GENERAL TERMS AND CONDITIONS OF SERVICES AND WORKS
0. SCOPE OF APPLICATION
The following General Terms and Conditions apply for all Services and Works provided by VERITEK GLOBAL LIMITED.
1. DEFINITIONS
1.1 Company
Means: VERITEK GLOBAL LIMITED.
1.2 Agreement
Means: the Client’s acceptance of the Company’s proposal, any other mutual agreement for provision of Services and Works, the Company’s acceptance of a completed Company Order Form or other instructions for Services from the Client, or any instruction or request for Services and Works by a Client and subsequent acceptance by the Company and performance of Services and Works by the Company for the Client. These General Terms and Conditions govern each Agreement unless or until separate and / or supplementary terms and conditions are agreed to in writing between the Client and the Company, whether in addition to these General Terms and Conditions or not.
1.3 Company Order Form
The Company’s standard form, if any, to be completed by the Client setting out the Services and the Works to be performed by the Company, together with any other information concerning the performance of Services and Works.
1.4 Client
A person, firm, association, partnership, trust, government agency or authority
1.5 Confidential information
Any information, disclosed in whatever form, by a Party to the other Party – including but not necessarily limited to technical, commercial, financial and legal information – relating directly to the Parties and / or to the Agreement.
1.6 Deliverables
Without limitations, all documents, certificates, reports, products and outputs from the Services and Works created/ done or provided by the Company or its agents, subcontractors, consultants and employees in relation to the performance of the Services and / or the Works that the Company has to deliver to its Client in application of the Agreement.
1.7 Fees
Monies payable by the Client to the Company for the Services and / or for the Works as set out in the Agreement. These may include: accommodation, meals, subsistence, travel and any other incidental costs and expenses the Company incurs in respect of the performance of the Services and / or the Works which will be charged as pre-agreed at a fixed rate or at the actual cost thereof.
1.8 Intellectual Property
All patents, rights to inventions, utility models, copyright and related rights, trade marks, logos, service marks, trade dress, business and domain names, rights in trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), methods and protocols for Services, and any other intellectual property – registered and unregistered – including all applications for and renewals, reversions or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the World.
1.9 Party and Parties
Individually the Company or the Client or collectively the Company and the Client.
1.10 Sampling
The process of extracting a fraction of the products (either in bulk or in lot or other grouping) to taken according to the Client’s request and / or according to applicable standards.
1.11 Services / Works
The services or works to be provided or to be done by the Company to the or for the Client under the Agreement.
1.12 Taxes
Any and all taxes imposed by any taxing authority including, without limitation, withholding taxes, income taxes, corporate taxes, duties, levies, stamp duties, charges and any other assessments and payments in the nature of taxes, including VAT.
2. COMPANY’S OBLIGATIONS
2.1 The Company shall – with reasonable care, skill and diligence – provide Services, Works and other deliverables to the Client in accordance with:
2.2 The Company performs – without limitations – calibrations, testing, inspections, verifications, certifications, surveys, laboratory analyses, cargo treatments, assessments, audits and / or appraisals, equipment repair works, equipment servicing, supply and installation of equipment as contractually agreed by the Parties.
2.3 Subject to the Client’s instructions as accepted by the Company, the Company shall issue Reports, Certificates or other Deliverables which reflect statements of facts and / or opinion made with due professional care within the limitation of instructions received. But the Company is under no obligation to refer to or report any facts or circumstances which are outside the specific instructions received except when required by the law of the land or by industry / trade practices and standards.
2.4 In providing the Services and / or doing the Works, the Company does not take the place of contractors, manufacturers, producers, operators, transporters, importers, exporters, suppliers or owners, who, notwithstanding the Company’s actions, are not released from any of their obligations of whatever nature. If and to the extent that the Client releases any third party from its liabilities, obligations and duties with respect to information upon which the Company relied on in the performance of the Services and / or doing the Works, such unfulfilled liabilities of a third party will not cause the liability of the Company to increase and the Client shall assume and undertake as its own such liabilities, obligations and duties.
