- Nemko’s provision of testing, certification, market access, and other independent third party Conformity Assessment Services (“the Services”) to Customer are governed by these Nemko Scheme Requirements (“the Requirements”). The Requirements supplement the requirements set out in the agreed test or certification scheme or standard (“the Schemes”). They set out basic expectations to Customer and include provisions that are deemed necessary for Nemko to comply with applicable accreditation or scheme requirements and to safeguard Nemko’s integrity, impartiality and independence.
- When purchasing a service from Nemko, the Requirements are deemed to have been accepted by the customer as an integral part of the Agreement.
- A Conformity Assessment according to the Requirements means according to ISO 17000 the demonstration that specified requirements are fulfilled, and include but is not limited to, testing, inspection, validation, verification or certification.
- The Requirements do not apply for the provision of Management System Certification services (ISO 9001, ISO 14001, ISO 27001 etc)
- All references to Nemko shall be understood as references to the Nemko Group Legal entity which is party to the service agreement with Customer (“the Agreement”).
- Nemko and Customer are hereinafter referred to as Party in singular and Parties in plural.
The Customer warrants that it has the right and authority to
- Order the tests, inspections and certifications related to the identified products and pertaining documentation, hardware, software and supporting equipment etc (“Product”) covered by the Agreement.
- Undertake and execute the obligations set out in the Requirements and the Schemes concerned, including but not limited to, the right to disclose design details regarding the Products, to give access to production sites and to carry out preventive, mitigating and corrective actions in a prompt and efficient manner when required.
3. Order of precedence
The Requirements shall take precedence over any deviating provisions in the Agreement or any purchase order thereunder. Any changes in the Requirements shall in order to be enforceable require the written agreement of the Parties with explicit, precise reference to the clauses of these Requirements that shall be modified or set aside. Unless this amendment procedure is complied with, it is agreed between the Parties that any deviating terms included in Customer’s purchase orders, requests for quotes or similar, shall be disregarded as null and void.
Nemko may, with Customer’s prior written consent, assign or transfer any or all of its rights and obligations under the Agreement to any affiliate in the Nemko Group. Customer’s consent shall not be unreasonably withheld.
5. The Services
- Nemko shall provide the Services in accordance with the agreed Scheme. Unless otherwise agreed in the Agreement with explicit reference to this provision, Nemko’s quotations are based on a successful conformity assessment – ie that the Product or system are found to meet the applicable requirements. Any circumstances that require mitigation or repeat testing/examination will trigger additional costs which shall be covered on a time and materials basis based on standard hourly rates unless otherwise agreed.
- Unless otherwise explicitly agreed between the Parties, all agreed or estimated progress plan(s) for the provision of the Services are based upon the assumption that Customer provides the necessary Materials, information and accesses in a timely and structured manner. In case of Customer’s delay, the progress plan or estimate will as a minimum be extended correspondingly. Nemko reserves the right to further extensions, taking into account other assignments which collide with the Services due to the delays.
- Unless it is explicitly agreed as part of the Services that Nemko shall identify discrepancies, errors, inconsistencies or omissions in the Materials, Customer is responsible for all aspects of the Materials, including the Product. Nemko is entitled to rely on the accuracy and completeness of the Materials in the performance of the Services.
- Nemko does not undertake any fitness for purpose obligations. Neither does Nemko make any representation or warranty that the outcome of the Services is that the Product is actually deemed to meet the requirements set out in the Schemes. In case the conclusion of the agreed process and assessment is that the requirements in the applicable Schemes are not met, certificates will not be issued. Customer may then if deemed relevant, order further testing and assessment as additional work. Nemko’s conclusion and a brief explanation may be provided in a report, if requested by Customer.
- Nemko’s certification decisions are based on documentation established by Nemko itself or by other conformity assessment bodies, in accordance with the requirements set out in the applicable Schemes.
- Customer shall familiarize itself with any draft or final gap-analysis, report, attestation, certificate, training materials or other agreed deliverable (“Deliverable”) issued within a reasonable time after completion of the corresponding part of the Services.
- Any documented error or defect in the Deliverable shall be rectified within a reasonable period of time, at Nemko’s sole cost, provided said error or defect is not attributable to the Customer, Customer’s affiliates or Customer's subcontractors. Customer shall notify Nemko of any error or defect in the Deliverable or the Services in writing within 20 business days after Customer became or should have become aware of such errors or defects, and at the latest within 12 months from issuance of the relevant Deliverable.
