Nemko agreement for product certification – ver. 01/2014
Only together with Nemko General Terms and Conditions for services and testing – ver. 01/2012
Nemko agreement for product certification
0.1 Certification Body is issuing the certificate. Testing Laboratory is issuing the test report.
0.2 The Applicant is the holder of the certificates. The Customer is the same as Applicant.
0.3 The Manufacturer is an organization, situated at a stated location or stated locations that carries out or controls such stages in the process of bringing a product to the market as manufacture, assessment, verification, handling and storage of a product.
A Manufacturer has full responsibility for continued compliance of the product with the relevant requirements and undertakes all obligations in that connection. If the Applicant/Customer is a different company than the Manufacturer, the Applicant/Customer must prove that they have necessary agreements with the manufacturer in order to enter the certification agreement on behalf of the Manufacturer.
0.4 Certification Schemes have their own certification rules and regulations. Examples are CB-Scheme, ENEC, CCA, GS-scheme and NRTL. The issuing of the certificates is based on the Scheme rules.
0.5 Factory surveillance is organized according to the rules of each Certification Scheme.
0.6 Factory is the production site under control of the Manufacturer where the certified product is being manufactured.
1.1 The terms of this agreement govern the relation between the party applying for testing/evaluation and/or certification of equipment, within the scope of the certification scheme in question, (the Customer), the party responsible for design, production and quality assurance of the equipment or marks the equipment as its (the Manufacturer) and Nemko performing the certification services. The Customer must be the Manufacturer, or a physical or juridical person appointed by the Manufacturer.
1.1.1 Should the Customer not be identical with the Manufacturer in such cases, the order shall be carried out only if the Manufacturer, on a form set by Nemko (Power of Attorney), declares that he is aware of and agrees that the Customer gives Nemko the task of carrying out the certification of the equipment in question and that he accepts the obligations this agreement impose on him.
1.2 The Customer is obliged to pay Nemko for the performing of the agreed order in accordance with the at all times current Nemko prices. For some certificates this also includes payment of an annual license fee for the right to use the certificate and for the right to use Nemko's name or certification mark. In case of termination or withdrawal of a certificate, the annual fee will not be refunded. The Customer is obliged to pay for the work performed with the purpose of issuing a certificate, even if such document cannot be issued, whether being due to the tested sample, the Manufacturer or the Customer. Regarding orders which are to result in issuing of a certificate, Nemko may permit that the obligation to pay totally or partly is transferred from the Customer to the Manufacturer, provided this is satisfactory documented towards Nemko.
1.3 Nemko's decision may be appealed to Nemko's Appeal Committee, which deals with the appeal in accordance with Nemko's appeal procedure. An appeal in writing must be received by Nemko within 3 weeks from the time the Customer has received Nemko's written decision. Any dispute that might occur regarding these terms, one should primarily try to resolve by negotiations between the parties. If this fails to succeed, the dispute should be decided by the ordinary courts, unless the parties agree to arbitration. Any dispute to be settled in accordance with Norwegian law. Legal venue is Municipal Court of the City of Oslo.
1.4 The rights to a certificate devolve on the Manufacturer, provided that the Customer does not produce evidence that it is agreed with the Manufacturer that such rights are to pass to the Customer.
1.5 Nemko's certificate, test report etc. does not exempt the Customer, the Manufacturer nor a third party for liability according to Norwegian or foreign product liability legislation.
1.6 The present terms are binding on the Customer as from the moment he has signed the Application form, and when applicable, for the Manufacturer when a Power of Attorney as mentioned under item 1.1.1 is signed.
1.7 For an applied GS certification service, the contract for testing and/or certification is concluded between the Client and the GS certification body Nemko GmbH & Co. KG located in Germany. This requirement is valid independent to which Nemko office the Client is submitting application documents and/or testing samples.
1.8 This agreement is only valid together with Nemko General Terms & Conditions for services and testing (see separate attachment).
2 Certification and licensing
2.1 Based on performed testing or other examination, Nemko certifies products found to comply with current standard or other agreed specification and which otherwise is considered suitable for its purpose. Certifications and other documents issued by Nemko may also be used as a basis for certification in other countries in accordance with e.g. European CCA agreement, German GS, USA NRTL or international CB agreement (primary orders), Correspondingly, Nemko issues national certificates, based on documentation from other certification bodies according to the above-mentioned agreements (secondary orders).
2.1.1 To maintain the validity of the certificate the production site(s) shall comply with its factory inspection requirements and the on-site inspection(s) has been carried out within the intervals specified by the different certification schemes. The Manufacturer shall keep Nemko informed of all factory sites and any changes of factory sites.
