CMA Testing and Certification Laboratories (Shanghai) Co., Ltd
General Terms and Conditions of Testing and Inspection Services (“Conditions”)
1. In these Conditions, where the context permits:
‘CMA Testing (SH)’ means the CMA Testing and Certification Laboratories (Shanghai) Co., Ltd;
‘Client’ means the person, firm, company or organization who engages CMA Testing (SH) to provide or cause to provide the Service;
‘Document’ means and includes without limitation any report, certificate, statement of comments, and such incidental document compiled or issued by CMA Testing(SH)in relation to the
Service requested by the Client and shall include any part thereof, or a copy or a replica thereof, whether stored, reproduced or engineered electronically or otherwise;
‘Inspection’ includes the inspection on compliance, quantity, workmanship and functional aspects of a consignment of goods by CMA Testing (SH) as requested by the Client;
‘Item’ includes the equipment, machine or tool submitted by the Client to CMA Testing (SH) or collected by CMA Testing (SH) on Client’s request for the purpose of calibration or for carrying out the other Service;
‘Readers’ means and includes any recipient to whom a Document was sent either by CMA Testing(SH)as instructed by the Client or by the Client itself and includes any other recipients who received the document through a source originated from the first-mentioned recipient;
‘Sample’ includes the sample of material submitted by the Client to CMA Testing (SH) or collected by CMA Testing (SH) on Client’s request for the purpose of carrying out the Service, or the sample of shipment goods for Inspection;
‘Service’ means ‘test’, ‘analysis’, ‘inspection’, ‘consultation’, ‘certification’, ‘calibration’ and/or quality related service rendered by CMA Testing(SH);
‘Testing’ and ‘Test’ mean respectively the testing of a Sample conducted by or caused to be conducted by CMA Testing(SH)for or on the request of the Client and the test so carried out; and
‘Working day’ means a day other than a Saturday, a Sunday, Public Holiday in China or a bad-weather day (including a day on which typhoon yellow warning signal or Rainstorm red warning signal is hoisted in Shanghai at any time during that day).
All references to time or day in these Conditions or in any Quotation or Confirmation shall refer to Beijing time unless otherwise stated.
2. CMA Testing (SH) agrees to provide its services in accordance with and subject to the Conditions.
3. These Conditions shall apply to all service contracts for Service between CMA Testing (SH) and the Client to the exclusion of all other terms and conditions including any terms or conditions which the Client may purport to apply (whether by way of correspondence, purchase order or otherwise) and any variation of these Conditions (including any special terms and conditions agreed between CMA Testing (SH) and the Client) shall be inapplicable unless the same is agreed in writing by CMA Testing(SH).
4. Requisitions and / or samples reach CMA Testing (SH) after 3:00 p.m. or sample pick-up calls received by CMA Testing (SH) after 1:00 p.m. will be treated as received on the following working day.
5. This Requisition shall be regarded as an acceptance of these Conditions and shall constitute a valid and binding contract between the Client and CMA Testing (SH).
6. Except with prior written agreement from CMA Testing (SH), in respect of Inspection, the FOB value of the Samples or Items do not exceed RMB1,000.00 per metric tonne, in respect of Calibration, the value of the Items do not exceed RMB5,000.00 per unit, and in respect of any other Service, the value of the Samples or Items do not exceed RMB100.00 per unit or RMB1.00 per kg whichever is the less. Client shall declare the value of the Samples or Items in case of such Samples or Items being of a higher value for CMA Testing (SH) to consider a fee adjustment or a cancellation of this contract (as the case may be).
7. Client shall pay the deposit amount upon CMA Testing (SH)’s request. A failure to do so shall be treated as a fundamental breach of the contract.
8. Unless with prior written agreement of CMA Testing (SH), this contract is made on the basis that the Samples or Items on which Service is to be rendered are not subjects of an existing dispute and will not be involved in any arbitration or court proceedings. If Client does contemplate or ought to have contemplated any Documents produced pursuant to the Service may be used (whether partly or wholly) in any such proceedings or intended proceedings, that must be fully and fairly set out in details in writing to seek CMA Testing (SH)’s prior written agreement. A failure to do so shall be treated as a fundamental breach of the contract.
9. For Service on Samples or Items submitted by Client, if all the corresponding Samples or Items do not reach CMA Testing (SH) ‘s office within 14 days from CMA Testing (SH)’s receipt of this Requisition, CMA Testing (SH) shall have no obligation to carry out any of the Service and the contract shall be treated as rescinded by Client on expiry of the said 14 days and any deposit paid may be forfeited by CMA Testing (SH).