6. Integrity of Nemko’s personnel
- The Customer shall inform Nemko without undue delay of (i) any actual or potential HSE risk which Customer is aware of and which is reasonably relevant for the performance of the Services, and (ii) any of Customer’s implemented or planned measures against such risks that Customer requires Nemko’s personnel to adhere to.
- Whenever Nemko’s performance of the Services involves visits on Customer’s controlled facility or site, the Customer is responsible for the adequacy, stability, safety and legal compliance of the Customer environment, including reasonable measures to mitigate or control relevant risks. Whenever Nemko personnel is present on Customer’s facilities or sites, they shall adhere to Customer’s reasonable HSE instructions provided in reasonable time before the visit.
- Nemko’s personnel, including also its subcontractors, may refuse to carry out any activity, or visit any area or site, if in their sole discretion they consider that relevant risks are unacceptable or not adequately addressed, contained or otherwise mitigated. Any such decision shall suspend both parties’ obligations, excluding Customer’s obligation to pay for performed Services, without any liability or penalty until the parties have agreed on how to proceed.
The testing or certification of a Product do not release Customer from its responsibility for the compliant design, production, marketing, sale, labelling, distribution, transport, use or other aspects of the Product and its commercialization. Neither does the testing or certification directly or indirectly represent or imply a transfer from Customer to Nemko of the risks or liabilities arising from or in connection with the design, manufacture, distribution, use or other aspects of the Product and its commercialization.
7. Personnel and use of external resources
- Appropriate personnel shall be appointed for the performance of the Services. Unless otherwise agreed, substitute personnel may be assigned to the Services, at any time, and without extra cost and risk for Customer. Substitute personnel shall be suitably qualified and competent.
- Nemko shall have the right to subcontract the Services under the Agreement fully or partially to any affiliate or any duly qualified and competent third parties. Such subcontracting shall not relieve Nemko from its obligations under the Agreement. Nemko regularly subcontracts Services as part of its accredited, global delivery, and subcontracting shall not require prior consent from Customer.
- Nemko may, at own cost and risk, extend the team performing the Services with observers for purposes such as training, peer evaluations and mandatory supervision by accreditation bodies, scheme owners, notifying authorities and similar stakeholders in independent third party services.
To the extent required under the applicable standards or schemes, Customer shall at all times be able to identify, document and trace the Product covered by the Agreement and the certificates or reports issued by Nemko to Customer.
9. Documentation and access to sites
- Documentation to be a basis for certification by Nemko, shall not exceed 24 months of age at the time of contracting of the Services unless expressly permitted by the certification scheme.
- Customer shall in a timely manner make all necessary decisions. Customer shall give Nemko free and unrestricted access to all relevant, accurate and complete information, documents (including but not limited to technical descriptions, installation guidelines and user guides) and samples of the Product (“Materials”) in the required format as well as to Customer’s sites and facilities when required for the purpose of the Services.
- The right of Nemko to obtain free and unrestricted access shall not be conditional upon the execution by the representative or Nemko of any agreement, waiver or release which in any way affects the representative's or Nemko’s legal rights or the rights or obligations. Any such document executed in contravention of this provision shall be without force or effect.
- Upon signing the Agreement, Customer and Nemko shall agree whether the sample shall be sent back to Customer, or be discarded, both at Customer’s cost. If nothing is agreed, Customer shall collect any Materials that are in Nemko’s custody after Nemko’s issuance of the agreed Deliverable without undue delay, and at the latest at the date indicated in the Application form or the Agreement. Regardless of anything to the contrary in the Application form or the Agreement, Nemko reserves the right to dispose of / destruct any Materials that have not been collected by the Customer within 60 days after the issuance of the relevant Deliverable. The documented costs shall be covered by Customer on a time and materials basis, using Nemko’s standard hourly rates.
- All packing, unpacking, shipping, insurance, import/export costs and taxes for the transport of Materials, including samples of the Product (hardware, software, manuals, shipping materials etc) etc, are the responsibility of Customer. Nemko does not assume any responsibility for Materials that are submitted to Nemko for testing purposes, and waives any liability arising from or in connection with the full or partial loss or destruction of the Materials during testing, storage or transport.