2.5 For the avoidance of doubts, the Company does not fulfill the role of an insurer or a guarantor in respect of the adequacy, quality, merchantability, fitness for purpose, compliance or performance of products, services or other activities undertaken or produced by the Client to which the Services and / or the Works relate. Notwithstanding any provision to the contrary contained herein or in any Deliverable, no warranty or guarantee – express or implied – including any warranty of merchantability or fitness for a particular purpose or use, is made by the Company for any activities undertaken by the Client or any product manufactured, distributed, imported, exported, or sold by the Client.
2.6 The Deliverables are given only in relation to the written instructions, documents, information and samples / items provided to the Company by the Client prior to the performance of the Services and / or the Works. The Company cannot be held liable for any error, omission or inaccuracy in the Deliverables to the extent that the Company has been given erroneous or incomplete information by the Client. The Deliverables reflects the findings by the Company at the time of performance of the Services only. The Company shall have no obligations to update the Deliverables after issuance, except as otherwise stated in the Agreement.
2.7 Unless expressly agreed by the Parties to the contrary, the Company may, in its sole discretion, choose to retain, return to the Client or destroy Samples which have been furnished to the Company for performance of Services and which have not been destroyed in the course of the Services.
2.8 If the requirements of the Client necessitate the analysis of the Samples by a Client’s or by any third party’s laboratory unrelated to the Company, the Company shall not be responsible for the analysis nor for accuracy of the results thereof. Likewise, where the Company is only able to witness an analysis that has been done by the Client’s or by any third party’s laboratory unrelated to the Company, the Company will provide any requested information but will not be responsible for the accuracy of the analysis or the results thereof. Any such an arrangement shall not be considered as a sub-contracting or assignment of Services by the Company and shall be considered as giving rise to separate obligations between the Client and the third party’s laboratory. Unless agreed to in writing between the Client and the Company as an exceptional circumstance, the Company shall not report such third party’s laboratory results to the Client. If such circumstance prevails, the Company shall qualify its reporting and disclaim the results. Should the Client subsequently incur losses as a results of any third party’s laboratory’s testing, the Company shall not be liable to the Client and the Client shall be precluded from bringing any claim against the Company. The Client shall indemnify and hold harmless the Company against third party reliance claims received by the Company based on the results reported.
2.9 Reports or certificates issued following calibration, testing, inspection or any analysis of Samples submitted to the Company for analysis (but not drawn from the bulk by the Company) contain the Company’s specific opinion on those samples only and do not express or imply any opinion on the bulk from which the Samples were drawn.
2.10 Documents concerning undertakings entered into between the Client and other interested parties, such as: contracts of sales, supply or works contracts, letters of credit, bills of lading, specifications, datasheets, letters of commissioning, certificates of acceptance or conformity, and which are divulged to the Company, shall be considered to be for information only, without either extending or restricting the Company’s scope of Services or obligations under the Agreement.
2.11 Where the Company provides and / or sales goods (as opposed to Services) to the Client – whether combined with or separately from any Services – and such goods have been acquired by the Company from a third party, the Company gives no express or implied warranty as to the quality of such goods or their fitness for purpose. However, upon written request by the Client, the Company will assign (to the best of the Company’s capability) its rights against such third party.
2.12 The Company shall endeavor to use personnel with sufficient / adequate expertise to deliver the Services and / or to perform the Works. The Company shall be entitled to replace deployed personnel by other personnel with broadly equivalent expertise at any time if needed to but the Company does not warrant or guarantee that the personnel possesses any specific certification unless agreed to in writing or required under the mandatory provisions of any applicable accreditation scheme or applicable provisions of mandatory law.
2.13 Notwithstanding any other provision of any Agreement, the Company shall not be obliged to provide Services and / or to undertake Works if it considers that it would be placed (or payment thereof would place it) in breach of any international sanctions or trade restriction. The Company reserves the rights to exercise its right to refuse the acceptance of any such nomination or request made under this Agreement (or otherwise) at its own discretion and will not be liable for any losses whatsoever the Client may incur as a result of such a refusal.
