1.1.
Services provided to a client (herein
the “Principal”) by an entity
of the Cotecna group of companies
(such entity herein
referred to as the “Company”), directly or through
the Company’s agents and/or subcontractors, are subject to the Cotecna
General Terms and Conditions (herein
“GTC”), unless superseded by any Cotecna
Specific Conditions
applicable to specific Services (herein “STC”), both the GTC and STC as amended
from time to time, with the current binding and applicable versions published
at http://www.cotecna.com/en/About-Cotecna/Terms-Conditions. The Principal agrees to
be automatically bound by any subsequent versions
of the GTC and STC as available at the aforementioned URL and acknowledges that the Company will use reasonable endeavours to notify the Principal of any modifications
including by way of publication on its website.
1.2.
The offer, proposal
or quotation
made by the Company for the
Services (herein the “Offer”), together with the GTC and, when applicable, the STC, constitute the entire agreement (herein the “Agreement”) between
the Company and the Principal in respect of the Services. Any Offer shall
be considered
accepted by the Principal
whether such acceptance was express
or implied, and whether in writing, by telephone, by any means of electronic
or instant messaging, or deemed
accepted by the start of performance of Services
by the Company.
1.3.
The Agreement supersedes all prior
discussions and agreements with respect to the performance of Services,
as well as any terms which the Principal may purport to impose
in relation to the performance of the Services.
1.4.
The
Company may provide
various Services, including but not limited
to the following: testing,
inspection, certification, laboratory
analyses, sampling, verification of
conformity, customized technology and software solutions, factory inspections, supplier
and other customised audits, assurance services, advisory and
training services, always as further specified
in the
Offer or as per applicable
program instructions of a national
or international
body/ authority (herein
the “Program”).
2.1.
The
Company undertakes to perform Services
with reasonable care,
skill and diligence and according to i) the scope
and methods of performance set out in the Offer and ii) the standards and codes of practice deemed appropriate by the Company in view of the specific Services.
2.2.
The Principal acknowledges that the
Company may, at its discretion, assign or subcontract all or part of the performance of the Services to affiliates, agents and/or subcontractors
and provide all such necessary information to the same. In case of such
assignment, references to the
Company herein shall extend to the
assignee as applicable.
2.3.
The Company will use reasonable efforts in meeting delivery and turnaround times stated in the Offer, but such times are estimates
and do not constitute a commitment by the
Company. Unless expressly agreed by the parties, time is not of the essence.
2.4.
The Principal undertakes (i) to provide all necessary instructions, specifications and precise information
in a timely manner to enable the Company to perform the Services. Any documents
reflecting undertakings entered into between the Principal and third parties
or third-party documents
such as test reports, sales contracts, letters of credit, and bills of lading, even when provided to the
Company, shall not be part of the Agreement, unless expressly specified
and acknowledged in the Offer; (ii) to provide the necessary access to buildings, plants,
warehouses, carriers of any kind, or any other place, as well as special equipment and assistance, if necessary, to enable the Company to perform the Services
in the requested timeframe; (iii) to ensure
that all adequate
measures will be taken for the safety of employees and
representatives of the Company during performance of the Services; (iv) to promptly take all necessary measures to
ensure that no obstruction prevents the
Company from performing the Services; (v) to
inform the Company in
advance of all the known and/or suspected risks or dangers of whatever nature,
present or future, linked to all orders, samples or tests requests, including
but not limited to the presence or risk
of radiation, toxic substances, harmful or explosive materials and pollution; and (vi) to fulfil all its obligations under the terms of any contract with third parties
relating to the Services performed by the Company.
2.5.
When the Company is asked to attest to the intervention of a third party, the scope of Services
shall be limited to being present at the time
of the intervention of the third party or, as the case may be, to
reviewing documents attesting to such third-party intervention and
communicating the results of the intervention, or confirming that it took
place. When Services are performed in relation to a contractual counterpart of the Principal, in particular if a Deliverable (as defined in clause 3.1) will be provided as per clause
3.3, the Principal
shall cause such counterpart to acknowledge the terms of the Agreement prior to
performance of the Services.
2.6.
The Company shall have the right to suspend
or terminate the performance of the Services
if so required by applicable laws or Program.
3.1.
Subject to the terms of the Offer or applicable Program, the Company may issue a report, certificate,
results or other work product (herein the “Deliverable”) which reflects the
Company’s findings, for the sole benefit of the Principal and/or the relevant
authority administering the Program.
The Company has no obligation to refer to, give an opinion
upon, or announce facts or circumstances which go beyond the scope of the Services set out
in the Offer.
3.2.
A Deliverable issued by the Company only reflects the Company’s findings at the time and place of its intervention and does not release the Principal from its obligations regarding any and all
discrepancies between the goods or services subject of the Services, and those actually delivered or provided, respectively.
3.3.