10. Third parties affected by testing, audits or inspections
If the Services involve or affect a third party/third parties, where the third parties in any way may be affected by testing or other conformity assessment activities, the Customer shall be responsible for and ensure notification of all involved/affected third parties in order for them to be enabled to prepare and take preventive or mitigating actions, when relevant.
11. Nemko’s online service delivery
Nemko may at Nemko’s discretion, require that Customer and Nemko interact through Nemko’s online services. Special user terms may apply.
12. Customer’s suppliers and subcontractors
Customer shall take all necessary measures to ensure that the obligations set out in the Requirements apply also for Customer’s suppliers and subcontractors, to the extent necessary for Nemko’s performance of the Services.
13. Issuance and maintenance of certificates and other Deliverables
- Upon completion of the Services, Nemko may at its own discretion issue a Certificate, attestation, report or other Deliverable to the Customer, provided Nemko finds that there is satisfactory evidence of conformity with the applicable requirements, and that fees and licenses are paid by the Customer in accordance with the Agreement.
- Payment of all dues, including regular licenses, is a condition for the issuance and maintenance of all Certificates and reports.
- Subject to payments being made by Customer in accordance with the Agreement, Customer shall have the right to use valid Certificates with pertaining product marks and labelling in standard size and design as provided by Nemko for the purposes for which such Deliverables are generally intended and used, including on letters, documents and other promotional material, in accordance with the applicable requirements.
- The Deliverables, including certificates, attestations and reports, shall solely be used in connection with products that are manufactured in total conformity with the tested or certified design.
- Customer shall not adjust or alter the Deliverables in any manner whatsoever, including, but not limited to, by translating the document.
In case of misleading use of Deliverables or marks, or other breach of the applicable requirements for the maintenance and use of the Deliverables and marks, Nemko may at its own discretion decide to take unilateral corrective actions, including suspension or withdrawal of Deliverables, publication of the transgression and complaint to relevant authorities. Customer shall immediately implement such corrective actions, regardless of whether they are disputed or not.
14. Customer’s reporting
- Customer shall without undue delay report to Nemko all facts and circumstances which may reasonably affect the assumptions for issuance or validity of the Certificate. Customer shall inform Nemko of all quality cases, changes to the quality management systems, modifications of the production processes, customer complaints, manufacturing problems, identified deficiencies in the Products, major incidents, changes of key personnel, any proposed product alteration etc, which concern the Products covered by the Deliverables, insofar they may be relevant for the validity of the Deliverable concerned. Nemko may verify that the Customer has taken relevant corrective actions for the recorded complaints in conjunction with routine or extraordinary audits or inspections, as permitted under the applicable Scheme.
- The Customer is obliged to ensure that a record of all complaints made known to it relating to compliance with the Schemes and subsequent actions taken with respect to such complaints, as well as of any deficiencies found in Products that affect compliance with the applicable Schemes, is maintained by all parties to the manufacture of the Product. The records shall be available for inspection by Nemko representatives at all times.
- Customer shall immediately notify Nemko in writing if Customer discovers or has grounds to suspect that the Product has subsequent to certification or testing been found to be potentially hazardous, or that it has been or may have been the cause of personal injury or property damage. In cases where the results of examination by an agency other than Nemko were relied upon by Nemko for certification of the Product, Customer shall notify Nemko if Customer subsequently discovers said results to be invalid.
- Upon learning, from any source, that any Products covered by a certificate, attestation, report or other Deliverable, did not comply with the applicable Schemes at the time that such Products left Customer’s control, Customer shall immediately notify Nemko. Further, the Customer shall promptly, at its own expense, take all reasonable or mandatory steps to rework, recall, remove the certification mark from, or destroy, all such Products, notwithstanding that such Products may have been delivered to or are being held on behalf of a wholesaler, dealer, retailer or consumer, or that title to such individual Product has passed from Customer. Customer’s obligations shall be limited to using its best efforts, in good faith, to secure the voluntary return or destruction of such Products or the voluntary removal of the certification mark by such distributor, wholesaler, dealer, retailer or consumer.
