Product TIC Legal & Commercial terms

1. Law and jurisdiction

These Legal & Commercial Terms and the provision of the Services shall be governed and construed in accordance with the laws of the country of establishment of the Nemko legal entity which issues the quotation, without regard to principles of conflicts of law.
Any dispute arising in relation to or as a consequence of this quote 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.

2. Testing & Certification

Testing and/or evaluations will be scheduled once a binding agreement is in place, and receipt of product documentation including any populated Additional Project Information (API), Equipment Under Test (EUT) form or similar. Any agreed prepayment must be received prior to commencement of any testing.
Products, including supporting equipment (documents, cables, adapters, etc) and software needed to put the equipment into proper test modes, must be received in reasonable time before the scheduled start date for the Services. Additional costs may incur if samples or documentation are delivered after the scheduled start date.
Unless otherwise agreed, lead times are non-binding and are provided under the assumption that all documentation and samples/products required have been provided.
Unless otherwise stated, all Nemko quotes assume that the EUT and support system provided by the Customer do not require extraordinary electrical power, the use of pressurized air >100psi, extreme heat, toxic gases/chemicals, nor any hazardous/unstable materials.
Requested radio frequency ranges and application in all listed countries cannot be guaranteed unless a dedicated pre-investigation is ordered.
Unless otherwise agreed, all user manuals and product documentation shall be in English.
Any quote is based on the assumption that digital reports will be issued. In case of issuance of hard copy test reports rather than digital reports, and unless otherwise agreed, a standard fee of 300 USD per individual copy shall incur.
Unless otherwise agreed between the Parties, Nemko reserves the right to officially terminate the Agreement and the project after 60 days of inactivity and invoice for the work performed. When the Customer is ready to continue the project, a new quote will be issued.

3. Market Access / International Approval services

Market access may depend on testing, certification, inspection, and agency services provided by third parties and needed for the purpose of market access in the countries concerned. Unless explicitly stated in the quote, these services and the corresponding cost are not covered by Nemko’s quotes.
Market access may depend on separate agreements being signed between Customer and these third parties.
Nemko’s market access services are provided on a best effort basis. Nemko does not undertake an obligation of result.
Nemko reserves the right to stop the project concerned in case of substantiated unacceptable risk for Nemko or its personnel, or in case of integrity challenges.

4. Annual fees and onsite inspections

The issuance and maintenance of a certificate may be dependent on payment of an annual fee or license, as well as onsite inspections.
Unless otherwise stated in the quote, the corresponding costs are not covered by the quoted price.
The annual license fee for the year of the quote will be calculated from the month when the certificate is granted.

5. Cancellation or rebooking

Unless and to the extent otherwise agreed, the following shall apply for cancellation or rebooking:

Customer shall be entitled to cancel, or rebook scheduled test capacity.
Rebooking or cancellation of reserved test capacity must be notified Nemko in writing at least 15 workdays prior to agreed test start.
In case of cancellation or rebooking, a rebooking/cancellation fee of 1500 USD will be charged.
In the event of rebooking or cancellation later than 15 working days prior to reserved test capacity, Nemko reserves the right to charge the Customer as below, unless otherwise agreed between the Parties:

- 15 to 5 working days prior to the test start date, a fee of 2500 USD will be charged.
- 4 to 0 working days prior to the test start date, a fee of 5000 USD will be charged.

6. Invoicing

Unless and to the extent otherwise agreed between the Parties, the following shall apply:

Nemko reserves the right to invoice line items fully or partially as they are completed prior to overall project completion, or in case the project takes more time than planned. Note that report items will also be invoiced when draft reports are issued and awaiting comments from client.
If the Customer has any objections to the invoice, such objections must be made in writing to Nemko within 14 days after receipt of the invoice. The Customer accepts that objections to the invoice raised later than 14 days after receipt of the invoice are considered time-barred. The Customer is not entitled to offset any amount owed to Nemko against amounts owed to the Customer.
Payment of invoices shall take place within 30 days from issuance.
Without prejudice to any other rights or remedies, if the Customer fails to pay Nemko on the due date, Nemko may;

- 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
- Suspend all services until payment has been made in full. Notwithstanding any such suspension of the services, the Customer shall pay Nemko for all rendered services by Nemko up to the date of suspension, plus all documented interest and suspension costs and expenses incurred by Nemko; and reimburse Nemko for all costs and expenses of collection of the invoiced amount, including reasonable legal fees.

7. 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.
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 Services concerned, 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, tort (including negligence), strict liability or otherwise.
UNLESS OTHERWISE SET OUT IN THE APPLICABLE SERVICE AGREEMENT, AND 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 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 THREE TIMES THE REMUNERATION PAID UNDER THE AGREEMENT FOR THE SERVICE GIVING RISE TO LIABILITY OR INDEMNIFICATION OBLIGATIONS, OR (II) USD 100,000 (ONE HUNDRED THOUSAND US DOLLARS), WHICHEVER IS THE LESSER.

8. Force majeure

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.

9. Trade Restrictions

Customer shall comply with all applicable sanctions, embargoes and export control laws and regulations (“Trade Restrictions”), including but not limited to those imposed by the European Union (EU), United Nations (UN) and the United States government.
Customer is sole responsible for ensuring compliance with all applicable Trade Restrictions that apply for its placement and distribution of products and services.
Nemko does not assess whether Customer’s products can be legally placed in specific national markets under applicable Trade Restrictions. Nemko’s role is limited to support in documenting conformity with technical standards before the relevant authorities. Nemko does not provide legal advice or opinions regarding Trade Restrictions that apply for Customer’s products in any specific regional or national market.
EU law concerning restrictive measures in view of Russia's actions destabilizing the situation in Ukraine prohibits Nemko’s performance of services to companies established in Russia and to companies directly or indirectly controlled by Russian companies covered by EU sanctions, for instance by inclusion in the EU sanctions lists. Customer warrants that Customer is not directly or indirectly controlled by any Russian physical or legal person included on the EU sanctions list. Further Customer warrants that any other company on behalf of which Customer acts for the purpose of purchase of services from Nemko, is not directly or indirectly controlled by any physical or legal person included on the EU sanctions lists.
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.

10. 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.