Annexure D1 – General Terms & Conditions of Certification Services
1. DEFINITIONS AND INTERPRETATION
1.1.1 The definitions in this clause 1.1 apply to these General Conditions ( Annexure A ) and Specific Terms & Conditions of Certification ( Annexure B) :
1.1.1 Accreditation Body means the authoritative body that grants accreditation, under which Bureau Veritas Certification performs the Services;
1.1.2 Affiliate means any other entity that either directly or indirectly controls or is controlled by a Party or is under the common control with the Party in question. An entity shall be regarded as being in control of another entity if it owns, directly or indirectly, or is entitled to exercise, directly or indirectly, the votes attaching to 50% (fifty per cent) or more of the equity shares of the other entity or if it possesses, directly or indirectly, the power to determine the composition of the board of directors of the other entity;
1.1.3 Agreement means Bureau Veritas Certification’s acceptance of a completed Order Form, Proposal, or other instructions for Services from the Applicant, or Bureau Veritas Certification's acceptance of an agreed quotation for Services, or any other written instruction or request for Services by a Applicant to the extent that they are accepted by Bureau Veritas Certification, and performance of Services by Bureau Veritas Certification for the Applicant. These General Conditions govern each agreement unless separate terms and conditions are agreed to in writing between the Applicant and Bureau Veritas Certification;
1.1.4 Bureau Veritas Certification means the certification-related entity of the Bureau Veritas group of companies that has entered into the Agreement with the Applicant; For India, the name of the entity shall be BUREAU VERITAS (INDIA) PVT. LTD.
1.1.5 Certificate of Approval means the certificate issued by Bureau Veritas Certification confirming that an audit has been passed for a product, service or process to be marketed or used for stated purposes under stated conditions;
1.1.6 Applicant means the person, firm, company, partnership, association, trust or government agency or authority that appoints Bureau Veritas Certification to provide the Services and identified as such in the applicable Order Form, Proposal or agreed written instructions;
1.1.7 Applicant Information means all codes, documents, instructions, manuals, measurements, specifications, requirements, and any other information and materials provided by the Applicant and necessary for Bureau Veritas Certification to perform the Services;
1.1.8 Confidential Information means all and any non-public information disclosed by one Party to the other Party, including (but not necessarily limited to) data, know-how, concepts, manuals, reports, specifications, trade secrets, trademarks, company logos, and any other business, commercial, financial, legal, marketing or technical information;
1.1.9 Fees means the fees payable by the Applicant to Bureau Veritas Certification for the Services, as set out in the applicable Order Form, Proposal or agreed written instructions, excluding accommodation, meals, subsistence, travel and any other incidental costs and expenses of Bureau Veritas Certification incurred in respect of the performance of the Services, which will be charged separately at the actual cost thereof;
1.1.10 General Conditions means these General Conditions for Certification Services, as amended by Bureau Veritas Certification from time to time;
1.1.11 Intellectual Property means all patents, rights to inventions, utility models, copyright and related rights, trade marks, logos, service marks, trade dress, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know- how and trade secrets), methods and protocols for Services, and any other intellectual property rights, in each case whether capable of registration, registered or unregistered and including all applications for and renewals, reversions or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
1.1.12 Multi-Site Offer means an offer issued by Bureau Veritas Certification to a Applicant for the Services for two or more sites and/or locations;
1.1.13 Order Form means Bureau Veritas Certification’s standard form to be completed by the Applicant setting out the Services to be performed by Bureau Veritas Certification, together with any other information concerning the performance of the Services under the terms of the Agreement. The fees for the Services may be set out in the Order Form or in a separate document, Proposal or price list;
1.1.14 Proposal means any proposal, quotation or other document issued by Bureau Veritas Certification to the Applicant that sets out the Services, Fees and any other information and terms and conditions in relation to the performance of the Services;
1.1.15 Party and Parties means individually Bureau Veritas Certification or the Applicant and collectively Bureau Veritas Certification and the Applicant;
1.1.16 Reports means all documents and products created by Bureau Veritas Certification in relation to or as a result of the performance of the Services, excluding the Certificate of Approval;
1.1.17 Services means the certification services, covering audit and certification services against an appropriate recognised specification or part thereof, to be performed by Bureau Veritas Certification for the Applicant under the Agreement and as set out in the applicable Order Form, Proposal or any other written instructions, to the extent that any such other written instructions are accepted by Bureau Veritas Certification; and
1.1.18 Single-Site Offer means an offer issued by Bureau Veritas Certification to a Applicant for the Services for one site and/or location.
1.2 Capitalized terms not otherwise defined herein shall have the meanings given to such terms by the ”Conformity Assessment”’ vocabulary as stated in the ISO17000 standards.
1.3 In these General Conditions:
1.3.1 the singular includes the plural and vice versa;
1.3.2 a reference to any gender includes the other genders; and
1.3.3 a reference to a Party includes the successors in title and permitted assigns of that Party.
1.1 APPLICATION OF GENERAL CONDITIONS
1.2 Unless otherwise expressly agreed in writing and signed by both Parties, or solely to the extent otherwise required by mandatory application of law, these General Conditions will:
1.2.1 apply to and be incorporated in the Agreement;
1.2.2 apply to all actions and Services provided by Bureau Veritas Certification; and
1.2.3 prevail over any inconsistent terms or conditions contained in the Applicant’s standard terms and conditions or any other communications with Bureau Veritas Certification.
1.3 For the avoidance of doubt, under no circumstances will the Applicant's standard terms and conditions (if any) attached to, enclosed with or referred to in any Order Form or other document govern the Agreement or be binding on Bureau Veritas Certification in any way whatsoever.
