General Terms and Conditions for Certification Services (Issue 24)
1.1Unless otherwise agreed in writing all offers or services provided by the British Assessment Bureau Limited (a company incorporated and registered in England and Wales with company number 03325955 and registered office address 30 Tower View, Kings Hill, West Malling, Kent, ME19 4UY) (“BAB”) shall be governed by these General Terms and Conditions (“Terms”).
1.2 These Terms and, as applicable, the Proposal and the Application (as defined below), constitute the entire agreement between the Client and BAB (“Parties”).
1.3 Save as otherwise provided, no variation to the Contract (as defined below) shall be valid unless it is in writing and signed by the Client and BAB.
1.4 BAB will provide Services using reasonable care and skill.
“Application” means the request for Services by a Client;
“Assessment” means an assessment of the Client’s management system or systems to ascertain conformity to the relevant Standard;
“Assessment Period” means a period of time no greater than six (6) calendar months from the Visit;
“Certificate” means the official document confirming Certification issued by BAB. All versions of the Certificate (e.g. hardcopy or electronic) remain the property of BAB and must be returned to BAB on request. The Certificate is only valid for the Duration if the Client maintains its Certification following periodic surveillance audits (which are required at least annually);
“Certification Grant” follows a successful Assessment (as determined by BAB) and continues for the Duration subject to continued conformity with the Assessment or subsequent reassessments;
“Certification Mark” means the proprietary mark, stamp, logo, badge or symbol which BAB allows the Client to display under licence and subject to copyright protection;
“Client” means the client identified in the Proposal;
“Contract” means the agreement between the Parties for BAB to carry out the Assessment and provide a Report in accordance with the Proposal;
“Decision Date” means the date from which the granting of Certification is made and the Duration commences;
“Duration” means a period of thirty-six (36) months from the date of the Certification Grant as notified by BAB;
“Engagement” means the action of agreeing BAB’s Proposal as confirmation of the Client’s desire to engage the Services of BAB and confirmation that the Client agrees BAB’s Terms;
“Proposal” means the outline of Services as provided by BAB to the Client;
“Recertification Assessment” means the special Surveillance Assessment which is conducted on or before the third anniversary of the date of the Certification Grant.
“Report” means a report issued by BAB to the Client comprising Assessment findings, decisions and recommendations relating to whether a Certificate is to be issued or not;
“Scope” means the exclusive span of assessed activities and any applicable locations covered by the Assessment;
“Services” has the meaning given in clause 3.1;
“Stages” means the Visit and the Assessment. Any further site meetings would be subject to additional fees as indicated under Section 8;
“Standard” means the relevant ISO or other standard to which BAB will assess the Client’s conformity;
“Surveillance Assessment” means an additional Assessment that takes place annually (at least) after the Certification Grant, to verify that the Client remains compliant with their chosen Standard(s);
“Visit” means the first meeting after Engagement undertaken by BAB on the Client’s premises.
3.1These Terms cover the following services (“Services”):
(a) System certification services: including but not limited to quality, environmental, data security, health & safety and other management system certification in accordance with international or national standards;
(b) Service certification services: in accordance with non-mandatory normative documents, specifications or technical regulations;
(c) Process certification services: in accordance with non-mandatory normative documents, specifications or technical regulations;
(d) Skills certification services: in accordance with non-mandatory normative documents, specifications or technical regulations.
3.2 Either by entering into the Contract or by the provision of the Services, the Client acknowledges that BAB neither takes the place of the Client nor any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of the Client to any third party or that of any third party to the Client.
3.3 BAB may from time-to-time delegate all or part of the delivery of the Services to an agent or subcontractor and the Client hereby authorises BAB to disclose all information necessary for such delivery of the Services to the agent or subcontractor.
3.4 The provision of all Services shall be in accordance with applicable codes of practice (which are usually based on the requirements of the UK’s National Accreditation Body (UKAS).
4. REPORT AND COMPLETION
On completion of an Assessment BAB will prepare and submit the Report to the Client. Any mandatory recommendation(s) given in a Report shall be binding on the Client and may, at BAB’s discretion, affect the issuing of a Certificate by BAB.
5. CERTIFICATE, CERTIFICATION AND SCOPE
5.1 Certificate Granting:Once the Client has satisfied the requirements of their chosen Assessment BAB shall agree the Scope with the Client and as evidence of compliance BAB will issue a Certificate to the Client.
5.2 Changes to Scope: If the Client wishes to change its Scope at any time then a further Assessment by BAB would be required, subject to additional fees (as notified by BAB) being payable by the Client to BAB.