- Customer shall upon request provide Nemko with a sample of a certified product for the purpose of re-examination and testing in case there are substantiated grounds to believe that the product does not meet the applicable Schemes, or in case there is in Nemko’s sole discretion a need to verify that the product remains in accordance with the certified design. The documented costs of this shall be covered by Customer on a time and materials basis, applying standard hourly rates.
- Customer shall take necessary action in case of any non-conformities, observations, improvement opportunities and noteworthy efforts reported by Nemko in connection with onsite visits.
- The certificate may only be transferred from Customer to another legal entity if (i) Customer documents that the transfer of the certificate does not imply any changes in the product, the production or other assumptions which form the basis for Nemko’s issuance of the certificate, and (ii) that the other legal entity signs a certification agreement with Nemko.
15. Audits and inspections
- In cases where the maintenance of a valid certificate or other Deliverables depends on specific requirements, as described by the applicable Scheme, Nemko may at its sole discretion carry out or have carried out unscheduled visits of Customer and its production sites when in Nemko’s sole discretion it is determined necessary to verify that the conditions for maintaining the Deliverable concerned are met. Customer shall upon request provide immediate unrestricted access to all sites, suppliers, personnel, devices, documentation and other assets as requested by Nemko.
- Nemko may at its sole discretion suspend or withdraw the certificate if in Nemko’s view the requirements for maintenance of the certificate are not met, or in case Customer does not pay any applicable annual license/subscription fee. The decision to suspend or withdraw shall be in writing and shall outline the factual basis for the action taken. Nemko shall notify Customer 20 work days in advance in case it is contemplated to suspend the certificate due to delayed payment of the applicable fees.
- If a Deliverable is suspended or withdrawn, the Customer shall not use, make available or refer to the Deliverable, regardless of whether the basis for suspension or withdrawal is contested or appealed or not. Further, the Customer shall ensure that all other active use of the Deliverable, regardless of technological platform, shall cease with immediate effect.
Nemko’s decisions to grant, suspend or withdraw certification may be appealed by Customer to Nemko’s Appeal Committee in writing within 3 weeks from the time the Customer has received Nemko’s written decision. The appeal shall be submitted to the Nemko Party concerned. Nemko’s administrative costs of appeals shall be covered by Customer on a time and materials basis.
17. Developments of applicable Schemes and industry practices
- Customer shall maintain updated knowledge of all applicable Schemes and relevant industry practices.
- Unless explicitly agreed in writing, and regardless of anything to the contrary in Schemes concerned, the Agreement does not imply any obligation or duty of care for Nemko to inform the Customer of developments in the applicable standards or industry practices taking place after the issuance of the Deliverables.
18. Marking, labelling and advertising
- When a certificate is issued, the Customer is granted a non-exclusive, non-transferrable, non-assignable license to represent the Product as certified by Nemko and to use the assigned certification mark, if any, in the manner set forth in the associated certification documents. The Product shall be represented as certified only if it is marked as set forth in the Scheme concerned.
- Labels shall not contain the Scheme certification mark without the prior knowledge and written general or specific consent of Nemko.
- Customer’s authorization to use the Scheme certification mark may be withdrawn by Nemko for failure to comply with any part of the Agreement. In such case, for Products in production and in stock, Nemko may require removal of the Scheme certification mark or label, or require that the product be made to comply with Nemko’s requirements. For products already shipped, Nemko may require recall of the Product concerned for either removal of the certification mark or label, or for reworking of the Product so that the Product is made to comply with the applicable requirements.
- Customer shall be entitled to use appropriate references to Nemko or the text set out in the certification documents, in communication media such as advertising or promotional material solely in connection with the specific Products that bear the Scheme certification mark, provided that in the sole discretion of Nemko the materials comply with the requirements of Nemko and the certification scheme concerned. Materials shall in no way use the product certification issued by Nemko to create an impression as to the nature of Nemko’s findings, coverages or Service that is misleading, or otherwise may bring Nemko into disrepute.
- Upon suspension, withdrawal or termination of certification, regardless of reason, and regardless of whether there are pending disputes between Nemko and the Customer, the Customer shall forthwith cease the use of any certification marks, certificates and labels, and return any certificates to Nemko.
