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Ref No. GTC/ IPL
01 October 2016
INSPECTEST (PRIVATE) LIMITED (IPL)
General Terms and Conditions of Services
These terms and conditions (T&C), together with any proposal, estimate or fee quote, form the agreement between you (the Client) and the Company (IPL) providing the goods & services contemplated therein.
1.1 In these T&C the following words and phrases shall have the following meanings unless the context otherwise requires:
2. THE SERVICES
2.1 IPL shall provide the Services to the Client under the Agreement subject to these T&C.
2.2 In the event of any inconsistency between the terms of these T&C, the Agreement/PO and the Proposal, these T&C shall be superseded.
2.3 The Services provided by IPL under the Agreement/PO and any memoranda, laboratory data, calculations, measurements, estimates, notes, certificates and other material prepared by IPL 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 (Report(s)) shall be only for the Client's use and benefit.
2.4 The Client acknowledges and agrees that if in providing the Services IPL is obliged to deliver a Report to a third party, IPL shall be deemed irrevocably authorized to deliver such Report to the applicable third party. For the purposes of this clause an obligation shall arise on the instructions of the Client, or where, in the reasonable opinion of IPL, it is implicit from the circumstances, trade, custom, usage or practice.
2.5 The Client acknowledges and agrees that any Services provided and/or Reports produced by IPL are done so within the limits of the scope of work agreed with the Client in relation to the Proposal and pursuant to the Client's specific instructions or, in the absence of such instructions, in accordance with any relevant trade custom, usage or practice. The Client further agrees and acknowledges that the Services are not necessarily designed or intended to address all matters of quality, safety, performance or condition of any product, material, services, systems or processes tested, inspected or certified and the scope of work does not necessarily reflect all standards which may apply to product, material, services, systems or process tested, inspected or certified. The Client understands that reliance on any Reports issued by IPL is limited to the facts and representations set out in the Reports which represent IPL’s review and/or analysis of facts, information, documents, samples and/or other materials in existence at the time of the performance of the Services only.
2.6 Client is responsible for acting as it sees fit on the basis of such Report. Neither IPL nor any of its officers, employees, agents or subcontractors shall be liable to Client nor any third party for any actions taken or not taken on the basis of such Report.
2.7 In agreeing to provide the Services pursuant to these T&C, IPL does not abridge, abrogate or undertake to discharge any duty or obligation of the Client to any other person or any duty or obligation of any person to the Client.
3. IPL'S WARRANTIES
3.1 IPL warrants exclusively to the Client:
4. CLIENT WARRANTIES AND OBLIGATIONS
4.1 The Client represents and warrants:
4.2 In the event that the Services provided relate to any third party, the Client shall cause any such third party to acknowledge and agree to the provisions in the Agreement/PO 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 shall:
4.4 IPL shall be neither in breach of the Agreement/PO nor liable to the Client for any breach of the Agreement/PO if and to the extent that its breach is a direct result of a failure by the Client to comply with its obligations as set out in this Clause 4. The Client also acknowledges that the impact of any failure by the Client to perform its obligations set out herein on the provision of the Services by IPL will not affect the Client’s obligations under the Agreement/PO for payment of the Charges pursuant to Clause 5 below.
5. CHARGES, INVOICING AND PAYMENT
5.1 The Client shall pay IPL the charges set out in the Agreement/PO/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 IPL of a valid invoice.
5.3 The Client agrees that it will reimburse IPL for any expenses incurred by IPL relating to the provision of the Goods and/or Services and is wholly responsible for any freight or customs clearance fees relating to these Goods and/or Services unless agreed otherwise in writing.
5.4 The Charges represent the total fees to be paid by the Client for the Services pursuant to the Agreement/PO. In case IPL performs additional work, client will be charged IPL’s standard rates.
Charges/Fees not established between IPL and the Client at the time the order is placed or a contract is negotiated shall be at IPL’s standard rates (which are subject to change) and all applicable taxes shall be payable by Client.
5.5 In the event any unforeseen problems or expenses arise in the course of carrying out the Services IPL shall endeavor to inform Client and, IPL shall be paid the additional fees to cover extra day/time and cost necessarily incurred to complete the Services.
5.6 If IPL is unable to perform all or part of the Services for any cause whatsoever outside IPL’s control including failure by Client to comply with any of its obligations provided for in clause 3 above, IPL shall nevertheless be entitled to payment of:
5.7 IPL shall invoice the Client for the Charges and expenses, if any. The Client shall pay each invoice within thirty (30) days of invoice date, or within such other period as maybe established by IPL in the invoice (the “Due Date”).
5.8 If any invoice is not paid on the due date for payment, IPL 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 15% per annum.
5.9 Client shall not be entitled to retain or defer payment of any sums due to IPL on account of any dispute, counter claim or set off which it may allege against IPL. IPL may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction. Client shall pay all of IPL’s collection costs, including attorney’s fees and related costs.
6. SUSPENSION OR TERMINATION OF SERVICES
IPL shall be entitled to immediately and without liability either suspend or terminate provision of the services in the event of:
7. INTELLECTUAL PROPERTY RIGHTS AND DATA PROTECTION
7.1 All Intellectual Property Rights belonging to a party prior to entry into the Agreement/PO shall remain vested in that party. Nothing in the Agreement/PO is intended to transfer any Intellectual Property Rights from either party to the other.