Except as required
under an applicable Program or specified
in
the Offer, Deliverables shall
not be distributed, published, copied, replicated or amended without the
Company’s prior written consent. The Principal further agrees
not to misrepresent at any time the content of any Deliverable.
Deliverables are always intended for use
by
persons having professional skill and training
in the interpretation of the findings and results contained therein.
3.4.
The scope of a Deliverable issued by the Company in the framework of a Program is limited by the conditions
of the contract in force between the Company
and the relevant
authority or by the
accreditation (or equivalent) granted by the
latter or by the
applicable standards or technical regulations. Such Deliverable is
established according to pre-determined criteria provided at a point in time, and always subject
to clause 6.
3.5.
Results contained in a Deliverable issued after tests and/or analysis of samples relate to those samples only, and shall not be construed as indicative or representative of the quality or
characteristics of the entire batch or lot from which
the samples were taken. If the scope of Services
expressly requires an opinion on the overall quality of a sampled consignment
or otherwise, such opinion
shall be limited by the sampling and
testing methods used. Further, the Company shall not be liable for any deterioration or loss of sample material
kept in the Company`s custody.
4.1.
The Company provides its Services
either (i) for the fees set out in the Offer or in the Program, or (ii) at the
Company’s standard rates (which are subject to change), as applicable, (herein the “Fees”).
4.2.
The
Principal shall pay within thirty
(30) days from the date of the invoice, all Fees due to and/or any expenses incurred by the Company in relation to the Services, failing which interest on arrears shall be due at 6.5% per annum as from the date when the payment
was due until the actual date of
payment.
4.3.
Any applicable
taxes shall be payable by the Principal. All payments to the Company shall be made as invoiced without deduction, retention, or set-off. However, in case any tax is required to be
deducted or retained according to applicable laws, the sum payable by the Principal shall be increased to the extent necessary to ensure that the Company receives the entire invoiced sum, which it would have received had no tax been deducted or retained.
4.4.
The Principal
shall indemnify the Company for all the expenses incurred by it in recovering arrears due to the Principal’s late payment, including lawyer’s fees and other legal expenses.
4.5.
If unforeseen problems arise or if
the Company incurs extraordinary expenses for the performance of Services, the Company will have
the right to invoice the amounts necessary
to cover the time and the
additional expenses.
This includes, non-exhaustively, costs
and flat fees for issuance of additional copies of Deliverables or re-issuance of any other document
to the Principal. Further if the Company is unable to perform all or
part of the service due to lack of access availability of cargo/ goods/ samples or undue delay, not caused by the Company, then the Company
shall be entitled
to reimbursement of such delay
charges and
expenses incurred by the Company from the Principal. The
Company reserves the right to suspend or terminate its Services, at its sole discretion, if the Principal’s account is overdue
under this specific
Agreement or any other
agreement with the
Company. Such suspension or termination of Services shall not be
regarded as a breach of the relevant Agreement or
relieve the Principal from any of its payment obligations to the Company.
4.6.
Notwithstanding clause 7, the
Company reserves the
right to unilaterally modify the terms of payment provided for in clause 4.2 if it
considers the financial standing of the Principal materially altered.
5.1.
The Company makes no representation and gives no warranty, express or implied, whether
written or oral, regarding i) the accuracy
and authenticity of the documents, titles and pledges presented to it in the process of
performance of the Services, or ii) the suitability, merchantability, fitness for a particular purpose, or the performance of the goods to which the Service
relate. The Company does not warrant or guarantee the Principal’s goods or
services.
5.2.
The Company shall not be liable to the Principal nor any third party for any action taken or not taken on the basis
of any finding, result or Deliverables issued
by the Company nor for incorrect results arising from unclear, erroneous, incomplete, misleading or false information
provided to the Company.
5.3.
The Company does not
perform the services of a guarantor or insurer and cannot be held liable for acting as such. The Principal acknowledges and agrees to obtain appropriate insurance if it seeks to protect itself from claims for Loss (as defined in clause 6.1 below).
5.4.
Services provided do not
automatically include verification of origin or of third-party intellectual
property rights attached to the goods, nor does it imply an obligation to examine title/ownership of goods subject to the
request for Services.
6.1.
The Principal shall notify any claim
to the Company’s registered office by registered letter with acknowledgment
receipt immediately after the discovery of the facts and circumstances giving
rise to the claim, and in any event
no later than 30 (thirty) days from such discovery. Failure
to give such notice within this deadline
shall constitute an irrevocable
waiver to any claim. Further,
the Company shall be discharged from any
liability for loss, damage or
expense of any nature
(including but not limited
to legal expenses)
and howsoever caused arising from or in any way related to the
Services (the “Loss”), unless a suit
is brought within
six
(6) months from the date
of
performance by the Company of the Services
which give rise to the claim, or if not applicable, then the date when performance
of the Services should have started in the event of alleged
non-performance.
6.2.