10. For Service on Samples or Items collected by CMA Testing (SH), especially outside the Shanghai city, it is the sole responsibility on the Client’s part to provide a safe system and place for collection. Any known possible hazard that may be encountered in the course of collection or transportation must be sufficiently notified to CMA Testing (SH) in writing. Without limiting the generality, it must be so stated in case of any known epidemic, radioactive exposure, hazardous pollution events or risks that having taken place within the past three years within a diameter of 10km from the place where Samples or Items are to be collected.
11. The Client shall notify CMA Testing (SH) in writing in case of any of the Samples or Items being or suspected to be fragile, volatile, perishable, hazardous, radioactive, static-sensitive, photo-sensitive, magnetically, temperature or humidity sensitive, or generally of a nature which requires particular attention or procedure for proper and lawful handling, transportation, unpacking and/or storage. The Client shall be responsible for and fully indemnify CMA Testing (SH) against all personal injury, damages, loss and claim that may arise as a result of or in connection with any of the aforesaid that the Client should have notified CMA Testing (SH) but fails to ensure the same are so notified pursuant to this clause and clause 10 above.
12. Client shall ensure that all Samples or Items, whether to be submitted by it to CMA Testing (SH) or to be collected by CMA Testing (SH) may be legally dealt with by CMA Testing (SH) in such manner as reasonably contemplated without contravening any applicable laws and that they are well packed with such suitable and secured packing (and in any event, with sufficient suitable warnings for Samples or Items which are or are suspected to be fragile, volatile, perishable, hazardous, radioactive, static-sensitive, photo-sensitive, magnetically, temperature or humidity sensitive, or generally which require particular attention for proper delivery, unpacking, handling and/or storage) as may be necessary (having also regard to the time and mode of the transportation involved) in order that they shall be in the contemplated condition for CMA Testing (SH) to carry out the Service.
13. CMA Testing (SH) shall have the right without specifying any reason to refuse (i) to take delivery and/or (ii) to keep custody and/or (iii) to provide any of the Service in respect of such Samples or Items if in CMA Testing (SH) ‘s opinion such Samples or Items (i) do not or seem (as they may appear from the packing or their external appearance) not to correspond with their descriptions (whether in term of the components, form, size or quantity) as may have been insufficiently or inaccurately stated in the Requisition or as may have been understood by CMA Testing (SH) due to any misrepresentation or mistake or otherwise; or (ii) shall possibly make any Service (including any incidental conducts such as delivery or storage of them) to be carried out on them unsuitable, difficult, impracticable, dangerous, controversial, unlawful or in any other way as CMA Testing (SH) may in its sole decision consider undesirable.
14. CMA Testing (SH) shall be entitled to claim for additional administrative/collection/transportation charges if for any cause other than CMA Testing (SH)’s own fault (including without limitation inaccessibility, inaccurate or incorrect descriptions of the location or of the Samples or Items, failure to comply with all the applicable customs rules (both export and import) or other legal or regulatory requirement for lawful inland and cross-border transportation), collection and/or transportation has not been possible or has to be attempted more than once or by means other than what should have reasonably been contemplated, without prejudice to CMA Testing(SH)’s right to cease provision of any of the Service under any of such circumstances.
15. The Client shall provide sufficient assistance, instructions and information, technical and commercial, such as standard, criteria, drawing, specification，inspection plan, access etc., to enable CMA Testing (SH) to carry out the Service efficiently and professionally.
16. In the event that CMA Testing (SH) is not able to complete the Service at the fee originally agreed or at all due to Client’s nonfulfillment of clause 15 or any problem associated with the characteristics of the Sample or Item or unforeseeable events including but not limited to the shortage or rise in the costs of labour, material or otherwise, then CMA Testing (SH) shall be entitled to cease provision of the Service or continue provision of the same at an increased fee provided that CMA Testing (SH) shall as soon as practicable upon knowing such an event inform the Client accordingly.
17. It shall be the responsibility of the Client to ascertain and notify CMA Testing (SH) of the standards with which the Sample or Item must comply in any country or territory in which the same is intended to be sold, used or dealt with. In default of specific instructions from the Client, CMA Testing (SH) shall proceed on the basis that the Client instructs CMA Testing (SH) to use whatever testing methods and standards or inspection plan, specifications and/or criteria as CMA Testing (SH) may choose in its absolute discretion. The Client acknowledges that by not giving any specific instructions as said, it would probably obtain a lower fee quoted in the Quotation or confirmed in the Confirmation but at a risk that the Service may not meet with its unspecified requirement or purpose. It is acknowledged that CMA Testing (SH) strongly advises the Client to provide specific instructions.
