Terms and Conditions of Business (2009)
Unless otherwise specifically agreed in writing INSPECTIS Sp. z o.o. (hereinafter called "the Company") undertakes services in accordance with a these general conditions (hereinafter called "General Conditions") and accordingly all offers or tenders of service are made subject to these General Conditions. All resulting contracts, agreements or other arrangements will in all respects be governed by these General Conditions, except only to the extent that the law of the place where such arrangements or contracts are made or carried out shall preclude any of the General Conditions and in such case such regulations and such local law shall prevail wherever, but only to the extent that, it is at variance with these General Conditions.
The Company is an enterprise engaged in the trade of inspection and testing. As such, it:
- quantitative and/or qualitative inspection;
- inspection of goods, plant, equipment, packing, tanks, containers and means of transport;
- inspection of loading or discharging;
- laboratory analysis or other testing;
- surveys and audits,
renders advisory and special services as may be separately agreed. Special services where the same exceed the scope of standard services as referred to in General Condition 2.1, will only be undertaken by the Company by particular arrangement. Such special services are illustratively not exhaustively:
- qualitative and/or quantitative guarantees;
- tank calibration, meter calibration and meter proving,
- advisory services;
issues reports and certificates concerning the above mentioned activities.
The Company acts for the persons or bodies from whom the instructions to act have originated (hereinafter called "the Principal"). No other party is entitled to give instructions, particularly on the scope of inspection or delivery of report or certificate, unless so authorized by the Principal and agreed by the Company. The Company will however be deemed irrevocably authorized to deliver at its discretion the report or the certificate to a third party if following instructions by the Principal a promise in this sense had been given to this third party or such a promise implicitly follows from circumstances, trade custom, usage or practice.
Provision of services
The Company will provide services in accordance with:
the Principal's specific instructions as confirmed by the Company;
the terms of the Company's standard Order Form and/or standard Inspection Procedure Sheet, if used;
any relevant trade custom, usage or practice;
such methods as the Company shall consider appropriate on technical, operational and/or financial grounds.
All enquiries and orders for the supply of services must be accompanied by sufficient information specifications and instructions to enable the Company to evaluate and/or perform the services required. Any contract not confirmed in writing will not be binding on the Company.
Documents reflecting engagements contracted between the Principal and third parties, or third parties' documents, such as copies of contracts of sale, letters of credit, bills of lading, etc., are (if received by the Company) considered to be for information only, without extending or restricting the mission or obligations accepted by the Company.
Principal acknowledges that the Company, by providing the services, neither takes the place of Principal or any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of Principal to any third party or that of any third party to Principal.
All samples drawn, prepared or obtained by Company and/or their sub-contractor shall be retained for a maximum of 3 months or such other, indicated in the report of sampling, shorter time period as the nature of the sample and/or circumstances permit and then returned to Principal or otherwise disposed of at the Company’s discretion after which time Company shall cease to have any responsibility for such samples. Principals looking for storage of samples longer than the above mentioned should notify in writing no later than 2 weeks before the storage periods ends. Storage of samples for the period longer than the above one shall incur a storage charge payable by Principal. Principal will be billed a handling and freight fee if samples are returned. Special disposal charges will be billed to Principal if incurred.
Subject to the Principal's instructions as accepted by the Company, the Company will issue reports and certificates of inspection which reflect statements of opinion made with due care within the limitation of instructions received, but the Company is under no obligation to refer to or report upon any facts or circumstances which are outside the specific instructions received.
Any documents as requested by Principal's order and other issued by Company as the result of performed services in the scope requested by Principals and confirmed by Company, shall be implicitly in their electronic version only. Principals looking for their hard (paper) copy / version shall each time apply for them to the Company. The Company is entitled to receive an extra fee for each document issued in paper form.
Reports or certificates issued following testing or analysis of samples contain the Company's specific opinion on those samples only but do not express any opinion upon the lot from which the samples were drawn. If an opinion on the lot is requested special arrangements must be made in advance with the Company for the inspection and sampling of the bulk.
If the requirements of the Principal necessitate the analysis of samples by the Principal's or by any third party's laboratory the Company will pass on the result of the analysis but without responsibility for its accuracy. Likewise where the Company is only able to witness an analysis by the Principal's or by any third party's laboratory the Company will provide confirmation that the correct sample has been analyzed but will not otherwise be responsible for the accuracy of any analysis or results.
The Company shall be entitled at its discretion to delegate the performance of the whole or any part of the services contracted for the Principal to any agent or subcontractor.
The Company shall be entitled to immediately and without liability either suspend or terminate provision of the services in the event of:
failure by the Principal to comply with any of its obligations hereunder and such failure is not remedied within 5 days that notice of such failure has been notified by any means to Principal; or
any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by Principal.