3. CLIENT’S OBLIGATIONS
The client shall:
a) Cooperate with the Company in all matters relating to the Services and / or Works stipulated in the Agreement.
b) Provide or course its suppliers or counterparties to provide, in a timely manner and at no charge, access to the relevant operational facilities and personnel as required by the Company, its agents, subcontractors, consultants and employees, to perform the Services and / or the Works. The Client will procure access to, and appropriate preparation and management of, the relevant premises for the supply of the Services and / or performance of the Works, including: identifying, monitoring, correcting or removing any actual or potentially hazardous conditions or materials from any of the premises before and during the supply of the Services and / or performance of the Works at those premises; and shall adopt or procure all necessary measures safety and security of working conditions on site during the performance of the Services and / or the Works and inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the operational premises.
c) Subject to agreement to the contrary, provide the Company, its agents, subcontractors and representatives with all necessary transportation and equipment, such equipment to be in good working order, for provision of the Services and / or for performing the Works.
d) Provide the Company, either directly or through its suppliers, agents and subcontractors, in a timely manner, such information as the Company may require for the proper performance of the Services and / or Works and ensure that such information is accurate in all material respects.
e) Where necessary, obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services and / or the Works and the use of Client’s equipment.
f) Ensure that all documents, information and materials made available by the Client to the Company under the Agreement do not and will not infringe, or constitute an infringement or misappropriation, of any patent, copyright, trade mark, trade secret, license or other intellectual property rights or proprietary rights of any third party.
g) Take all necessary steps to eliminate or remedy any obstructions to or interruptions in the performance of the Services and / or the Works.
h) The Client warrants that it is securing Services for its own account and not as an agent or broker or in any other representative capacity for any other person or legal entity, unless it has been expressly disclosed to and approved by the Company.
i) The Client warrants that there are no third party beneficiaries to the Services and / or the Works provided by the Company and that no third party or parties may rely on any Deliverables prepared or provided by the Company without a prior express written consent of the Company. Subject to Article 7 below, the Company shall have no responsibility or liability for any third party’s use of or reliance on any Deliverables prepared or provided by the Company. Its responsibility towards the Client is expressly limited according to these General Terms and Conditions.
j) To the extent that the Company renders Services, the Client agrees that the Company is required only to provide the Services and the reporting of the results of such Services. The Client is responsible for exercising its own independent judgment with regard to the information and recommendations provided by the Company. Neither the Company nor any of its agents warrant the quality, outcome, effectiveness or appropriateness of any decision or action undertaken on the basis of the Deliverables provided under the Agreement.
k) If the Company’s performance of its obligations under the agreement is prevented or delayed by any act, omission, default or negligence of the Client, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly from such prevention or delay.
l) If the Client anticipates the use of any Deliverables in any legal proceeding, arbitration, dispute resolution forum or any other proceeding, it shall notify the Company in writing prior to requesting the Services and / or the Works and in any event prior to the use of such Deliverables in any such proceeding. The parties agree that the Company has no obligation to provide an expert witness or witness of facts at such proceeding unless the Company gives its prior consent in writing.
m) The Client acknowledges that in the interests of health and safety, the Company grants each of its agents, employees, subcontractors and representatives a ‘stop work authority’ permitting them to stop work and leave site at their sole discretion if they or other Company personnel have concerns of any nature in respect of health and safety and the Client agrees that no liability of the Company shall arise from the exercise of such discretion, but that payment of such visit shall remain due to the Company.