1.4 Bureau Veritas Certification acts for the Applicant only. Except as provided in the Agreement, the Agreement is entered into solely between and may be enforced only by the Applicant and Bureau Veritas Certification. The Agreement shall not be deemed to create any rights for the benefit of any third parties, including (without limitation) suppliers or customers of a Party, or to create any obligation of a Party to such third parties.
1.5 Bureau Veritas Certification, in its sole and absolute discretion, may delegate the performance of all or a portion of the Services under the Agreement to an Affiliate, agent, consultant or subcontractor without the prior approval of the Applicant, and the Applicant hereby consents to such delegation. For the purposes of clause 11.1, the Applicant hereby consents to Bureau Veritas Certification disclosing any and all of the Confidential Information of the Applicant to such Affiliate, agent, consultant or subcontractor for the sole purpose of performing the Services, in whole or in part.
1.6 The Services offered by Bureau Veritas Certification are “open ended” and are subject to automatic renewal.
1.8 To achieve and preserve certification, Bureau Veritas Certification’s Applicants are required to develop and maintain their management systems in accordance with applicable specifications, allowing unconditional access to Bureau Veritas Certification to audit or otherwise verify these management systems against the applicable specifications.
1.9 The certification awarded by Bureau Veritas Certification covers only, as the case may be, those services or products manufactured and/or supplied under the scope of the Applicant’s management systems certified by Bureau Veritas Certification. For certain certification schemes, amplification of the contents of this document is required. This is provided separately for the scheme concerned. Applicants remain solely liable for any defect in their services and products and shall defend, protect and indemnify Bureau Veritas Certification from any and all defects, claims or liability arising from said services and products.
1.10 The issued certification does not exempt Applicants from their legal obligations in respect of the services or products or any other requirement in the scope of their management systems.
1.11 COMMENCEMENT AND DURATION
1.12 Unless otherwise agreed in writing by the Parties, the Services performed under the Agreement shall be provided by Bureau Veritas Certification to the Applicant from the date of acceptance by the Applicant of the Bureau Veritas Certification’s Order Form, Proposal or other written instructions.
1.13 Subject to clause 16, the Services performed under the Agreement shall be supplied for the period as set out in the agreed Order Form, Proposal or other written instruction received from the Applicant and accepted by Bureau Veritas Certification. Where no such period for performance of the Services has been stipulated, Bureau Veritas Certification shall perform the Services within a reasonable time in its sole discretion.
1.14 This Agreement will be valid for a period of three (3) years and shall be renewed automatically at the end of this initial period for successive periods of three (3) years unless the Applicant notifies the termination to Bureau Veritas Certification with a notice period of three (3) months prior to the end of the three (3) years contractual period.
1.15 BUREAU VERITAS CERTIFICATION’S OBLIGATIONS
1.16 Bureau Veritas Certification shall, with reasonable care, skill and diligence as expected of a competent body experienced in the certification industry and in performing services of a similar nature to the Services and under similar circumstances, provide the Services and deliver the Certificate of Approval and/or the Reports to the Applicant.
1.17 Bureau Veritas Certification, in the capacity of an independent party, provides information to its applicants in the form of ascertainment, assessment or recommendations, relative to regulatory requirements, general industry standards and/or any other standards that may be mutually agreed in writing by the Parties.
1.18 In providing the Services, Bureau Veritas Certification does not take the place of designers, architects, builders, contractors, manufacturers, producers, operators, transporters, importers, sellers, buyers or owners who, notwithstanding Bureau Veritas Certification’s actions, are not released from any of their obligations of whatever nature. If and to the extent that the Applicant releases any third party from its liabilities, obligations and duties with respect to the Applicant’s products or services, or from its liabilities, obligations and duties with respect to information upon which Bureau Veritas Certification relied in the performance of the Services, such unfulfilled liabilities of a third party will not cause Bureau Veritas Certification’s liabilty to increase and the Applicant shall assume and undertake as its own such liabilities, obligations and duties.
1.19 For the avoidance of doubt, under no circumstances does Bureau Veritas Certification fulfil the role of an insurer or a guarantor in respect of the adequacy, quality, merchantability, fitness for purpose, compliance or performance of any management systems or processes subject of the Services, including the services, or any other activities undertaken or produced by the Applicant to which the Services relate. Notwithstanding any provision to the contrary contained herein or in any Certificate of Approval or in any Report, no warranty or guarantee, express or implied, including any warranty of merchantability or fitness for a particular purpose or use, is made by Bureau Veritas Certification for any activities undertaken by the Applicant or systems or processes maintained or put in place by the Applicant.
1.20 Unless specifically instructed to the contrary by the Applicant and incorporated into the scope of the Services under the Agreement, documents concerning undertakings entered into between the Applicant and other interested parties, such as contracts of sale, supply or work contracts, letters of credit, bills of lading, specifications, datasheets, letters of commissioning, certificate of acceptance or conformity, and which are divulged to Bureau Veritas Certification, shall be considered to be for information only, without either extending or restricting Bureau Veritas Certification’s scope of Services or obligations under the Agreement.