The Principal will:
ensure that instructions to the Company and sufficient, in Companies opinion, information are given in due time, however not later than 48 hrs before the provision of the service starts, to enable the required services to be performed effectively;
procure all necessary and sufficien in companies opinion, access for the Company's representatives to the commodity parcels, premises and means of transport, where the services are to be performed to enable the required services to be performed effectively;
supply, if required, any special equipment and personnel necessary and sufficient in Companies opinion, for the performance of the required services, in due time, however not later than 48 hrs before the provision of the service starts;
ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services and will not rely, in this respect, on the Company's advice whether requested or not;
take all necessary steps to eliminate or remedy any obstruction to or interruptions in the performance of the required services and keep Company duly informed about such undertaken steps;
inform the Company in sufficient for the Company to undertake necessary measures, advance of any known hazards or dangers, actual or potential, associated with any order or samples or testingincluding, for example, presence or risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons;
fully exercise all its rights and discharge all its liabilities under any related contract whether or not a report or certificate has been issued by the Company failing which the Company shall be under no obligation to the Principal;
ensure that any goods, materials and samples delivered to the Company for the purpose of testing are properly and sufficiently marked, packed and provided with the appropriate documentation and description and delivered to the Company in a harmless for the Company and not implementing any additional costs manner.
Liability & Indemnity
The Company undertakes to exercise due care and skill in the performance of its services and accepts responsibility only where such skill and care is not exercised as proved by Principals.
The liability of the Company in respect of any claims for loss, damage or expense of whatsoever nature and howsoever arising in respect of any breach of contract and/or any failure to exercise due skill and care by the Company shall in no circumstances exceed a total aggregate sum equal to 5 times the amount of the fee or commission payable in respect of the specific service required under the particular contract with the Company which gives rise to such claim or US$1,000000 (or its equivalent in local currency), whichever is the lesser, however provided that the Company shall have no liability in respect of any claims for indirect or consequential loss including loss of profit and/or loss of future business and/or loss of production and/or cancellation of contracts entered into by the Principal. Where the fee or commission payable relates to a number of services and a claim arises in respect of one or some of those services the fee or commission shall be apportioned for the purposes of this paragraph by reference to the estimated time involved in the performance of each service.
The Company is neither an insurer nor a guarantor and disclaims all liability in such capacity. Principals seeking a guarantee against loss or damage should obtain appropriate insurance on their own
Reports and certificates are issued on the basis of information, documents and/or samples provided by, or on behalf of, Principal and solely for the benefit of Principal who is responsible for acting as it sees fit on the basis of such Reports of Findings. Neither the Company nor any of its officers, employees, agents or subcontractors shall be liable to Principal 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 the Company.
The Company shall not be liable for any delayed, partial or total non-performance of the services arising directly or indirectly from any event outside the Company’s control including failure by Principal to comply with any of its obligations hereunder.
The Company shall be discharged from all liability to the Principal for all claims for loss, damage or expense unless suit is brought within 6 months after the date of the performance by the Company of the service which gives rise to the claim or in the event of any alleged non-performance within 6 months of the date when such service should have been completed.
The Principal shall guarantee, hold harmless and indemnify the Company and its Management Board members, officers, employees, agents or subcontractors against all 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 exceed the limit mentioned in Condition 17.
Every Mangement Board member, officer, employee, agent or subcontractor of the Company shall have the benefit of the limitation of compensation and the indemnity contained in these General Conditions and so far as relates to such limitations any contract entered into by the Company is entered into not only on its own behalf but also as agent and trustee for every such person as aforesaid.
Fees and Payment
Fees not established between the Company and Principals at the time the order is placed or a contract is negotiated shall be at the Company’s standard rates (which are subject to change) and all applicable taxes shall be payable by Principals.
Unless the shorter period is established in the invoice, the Principal will punctually pay not later than 30 days after the relevant invoice date or within such other period as may have been agreed in writing by the Company all proper charges rendered by the Company failing which interest will become due at the rate of statutory interests per cent per annum from the invoice due date until the date of payment. The date of payment is understood as the date on which the funds transferred by Principal are booked on the Company account.
The Principal shall not be entitled to retain or defer payment of any sums due to the Company on account of any dispute, cross claim or set off which it may allege against the Company.
Company may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction. Principal shall pay all of the Company's collection costs, including attorney's fees and related costs.
In the event that any unforeseen problems or expenditure arise in the course of carrying out any of the contracted services the Company shall be entitled to make additional charges to cover additional time and cost necessarily incurred to complete the service.
In the event of the Company being prevented by reason of any cause whatsoever outside the Company's control from performing or completing any service for which an order has been given or an agreement made, the Principal will pay to the Company
the amount of all abortive expenditure actually made or incurred,
a proportion of the agreed fee or commission equal to the proportion (if any) of the service actually carried out; and the Company shall be relieved of all responsibility whatsoever for the partial or total non-performance of the required service.
No alteration, amendment or waiver of any of these General Conditions shall have any effect unless made in writing and signed by an officer of the Company.
This General Conditions shall be governed and constructed in accordance with the laws of Poland. Any dispute arising in relation to or as a consequence of this General Conditions, which cannot be settled amicably through negotiations between the parties, shall be subject to the court of Poland, proper to the legal seat of the Company.