2.1.2 As a basis for the application, the Customer is to submit the material and information found necessary by Nemko for issuing and maintenance of such a certificate.
2.2 Further rights, responsibilities and obligations
2.2.1 In connection with marketing, sales etc., the Manufacturer and the Customer have the right to inform that the products are certified by Nemko. The Manufacturer and the Customer are obliged to ensure that Nemko's name or certification mark are affixed to the certified products in accordance with current instructions, and that Nemko's name and certification mark are not misused.
2.2.2 The certificate may be pleaded as documentation only for products that are manufactured in total conformity with the certified design. Certification documents are always to be reproduced in their entirety.
2.2.3 The Manufacturer is obliged to conform to the rules applying for Nemko's production surveillance. If required by Nemko, representatives from Nemko or from other bodies acting on Nemko's behalf, are given admittance to the production sites, in order to ensure that the conditions associated with the certificates issued by Nemko, are maintained. This admittance is to include observers, when relevant. Nemko is entitled to invoice the Manufacturer for the costs related to consumption of work hours, travel- and daily allowances, in accordance with item 1.2.
2.2.4 In cases required by Nemko, the Customer shall, free of all costs to Nemko, provide a sample of the certified product for re-examination in order to ensure that it remains in conformity with the certified design. The Customer is obliged to pay for Nemko’s costs in connection with such re-examination.
2.2.5 The customer is to keep a record of, and take appropriate actions to, any complaints and deficiencies found in the products. Such actions can be product recalls or complaints from market regulatory authorities.
The customer is to notify Nemko and make all relevant records available.
2.2.6 The Manufacturer and the Customer are obliged to conform to Nemko's possible directions, as a consequence of the above items 2.2.3, 2.2.4, and 2.2.5.
2.2.7 The client obliges to comply with changes in certification scheme as informed by Nemko.
2.3 Changes to the product
The manufacturer shall notify Nemko in writing of any proposed product alteration. Nemko is to evaluate whether the certificate may be maintained or whether the equipment has to be re-certified, if necessary after repeated testing.
2.4 Duration, termination and withdrawal
2.4.1 Rights and obligations according to these terms attaching to an issued certificate, do no longer apply after the certificate has been cancelled by Nemko or the customer, or it has passed an expiry date if such has been defined for the certificate.
2.4.2 If production and/or marketing of certified equipment should terminate, and obligations according to the present terms should be required terminated, the Manufacturer or the Customer must immediately give Nemko a written request to be released from the obligations. If Nemko agrees to the release, the rights of the persons or companies concerned according to the certificate simultaneously shall no longer apply.
2.4.3 Nemko may withdraw the certificate if the Manufacturer or the Customer does not fulfill their obligations in accordance with the present terms. Notice of withdrawal is to be sent in writing, stating the reason for the withdrawal and the appointed time of conclusion. Withdrawal of a certificate will normally take effect between 1 and 6 months upon Nemko's dispatch of their notice of withdrawal. In case of fundamental breach, the withdrawal may have immediate effect. If a certificate should be withdrawn, each and every right in accordance with the certificate and the present terms shall no longer apply, hereunder the right to use Nemko's name and certification mark
Nemko general Terms and Conditions for services and testing
1.1 Nemko Group AS and its subsidiaries (hereinafter called “the Company”) are enterprises which provide various services to its Clients.
1.2 These General Terms and Conditions (hereinafter called “the Terms”) shall apply to all services provided by the Company to the Client unless specifically agreed otherwise in writing. For tasks involving certification, the Terms will be supplemented by Special Conditions which will be attached to the Terms. Deviations from the Terms must be confirmed by the Company in the Order Confirmation to be valid. The Company has the right to change the Terms. Any changes to the Terms shall take effect upon 30 days’ written notice to the Client.
2 The Contractual Performance of Services
2.1 The Company shall, with reasonable care, skill and diligence, supply the services in compliance with
a) the Client’s special instructions as confirmed by the Company in writing, cf. Clause 2.2 below.
b) recognized technical standards, trade customs, usages and practices, unless other specification is specifically agreed upon in writing,
c) such methods as the Company shall deem suitable on technical and/or financial grounds,
d) applicable statutes, codes, laws and regulations.
2.2 The scope of the Contractual Performance by the Company shall be defined in writing on placement of order. The Company shall bear no responsibility for the correctness of the guidelines and standards on which services have been based.
2.3 The Client shall, free of all costs, provide the Company with all information, documentation, test sample(s), extra components etc. required to enable the Company to perform the services. The Company shall not be liable for any incorrect advice, judgment, recommendation, findings, decision or conduct based upon any inaccurate or incomplete information supplied by the Client. The Company is under no obligation to refer to or report upon any facts or circumstances which are outside the specific agreed scope of the Contractual Performance and accepts no liability in respect of the same.
