Terms And Condition
LABTEST INTERNATIONAL INC. TERMS AND CONDITIONS OF SERVICE
1. Labtest International Inc. and its affiliated companies (collectively the “Company”) agree to provide the MQP service in accordance with and subject to the terms and conditions herein contained (hereinafter the “Conditions”). The Conditions may only be modified by an amendment to these terms expressed in writing and signed on behalf of the Company by an authorized officer and no other agreement, instrument, request, order, acceptance or action on the part of the Company, the Principal (as defined below) or any of their respective affiliates, employees or agents shall alter the Conditions as stated herein or be construed as an agreement to any other terms and conditions.
2. The Company shall provide the services identified in the agreement(s) from time to time entered into between the Company and the party identified in such agreement(s) and from whom the request to provide services has originated (hereinafter the “Principal”). No other party is entitled to give instructions to the Company unless agreed by the Company and no order or request to provide services shall be deemed effective and binding on the Company until affirmatively accepted by the Company.
3. All rights (including but not limited to copyright) in any verification documents, certificates of verification or other material or property (tangible or intangible) produced by the Company in the course of providing its services or otherwise related to the Company’s services shall remain vested in the Company. The Principal shall not reproduce, make copies, publish or disclose to any third party the contents of any such Company material or property without the Company’s prior written consent, which may be refused or withdrawn at the Company’s discretion. The Principal further undertakes that, at all times, including following the completion of the Company’s services, the Principal shall, and shall cause its employees, representatives and agents to, keep confidential and not publish or otherwise use or disclose all or any portion of any non-public information that may be acquired or made available relating to the Company or its services or activities, without the Company’s prior written consent. Notwithstanding the foregoing, the Principal shall be entitled to disclose the verification documents and certificates of verification produced by the Company or provide copies thereof to any third party for the sole purpose of the operation of its business.
4.1 The Company undertakes to exercise due care and skill in the performance of its services, but the Company shall only be liable for any claim, loss, damage, injury or expense related to such services or the failure to perform the same in the event of the direct negligence or willful misconduct on the part of the Company or its agents or subcontractors.
4.2 The liability of the Company in respect of any claims for loss, damage, injury or expense of whatsoever nature and howsoever arising, including but not limited to in respect of any breach of contract and/or any negligence in performance, shall in no circumstances exceed a total aggregate sum equal to two (2) times the amount of the fee or commission payable in respect of the specific service contracted for with the Principal which gives rise to such claims; and provided, further that the Company shall have no liability for any indirect or consequential loss or punitive or exemplary damages by the Principal or any third party, including any loss of profit and/or loss of future business and/or loss of production and/or cancellation of contracts entered into by the Principal.
4.3 The Company shall not be liable for any loss or damage caused by delay in performance or non-performance of any of its services where the same is occasioned by any cause whatsoever that is beyond the Company’s control including but not limited to war, civil disturbance, requisitioning, governmental or parliamentary restriction, prohibitions or enactment of any kind, import or export regulations, strike or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining workmen or materials, breakdown of machinery, fire or accident. Should any such event occur the Company may cancel or suspend any contract for the provision of services without incurring any liability whatsoever.
4.4 Notwithstanding anything to the contrary contained herein, the Company will not be liable to the Principal for any loss or damage whatsoever sustained by the Principal as a result of any failure by the Company to comply with any time estimate given by the Company relating to the provision of its services.
4.5 The Company shall undertake a review of the conditions that exist at the Principal’s factory, warehouse or other facility (the “Site”) at the time of the Site verification (the “Verification Time”). The Company’s services, and liability related thereto, shall be solely limited to reports, statements and/or opinions as to the conditions or security at the Site solely as of the Verification Time and shall not include, and the Company shall not be liable for, anything related to the condition of any particular shipment from the Site. The Company is under no obligation to perform further or follow-up Site verifications except as specifically agreed to, and the Company is under no obligation to inspect, review, track or otherwise evaluate any shipments of goods that are shipped by the Principal from its Site.
5.1 Subject to the Principal’s instructions as accepted by the Company, the verification documents, certificates of verification or other material produced by the Company shall, to the extent possible, be conducted and completed within the limitation of the instructions received by the Company. The Company is under no obligation to refer to or report upon any facts or circumstances which are outside the specific instructions received and agreed to.
5.2 Any verification documents, certificates of verification or other material produced by the Company in the course of providing its services will be produced with due regard to the standards then-existing for such verification documents, or other material. The Company is under no obligation and shall have no liability to the Principal in the event the requirements of any standards are amended, superseded or withdrawn following the Verification Time.
6. The Company shall be entitled at its discretion to delegate the performance of the whole or any part of the services contracted for with the Principal to any agent or subcontractor of the Company. Without prejudice to the generality of Clause 4.1, in no circumstance shall any suit be brought by the Principle against any agent or subcontractor of the Company for any claim, loss, damage, injury or expense of whatsoever nature and howsoever arising.
7. Every officer, employee, agent or subcontractor of the Company shall have the benefit of the limitations of liability and the indemnities contained in these Conditions.