1.21 APPLICANT'S OBLIGATIONS
1.22 The Applicant must:
1.22.1 co-operate with Bureau Veritas Certification in all matters relating to the Services;
1.22.2 provide, or cause its suppliers to provide, in a timely manner and at no charge, access to facilities, documents, data, and personnel as required by Bureau Veritas Certification, its agents, subcontractors, consultants and employees, to perform the Services;
1.22.3 prepare and maintain the relevant premises and materials for the supply of the Services, including without limitation, identifying, monitoring, correcting or removing any actual or potentially hazardous conditions or materials from any of its premises before and during the supply of the Services;
1.22.4 adopt all necessary measures to ensure the safety and security of working conditions on site during performance of the Services and inform Bureau Veritas Certification of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the relevant premises;
1.22.5 provide Bureau Veritas Certification, its agents, subcontractors and representatives with all necessary transportation, equipment, materials, facilities that are required for Bureau Veritas Certification to provide the Services, and access to premises where the Services are to be performed;
1.22.6 ensure that the Applicant’s equipment is in good working order, under the Applicant’s control and operation, suitable for the purposes for which it is used in relation to the Services and conforms to all relevant and applicable standards or requirements;
1.22.7 provide Bureau Veritas Certification, either directly or through its suppliers and subcontractors, in a timely manner, such Applicant Information and other information as Bureau Veritas Certification may require for the proper performance of the Services and ensure that such information is accurate in all material respects. Applicant Information shall be provided by the Applicant to Bureau Veritas Certification at least twenty
(20) days before the agreed start date of each audit;
1.22.8 where necessary, obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of the Applicant's equipment and facilities;
1.22.9 ensure that all documents, information and material made available by the Applicant to Bureau Veritas Certification under the Agreement do not and will not infringe, or constitute an infringement or misappropriation of, any patent, copyright, trademark, trade secret, licence or other intellectual property rights or proprietary rights of any third party; and
1.22.10 take all necessary steps to eliminate or remedy any obstructions to or interruptions in the performance of the Services.
1.23 To the extent that Bureau Veritas Certification renders Services, the Applicant agrees that Bureau Veritas Certification does not owe any specific success but only such Services.
1.24 Bureau Veritas Certification reserves the right to unilaterally alter or extend the defined deadlines in the Agreement or postpone them if the Applicant fails to timeously provide Bureau Veritas Certification with the relevant Applicant Information.
1.25 If Bureau Veritas Certification's performance of its obligations under the Agreement is prevented or delayed by any act, omission, default or negligence of the Applicant, its agents, subcontractors, consultants or employees, Bureau Veritas Certification shall not be liable for any costs, charges or losses sustained or incurred by the Applicant arising directly or indirectly from such prevention or delay.
1.26 FEES AND PAYMENT
1.27 In consideration for the provision of the Services by Bureau Veritas Certification, the Applicant will pay the Fees in accordance with this clause 7, unless otherwise agreed in writing between the Parties. The Fees are exclusive of all applicable taxes, unless stated otherwise.
1.28 Bureau Veritas Certification may, in its sole and absolute discretion, require the Applicant to provide an initial deposit or advance payment of an amount or percentage of the Fees as determined by Bureau Veritas Certification, as security for payment of the Fees, on or before the date specified by Bureau Veritas Certification or, if no date is specified, prior to commencement of the Services. Bureau Veritas Certification will not commence provision of the Services unless and until any such upfront payment has been received in full by Bureau Veritas Certification.
1.29 Bureau Veritas Certification reserves the right to apply the initial deposit or advance payment to any amount due and unpaid and the payment of an initial deposit or advance payment in no way relieves the Applicant of timeous payment of any invoices.
1.30 Bureau Veritas Certification shall invoice Applicants on delivery of the Services. Under no circumstances will the Certificate of Approval and Reports be released until full payment has been received by Bureau Veritas Certification.
1.31 The Applicant will pay each valid invoice submitted to it by Bureau Veritas Certification, in full and in cleared funds and without deduction or set-off, within thirty (30) days of the date of the invoice.
1.32 Without prejudice to any other right or remedy that Bureau Veritas Certification may have, if the Applicant fails to pay Bureau Veritas Certification the initial deposit or advance payment, if any, or any subsequent invoice on or before the due date, Bureau Veritas Certification may, in its sole and absolute discretion:
. charge interest on such sum from the due date for payment at the monthly rate of 2.5%, accruing on a daily basis and being compounded monthly until payment is made in full (both dates inclusive), whether before or after any judgment; and/or;
. suspend all Services until payment has been made in full.
1.33 Time for payment shall be of the essence of the Agreement.
1.34 Bureau Veritas Certification reserves the right to review and amend its charges annually and, in any case, automatically after the first three years cycle; as a minimum, these charges will be adjusted to take into account the inflation rate, any significant variation of the exchange rates, labour costs or costs implied by changes in the applicable certification schemes.
1.35 Notwithstanding clause 8.7, Bureau Veritas Certification will be entitled to claim an increase or modification in the Fees if conditions or circumstances arise that were not reasonably foreseeable at the time the Agreement was entered into or which were beyond the reasonably control of Bureau Veritas Certification or if the Applicant request any postponement or rescheduling of the Services, or any part thereof. If the Applicant refuses to accept any such increase or modification in the Fees then Bureau Veritas Certification reserves the right not to commence or continue with the provision of the Services, or any part hereof.
1.36 If the Applicant postpones or reschedules the audit service on less than thirty (30) working days’ written notice to Bureau Veritas Certification, Bureau Veritas Certification reserves the right to charge the full man-day fee of the audit. This sum will not be discounted from the audit fee ultimately charged when the rescheduled audit is carried out.
1.37 If the Applicant cancels the Agreement on less than three
(3) months written notice prior to the next due audit date, then the Applicant shall be liable for the full cost of the audit, including all audit man-day and administrative fees.
1.38 All fees are exclusive of accommodation, meals, subsistence, travel and any other incidental costs and expenses and will be charged by Bureau Veritas Certification as pre-agreed at a fixed rate or at the actual cost thereof.
1.39 Unless otherwise agreed between the Parties in writing, all sums payable to Bureau Veritas Certification will become immediately due and payable on termination of the Agreement for any reason whatsoever, despite any other provision of the Agreement. This clause is without prejudice to any right of Bureau Veritas Certification to claim interest, collection costs, legal costs or any other right in terms of law or the Agreement.