5.3 Continued Certification:To maintain their Certification, the Client must undergo Surveillance Assessments (at least annually and otherwise at such frequency as BAB determines) at an additional cost (as determined and notified by BAB) or as outlined in the Proposal.
5.4 Recertification Assessments: These special Surveillance Assessments must be conducted on or prior to the third anniversary of the Certification Grant and shall form part of a review of the ongoing effectiveness of the Client’s systems and any trends that have been identified over the three (3) year period of surveillances.
5.5 Reduced, Suspended or Withdrawn Certification: In the event that a Client’s Certification is reduced in Scope, suspended or withdrawn, the Client must ensure that its use of all advertising matter that contains a reference to its Certification is withdrawn and discontinued as soon as practicably possible and such action is confirmed in writing to BAB.
6. OBLIGATIONS OF THE CLIENT
6.1 The Client shall ensure that all access, assistance, information, records, documentation and facilities are made available to BAB when required by BAB for the performance of the Services, including the assistance of properly qualified, briefed and authorised personnel. The Client shall in addition provide BAB suitable space for conducting meetings, free of charge.
6.2 So far as it is permitted by law the Client acknowledges that it has not been induced to enter into the Contract, is not reliant upon nor has it been given any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as expressly set out in these Terms and to the extent that it has been the Client unconditionally and irrevocably waives any claims, rights or remedies which the Client might otherwise have had in relation thereto. Any conditions or stipulations issued by the Client which are inconsistent with or which purport to modify or add to these Terms shall have no effect unless expressly accepted in writing by BAB.
6.3 The Client shall take all necessary steps to eliminate or remedy any obstacles to or interruptions in the performance of the Services.
6.4 The Client accepts that the agreed date, time and place of the Visit shall be binding on the Client. Should the Client need to rearrange the Visit for any reason notice of ten (10) working days must be given to BAB in writing. If the Client fails to provide the required notice to BAB then the Client accepts that BAB may at its sole discretion charge the Client a fee (at the prevailing rate, as notified by BAB, plus VAT).
6.5 In order to allow BAB to comply with any applicable health and safety legislation the Client shall provide BAB with all available information regarding known or potential hazards likely to be encountered by BAB personnel during their visits to the Client’s premises. BAB shall take all reasonable steps to ensure that whilst on the Client’s premises, its personnel, agents and sub-contractors comply with all health and safety regulations of the Client, provided that the Client makes BAB aware of the same in writing.
6.6 The Client shall not reproduce or publish extracts of any Report produced by BAB without prior written permission from BAB.
6.7 The Client shall not publicise any details of the way in which BAB performs, conducts or executes its methods or operations without prior written permission from BAB.
6.8 The Client shall promptly inform BAB of any and all changes in the nature of its business pursuant to their Certification. Any breach of this obligation to inform may lead to the withdrawal of the Certificate at BAB’s discretion. Furthermore, the Client shall inform BAB in writing of any major non-conformity with a Standard that is identified during internal audits undertaken by the Client, its partners, clients, public authorities or any other third party.
6.9 The Client agrees that should the Assessment extend beyond the agreed Assessment Period, BAB shall have the right to terminate the Contract and retain all fees for the Services that have been incurred by BAB up to the point of termination.
7. PUBLICITY & PROMOTION
The Client agrees to refrain from making any misleading statements concerning its Application or Certification (e.g. that it is certified before such certification is granted or that its Scope is broader than that agreed with BAB) and will use its best endeavours to ensure that its personnel, agents, advisers and sub-contractors comply with this undertaking.
8. FEES AND PAYMENT
8.1 The fees quoted in the Proposal cover all of the Stages leading to completion of the Assessment and the submission of the Report and for any relevant periodic surveillances (where quoted) to be carried out by BAB for the continuation of the Certification. As fees are based on BAB’s prevailing rates, BAB reserves the right to increase charges during the Duration. BAB may also increase its fees if the Client’s instructions change or are found to contradict the initial details supplied to BAB prior to it providing the Proposal (e.g. Scope of Certification, number of employees, etc). Clients will be notified of any additional fees in writing.
8.2 Additional fees shall be charged for any services that are not included in the Proposal and for work required due to non-conformities being identified. These will include, without limitation, costs resulting from:
(a) re-starting the Certification process if a period of six (6) months has elapsed from the Visit and the Certification has not been granted;
(b) additional work due to suspension, withdrawal and/or reinstatement of the Certification;
(c) reassessment due to changes in the management system or processes or Services; or
(d) compliance with any court order for documents or witness testimony relating to work performed by BAB.