2.4 The Company undertakes no responsibility whatsoever for damages that might occur to the test sample(s), components etc. during testing, storage or transport. The Client shall maintain at its own cost all applicable insurance policies covering all submitted material. Test samples not collected within four weeks from the Company dispatching a Return Notice will be discarded at the Client’s cost. The same applies if none of the boxes of the Application Form for “Test sample(s) after examination” are ticked off.
3 Deadlines and Compensation for delayed performance
3.1 The Company shall provide the Client with a suggested time schedule and assessment plan. The time schedule shall be deemed as approximate and shall be binding only if this has been explicitly agreed upon in writing.
3.2 If the Company exceeds a binding deadline for the Contractual Performance for more than 30 days caused by reasons for which the Company is solely responsible, the Client shall have the right to claim liquidated damages. The liquidated damages shall amount to 1 % of the total value of the order for each full week of delayed performance up to a total of 10 % of the total value of the order. Any further claims for damages shall be governed by the provisions set out in Section 8 “Liability”.
4 Safety, Health and Environment (SHE)
4.1 The Client shall inform the Company of any real or potential SHE hazards which may be relevant or involved or introduced in the Contractual Performance and/or any necessary safety measures required for the Contractual Performance, prior to or during the performance of the Contractual Performance.
4.2 Whenever the Company undertakes to work on site, the Client shall provide all adequate safety measures to ensure a working environment that is safe and in accordance with any relevant legislation and to ensure that the risk that cannot be eliminated are controlled at a tolerated level.
4.3 Any Client requirements specifying participation in screening programs shall be communicated to the Company and the Company’s employees prior to commencement of work.
5 Variation orders
5.1 The Client is entitled to request additional work. All variation order requests shall be in writing, clearly defining the variation required (hereinafter referred to as Variation Order).
5.2 No Variation Order shall be implemented before the Parties reach an agreement regarding the extent, the remuneration, and the revised time schedule.
6 Duration and Termination
6.1 The Terms shall remain in force and effect until terminated by any one of the parties, upon 30 days written notice.
6.2 If the Client terminates the order, the Client shall, in addition to any payment due to the Company for work already delivered by the Company, make payment for all direct costs and expenses reasonably incurred on part of the Company relating to the terminated part of the work.
6.3 The Company shall have the right to terminate the order and these Terms with immediate effect if the Client is in material breach of its obligations hereunder, if the Client goes bankrupt or if the Client enters into liquidation proceedings. It shall be considered a material breach if the Client fails to pay within 30 days after the due date of an invoice.
7.1 Warranty by the Company does only cover the explicitly commissioned Contractual Performance of services stated in Section 2 above.
7.2 Any warranty given by the Company shall initially be restricted to a supplementary performance to be completed within a reasonable time limit. If such supplementary performance fail (i.e. be impossible, be unjustifiably refused or delayed by the Company), the Client is entitled to a reduction of the price or rescission of the order.
7.3 The Client shall lose its right to invoke a warranty claim if it fails to report the warranty claim without undue delay to the Company after it has or ought to have discovered the basis for the warranty claim.
7.4 A warranty claim shall in any case be time-barred after one year following the delivery of the Contractual Performance.
8. Liability and Indemnification
8.1 Except for gross negligent or willful acts or omissions on part of the Company, the Company, its affiliated entities, the Companies subcontractors, their respective agents, and employees thereof shall not be liable for any indirect loss or damages, claims or liabilities that may be suffered by the Client arising from or related to the performance of the order.
8.2 The total aggregate liability of the Company shall under no circumstances exceed two times the amount of fees paid by the Client to the Company for the Contractual Performance of the order. Claims with regard to any defects are limited to one year after the completion of the Contractual Performance.
8.3 The Client shall maintain at its own cost all applicable insurance policies with a reputable insurance company to cover any potential loss or damages which the Client may have to the Company in connection with the order. Notwithstanding the above Clauses the Client shall use the insurance in its full scope before any compensation can be claimed from the Company.
8.4 The Client shall guarantee, hold harmless and indemnify the Company against all claims, suits and liabilities made by any third party for loss, damage or expense of whatsoever nature and howsoever arising relating to the performance of the order.
9 Force Majeure
9.1 Delay in or failure of performance of the Company shall not constitute a default or give rise to any claim for damage if and to the extent such delay or failure is caused by any event beyond the control of the Company which the Company had no reasonably way of preventing or grounds to anticipate, including but not limited to an act of war, natural disaster, fire, explosion, labor dispute or other typical Force Majeure events.