1.41 Each of the Parties shall not disclose or use for any purpose whatsoever any of the confidential knowledge or Confidential Information, which it may acquire or receive within the scope of the performance of the Agreement, without the prior written consent of the Party that disclosed the Confidential Information.
1.42 This confidentiality undertaking shall not apply to any information:
1.42.1 which is publicly available or becomes publicly available through no act of the receiving Party;
1.42.2 which was in the possession of the receiving Party prior to its disclosure;
1.42.3 which is disclosed to the receiving Party by a third party who did not acquire the information under an obligation of confidentiality;
1.42.4 which is independently developed or acquired by the receiving Party without use of or reference to Confidential Information received from the disclosing Party;
1.42.5 which is disclosed or is required to be disclosed in accordance with the requirements of law, any stock exchange regulation or any binding judgment, order or requirement of any court or other competent authority; or
1.42.6 which is disclosed to an Affiliate of the receiving Party on a need to know basis.
1.43 Each Party shall be responsible for ensuring that all persons to whom Confidential Information of the other Party is disclosed under the Agreement shall keep such information confidential and shall not disclose or divulge the same to any unauthorized person or entity, and shall assume full responsibility for any breach of said undertaking.
1.44 On expiry or termination of the Agreement for any reason and
at the discretion of the other Party, each Party shall return or destroy the other Party's Confidential Information which is at that time in its possession or under its control, provided that nothing herein shall prohibit Bureau Veritas Certification from maintaining copies of documents provided by the Applicant, Certificate of Approval and Reports and analysis in accordance with its record retention policies and document retention policies as may be required by law or any Accreditation Body.
1.45 Notwithstanding the provision of clause 11, Bureau Veritas Certification shall be authorized to make copies of Applicant Information, as may be required by the Accreditation Body’s retention policy.
1.46 Notwithstanding the provision of clause 11, Bureau Veritas Certification reserves the right to refer to the Applicant, using its name and/or logo, whether internally and externally, orally or in writing, and on any communication support, for marketing and/or commercial purposes without the prior consent of the Applicant being required.
1.47 Notwithstanding the provision of clause 11, Bureau Veritas Certification reserves the right to use the Applicant’s data for benchmarking and analysis purposes, being understood that any such use by Bureau Veritas Certification will be in compliance with the application regulation protecting personal data and the data would be anonymous.
1.48 INTELLECTUAL PROPERTY
1.49 Each Party exclusively owns all rights to its Intellectual Property whether created before or after the commencement date of the Agreement and whether or not associated with any Agreement between the Parties.
1.50 Neither Party shall contest the validity of the other Party’s Intellectual Property rights nor take any action that might impair the value or goodwill associated with the Intellectual Property of the other Party or its Affiliates.
1.51 The names, service marks, trademarks and copyrights of Bureau Veritas Certification shall not be used by the Applicant except solely to the extent that the Applicant obtains the prior written approval of Bureau Veritas Certification and then only in the manner prescribed by Bureau Veritas Certification.
1.52 The use of the certification mark is regulated by Bureau Veritas Certification through a policy document explaining how to display and use the certification mark and associated logos, which is available upon request. Bureau Veritas Certification will audit the use of the certification mark and/or associated logo by the Applicant at subsequent surveillance visits.
1.53 For the avoidance of doubt, nothing in the Certificate of Approval or in the Reports or any other writing shall convey to the Applicant any rights of ownership or license whatsoever to the Bureau Veritas Certification’s Intellectual Property, its proprietary software, proprietary audit methods, training materials and best practices manual, protocols, Bureau Veritas Certification’s name, logo, marks, or other trade dress or any other existing or future Intellectual Property rights or know-how developed and used by Bureau Veritas Certificate to perform the Services and to issue the Certificate of Approval and the Reports. Such Intellectual Property rights shall remain the sole property of Bureau Veritas Certification.
1.54 DATA protection
Each Party shall take all necessary steps to ensure that it operates at all times in accordance with all applicable data protection laws and regulations.
1.55 Limitation OF LIABILITY
1.56 This clause 11 sets out the entire financial liability of Bureau Veritas Certification (including any liability for the acts or omissions of its Affiliates, and their respective employees, directors, officers, agents, consultants, and subcontractors), to the Applicant in respect of the Services, the Certificate of Approval and/or the Reports, any breach of the Agreement, any use made by the Applicant of the Services, the Certificate of Approval and/or the Reports or any part thereof, and any representations, statements or tortious acts or omissions (including negligence) arising under or in connection with the Agreement.
1.57 Except as set out in clause 11.3, neither Party shall be liable to the other Party in any circumstances whatsoever for:
(i) loss of business, or loss of use or loss of profit, loss of data, loss of earnings, loss of production, loss of value, decrease in earnings from any goods or property, loss of financial advantage, business interruption or downtime; or
(ii) depletion of goodwill and/or similar losses; or
(iii) loss of contract; or
(iv) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
1.58 Nothing in these General Conditions limits or excludes the liability of either Party:
1.58.1 for death or personal injury resulting from negligence; or
1.58.2 for any damage or liability incurred by the either Party as a result of fraud or fraudulent misrepresentation by the other Party; or
1.58.3 for any other loss which by law cannot be excluded or limited.
1.59 Without prejudice to clause 14.1, the total aggregate liability of Bureau Veritas Certification and its Affiliates, and their respective employees, directors, officers, agents, consultants, and subcontractors, in contract, delict (including, but not limited to, negligence, gross negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in any manner in connection with or related to the Services, the Certificate of Approval, the Reports and the performance, or contemplated performance, of the Agreement shall be limited to the amount of fees paid or payable by the Applicant to Bureau Veritas Certification in respect of the Services that give rise to Bureau Veritas Certification's liability to the Applicant.