4. CHARGES AND PAYMENT
a) The Client shall pay each valid invoice submitted to it by the Company, in full and in cleared funds, within thirty (30) days of the date of the invoice.
b) If the Client fails to pay the Company on the due date, the Company may charge interest on such sum from the due date for payment at the monthly rate of 5% (or the maximum permitted by applicable local law if local law specifies a minimum which is above 5%), accruing on a daily basis and being compounded monthly until payment is made, whether before or after any judgment. If any payment due to the Company from the Client under this Agreement or otherwise is late, the Company may suspend the provision of some or all of the Services including but not limited to the provision of the Deliverables until the overdue payment is received by the Company and shall be entitled to require payment in advance prior to continuation of the Services and / or the Works.
c) The Fees and any additional charges are exclusive of all applicable Taxes. In the event that any withholding taxes become payable in accordance with local law and as limited by double tax treaties if applicable, invoiced amounts shall automatically be grossed up by the Client sufficiently that after the deduction of withholding tax the original invoiced amount remains payable. The Parties shall then cooperate reasonably in the recovery of withholding tax from applicable tax authorities and a Party should provide any tax certificate that will be reasonably requested by the other Party.
d) The Client shall not have a right of set off or retention. Any objections to invoices must be raised within 30 days of receipt of the invoice and no objection may be raised thereafter. Where it is agreed in writing that timesheets must be provided, the Client confirms that they shall be considered approved unless otherwise stated within 5 days of receipt.
e) In the event that the Client does not comply with its obligations under Article 3, the Company reserves (i) the right to suspend the provision of the Services / the Works and / or (ii) to invoice and be paid for time and resources expended arising from the Client’s non-compliance. This shall include but not limited to charging for visits and time expended where equipment to be inspected cannot be found, is not made available for inspection or where waiting time is incurred pending such equipment being found, made available or made ready.
f) In the event of a change of law of Client Policy which acts to increase the costs for the Company of delivering the Services and / or performing the Works, the Parties agree that the fees for the Services and / or the Works may be increased to reflect these increases in the costs. The Company will provide such evidence of increase as is reasonably practicable.
g) Any postponement or cancellation of the Services and / or the Works by the Client, including site visits, shall be subject to no less than 5 working days’ advance notice. Any failure to provide such notice within this period of time shall result in a charge for an abortive visit / inspection as appropriate.
h) The Company shall be entitled to increase its fees annually as specified in a written notice to the Client. Where fixed fees have been agreed in writing for a period, the first such annual increase shall be upon expiry of period for which fees are agreed to be fixed and annually thereafter.
5. INTELLECTUAL PROPERTY RIGHTS
a) Each Party exclusively owns all rights to Intellectual Property it has created whether before or after the commencement date of the Agreement and whether or not associated with any Agreement between the Parties.
b) The names, service marks, trademarks and copyrights of the Company and its affiliates shall not be used by the Client except solely to the extent that the Client obtains the prior written approval of the Company and then only in the manner prescribed by the Company.
c) For avoidance of doubt, nothing in the Deliverables or any other writing shall convey any rights of ownership or license whatsoever to the Company’s intellectual property of its proprietary software, nor to the Company’s proprietary audit methods, training materials and procedures, nor to the Company’s protocols, nor to the Company’s name, logo, marks, or other trade dress nor any other existing or later developed and used to perform the Services and / or the Works and the deliverables. These shall remain the sole property of the Company. The Deliverables do not convey ownership or licensing rights to any third party’s intellectual property that may be contained or referenced in the Deliverables.
6. CONFIDENTIALITY AND COMPANY’S PROPERTY, REPORTS AND CERTIFICATES
a) Subject to Article 6 (i) below, each of the Parties shall not disclose or use for any purpose whatsoever any Confidential Information or any financial or trading information which it may acquire or receive within the scope of the performance of the Agreement, without prior written approval of the Party that disclosed the Confidential Information except as required for the Company to provide the Services and / or perform the Works.
b) The confidentiality undertaking shall not apply to any information:
c) The Deliverables are issued by the Company and, except as provided otherwise in the Agreement, are intended for the exclusive use of the Client and shall not be modified, published, used for advertising purposes, copied or replicated for distribution to any other person or entity or otherwise publicly disclosed without the prior written consent of the Company. The Client agrees that Deliverables may be provided by electronic means of delivery, including but not limited to email.
