General Terms and Conditions of Service
Companies trading as Test-Tech:
These terms and conditions, together with any proposal, estimate or fee quote, form the agreement between you (the Client) and the following companies trading as Test-Tech providing the services contemplated therein – Test-Tech Print Ltd (T/A Test-Tech), Paper Metrics Limited (T/A Test-Tech Metrics), and Test-Tech Fibres Services Ltd (T/A Test-Tech Fibre).
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 Companies trading as Test-Tech
and the Client;
(b) Services means the services set out in any relevant Companies trading as Test-Tech
proposal, estimate or quote, any relevant Client purchase order, or any relevant Companies trading as Test-Tech invoice, as applicable, and may comprise or include the provision by Companies trading as Test-Tech of a report;
(c) Report or Reports shall have the meaning as set out in Clause 2.3 below;
(d) Proposal means the proposal, estimate or fee quote, if applicable, provided to the Client
by Companies trading as Test-Tech relating to the Services;
(e) 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; and
(f) Confidential Information shall mean 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.
1.2 The headings in this Agreement do not affect its interpretation.
2. THE SERVICES
2.1 Companies trading as Test-Tech shall provide the Services to the Client in accordance with
the terms of this Agreement which is expressly incorporated into any Proposal
Companies trading as Test-Tech 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 Companies trading as Test-Tech under this Agreement and any
memoranda, laboratory data, calculations, measurements, estimates, notes and other material prepared by Companies trading as Test-Tech 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 (Reports) shall be only for the Client’s use and benefit. The Client acknowledges that any Services provided and/or Reports produced by Companies trading as Test-Tech are done so pursuant to the Client’s specific instructions. The Client acknowledges and understands that reliance on any Reports issued by Companies trading as Test-Tech is limited to the facts and representations set out therein.
2.4 In agreeing to provide the Services pursuant to this Agreement, Companies trading as Test-Tech does not abridge, abrogate or undertake to discharge any duty or obligation of the Client to any other person.
3. COMPANIES TRADING AS TEST-TECH WARRANTIES
3.1 Companies trading as Test-Tech warrants exclusively to the Client that the Services shall
be performed in a manner consistent with that level of care and skill ordinarily exercised
by other companies providing like services under similar circumstances.
3.2 In the event of a breach of the warranty set out in Clause 3.1, Companies trading as Test- Tech shall, at its own expense, perform services of the type originally performed as may be reasonably required to correct any defect in Companies trading as Test-Tech’s
3.3 Companies trading as Test-Tech 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 Companies trading as Test-Tech (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) 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 Companies trading as Test-Tech (including its agents, sub- contractors and employees) is true, accurate representative, complete and is not misleading in any respect. The Client further acknowledges that Companies trading as Test-Tech 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. Companies trading as Test-Tech are not under any obligation to verify any of the foregoing as to their accuracy,
completeness or truth;
(d) that any samples provided by the Client to Companies trading as Test-Tech shall 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 30 day period, Companies trading as Test-Tech reserves the right to destroy the samples, at the Client’s cost; and
(e) that any information, samples or other related documents (including without limitation certificates and reports) provided by the Client to Companies trading as Test-Tech 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 related 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 Companies trading as Test-Tech 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 Companies trading as Test-Tech on behalf of the Client and to bind the Client contractually as required;
(b) to provide Companies trading as Test-Tech (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 Companies trading as Test-Tech 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 Companies trading as Test-Tech harmless from any and all responsibility for such alteration, damage or destruction;
(c) that it is responsible for providing the samples/equipment to be tested together, where appropriate, with any specified additional items, including but not limited to connecting pieces, fuse-links, etc;
(d) to provide instructions and feedback to Companies trading as Test-Tech in a timely manner;
(e) to provide Companies trading as Test-Tech (including its agents, sub-contractors and employees) with access to its premises as may be reasonably required for the provision of the Services;
(f) to inform Companies trading as Test-Tech of all health and safety rules and regulations and regulations and other reasonable security requirements that may apply at any relevant premises at which the Services are to be provided;
(g) to notify Companies trading as Test-Tech 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;
(h) to inform Companies trading as Test-Tech 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;
(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 Companies trading as Test-Tech 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 Companies trading as Test-Tech in each instance; and
(l) that any and all advertising and promotional materials or any statements made by the Client shall not give a false or misleading impression to any third party concerning the services provided by Companies trading as Test-Tech.