1.60 The Applicant hereby indemnifies Bureau Veritas Certification and its Affiliates, and their respective employees, directors, officers, agents, consultants, and subcontractors, and holds them harmless against all and any claims, damages, expenses, liabilities, losses costs and/or expenses (including legal fees) of any nature whatsoever (including, but not limited to, negligence and gross negligence) arising from:
1.60.1 any act, omission, default, breach of contract or negligence of the Applicant, its agents, subcontractors, consultants or employees;
1.60.2 any claim by a third party in connection with the Services, Certificate of Approval and/or the Reports, including, without being limited to, where a Certificate of Approval and/or the Report is disclosed in full or in part to the third party with the consent of Bureau Veritas Certification; and
1.60.3 any claim by a third party relating to the performance, purported performance or non-performance of any Services, to the extent that the aggregate of such claims exceeds the limitation of liability set out in clause 14.4.
1.61 FORCE MAJEURE
1.62 For the purpose of this clause 15, "Force Majeure" shall mean any event or circumstance, the occurrence of which is beyond the reasonable control of the claiming Party, which inability could not have been prevented or overcome by the claiming Party exercising reasonable foresight, planning and implementation, including (without limitation):
. acts of war (whether declared or not) or terrorism, armed conflict, civil unrest, insurrection or riot (or the specific threats of such acts or events), blockade, embargo, riot, sabotage, malicious damage, acts of terrorism or the specific threats of such acts or events, or conditions attributable to such acts or events;
. strike, work slowdown, lockout or other industrial disturbance or labour dispute (whether involving the workforce of the Party so prevented or of any other Party), or default of suppliers or of sub-contractors;
. epidemics or pandemics;
. forces of nature and natural disasters, fire, earthquake, cyclone, hurricane, flood, drought, lightning, storms, storm warnings, navigational and maritime perils, or other acts of God;
. breakage, freezing, explosion, mechanical breakdown or other damage or malfunction resulting in the partial or complete shutdown of the facilities of the claiming Party;
. industrial action or labour disturbances, currency restrictions, commercial restrictions, embargo, action or inaction of a government agency, including any changes in law, failure of a supplier, public utility or common carrier or a computer disruption;
. a change in law, hindrance of government or other act or failure to act by any government claiming jurisdiction over the Agreement or the Parties.
1.63 If, as a result of Force Majeure, a Party is rendered unable, wholly or in part, to carry out its obligations under the Agreement (other than the obligation to make payments of sums due to the other Party):
1.63.1 that Party must immediately notify the other Party in writing, giving reasonably full particulars of the Force Majeure and an estimate of its likely duration;
1.63.2 use all possible diligence to remove or mitigate the effects of such Force Majeure as soon as reasonably possible; and
1.63.3 the obligations under the Agreement shall be suspended to the extent that the obligations are affected by such Force Majeure and for so long as the Force Majeure continues.
1.64 On the cessation of the Force Majeure, the claiming Party
must immediately give written notice to the other Party of such cessation and resume performance of the obligations suspended as a result of the Force Majeure.
1.65 Neither Party shall be liable for any loss or damage resulting from any delay or failure in performance of its obligations hereunder resulting directly or indirectly from an event of Force Majeure.
1.66 If the disability continues for a continuous period of more than 15 (fifteen) days from the date the claiming Party gave written notice under clause 12.2, then either Party shall be entitled (but not obliged) to terminate this Agreement, or any part thereof, immediately on written notice to the other Party and, subject to the provisions of this Agreement, neither Party shall have a claim against the other Party as a result of such termination.
1.68 Bureau Veritas Certification may terminate the Agreement at any time and for any reason, without incurring any liability to the Applicant, by giving a minimum of 30 (thirty) days’ written notice to the Applicant, or such other period as may be reasonable in Bureau Veritas Certification’s sole opinion in the circumstances.
1.69 Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate the Agreement, without liability to the other Party, immediately on written notice to the other Party if the other Party:
1.69.1 fails to pay any amount due under the Agreement on the due date for payment and remains in default for 10 (ten) days after being notified in writing to make such payment;
1.69.2 commits a material breach of the Agreement and (if such breach is capable of being remedied) fails to remedy such breach within 10 (ten) days after being notified in writing of the breach;
1.69.3 repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
1.69.4 becomes unable to pay its debts as and when they become due;
1.69.5 becomes insolvent or enters receivership (for financial or other reasons) or judicial management, or commences insolvency or business rescue proceedings;
1.69.6 assigns or transfers any right or obligations under the Agreement, other than as authorised under this Agreement;
1.69.7 suspends or ceases, or threatens to suspend or cease, all or a substantial part of its business.
1.70 On termination of the Agreement for any reason:
1.70.1 the Applicant shall immediately pay to Bureau Veritas Certification all of Bureau Veritas Certification’s outstanding unpaid invoices (which shall become immediately due and payable) and interest, if any, on any outstanding sums and, in respect of Services supplied but for which no invoice has been submitted, Bureau Veritas Certification may submit an invoice, which shall be payable by the Applicant immediately on receipt thereof;
1.70.2 the accrued rights and liabilities of the Parties as at the termination and the continuation of any provision of the Agreement expressly stated to survive or implicitly surviving the termination, shall not be affected.
1.71 On termination of the Agreement (however arising), clauses 8, 9, 11, 20 and 21 shall survive and continue in full force and effect.
1.73 Notices or other communications between the Parties in terms of the Agreement shall be validly sent by personal delivery, pre-paid registered post, facsimile or email to the addresses specified by the Parties in writing.