d) The Company will be deemed irrevocably authorized to deliver at its discretion any report or certificate to a third party if following instructions by the Client a promise in this sense has been given to the third party or such a promise implicitly follows from circumstances, trade customs, usage or practice.
e) An original signed copy of any written report, certificate or Deliverable bearing the signature of an authorized representative of the Company together with the Company’s stamp shall be the only and exclusive proof of the content of such a report or certificate or any information contained therein is supplied or communicated by other means such as electronically.
f) Any report, certificate or Deliverable submitted to the Client other than in written form bearing the signature of the authorized representative and Company stamp shall be deemed to have been issued at the request of and for the risk of the Client and the Company shall not be responsible nor liable for any deviation or discrepancy between the contents of such report, certificate or Deliverable and the contents of the original as signed by such representative and bearing the Company stamped.
g) Each Party shall be responsible for ensuring that all persons to whom Confidential Information is disclosed under the Agreement shall keep such information confidential and shall not disclose or divulge the same to any unauthorized person or entity, and shall assume full responsibility for any breach of said undertaking.
h) On expiry or termination of the Agreement for any reason and at the direction of the other Party, each Party shall return or destroy the other Party’s Confidential Information which is at that time in its possession or under its control provided however that nothing herein shall prohibit the Company from maintaining copies of the Deliverables and analyses in accordance with its records retention policies and document retention policies as may be required by the law or accreditation bodies.
i) The Company reserves the right to collect, collate and use aggregated anonymised data deriving from the Deliverables and Samples, including data which constitutes Confidential Information, for the purpose of statistical analysis, benchmarking or trending.
7. LIMITATION OF LIABILITY
a) With the sole exception of Article 7 (e) below but notwithstanding any other provision of the Agreement, neither Party shall be liable to the other Party for:
b) Without prejudice to Article (a), the total liability of the Company and its affiliates and their respective employees, agents, consultants and subcontractors, in contract, tort (including but not limited to negligence, gross negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in any manner in connection with or related to the Services, Deliverables and the performance, or contemplated performance of the Agreement shall, subject to Article 7 (e), be limited to the greater of:
c) The Client shall indemnify the Company and its affiliates, and their respective employees, directors, agents, consultants or subcontractors against, and hold them harmless against, all claims made by third parties for loss, damage, or expense of whatever nature (including but not limited to negligence and gross negligence) and howsoever arising, relating to the performance, purported performance or non-performance of any Services, to the extent that the aggregate of such claims for any one Service exceeds the limitation of liability set out in Article 7 (b) above.
d) Without prejudice to Articles (a) and (b) above, the Company shall not be liable to the Client for and the Client shall be precluded from bringing any claim of losses, unless proceedings are issued against the Company before twelve (12) moths after the earlier of:
e) Nothing in this Agreement limits or excludes the liability of either Party:
8. FORCE MAJEURE
a) For the purpose of this Article 8, “Force Majeure” shall mean an event, the occurrence of which is beyond the reasonable control of the claiming Party and which renders either the Client or the Company unable, wholly or in part, to carry out its obligations under the Agreement (other than the obligation to make payments of sums due to the other Party), which inability could not have been prevented or overcome by the claiming Party exercising reasonable oversight, planning and implementation.
b) If, as a result of “Force Majeure”, a Party is rendered unable, wholly or in part, to carry out its obligations under the Agreement (other than the obligation to make payments of sums due to the other Party):
c) Neither Party shall be liable for any loss or damage resulting from any delay or failure in performance of its obligations hereunder resulting directly or indirectly from an act or event of Force Majeure. If the disability continues for more than fifteen (15) days, then the non-disabled Party will have the right to terminate this Agreement without incurring any liability whatsoever.
d) In the event that the Company finds itself temporarily unable to deliver some or all of the Services and/or the Works due to or in connection with a pandemic (for example Covid-19) either at all or within agreed timeframes or to an agreed program, this shall not be considered a Force Majeure event entitling one Party to terminate the agreement. Instead, the Parties agree that under such circumstances delivery of that Services and/or Works that cannot be delivered shall be postponed until a date acceptable to both the Parties, each acting reasonably.