8.3 Without prejudice to clause 8.2, additional fees will be payable at BAB’s prevailing rates in respect of rush orders, cancellation or rescheduling of Services or any partial or full repeats of the Assessment or operations which are required as set out in the relevant codes of practice (e.g. UKAS requirements).
8.4 Unless otherwise stated all fees quoted include travelling and subsistence costs (UK only). All fees and additional charges are exclusive of any applicable Value Added Tax, Sales Tax or similar tax in the country concerned.
8.5 On Engagement BAB shall issue an invoice equal to fifty percent (50%) of the total fee quoted. Following the Visit, BAB shall issue a further invoice to the Client. A third and final invoice for the balance shall be issued by BAB after the Assessment has been concluded. Invoices for additional and further work will be issued on completion of the relevant task. In the case of annual Surveillances, BAB shall issue an invoice for the full amount on Engagement. The Client agrees that all invoices shall be paid within twenty-one (21) days of the date of each invoice (“Due Date”).
8.6 The Client agrees that in the event of late or non-payment by the Client, BAB shall be entitled to charge interest of 1.5% per month from the Due Date up to and including the date payment is actually received.
8.7 The relevant Certificate will only be issued once full payment has been received by BAB in full and cleared funds.
8.8 Any use by the Client of any Report or Certificate or the information contained therein is conditional upon the timely payment of all fees and charges. In addition BAB reserves the right to cease or suspend all work and/or cause the suspension or withdrawal of the Client’s Certification if the Client fails to pay BAB’s invoices for the applicable Assessment, Surveillance Assessment or Recertification Assessment.
8.9 The Client shall not be entitled to retain or defer payment of any sums due to BAB on account of any dispute, counter claim or set off which may be alleged against BAB.
9. REPORT AND CERTIFICATE OWNERSHIP AND INTELLECTUAL PROPERTY
Any document including but not limited to any Report or any Certificate provided by BAB and the copyright contained therein (except documents produced for the Client’s everyday use) shall be and remain the property of BAB and the Client shall not alter or misrepresent the contents of such documents in any way. The Client shall be entitled to make copies for its internal purposes only. Duplicates of Certificates can be made available by BAB for the Client upon request but may be subject to an additional fee at BAB’s discretion.
The Client may promote its Certification in accordance with the terms set out by BAB governing the use of the relevant Certification Mark (as may be amended by BAB from time to time). Use of BAB’s corporate name or any other registered trademarks for advertising purposes is not permitted without BAB’s prior written consent.
11.1 As used herein, “Confidential Information” shall mean any oral or written proprietary information that either Party may acquire from the other pursuant to the Contract or information as to the business of the other Party provided, however, that Confidential Information shall not include any information which:
(a)is or hereafter becomes generally known to the public but not as a result of unpermitted disclosure;
b) was available to the receiving Party on a non-confidential basis prior to the time of its disclosure by the disclosing Party; and/or
(c) is disclosed to a Party by an independent third party with a right to make such disclosure.
11.2 Unless required by law or by a judicial, governmental or other regulatory body, neither Party nor their agents nor subcontractors shall use Confidential Information other than for the purpose of the Contract nor disclose the other’s Confidential Information to any person or entity without the prior written approval of the other Party except as expressly provided for herein.
11.3 BAB shall take all reasonable steps to ensure that its personnel, agents and sub-contractors keep confidential all information relating to the Client’s business and shall not disclose to any third party information unless required to do so by law.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1 BAB undertakes to exercise reasonable care and skill in the performance of the Assessment and accepts responsibility only in cases of proven negligence.
12.2 Nothing in these Terms shall exclude or limit BAB’s liability to the Client for death or personal injury or for fraud or any other matter resulting from BAB’s negligence for which it would be illegal to exclude or limit its liability.
12.3 Subject to clause 12.2, BAB’s total liability to the Client in respect of any claim for loss damage or expense of any nature and howsoever arising shall be limited in respect of any one event or series of connected events to an amount equal to the fees paid to BAB under the Contract (excluding Value Added Tax thereon).
12.4 Subject to clause 12.2, BAB shall have no liability to the Client for any claim for loss damage or expenses unless arbitration proceedings are commenced within one year after the date of the event giving rise to a legitimate claim against BAB or termination of the Contract (whichever is sooner).