1.74 Such notices shall be deemed to be delivered (unless the contrary is proven):
1.74.1 if by way of pre-paid registered post, 7 (seven) days after the date of posting;
1.74.2 if by personal delivery, on the date of delivery;
1.74.3 if by way of facsimile, at the time of transmission, subject to confirmation of receipt;
1.74.4 if by way of email, after being received in readable form and after automatic electronic acknowledgment of receipt or confirmation of receipt by the recipient.
A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a Party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
If any provision of the Agreement (or part thereof) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision (or part thereof) shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected. If a provision of the Agreement (or part thereof) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
1.78 The Applicant shall not, without the prior written consent of Bureau Veritas Certification, cede, assign, transfer, subcontract or deal in any manner with all or any of its rights or obligations under the Agreement.
1.79 The Applicant acknowledges that, and hereby expressly consents to, Bureau Veritas Certification at any time ceding, assigning, transferring, subcontracting or dealing in any manner with all or any of its rights or obligations under the Agreement
1.80 NO PARTNERSHIP
Nothing in the Agreement is intended or be deemed to constitute a partnership, joint venture, trust or association of any kind between the Parties, nor constitute either Party the agent of the other Party for any purpose. Neither Party shall have authority to bind the other Party in any manner whatsoever.
1.81 ENTIRE AGREEMENT
1.82 The Agreement constitutes the whole agreement between the Parties and supersedes all previous agreements and communications between the Parties relating to the Services.
1.83 Each Party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract as expressly provided in the Agreement.
1.84 GOVERNING LAW AND JURISDICTION
1.85 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of India, notwithstanding any conflicts of laws rules that could require the application of any other law.
1.86 The Parties irrevocably agree that the courts of Mumbai, shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter.
1.87 RIGHTS OF THIRD PARTIES
To the fullest extent permitted by law and except as expressly provided for in the Agreement, a person who is not a party to the Agreement shall not have any rights under or in connection with the Agreement.
Annexure D2 – Specific Terms & Conditions of Certification Services
To achieve and preserve certification, Bureau Veritas Certification’s Applicants are required to develop and maintain their management systems in accordance with said specifications, allowing unconditional access to Bureau Veritas Certification to audit or otherwise verify these management systems against said specifications.
The certification awarded by Bureau Veritas Certification covers only, as the case may be, those services or products manufactured and/or supplied under the scope of the Applicant’s management systems certified by Bureau Veritas Certification. For certain certification schemes, amplification of the contents of this document is required. This is provided separately for the scheme concerned. Applicants remain solely liable for any defect in their products and shall defend, protect and indemnify Bureau Veritas Certification from any and all defects, claims or liability arising from said products.
The issued certification does not exempt Applicants from their legal obligations in respect of the services or products in the scope of their management systems.
The Services to be provided by Bureau Veritas Certification in terms of the Agreement may be executed in phases, as set out in this clause 1:
REQUESTS FOR CERTIFICATION
The applicant shall apply to BVC on the prescribed Application format and provide as a minimum information on the name and address of applicant with contact details, details of education, training and work experience supported with evidence and the desired scope for which certification is being sought along with the language in which he wishes to be evaluated. The applicant shall also declare basic medical fitness in a standard format.
Applications from applicants found to be violating the terms and conditions of the Scheme while their application is being processed for grant of certificate, shall not be processed any further, and rejected after a due notice of 15 days.
Applications from applicants who have earlier misused the earlier certification or whose earlier certification was cancelled/application rejected because of violation of terms & conditions shall not be registered within one year of cancellation of the certificate/rejection of applicant by any Personnel Certification Body.
BVC shall reject or close all Application under the following conditions:
. If deficiencies observed in the application are not completed within one month;
. If the applicant does not take the evaluation within 3 months of registration of application;
. Misuse of certification mark, if any;
. Evidence of malpractice; and
. Voluntary withdrawal of application
The Scheme has developed evaluation criteria for evaluating the competence of Yoga Professionals. The Evaluation Method shall be a combination of Written Examination, Oral Interview and Demonstration. Topic wise number of written questions and marks per question, Topic wise number of Demonstration and marks per Demonstration, and Oral Interview which shall include knowledge and skill with marks
When applicants fail to meet the acceptance criteria for evaluation, BVC shall inform them about the same. The applicants may take another evaluation with the same or another Personnel Certification Body but would have to declare their previous performance while reapplying to any other Personnel Certification Body.
ISSUANCE OF CERTIFICATE
BVC shall take a decision on certification, by a competent person(s) independent of evaluation(s), based on the information gathered during the certification process and shall ensure the following;
(a) The evaluation result of the applicant is not below the minimum specified
(b) Availability of necessary documentation as proof of the means of evaluation chosen to assess the candidate.
Bureau Veritas Certification will issue to the Applicant a Certificate of Approval which will be valid for 3 years subject to satisfactory performance of surveillance audits as per the defined timelines in accordance with applicable version of ISO 17024 / Scheme-specific requirements.
Bureau Veritas Certification will not take a positive certification decision until the necessary requirements are fully met.
The Certificate of Approval will detail the specification(s) to which the Applicant has been found compliant at the time of audit and the scope of the management system.
The Certificate of Approval or the Reports are given only in relation to the written instructions, documents, information and samples provided to Bureau Veritas Certification by the Applicant prior to the performance of the Services. Bureau Veritas Certification cannot be held liable for any error, omission or inaccuracy in the Certificate of Approval or the Reports to the extent that the Applicant has given Bureau Veritas Certification erroneous or incomplete information.
