General Terms and Conditions
- All offers and services, and all resulting contractual relationship(s) between NMCI Group and/or any of the affiliated companies of NMCI Group or any of their agents (each of which can be hereinafter referred to as “NMCI”) and those with whom contractual relationship(s) are established (persons or entities (private, public or governmental,) hereinafter referred to as “Client” shall be governed by these general terms and conditions, unless otherwise agreed in writing, or in any case(s) where they are in conflict with:
- guidelines set forth for services performed on behalf of government, government bodies or any other public entity, or
- mandatory provisions of local law
- NMCI is entitled to perform services for Client issuing instructions.
- Aside from Client, no other party is entitled to give instructions to NMCI, principally those regarding the scope of services or the delivery of reports or certificates resulting from those services, (hereinafter referred to as “Reports of Findings) unless NMCI receives prior written instructions from Client. NMCI is irrevocably authorized by Client to deliver Reports of Findings to a third party when instructed as such by Client or, at the discretion of NMCI, where it implicitly follows circumstances, trade custom, usage or practice.
Provision of Services
- NMCI will provide services to Client using reasonable care and skill, and in accordance with any specific instructions set forth by Client and confirmed by NMCI. In the absence of such instructions, NMCI will perform services based on:
- the terms set forth by any standard order form or standard specification sheet of NMCI
- any relevant trade custom, usage or practice, and/or
- such methods as NMCI shall deem appropriate based on technical, operations and/or financial grounds.
- The information found in Reports of Findings result from the outcome of inspection
and / or testing procedures carried out in accordance with any instructions
specified by Client. The assessment by NMCI of such results derived from the utilization of technical standards, trade custom or practice, and/or any other circumstances that should be taken into account based on the professional opinion of NMCI.
- Report of Findings issued further to the testing of samples contain the opinion of NMCI on solely those samples and do not express any opinion concerning the lot from which the samples were drawn.
- In the event that Clients request that NMCI is witness to any third party intervention, Client agrees that NMCI is solely responsible to be present at the time of the third party intervention and to forward the results, or validate the occurrence of the third party intervention to Client. Client agrees that NMCI will not be held responsible for the condition or calibration of equipment, instruments, and measuring apparatus utilized, analysis methods applied, the qualifications, actions or omissions of third party personnel or the analysis results set forth by a third party.
- Any Reports of Findings issued by NMCI will reflect the facts as recorded at the time of intervention by NMCI only and are within the limits of the instructions received or, in the absence of such instructions, within the limits of the alternative parameters applied as provided for in clause 2(a).
- NMCI is entitled to delegate the performance of all or part of the services to an agent or subcontractor, and Client authorizes NMCI to disclose all information relevant and necessary to the agent or subcontractor in order to achieve said performance.
- Should NMCI receive any third party documents, or any documents reflecting engagements contracted between Client and third parties, such as copies of sales contracts, letters of credit, bills of lading, etc., they are considered to be used for information purposes only, and do not extend or restrict the scope of the services or the obligations accepted by NMCI.
- Upon performance of services, Client acknowledges that NMCI neither takes the place of Client or any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of Client to any third party, or that of any third party to Client.
- All samples will be retained for a maximum of three (3) months, or such other shorter time period as the nature of the sample permits. After the specified retention period, the sample will be disposed of at the discretion of NMCI, after which time NMCI will cease to have any responsibility for such samples. Storage of samples for periods longer than three (3) months will incur a storage charge payable by Client. Client will be billed for any handling or freight fees upon the return of any sample to Client. Special disposal charges will be billed to client, if such charges are incurred.
Obligations of Client
Client is obligated to:
- ensure that sufficient information, instructions and documents are provided to NMCI
not less than 48 hours prior to the desired intervention in order to enable the proper services to be performed
- procure all necessary access for NMCI representatives to the premises where the services are to be performed and to take all necessary steps to eliminate or remedy any obstacles to, or interruptions in, the performance of services.
- supply, if required, any special equipment and necessary personnel for the performance of services
- ensure that all necessary measures are taken for the safety and security of working conditions, sites and installations during the performance of services, and will not rely, in this respect, on the advice of NMCI, whether required or not
- inform NMCI in advance of any known hazards or dangers, actual or potential, associated with any orders, samples or testing including, for example, the presence or risk of radiation, toxic, noxious or explosive elements or materials, environmental pollution or poisons;
- fully exercise all its rights and discharge all its liabilities under any relevant sales or other contract with a third party and at law.