9.2 In the event of the Company being prevented for any reason beyond its control, including events of Force Majeure, for performing or completing the services, the Client agrees;
a) to reimburse the Company for any expenditures actually made or incurred,
b) to pay the proportion of fees due for the services which have been actually carried out and to release the Company from all responsibility for partial or total non-performance.
10 Subcontracting and Assignment
10.1 The Company shall have the right to transfer, assign or subcontract all or parts of its duties under the order to any of its sister companies or subsidiaries, or any other competent contractor.
10.2 The Client may only transfer or assign its rights under the order with the prior written consent of the Company.
11 Foreign Assignments
11.1 For orders received by the Company for assignments outside of its country, the Company shall have the option to forward the order on behalf of the Client to the appropriate foreign based associated Company or correspondent which will be solely and fully responsible for all matters in connection with the order received, including directly acting for and reporting to the Client.
11.2 As a condition of the Company forwarding such assignment on the Client’s behalf, it is understood that the forwarding Company will act as an agent only on behalf of the Client and shall bear no responsibility with regard to the services rendered by the Company or correspondent to whom the assignment is forwarded. This Agreement shall be applicable as between the Client and the Company or correspondent to whom the assignment is forwarded.
12 Prices and Payment
12.1 Unless a fixed price or other calculation bases has been agreed upon, the Client shall pay the Company for the services in accordance with the at all times current Company prices. The prices shall be subject to VAT (value added tax) and/or other taxes at the applicable statutory rate.
12.2 If the Company requires any specialized equipment which it must rent or hire to enable it to provide the services, the Company may charge the Client an amount equal to the cost of the hire or rental plus fifteen per cent.
12.3 Payment shall take place in accordance with invoices and their terms of payment. The Company may require payment in advance. If the Company has required payment in advance, the balance will be settled upon completion of the order.
12.4 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date, the Company may;
a) charge interest on such sum from the due date of payment at the monthly rate of 1,5 %, accruing on a daily basis and being compounded monthly until payment is made, and
b) suspend all services until payment has been made in full. Notwithstanding any such suspension of the services, the Client shall pay the Company for all rendered services by the Company up to the date of suspension, plus all interest and suspension costs and expenses incurred by the Company. The Client shall reimburse the Company for all costs and expenses of collection of the invoiced amount, including reasonable legal fees.
12.5 If the Client has any objections to the invoice, such objections must be made in writing to the Company within 14 days after receipt. The Client accepts that objections to the invoice raised later than 14 days are considered time-barred. The Client is not entitled to offset any amount owed to the Company against amounts owed to the Client.
13.1 Both parties agree to treat as confidential any information provided by the other party and use such information only for the purposes of the order. The Company shall have the right to copy and file any written documents submitted for perusal which are important or necessary for the Contractual Performance of the Terms.
13.2 Both parties agree to give its employees and others access to such information only on a need to know basis and shall not transfer, publish, disclose or otherwise make available such information or any portion thereof to any third party without the other party’s prior written consent unless such information is:
a) known prior to the information being disclosed by the other party,
b) part of the public domain at the time of disclosure, or
c) required to be disclosed by public authorities in accordance with applicable law.
13.3 This confidientiality Section shall apply notwithstanding the completion of the order or termination of the Terms.
14 Intellectual property rights
14.1 In as far as expert opinions, test results, calculations and the like that are protected by copyright are prepared within the scope of the Contractual Performance, the Company shall grant the Client a simple, not-transferable right of use, dependent on whether this is required by the underlying purpose of the order.
14.2 The transfer of copyright shall not include the transfer of any other rights. The Client shall not be entitled to change (e.g. process) or use expert opinions, test results, calculations and the like outside its business.
14.3 If there is a change of control in the Client’s company, the rights granted to the Client in Clause 14.1 above shall apply only with the prior written consent of the Company. Change of control shall mean any sale, lease, exchange or other transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Client.
15.1 If any Clause or Section in the Terms, or any part thereof, is deemed unenforceable under mandatory law, then said Clause or Section, or part thereof, shall to the extent necessary be considered void and all other terms, conditions or Sections shall have the same effect as if the voided Clause or Section, or part thereof, had not existed.
16 Disputes and Applicable law
16.1 The Terms shall be interpreted as though prepared by the parties and shall not be construed unfavorably against either party.
16.2 Any dispute arising in relation to or as a consequence of the Terms, which cannot be settled amicably through negotiations between the Parties, shall be governed by and construed in accordance with the laws of the actual place of business of the Company that invoices the Client for services, without regard to any conflict-of-law rule or principal that would give effect to the laws of another jurisdiction.d