18. CMA Testing (SH) may delegate the performance of its Service or any part thereof to its agents or subcontractors, either in whole or in part.
19. Samples or Items which have been submitted to or collected by CMA Testing (SH) will, unless the Client has made special arrangements in advance with CMA Testing (SH) regarding the disposal thereof, be destroyed or disposed of in such manner as CMA Testing (SH) sees fit at the expiration of a period of one month from the date (i) the corresponding Documents are issued pursuant to the relevant Service rendered by CMA Testing (SH); or (ii) the contract pursuant to which such Samples or Items are submitted or collected is terminated by either party for any reason; or (iii) the relevant Service has been fully performed by CMA Testing (SH) or no outstanding Service on such Samples or Items is to be performed by CMA Testing (SH), whichever is the earlier. If pursuant to any prior arrangements a Sample or an Item is to be returned to or re-collected by the Client that will be at Client’s own costs, expenses and risk. For re-collection, Client shall give at least 3-working-day notice to CMA Testing (SH) for arrangement. If the Sample or Item is not collected within the said period of one month, CMA Testing (SH) shall be entitled to deal with the Sample or Item in the same manner as aforesaid as if no special arrangements had even been made regarding its disposal. The Client expressly acknowledges that any Samples or Items (save those for Calibration or bulk Inspection) so returned or re-collected may have during the Service being rendered been dismantled, dissected, converted, chemically or physically altered in form, shape, structure, nature or in other aspect. Those returned or re-collected Samples or Items, unless specifically stated otherwise in the Requisition, are to be regarded by the Client and CMA Testing (SH) as industrial waste only and must be discarded by the Client as industrial waste in a proper manner and in no event shall they be used.
20. No action whatsoever regarding the Service shall be brought against CMA Testing (SH) unless the claim is made within one year from the date of issuance of the Document compiled in furtherance of that Service, or from the date on which the Document ought to be issued in the case of any alleged non-performance on the part of CMA Testing (SH) or from the date of the quotation issued in respect of the Service in case no relevant Document would be created for that Service.
21. The Client expressly acknowledges that CMA Testing (SH) shall not be liable to the Client or any third party for any indirect, special and/or consequential loss or damage, including but not limited to loss of profits under any circumstances whether or not such loss or damage is caused by the error, negligence, misdescription, misjudgement or default whatsoever on the part of CMA Testing (SH), its associate, subsidiary, agent, sub-contractor or employee and the liability of CMA Testing (SH) shall be limited to the amount stated in Clause 22.
22. The liability on CMA Testing (SH)’s part for any mis-statement in the Documents regarding Service in furtherance of a Contract causing actual loss or damage to the Client and/or the Readers (if any) shall be limited to three (3) times of the fee payable by the Client to CMA Testing (SH) for Service which gives rise to the claim for loss or damage. The amount of any claim for loss or damage of a Sample or an Item shall be limited to its maximum value (or FOB value if provided) as set out in Clause 6 or such higher value as may have been declared by the Client pursuant to Clause 6, whichever is the higher.
23. The Client procures that a Reader is fully aware of the limitation of CMA Testing (SH)’s liability regarding the Service and all the other terms as set out herein, in particular Clauses 20 to 23. The Client shall fully indemnify CMA Testing (SH) against any claim by a Reader for the amount in excess of such limitation and any claim which is contemplated to be barred or limited by virtue of these provisions.
24. Document relates exclusively to the Sample or Item that having been tested shall not apply to the bulk, unless sampling is expressly requested/stated in the Requisition, indeed carried out by CMA Testing (SH), and stated to have been so carried out in the Document. The document only reflects the result at the specific time and location that the inspection takes place
25. The Client shall ensure it and the recipient (as specified by the Client) of the Documents, the employees, agents, sub-contractors, subsidiaries and/or affiliates of its as well as the said recipient’s shall treat the Documents as strictly private and confidential and shall not use or permit any other party to use the Documents or any part thereof for any advertising, promotional or adverse-competition purpose, save and except with the prior written permission from CMA Testing (SH).
