.9 Each party shall, at the cost and request of any other party, execute and deliver such instruments and documents and take such other actions in each case as may be reasonably requested from time to time in order to give full effect to its obligations under this Agreement.