19. Additional Services
- In case Customer requires Nemko to perform additional reasonably similar work or services under the Agreement which in nature, volume or time-schedule go beyond the scope of Services and/or assumptions following from Nemko’s Quote and/or application form (“Additional Services”), the Parties shall discuss and agree on a revised scope of Services, as well as the consequences of the Additional Services for the time schedule and agreed remuneration. No Additional Services shall be initiated before a written agreement is reached regarding this. Additional Services shall as a starting point be charged on a time and materials basis.
- Unless otherwise explicitly stated in the Agreement with reference to this provision, the following activities shall under any circumstances be deemed to represent additional services, which will be charged on a time and materials basis, or based upon a standard fee:
- Re-testing or re-examination after he test covered by the initial test scope has failed.
- Unannounced/Unscheduled audits
- Work associated with the closing of non-compliances identified during audits or inspections
- Requests for access to Materials or files by public authorities, courts, counterparties or civil society stakeholders in connection with or due to products or systems covered by the Agreement
- Administrative costs incurred by Nemko due to Customer’s appeals
- Costs arising on Nemko’s side in connection with Customer’s notification of circumstances which trigger follow up from Nemko’s side after issuance of the Deliverables. This applies in particular for indications that the applicable requirements may not be met, or existing or planned product alterations or amendments, in order for Nemko to verify whether there is a need to re-certify or re-examine the product concerned
- Costs incurred in connection with suspension or withdrawal of Deliverables, or decision to re-instate Deliverables
- Issuance of hard copy test reports rather than digital reports. In such case, a standard fee of 300 Euros per individual copy shall incur
- Translation services for User manuals and other documentation which are not in the English language
20. Intellectual Property
- Customer warrants that it has the necessary authority to grant Nemko the right to use, amend, process and store the Materials and give Nemko access to the Product and its design and specifications for the purpose of the Services, regardless of format.
- Each party shall remain the sole owner of any of its intellectual property and rights thereto existing prior to the date of the Agreement. In particular, Nemko shall remain the owner and hold all rights to the Nemko schemes, protocols, checklists as well as templates for attestations, certificates and reports.
- Nemko shall hold all intellectual property rights to the Deliverables issued to Customer under the Agreement, including the copyright.
- Customer shall hold a restricted, non-transferrable, global and royalty free license to use the valid reports, certificates, attestations, certification marks and labels in accordance with the applicable Scheme.
- Customer shall not disclose reports issued by Nemko to third parties fully or partially without Nemko’s prior written consent, which shall not be unreasonably withheld. Such consent shall not be required for disclosures to other conformity assessment bodies or public administrations.
- Nemko shall be entitled to collect, store, process and use for conformity assessments as well as maintenance and updates of its schemes and systems, the know-how acquired in the course of the performance of the Services. In addition, Nemko shall be entitled to use materials received or generated under the Agreement in an anonymous and aggregated form, for its internal training and competence building related to the independent third party conformity assessment role, always subject to the confidentiality obligations set out in these Requirements.
- The Customer shall only make available the Deliverables in their entirety without altering the content, context or original language of the Deliverables.
- Unless otherwise agreed in writing between the Parties with explicit reference to this provision, each Party agrees to apply market standard efforts to safeguard the confidentiality of any information it receives from the other Party in course of the Agreement. The recipient Party shall treat such received information with reasonable care and diligence, not disseminating or disclosing it to any third parties without the disclosing party’s prior written consent, provided however that each Party may share such information with its officers, employees, subsidiaries, affiliates or subcontractors who are subject to confidentiality obligations reflecting the principles herein.
- Customer shall ensure that instructions are issued directly from Customer to Nemko in case Customer requests that Nemko shall disclose information to any third parties. Third parties in this provision includes any other legal entities than Customer, including but not limited to, any Customer’s parent companies, affiliates, subsidiaries, shareholders or subcontractors. The instruction shall identify in detail which information shall be released.
- If Nemko is instructed to release information from the Customer file to a third party, the Customer shall hold Nemko harmless from any claims towards Nemko from the recipient party which exceed the limitation of liability provision included in the Agreement, in case of full or partial reliance on the report concerned.
- The obligations set out in this provision shall not apply to the extent the information is required to be disclosed by any relevant accreditation body or certification scheme owner, any competent court, governmental agency, or other relevant public authority in accordance with applicable law, court order or other public regulation.