9. DATA PROTECTION
Both Parties undertake that they, their employees or any person acting on their behalf shall comply with all privacy-applicable laws and regulations of the land and shall complete an annexe detailing any personal information to be processed where necessary.
10. ASSIGNMENT AND SUBCONTRACTING
a) The Company at its sole discretion may assign, cede, transfer its rights and obligations or delegate the performance of all or a portion of the Services and/or the Works under the Agreement, subject to the compliance with the requirements of any applicable accreditation scheme where relevant, to an affiliate, agent or subcontractor of the Company without prior notice to the Client, and the Client hereby consents to such delegation. The Client shall not without Company’s consent, cede, assign, transfer, subcontract or deal in any manner with all or any of its rights or obligations under the Agreement.
b) All technicians and other personnel supplied by the Company in the performance of any Services and/or Works shall at all times remain employees, agents or subcontractors (as the case may be) of the Company. As such, all such persons shall be answerable to and subject to the instructions of the Company at all times. Unless otherwise agreed by the Company, such persons shall not be obliged to follow any instruction of the Client with exception of health and safety rules applicable to the Client’s employees on the site where the Services and/or the Works take place.
11. REMOTE WORKING
a) The Parties may agree from time to time in writing that the Company shall provide some or all of the Services remotely by electronic or any other means which may include but not limited to video conferencing, sensors, drones, satellites and cameras. The Client acknowledges that personal data (including personal images) is likely to be collected. The Client confirms that it has obtained all necessary consents under applicable law to allow the Company to process the images and sounds collected during the provision of the Services.
b) The provision of Services by remote means as envisaged in Article 11 (a) above is subject to the availability and performance of acceptable network and internet bandwidth and availability of appropriate third party software solutions, including but not limited to video connectivity and video recording solutions. In the event that the performance of such remote working tools is not considered to be reasonably sufficient in the circumstances by either party, the parties shall (each acting reasonably) seek to rearrange the provision of the Services or agree to an alternative method of delivery and agree in writing to any additional fees that may arise from such change. The Client acknowledge that the Company is not responsible for such third party remote working tools and accordingly the Company shall not be liable for the performance of such tools.
12. MISCELLANEOUS
a) A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a Party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
b) If any provision of the Agreement (or part of any provision) is found by any court or other competent authority to be invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
c) Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership, joint venture, trust or association of any kind between the Parties, nor constitute any Party the agent of the other Party for any purpose.
d) To the fullest extent permitted by law and except as expressly provided for in the Agreement, a person who is not a party to the Agreement shall not have any rights under or in connection with the Agreement.
e) The Company may terminate the Agreement at any time and for any reason, without incurring any liability to the Client, by giving not less than thirty (30) days’ written notice to the Client. Without prejudice to any other rights or remedies which the Company may have, the Company may terminate the Agreement, without liability to the Client, immediately on written notice to the Client if the Client acts in breach of laws, or is subject to international sanctions.
f) Headings are for information only and shall not affect the interpretations of these General Terms and Conditions.
g) No alteration, amendment or waiver of any of these General Terms and Conditions shall have any effect unless agreed to in writing and signed by an authorized representative of the Company.
h) Notwithstanding Article 12 (g) above, the Client agrees that the Company has the right to amend, delete and add to these General Terms and Conditions. The Client further agrees that such amendments, deletions and additions will be effective immediately upon notice being given by posting notice of such changes on the Company’s website or by communicating such notice to the Client by e-mail.
13. GOVERNING LAW AND JURISDICTION
The Agreement and any dispute or claim arising from or in connection with it or its subject matter, shall be governed by, and construed in accordance with the law of the United Republic of Tanzania, notwithstanding any conflicts of laws and rules that could require the application of any other laws.