The Certificate of Approval or the Reports will reflect the findings of Bureau Veritas Certification at the time of performance of the Services only and in respect of the Applicant Information made available to Bureau Veritas Certification prior to or during the performance of the Services. Bureau Veritas Certification shall have no obligation to update the Certificate of Approval or the Reports after issuance, except as otherwise stated in the Agreement or agreed in writing between the Parties.
The Applicant (not Bureau Veritas Certification or its Affiliates or their respective representatives) is solely and exclusively responsible for exercising its own, independent judgment with regard to the Certificate of Approval or the Reports, information and recommendations provided by Bureau Veritas Certification and for any decision or action undertaken by the Applicant or any third party on the basis of the Certificate of Approval or the Reports provided by Bureau Veritas Certification. Neither Bureau Veritas Certification nor any of its Affiliates or their respective agents, subcontractors, officers, employees, representatives or assigns warrant the quality, outcome, effectiveness or appropriateness of any decision or action taken by the Applicant on the basis of the Certificate of Approval or the Reports provided under the Agreement.
Bureau Veritas Certification is under no obligation to refer to or report on any facts or circumstances which are outside the scope of the Services and accepts no liability for not referring to or reporting on such facts or circumstances.
(a) Bureau Veritas Certification operates a surveillance audit programme to record whether the Applicant’s certification is found to be maintained. The programme is ongoing and is agreed with the Applicant in the Agreement.
(b) The certified Yoga Professionals shall be periodically evaluated during the period of the valid certification. The surveillance can be done either on-site or by means of video conferencing, where feasible. It shall involve witnessing the certified Yoga professional in a live teaching session covering demonstration of knowledge, skills and teaching ability. The duration of witnessing shall be sufficient to cover the above but not less than one hour.
(c) The witnessing shall be undertaken once in a certification cycle for each certified professional.
Every three (3) years Bureau Veritas Certification will review the Applicant’s certification status and, subject to the satisfactory results from the surveillance audits and/or the re- certification audit (including all corrective actions which have been agreed between the Applicant and the Bureau Veritas Certification audit team and completed), Bureau Veritas Certification will re-issue the Applicant’s Certificate of Approval. Validity of the certificate cannot be extended beyond the expiry date indicated on the certificate. Hence it should be noted that the recertification needs to be completed before expiry of the current Certificate of Approval to preserve the continuity of the certification. Once completed, certification will be reconfirmed.
The certified Yoga professional shall apply for renewal in the prescribed format along with fee, if any prescribed by the BVC at least 4 months prior to expiry of certification.
The certification body shall review the performance of the certified Yoga professional seeking recertification (renewal of the Certificate), with respect to compliance to certification criteria during the entire certification cycle, prior to a decision on the renewal of the certificate.
. The performance of the certified Yoga professional shall be reviewed on the basis of;
. The surveillance evaluation report(s),
. Corrective actions taken on any feedback given during surveillance;
. Any suspension of certificate during the previous validity period;
. Complaints received, if any
. Feedback from the students taught to be obtained by the BVC
. Feedback reports from institution employed in, if applicable, obtained by the BVC
. Adverse information, if any,
. Physical fitness submitted by the certified professional from a registered medical practitioner
Recertification of the certified Yoga professional shall be based on their satisfactory performance during the previous certification period and shall be done before expiry of the certification.
The certification Body shall not recertify Yoga professional with conditions for compliance to be verified subsequently. There shall be no conditional certification of persons.
The BVC shall not recertify any certified Yoga professional whose certification is under suspension.
When performance of the certified Yoga professional is not satisfactory, the certification body shall withhold the recertification of the Yoga professional clearly stating the reasons and give time for effecting corrective actions. The verification and decision on recertification shall be taken within 6 months of the expiry date. The certification body shall verify corrective actions.
The recertification shall be effected from the date of the expiry of the previous certificate and the intervening period shall be treated as period of suspension. The certified Yoga professional shall not claim certification during this period.
Change to a higher level of certification on application by a professional shall be done after ascertaining the competence through any one of the prescribed means of evaluation for initial certification.
The applicant shall be issued a fresh certificate as in initial certification in lieu of the current certificate.
Any changes to the accreditation requirements and certification procedures, process, requirements, etc shall be communicated by Bureau Veritas Certification, as and when applicable as per the transition guidelines (if applicable), through various means like newsletters, mails, websites, customer portals, direct interactions, etc.
BUREAU VERITAS CERTIFICATION AND ACCREDITATION MARK
The Applicant shall use the Bureau Veritas Certification and Accreditation Body marks in accordance with the instructions for use that Bureau Veritas Certification provides including the requirements provided in clause 9 of Annexure A (General Terms & Conditions of Certification Services)
There shall be no ambiguity, in the mark or accompanying text, as to what has been certified. Bureau Veritas Certification mark and/or Accreditation Body mark shall not be used in such a way which may be seen by the final consumer or in any other way that may be interpreted as denoting product conformity except as provided for in clause 9 of Annexure A.
Applicant shall ensure :
Conformance to the requirements of the Bureau Veritas Certification when making reference to its certification
Current status of certification in communication media such as the internet, brochures or advertising, or other documents;
Does not make or permit any misleading statement regarding its certification;
Does not use or permit the use of a certification document or any part thereof in a misleading manner;
Upon withdrawal of its certification, discontinues its use of all advertising matter that contains a reference to certification, as directed by Bureau Veritas Certification.
Amends all advertising matter when the scope of certification has been reduced / withdrawn;
Does not allow reference to its management system certification to be used in such a way as to imply that the Bureau Veritas Certification certifies a product (including service) or process;
Does not imply that the certification applies to activities and sites that are outside the scope of certification;
Does not use its certification in such a manner that would bring the Bureau Veritas Certification and/or certification system into disrepute and lose public trust.