12.5 Subject to clause 12.2, BAB shall not be liable to the Client nor to any third party:
(a) for any loss, damage or expense arising from (i) a failure by the Client to comply with any of its obligations herein (ii) any actions taken or not taken on the basis of the Reports or the Certificates; and (iii) any incorrect results, Reports or Certificates arising from unclear, erroneous, incomplete, misleading or false information provided to BAB;
(b) for loss of profits, loss of production, loss of business or costs incurred from business interruption, loss of revenue, loss of opportunity, loss of contracts, loss of expectation, loss of use, loss of goodwill or damage to reputation, loss of anticipated savings, cost or expenses incurred in relation to making product recall, cost or expenses incurred in mitigating loss and loss or damage arising from the claims of any third party (including without limitation product liability claims) that may be suffered by the Client; and
(c) any indirect or consequential loss or damage of any kind (whether or not falling within the types of loss or damage identified in (b) above).
12.6 Except for cases of proven negligence or fraud by BAB, the Client further agrees to hold harmless and indemnify BAB and its officers, employees, agents and subcontractors against all claims (actual or threatened) by any third party for loss, damage or expense of whatsoever nature including all legal expenses and related costs and howsoever arising out of or in connection with the Client’s product, process or Service that is the subject of the Certification (including, without limitation, product liability claims).
12.7 Each of the Parties agrees to take out adequate insurance to cover its liabilities under the Contract.
BAB offers a range of Certification services that are designed through its organisational structure and auditing processes to ensure impartiality. BAB recognises the importance of impartiality in carrying out its management system certification activities and manages any possibilities for conflict of interests through documented analysis to minimize such threats, thus ensuring objectivity of its management system and certification activities. BAB complies with ISO 17021 and would welcome any feedback relating to any perceived breaches of impartiality or conflicts of interest which could be made available to BAB’s Impartiality Committee for investigation and resolution.
Unless specifically agreed otherwise, all disputes arising out of or in connection with the Contract shall be governed by the laws of England in accordance with the Arbitration Act 1996 and by a single arbitrator appointed between the Parties or in default of agreement appointed on the written application by either Party by the Director General of the Confederation of British Industry.
It is BAB’s policy to give each of its Clients an objective and impartial Assessment. Should a Client become dissatisfied with any aspect of the Assessment they may appeal by giving notice in writing to BAB’s Chairman within 21 days of the Assessment date. The outcome of any such appeal will be at BAB’s sole discretion (acting reasonably).
16.1 Should any one or more of the provisions of these Terms be found to be illegal or unenforceable in any respect the validity legality and enforceability of the remaining provisions shall not in any way be affected or impaired whatsoever.
16.2 Except where expressly provided for herein, the Client may not assign or transfer any of its obligations in the Contract without BAB’s prior written consent.
16.3 The Contracts Act 1999 (Rights of Third Parties) shall not apply to the Contract.
16.4 The Parties acknowledge that BAB provides the Services to the Client as an independent contractor and that the Contract does not create any partnership, agency, employment or fiduciary relationship between BAB and the Client.
16.5 Any failure by BAB to require the Client to perform any of its obligations under the Contract shall not constitute a waiver of BAB’s rights to require performance of that or any other obligation by the Client.
- FORCE MAJEUREIf BAB is prevented from performing or completing any Service under the terms of the Contract by reason of any circumstances outside of BAB’s reasonable control including but not limited to acts of god war terrorist activity industrial action failure to obtain permits licenses or registrations illness death or resignation of personnel or failure by the Client to comply with any of its obligations under the Contract the Client will pay to BAB:(a) the amount of all abortive expenditures actually made or incurred;(b) a proportion of BAB’s fees equal to the proportion (if any) of the Services actually carried out.
18. DURATION AND TERMINATION
18.1 Unless otherwise agreed in writing by the Parties the Contract shall continue subject to the termination rights set out in these Terms for the Duration.
18.2 BAB shall be entitled to terminate the Contract at any time if the Client is in material breach of its obligations and following receipt of such a notice the Client fails to remedy the breach within 30 days to the reasonable satisfaction of BAB.
18.3 Either Party shall be entitled to terminate immediately the provision of the Contract in the event of any arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by the other Party.
18.4 Unless otherwise agreed in writing, the rights and obligations of the parties defined in clauses 11, 14, 15, 16, 18 shall apply notwithstanding the completion of the Assessment or termination of the Contract.
18.5 Should the Client transfer its activities to another organisation, any transfer of the Certificate shall be subject to BAB’s prior written consent only. Where such consent is given, the use of the Certificate by another organisation shall be governed solely by the Contract.
Either Party wishing to give notice to the other under the Contract must do so in writing with such notice being hand delivered or sent by prepaid, first class recorded post or facsimile to the registered address of the other Party. Such notice will be deemed received by the other Party:-
(a) if hand delivered, on the date of delivery;
(b) if sent by first class recorded post, three days after the date of posting;
(c) if sent by facsimile with the time indicated on the sending Party’s facsimile transmission confirmation message.
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