- In addition, each Party shall be free to disclose, any information to the extent it: (i) was known to the recipient prior to the information being disclosed by the other party, (ii) becomes known to the recipient through a third party without known confidentiality obligations towards Customer; (iii) is or becomes generally available in the public domain through no act or failure to act on the part of the recipient, or (iv) is in the professional discretion of Nemko as an independent conformity assessment body, necessary to issue a warning to the public regarding safety or use.
- In cases where Nemko is required by law, accreditation or authorized by contractual arrangements to release confidential information, Customer shall, unless prohibited by applicable law, be notified by Nemko of the information provided.
- The confidentiality obligations shall survive the completion of the Services, termination of the Agreement or termination, suspension and withdrawal of certification, and remain in effect for as long as the relevant information can reasonably be deemed to be confidential information according to this Agreement.
- Nemko is not in a position to undertake an obligation to return or delete Materials after the finalization of the Services. Nothing herein shall prevent Nemko from keeping a copy of all confidential information related to the provision of the Services for its internal contract, accreditation and risk management purposes.
- These Requirements do not constitute confidential information.
22. Risk distribution
- Customer shall at all times ensure that the applicable requirements are complied with. Nemko’s provision of a conformity assessment service or issuance of a Deliverable do not release or otherwise discharge Customer from the sole responsibility for the compliance of the Product or systems concerned with the relevant Schemes.
- EXCEPT IN CASE OF BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET OUT HEREIN, OR IN CASE OF FRAUD, FRAUDULENT MISREPRESENTATION, OR OTHER SIMILAR CIRCUMSTANCE FOR WHICH A PARTY MAY NOT LAWFULLY LIMIT ITS LIABILITY UNDER THE AGREEMENT’S APPLICABLE LAW, THE MAXIMUM CUMULATIVE LIABILITY OR INDEMNITY OF NEMKO ARISING FROM OR IN CONNECTION WITH THE PROVISION OF SERVICES UNDER OR IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR IN STRICT LIABILITY, SHALL BE LIMITED TO THE LESSER OF (I) A SUM EQUAL TO FIVE TIMES THE REMUNERATION PAID UNDER THE AGREEMENT FOR THE SERVICE GIVING RISE TO LIABILITY, OR (II) USD 100,000 (ONE HUNDRED THOUSAND US DOLLARS).
23. Force majeure and restrictions on trade
- Neither Party shall be in breach of the Agreement, nor liable for any failure or delay in performance hereunder if the cause of such failure or delay is attributable to events beyond reasonable control of the affected Party, including but not limited to armed conflict terrorist attack, civil war, riots, toxic hazards, epidemics, pandemics, natural disasters, extreme weather, fire, explosion, failure of utility service, labour disputes, breakdown of infrastructures, including outages or disruptions in telecommunications systems and similar, cyber-attacks despite market standard preventive and mitigating actions having been taken, sanctions, or any public restrictions following any of the incidents above; or any other incidents beyond reasonable control (force majeure).
- In the event of a force majeure occurrence, the affected Party shall notify the other Party without undue delay of the particulars of the situation. Either Party shall be entitled to terminate the Agreement with immediate effect should the force majeure endure for more than 30 calendar days.
Each Party may terminate the Agreement, subject to 30 calendar days written notice to the other Party, without any liabilities or penalties, if the Party, its ultimate parent company or the ultimate parent company’s subsidiaries or affiliates can demonstrate that they are subject to sanctions, embargo or penalties by a government, United Nations, European Union or similar organisations related to the Services which is provided hereunder or would be considered to be illegal or in conflict with applicable law for the certification/notified body, its subcontractor and/or its subcontractor’s parent companies.
24. Third Party rights
- No one other than the Parties to the Agreement, their successors and permitted assignees, shall have any right to enforce the rights set out in the Agreement. No person other than the Parties to the Agreement shall have any rights under declaratory legislation or background law which give third parties rights to enforce or enjoy the benefit of any term of this Agreement.
- The rights of the Parties to agree any amendment or waiver under the Agreement are not subject to the consent of any other person.
- In case third parties initiate legal proceedings against Nemko in connection with a Product certified under this Agreement, Nemko shall be entitled to initiate a recourse claim against Customer before the court concerned.
Nemko General Counsel 01.12.2021