ACCESS TO CERTIFICATION BODY & ACCREDITATION BODY PERSONNEL
The Applicant shall allow access to the Bureau Veritas Certification auditors (incl. BV Observers, Trainee Auditors & Technical Experts, as applicable) as well as to the Bureau Veritas Certification’s Accreditation Body or their representatives’ to any part of the audit or surveillance process for the purposes of witnessing the Bureau Veritas Certification audit team during its performance of the audit of the management system to determine conformity with the requirements of the applicable standards. The Applicant shall not have the right to refuse such a request either by the Accreditation Body, its representatives or Bureau Veritas Certification.
In cases where any Accreditation Body wishes to conduct ‘validation visits’ to the applicants’ site, even in absence of Bureau Veritas personnel, the Applicant shall allow access to the accreditation body representatives. These visits or presence of such persons, as listed above, shall not lead to bearing of any additional costs for the applicant.
SUSPENSION, WITHDRAWAL, CANCELLATION OR RESTORATION OF THE CERTIFICATE OF APPROVAL
Bureau Veritas Certification reserves the right to suspend, withdraw, reduce, extend or cancel the Certificate of Approval at any time without any notice or with shorter notice as the situation may require depending upon the information available to Bureau Veritas Certification. Suspensions can be issued in case of in case of (but not limited to) the following -
Failure to conduct Surveillance Audits within the stipulated time limits.
Failure to close the Non-Conformities within the time limits (90 days).
Failure to compliance with regulatory requirements.
Failure to demonstrate part of activities under the scope of certification.
The witnessing is not satisfactory
Any serious complaint/feedback which is found to be valid
Any violation of terms and conditions of certification.
Adverse feedback in the public domain.
Non-Payment of Bureau Veritas dues.
Misrepresentation of Bureau Veritas Certification Mark.
On receipt of instructions for suspension of certification, the certified Yoga professional shall with immediate effect remove any reference to certification in any of his communication.
The certified Yoga professional is required to undertake a root cause analysis and identify and initiate necessary corrective actions for resolving the same.
The certification body shall revoke suspension only when corrective actions have been taken and verified by the certification body.
Suspension shall not exceed a period of six months and provided it is still within the validity period of the certificate. The certified Yoga professional’s inability to resolve issues relating to suspension within this period shall lead to cancellation of certification.
Unannounced visits may also be conducted as a follow up on Applicants whose certification has been suspended.
BVC shall cancel the certificate when;
(a) Certified Yoga professional contravenes the terms and conditions of certification and provisions of this certification scheme like claiming or displaying scope of certification other than that granted, or any fraudulent behaviour is established, etc.
(b) The corrective actions taken are not ensuring compliance, or the proposed plan for corrective actions will take a considerable time beyond 3 months for implementation;
BVC shall cancel the certificate at the request of the certified Yoga professional, if the certified Yoga professional is no longer interested.
In the event of cancellation, the Yoga professional shall be required to return the Certificate issued by BVC.
Bureau Veritas Certification reserves the right to publish the facts related to suspension status & subsequent actions thereof.
CANCELLATION, POSTPONEMENT OR RESCHEDULING OF THE SERVICES
Should the Applicant wish to cancel, postpone or reschedule commencement or further provision of the Services, or any part thereof, the Applicant must provide Bureau Veritas Certification with prior written notification of not less than thirty (30) days in the event of postponements or rescheduling and not less than three (3) months in the event of cancellations.
If the audit is cancelled/postponed/rescheduled after confirmation, the Applicant is liable to pay Travel & Living and cancellation charges where applicable, and
(a) 25% of the audit fees (excluding accreditation fees) if cancellation / rescheduling happens within 30 days of confirmed audit date
(b) 50% of the audit fees (excluding accreditation fees) if cancellation / rescheduling happens within 15 days of confirmed audit date
c) 100% of the audit fees (excluding accreditation fees) if cancellation / rescheduling happens within 7 days of confirmed audit date
If the Applicant wishes to cancel the contract before Initial, Main audit, an administrative fees equivalent to 20% of the total contract value will be charged.
If the services are not opted for within 2 years period from the date of signing of the contract, the entire advance amount will be forfeited.
In addition, a cancellation charge, as provided in the Agreement between the Parties, will be levied by Bureau Veritas Certification in the event of any cancellation, postponement or rescheduling of the Services. In the event that the initial deposit or advance payment, if any, exceeds the cancellation charge, such excess amount will be refunded to the Applicant (unless any other amount is due and owing by the Applicant to Bureau Veritas Certification). The Applicant agrees that any such cancellation charge is a reasonable measure of the costs incurred by Bureau Veritas Certification in preparation of provision of the Services.
Under no circumstances will Bureau Veritas Certification be liable for any claims, costs, damages or losses of any nature whatsoever and howsoever arising as a result of the Applicant’s cancellation, postponement or rescheduling of the Services, or any part thereof.
APPEALS, DISPUTES AND COMPLAINTS:
Should the Applicant wish to appeal against or dispute any decision of Bureau Veritas Certification, it should do so in accordance with the Bureau Veritas Certification appeals procedure, available on Bureau Veritas Certification website or upon request.
Should a complaint arise about Bureau Veritas Certification, such complaint shall in the first instance be made to local Bureau Veritas Certification office or send a mail to email@example.com. If the Applicant does not wish to complain directly to the local Bureau Veritas Certification office, the complaint shall be sent in writing to Bureau Veritas (India) Pvt. Ltd. (Certification Business), 6th Floor, Marwah Centre, Off Saki- Vihar Road, Andheri (East), Mumbai – 400072, INDIA, with attention to: Director (Certification).