1. Confidentiality & release of information
a) Nemko shall apply market standard efforts to safeguard the confidentiality of any information it receives from the other Customer, Applicant or Customer’s representatives in connection with the provision of the Services.
b) Customer shall ensure that instructions are issued, when relevant directly from Applicant, 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 and Applicant, including but not limited to, any Customer’s and Applicant’s parent companies, affiliates, subsidiaries, shareholders or subcontractors. The instruction shall identify in detail which information shall be released.
c) Unless otherwise instructed by the Applicant, solely the Applicant shall have access to the project documentation, deliverables and results.
d) If Nemko is instructed to release information 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 applicable terms and conditions, in case of full or partial reliance on the reports 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.
e) In addition, information shall not be considered confidential 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.
f) These 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
2. Intellectual Property
a) Customer warrants that it has the necessary authority to grant Nemko the right to use, amend, process and store all information provided and give Nemko access to all materials, documents, equipment, products and specifications for the purpose of the Services, regardless of format. Further, Customer warrants that it has acquired the necessary rights to use the standard(s) concerned from the relevant standardization body or other authorized source, and acknowledges that this constitutes an assumption for Nemko’s provision of the Services.
b) 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.
c) Nemko shall hold all intellectual property rights to the reports and certificates issued to Customer under the Agreement, including the copyright.
d) Customer or Applicant, as relevant, 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 requirements.
e) 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.
f) Any reports or certificates shall only be made available in their entirety without altering the content, context or original language of the Deliverables.
3. Integrity and allocation of Nemko’s personnel
a) Appropriate personnel shall be appointed for the performance of the Services, in accordance with any applicable accreditation requirements. 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.
b) Nemko shall have the right to subcontract the Services under the Agreement fully or partially to any other duly qualified and competent companies in Nemko Group.
c) 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.
d) Nemko shall be informed without undue delay of (i) any actual or potential Health, Safety and Environmental 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.
e) Nemko’s personnel shall be given unrestricted, necessary access to the relevant sites in order to perform 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.
f) 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.
4. Risk distribution
a) Nemko shall not in any way be liable towards the Customer for any of the Customer’s consequential or indirect losses arising from or in connection with this Agreement or the performance of the Service, including but not limited to interruption of loss of use, business, contract or revenue, loss of goodwill, loss of profit or anticipated profit, loss of production, delayed market access, wasted overhead, cost of substitute equipment, recall costs, downtime costs, product liabilities or other special, punitive or other forms of indirect losses, howsoever they may arise, whether under contract, tor (including negligence), strict liability or otherwise.
b) Except in case of fraud, fraudulent misrepresentation, or other similar circumstances for which a Party may not lawfully limit its liability under this Agreement’s applicable law, the maximum cumulative liability or indemnification obligations of Nemko arising from or in connection with this Agreement, whether in contract, tort (including negligence) or strict liability shall be limited to three times the fee agreed for the Services concerned, or 100.000 USD, whichever is the lesser.
5. Force majeure
a) 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).
b) 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 60 calendar days.
c) In case of unavailability of personnel due to force majeure events, the Parties shall use best efforts to identify a solution for audits to take place, including increased use of digital tools.
6. Law and jurisdiction
a) This quotation and the provision of the Services shall be governed and construed in accordance with the laws of the Nemko legal entity which issues the quotation, without regard to principles of conflicts of law.
b) Any dispute arising in relation to or as a consequence of this quotation or the Services concerned, which cannot be settled amicably through negotiations between the parties, shall be brought exclusively before the courts of this Nemko legal entity.