7.2 Any use by the Client (or the Client's affiliated companies or subsidiaries) of the name "IPL" or any of IPL's trademarks or brand names for any reason must be prior approved in writing by IPL. Any other use of IPL's trademarks or brand names is strictly prohibited and IPL reserves the right to terminate the Agreement/PO immediately as a result of any such unauthorized use.
7.3 In the event of provision of certification services, Client agrees and acknowledges that the use of certification marks may be subject to national and international laws and regulations.
7.4 All Intellectual Property Rights in any Reports, document, graphs, charts, photographs or any other material (in whatever medium) produced by IPL pursuant to the Agreement/PO shall belong to IPL. The Client shall have the right to use any such Reports, document, graphs, charts, photographs or other material for the purposes of the Agreement/PO.
7.5 The Client agrees and acknowledges that retains any and all proprietary rights in concepts, ideas and inventions that may arise during the preparation or provision of any Report (including any deliverables provided by IPL to the Client) and the provision of the Services to the Client.
7.6 IPL shall observe all statutory provisions with regard to data protection including but not limited to the provisions of the Data Protection laws as applicable in the jurisdiction. To the extent that IPL processes or gets access to personal data in connection with the Services or otherwise in connection with the Agreement/PO, it shall take all necessary technical and organizational measures to ensure the security of such data (and to guard against unauthorized or unlawful processing, accidental loss, destruction or damage to such data).
8.1 Where a party (the Receiving Party) obtains Confidential Information of the other party (the Disclosing Party) in connection with the Agreement/PO (whether before or after the date of the Agreement/PO) it shall, subject to Clauses 7.2 to 7.4:
8.2 The Receiving Party may disclose the Disclosing Party's Confidential Information on a "need to know" basis:
8.3 The provisions of Clauses 7.1 and 7.2 shall not apply to any Confidential Information which:
8.4 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.
8.5 Each party shall ensure the compliance by its employees, agents and representatives (which, in the case of IPL, includes procuring the same from any sub-contractors) with its obligations under this Clause.
8.6 With respect to archival storage, the Client acknowledges that IPL may retain in its archive for the period required by its quality and assurance processes, or by the testing and certification rules of the relevant accreditation body, all materials necessary to document the Services provided.
9.1 No amendment to the Agreement/PO shall be effective unless it is in writing, expressly stated to amend the Agreement/PO and signed by an authorized signatory of each party.
10. FORCE MAJEURE
10.1 IPL shall not be liable to the Client for any delay in performing or failure to perform any obligation under the Agreement/PO to the extent that such delay or failure to perform is a result of:
10.2 For the avoidance of doubt, where the affected party is IPL 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.
10.3 If IPL’s performance is affected by an event described in Clause 10.1 (a Force Majeure Event), IPL shall:
10.4 If the Force Majeure Event continues for more than sixty (60) days after the day on which it started, each party may terminate the Agreement/PO by giving at least ten (10) days' written notice to the other party.
11. LIMITATIONS AND EXCLUSIONS OF LIABILITY
11.1 Neither IPL nor the Client excludes or limits liability to the other party:
11.2 Subject to Clause 11.1, the maximum aggregate liability of IPL in contract, tort (including negligence and breach of statutory duty) or otherwise for any breach of the Agreement/PO of these T&C or any matter arising out of or in connection with the Services to be provided shall be the amount of Charges due by the Client to IPL under that particular Agreement/PO only.
11.3 Subject to Clause 11.1, neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for any:
11.4 Any claim by the Client against IPL (always subject to the provisions of this Clause 10) must be made within fifteen (15) days after the Client becomes aware of any circumstances giving rise to any such claim. Failure to give such notice of claim within thirty (30) 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 the Agreement/PO.
11.5 Reports of Findings are issued on the basis of information, documents and/or samples provided by, or on behalf of, Client and solely for the benefit of Client who is responsible for acting as it sees fit on the basis of such Reports of Findings. Neither IPL nor any of its officers, employees, agents or subcontractors shall be liable to Client nor any third party for any actions taken or not taken on the basis of such Reports of Findings nor for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to IPL.
12.1 The Client shall indemnify and hold harmless IPL, 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 IPL, 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 unauthorized use of any Reports issued by IPL or any Intellectual Property Rights belonging to IPL (including trade marks) pursuant to the Agreement/PO; 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.
12.2 The obligations set out in this Clause 11 shall survive termination of the Agreement/PO.
13.1 The Agreement shall commence upon the day on which the Client confirms/places order and shall continue, unless terminated earlier in accordance with this Clause 13, until the Services have been provided.
13.2 The Agreement/PO may be terminated by:
13.3 In the event of termination of the Agreement/PO for any reason and without prejudice to any other rights or remedies the parties may have, the Client shall pay IPL for all Services performed up to the date of termination. This obligation shall survive termination or expiration of the Agreement/PO.
13.4 Any termination or expiration of the Agreement/PO 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 IPL 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.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 The Agreement/PO and the Proposal shall be governed by the laws of the Islamic State of Pakistan.
16.1 If any provision of the Agreement/PO of these T&C 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 the Agreement/PO had been executed without the invalid illegal or unenforceable provision.
No partnership or agency:
16.2 Nothing in the Agreement/PO and no action taken by the parties under the Agreement/PO 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 the Agreement/PO, 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 the Agreement/PO.
16.4 No waiver of any right or remedy under the Agreement/PO shall be effective unless it is expressly agreed upon, mutually by both parties, to be a waiver.
Agreement Order of Precedence:
16.5 In case of inconsistence between the proposal, the Agreement/PO and these terms and conditions, these terms and conditions shall prevail.