In the event that
a Service
is proven
to be
or
held by a competent
authority to be improperly
or inadequately performed
by
the Company, the Principal’s sole and exclusive remedy with
respect to such Service shall,
at its election, be either
(a) that the Company reperforms such Service (or the relevant part thereof), if possible, or (b) to request a refund of the
Fees paid to the Company
for such Service
(or the relevant part thereof).
6.3.
Except to the extent of any wilful intent or gross negligence of the Company, the aggregate
liability of the Company for Loss under
or in connection with the Agreement shall
in no circumstances exceed a total aggregate
sum, being the lesser of (i) ten (10) times the Fees paid in respect of the specific Service subject
of the claim, or (ii) CHF
25,000 (twenty-five thousand
Swiss Francs).
6.4.
The
Company shall not incur any liability (a) for consequential, indirect, unforeseeable,
punitive or derivative damages
including loss of profits, loss of future businesses, loss of production,
loss of data, cost of product recall, additional financial costs and/or
cancellation of contracts concluded by the
Principal or (b) to the extent of any fraud,
negligence or misconduct by or on behalf
of the Principal or by any third
party.
6.5.
The Company shall not incur any liability for any Loss arising from the claim of a third party
that may be incurred by the Principal
and the Principal
shall defend, indemnify
and hold harmless
the Company from and against any actual or threatened claim for Loss made by a third party against the Company or its employees, agents or subcontractors and relating to (a) the performance, or purported performance or alleged non-performance
of Services, or (b) the content of any Deliverable issued by the Company (c) the Principal’s
misrepresentation, gross negligence,
breach of Agreement or breach
of
any applicable law in any way relating to the Services
or Offer.
6.6.
The
Principal acknowledges and agrees that the Company
as specified in the Offer is a separate legal entity and in no event shall any other entity of the Cotecna group be jointly
and severally liable for any actions of, or in relation to
Services provided by, the Company.
6.7.
When Fees are due to the Company in respect of two or more Services and the Principal puts forward a claim for one of such Services, the Fees will remain due for the uncontested part of the Services.
6.8.
In the event that the Company is prevented by a force majeure event from performing part or all of the Services (in particular without limitation, natural disasters, armed conflicts, economic
sanctions and pandemics), it will be released from any liability for the partial or total non-performance of the Services
and entitled to invoice the Principal for i) all the
expenses actually incurred
and ii) a proportional share of the Fees agreed upon for the
Service actually rendered.
6.9.
Upon written notice to the Principal, the Company may terminate the Services
immediately at its convenience without any liability, for
any actual or suspected breach of Agreement, breach of applicable law or misrepresentation by the Principal, in the Company’s sole
reasonable opinion.
7.1.
Subject to clause 1.1., any valid modification or amendment of any of the clauses
of the GTC must be effected
in writing and signed by a person duly authorized by the Company.
7.2.
If one or more provisions of the GTC should prove to be illegal or inapplicable for whatever reason, the validity and application of the other provisions shall not be affected.
8.1.
Any Offer, the GTC and any Agreement are governed and construed according to Swiss law.
8.2.
In the event of a dispute,
controversy or claim, the parties may enter into good faith discussions to settle the dispute, controversy or claim amicably. Any of the parties may proceed to arbitration after 30 days from the date of the written
request to settle the
dispute amicably, should the period not be mutually extended or should either
of the parties decline or fail to participate in such discussions.
8.3.
Subject to clause 8.2, any dispute,
controversy or claim,
arising out of, or in relation to an Offer the GTC or an Agreement,
including its or their validity, invalidity, breach or termination, shall
be finally settled
in accordance with the Swiss
Rules of International Arbitration of the Swiss
Arbitration Centre in force on the date when the notice of arbitration was submitted in accordance with said
Rules. The number of arbitrators shall be three (3), unless the litigious value is below 1 million CHF, in which case there will be one
(1) arbitrator only. The seat of the arbitration shall be Geneva, Switzerland. The arbitral proceedings shall be conducted in English language.
9.1.
Each party to the Agreement shall comply with applicable data protection legislation. The Principal shall in
particular ensure that the Company has all rights and consents to process all
data received from the Principal. Further information is available at https://www.cotecna.com/en/privacy-policy.
9.2.
Each party to the Agreement agrees to maintain in confidence confidential information disclosed to it by the other party in compliance with applicable law, and, subject to clause 3.3, such confidential information shall include any Deliverable.
9.3.
Use or display by the
Principal of the Company’s name,
logo, trademark or other proprietary
information for any purpose, including advertising, is not permitted, without
the prior written consent of
the Company.
Subject to clause 6.1, communications between the Principal and the Company during the performance of Services shall be deemed to be properly given only when sent by post, courier, hand delivery or email to the other party’s previously notified email address, to the exclusion of all other communication means. In particular, any communication by the Company via phone or instant messaging application shall have to be confirmed by email in order to be considered effective.