8. By subscribing for the Company’s services, the Principal authorises the Company to publish the Principal’s name on the website of www.millqp.com or any other website of the Company’s group in relation to such services (“Websites”). A written request shall be made by email to email@example.com if the Principal wishes to have its name remain anonymous on the Websites. The Company shall have the absolute discretion to accept or refuse any application for anonymity without giving any reason therefor.
9. The Principal will:
9.1 ensure that instructions to the Company are given in due time and are accompanied by sufficient information to enable the required services to be performed effectively;
9.2 accept that documents reflecting arrangements or agreements made between the Principal and any third party, or third party documents such as copies of contracts of sale, letters of credit, bills of lading, etc. are (if received by the Company) considered to be for information only, without extending or restricting the services to be provided or obligations accepted by the Company.
9.3 procure all necessary access as requested by and for the Company’s representatives to enable the required services to be performed effectively;
9.4 supply, if required and as requested by the Company, any special equipment and personnel necessary for the performance of the required services;
9.5 ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of the required services;
9.6 inform the Company in advance of any known hazards or dangers, actual or potential, associated with any request for the provision of services by the Company including but not limited to the presence or risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons; and
9.7 be responsible for obtaining future periodic reviews of its Sites with due regard for changes in its business practices that may require such future review, or in the event the requirements of any standards, as from time to time amended, superseded or withdrawn.
10. The Principal shall guarantee, hold harmless and indemnify the Company and its officers, employees, agents and subcontractors from and against all claims (actual and threatened), including those made by any third party (including, without limitation, Company’s employees, agents and subcontractors), for any loss, damage, injury or expense of whatsoever nature and howsoever arising:
10.1 related to the performance, purported performance or non-performance of any of services to the extent that the aggregate of any such claims relating to any one service exceeds the limit mentioned in Condition 4.2.
10.2 related to or arising in connection with any (i) breach of these Conditions or (ii) negligent acts or omissions by the Principal or its employees, agents or representatives.
10.3 any loss or damage suffered by the Company as a result of the provision of services by the Company to the Principal otherwise than resulting from the Company’s own error, negligence or wilful default.
11.1 The Principal will punctually pay the Company’s local office as designated by the Company from time to time immediately upon presentation of the relevant invoice or within such other period as may have been agreed in writing by the Company’s relevant local office, all charges rendered by the Company’s relevant local office. Should the Principal fail to make timely payment, interest will become due at the rate of 1.5 per cent per month from the date of invoice until payment. The Principal further agrees and undertakes to reimburse the Company’s relevant local office all disbursements reasonably incurred in connection with the provision of its services.
11.2 The Principal shall not be entitled to retain or defer payment of any sums due to the Company on account of any dispute, cross claim or set off which it may allege against the Company.
11.3 In the event of any suspension of payment arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business or failure of the Principal to pay part or all of any sums owing to the Company, the Company shall be entitled to suspend all further performance of its services and withhold the issue of any verification documents, certificates of verification or other material requested forthwith and without liability until payment of all sums owing to the Company together with interest thereon is made.
12. In the event of the Company being prevented by reason of any cause whatsoever outside the Company’s control from performing or completing any service for which an order has been given or an agreement made, the Principal will pay to the Company:
12.1 the amount of all expenditures actually made or incurred; and
12.2 a proportion of the agreed fee or commission equal to the proportion (if any) of the service actually carried out as compared to the total of the services agreed to be performed; and the Company shall be relieved of all responsibility whatsoever for the partial or total non-performance of the required service.
13. The Company shall be discharged from all liability to the Principal for all claims for loss, damage, injury or expense unless suit is brought within twelve (12) months 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 twelve (12) months of the date when such service should have been completed.
14. In the event that any unforeseen additional time or costs are incurred in the course of carrying out any of its services, the Company shall be entitled to render additional charges as shall reasonably reflect such additional time and costs incurred.
15. All contracts for provision of services by the Company and the Conditions shall be construed in accordance with and governed by the laws of the State of New Jersey without respect to its choice of laws principles, and for the purpose of any arbitral or litigation proceedings, such contracts shall be deemed to have been made and performed in New Jersey. If any provision contained in the Conditions is and/or becomes invalid, illegal or unenforceable in any respect under the laws of any applicable jurisdiction, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
16. Any dispute or claim arising out of or relating to the provision of, or any agreement to provide, services by the Company shall be referred to and determined by arbitration, subject to the Company’s sole and overriding discretion to commence litigation proceedings in the courts of New Jersey or the courts of any other state of the United States as the Company may choose. If any matter is submitted for arbitration, the parties shall agree to the appointment of an arbitrator, or if they cannot agree within ten (10) days of the matter being submitted for arbitration, either party may request the American Arbitration Association (AAA) to appoint an arbitrator. The place of arbitration shall be in New Jersey. There shall only be one arbitrator. The language to be used in the arbitral proceedings shall be English. The arbitration shall be conducted according to the Commercial Rules of the AAA. Any decision of the arbitrator shall be final and binding on the parties and shall be enforceable in any court of competent jurisdiction.
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