4.4 Companies trading as Test-Tech 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 obligation 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 Companies trading as Test- Tech 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 Companies trading as Test-Tech the charges set out in the Proposal, if applicable, or as otherwise contemplated for provision of the Services (the Charges).
5.2 The Charges are expressed exclusive of any applicable taxes. The Client shall pay any applicable taxes on the Charges at the rate and in the manner prescribed by law, on the issue by Companies trading as Test-Tech of a valid invoice.
5.3 The Client agrees that it will reimburse Companies trading as Test-Tech for any expenses incurred by Companies trading as Test-Tech 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 Companies trading as Test-Tech will be charged on a time and material basis.
5.5 Companies trading as Test-Tech 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, Companies trading as Test- Tech 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 3% per cent per annum above the base rate from time to time of HSBC Bank in the relevant currency.
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 “Companies trading as Test-Tech” or any of Companies trading as Test-Tech’s trademarks or brand names for any reason must be prior approved in writing by Companies trading as Test-Tech. Any other use of Companies trading as Test-Tech’s trademarks or brand names is strictly prohibited and Companies trading as Test-Tech reserves the right to terminate this Agreement immediately as a result of any such unauthorised use.
6.3 All Intellectual Property Rights in any Reports, document, graphs, charts, photographs or any other material (in whatever medium) produced by Companies trading as Test-Tech pursuant to this Agreement shall belong to Companies trading as Test-Tech. The Client shall have the right to use any such Reports, document, graphs, charts, photographs or other material for the purposes of this Agreement.
6.4 Companies trading as Test-Tech 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 Companies trading as Test-Tech 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;
(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 Companies trading as Test-Tech, 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) is or becomes public knowledge other than by breach of this Clause 7;
(b) is received by the Receiving Party from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(c) 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 Companies trading as Test-Tech, includes procuring the same from any sub-contractors) with its obligations under this Clause 7.
7.6 No licence 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.
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 Companies trading as Test- Tech 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, the non-affected party may terminate this Agreement by giving at least ten (10) days’ written notice to the affected 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 Companies trading as Test-Tech 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 Companies trading as Test-Tech 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 loss of profits (whether direct or indirect) or for indirect, consequential, punitive or special loss or damage, including without limitation loss of profits, revenue, business, or anticipated savings (even when advised of their possibility).
10.4 Any claim by the Client against Companies trading as Test-Tech (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 Companies trading as Test-Tech, 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 Companies trading as Test-Tech, 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 Companies trading as Test-Tech or any Intellectual Property Rights belonging to Companies trading as Test-Tech (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 Companies trading as Test-Tech expressly disclaims any liability to the Client as an insurer or guarantor.
12.3 The Client acknowledges that although Companies trading as Test-Tech 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, Companies trading as Test-Tech’s employer’s liability insurance does not provide cover for non-Companies trading as Test-Tech 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) Companies trading as Test-Tech 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
(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 Companies trading as Test-Tech 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 Companies trading as Test-Tech 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 sub-contractors when necessary. If subcontracting, Companies Trading as Test- Tech will obtain permission from the client before commencing work.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 This Agreement and the Proposal shall be governed by English law. The parties agree to submit to the non-exclusive jurisdiction of the English Courts 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).
16.1 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, Companies trading as Test-Tech 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.
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 under the Contract (Rights of Third Parties) Act 1999 to enforce any of its terms.
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.