Fees and Payments
- NMCI will charge its standard rates (which are subject to change) unless fees and payments are otherwise established between NMCI and Client at the time the order is placed or a contract is negotiated. All applicable taxes will be payable by Client.
- Unless otherwise established in the invoice, Client will promptly pay no later than thirty (30) days from the relevant invoice date or within such other period as may be established by NMCI in the invoice. All payments due to NMCI that are not paid within the specified period of time are subject to an interest rate of 1.5% per month (or a rate that is otherwise determined by NMCI) from the date of the invoice up to and including the date payment is actually received.
- Client is not entitled to withhold or defer payment of any sums due to NMCI on the account of any dispute, counter claim or set off which it may allege against NMCI.
- NMCI may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction.
- Client shall pay all of NMCI’s collection costs, including attorney’s fees and related costs.
- In the event of any unforeseen problems or expenses that arise in the course of carrying out the services, NMCI shall attempt to inform Client and shall be entitled to charge additional fees to cover extra time and cost necessarily incurred to complete the services.
- If NMCI is unable to perform all or part of the services for any reasons whatsoever that are outside the control of NMCI, including failure by Client to comply with any of its obligations provided for in clause 3 above, NMCI shall nevertheless be entitled to payment of:
- the amount of all non-refundable expenses incurred by NMCI; and
- a proportion of the agreed fee equal to the proportion of the services actually carried out.
Suspension or Termination of Services
NMCI shall be entitled to immediately and without liability either suspend or terminate provision of the services in the event of:
- failure by Client to comply with any of its obligations hereunder, and such failure is not remedied within ten (10) days that notice of such failure has been reported to Client; or
- any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by Client.
Liability and Indemnification
- Limitation of Liability
- NMCI is neither an insurer nor a guarantor, and disclaims all liability in such capacity. Clients seeking a guarantee against loss or damage should obtain appropriate insurance.
- Reports of Findings are issued on the basis of information, documents, and/or samples provided by, or on behalf of, Client, and are solely for the benefit of Client. Client is responsible for acting as it sees fit on the basis of such Reports of Findings. Neither NMCI nor any of its officers, employees, agents or subcontractors shall be liable to Client or any third party for any actions taken or not taken on the basis of such Reports of Findings or for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to NMCI.
- NMCI shall not be liable for any delayed, partial or total non-performance of the services arising directly or indirectly from any event outside of the control of NMCI, including failure by Client to comply with any of its obligations hereunder.
- The liability of NMCI in respect of any claim for loss, damage or expense of any nature and howsoever arising, shall in no circumstances exceed a total aggregate sum equal to ten (10) times the amount of the fee paid in respect of the specific service which gives rise to such claim, or US$10,000 (or its equivalent in local currency), whichever the lesser.
- NMCI shall have no liability for any indirect or consequential loss (including loss of profits.)
- In the event of any claim, Client must give written notice to NMCI within thirty (30) days of discovery of the facts alleged to justify such claim and, in any case, NMCI shall be discharged from all liability for all claims for loss, damage or expense, unless the suit is brought within one year from:
- The date of performance of the service by NMCI which gives rise to the claim; or
- The date when the service should have been completed, in the event of any alleged non-performance.
- Indemnification: Client shall guarantee, hold harmless and indemnify NMCI and its officers, employees, agents or subcontractors against all claims (actual or threatened) by any third party for loss, damage or expense of whatsoever nature, including all legal expenses and related costs, and howsoever arising to the performance, purported or non-performance, of any services.
- If any one or more provisions of these General Conditions are found to be illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- During the course of providing the services, and for a period of one year thereafter, Client shall not directly or indirectly entice, encourage or make any effort to NMCI’s employees to terminate their employment with NMCI.
- Use of NMCI’s corporate name or registered marks for advertising purposes is not permitted without the prior written authorization of NMCI.
Governing Law, Jurisdiction and Dispute Resolution
Unless specifically agreed otherwise, all disputes arising out of or in connection with Contractual Relationship(s) hereunder shall be governed by the substantive laws of the United States of America, exclusive of any rules with respect to conflict of laws, and be finally settled under the Rules and Arbitration of the International Chamber of Commerce by one or more arbitrator(s) appointed in accordance with the said rules. The arbitration shall take place in the United States of America and be conducted in the English language.