26. Except with prior written approval from CMA Testing (SH), no Document shall be reproduced in full or in part. The Client hereby acknowledges that the findings and comments contained in the Document incorporate the professional effort and valuable goodwill of CMA Testing (SH) and all of them must be read together as a full Document without contamination. No document shall thus be used or produced to any Reader in part only or in combination or conjunction with any test report, certificate or comment issued by other party or with any other Document. Without prejudice to other rights CMA Testing (SH) may have, the Client acknowledges and procures all Readers to acknowledge that CMA Testing (SH) shall be entitled to seek an injunctive relief for a breach of Clauses 24, 25 or 26 whether actual damage is caused to CMA Testing (SH) or whether the consequence of the breach may have misled any reader of the Document to think certain goods materials or articles possess the quality same as the particular Sample or Item referred to in the Document as found by CMA Testing (SH), irrespective of whether such goods materials or articles do indeed possess the quality as found for that Sample or Item.
27. Unless otherwise specifically requested by the Client, the conformity statement stated in the Conclusion of test report is based on the decision rule listed in www.cmatesting.org/qac/statement-of-conformity.pdf.
28. The Client hereby acknowledges that if it chooses not to collect the Documents at CMA Testing’s office, it then agrees to assume the risk of loss or damage or late delivery of the Documents sent by ordinary mail or registered mail or through courier or otherwise and in no event shall CMA Testing be responsible for any such loss, damage or late delivery.
29. All information obtained or created due to the service is handled based on <Confidentiality and Non-Disclosure Terms and Conditions> that is available at website www.cmatesting.org/qac/confidentiality-and-non-disclosure.pdf.
30. Unless otherwise specifically requested by the Client and accepted by CMA Testing (SH) in writing, CMA Testing (SH) shall have the right to retain and/or reproduce copies or replicas in whatever forms whether digital or otherwise, of any of the Documents and such copies or replicas shall absolutely be the property of CMA Testing (SH) which, without limiting the generality, may make use of the same or any part thereof in such manner as may be necessary for the normal course of CMA Testing (SH)’s business, and may disclose the same or any part thereof to any third-party accreditation or recognition bodies, their employees, agents, sub-contractors, related associations or affiliates. For avoidance of doubt, nothing herein shall restrict CMA Testing (SH)’s right of disclosure of the Documents or any contents thereof for audit purposes or for meeting with the requirements of the applicable judicial, governmental or regulatory authorities and the right of the Client, if any, whether implied or provided by any applicable laws, as to preservation of confidentiality regarding the Documents and any information of the Client contained therein, is hereby absolutely waived in favour of CMA Testing (SH) to the fullest extent as shall be allowed by the applicable laws.
31. The Client shall pay the fee punctually on the date specified in the relevant quotation, debit note or invoice or within such period as may be agreed by CMA Testing (SH) in writing. If an invoice amount or any part thereof has not been paid when due, interest shall accrue on such sum on a daily basis from the due date until payment at a rate of 2% per annum over the prime lending rate for Renminbi(RMB) quoted from time to time by The Bank of China Limited. For avoidance of doubt, in respect of an invoice issued to a third party as per Client’s instructions, Client shall still be primarily liable for paying the invoice amount and any interest payable thereof.
32. The Client agrees to indemnify and keep indemnified CMA Testing (SH) from and against all demands, claims, liabilities (whether criminal or civil), losses, costs and expenses whatsoever (including legal costs and expenses) which CMA Testing (SH) may suffer or incur arising out of or in connection with the performance of its services to the Client.
33. The Client shall also reimburse or pay to CMA Testing (SH) all expenses and charges (including legal costs on a solicitor and client basis) incurred by CMA Testing (SH) in connection with the demand for and collection of payment of any sum owed to CMA Testing (SH) by the Client and any enforcement process regarding the provisions contained in these Conditions or otherwise.
34. If the Client fails to pay any sum due under these Conditions, ceases or threatens to cease business, makes or offers to make any arrangements or composition with creditors or commits an act of bankruptcy, or if a receiving order is made against it, or if any resolution or petition is passed or made for its winding up (other than for the purpose of amalgamation or reconstruction), or if an administrator, administrative receiver, receiver or manager is appointed of any business, assets or undertakings, or if it takes or suffers the seizure of any assets for non-payment of any debt or if it takes or suffers any similar or analogous action in consequence of debt, then without prejudice to any other rights and remedies which CMA Testing (SH) may have and without being liable for any loss or damage occasioned thereby, CMA Testing (SH) may forthwith suspend the performance or, at its option, terminate all or any contracts for Service that have been entered into between CMA Testing (SH) and the Client.
35. CMA Testing (SH) reserves its right to amend these Conditions and the amount of fees charged by it for Service from time to time without prior notice.
36. If any provisions or any parts thereof contained in these Conditions shall be prohibited by law or adjudged by a court or other competent authority to be unlawful, void, or unenforceable, such provisions or such parts shall to the extent required be severed from these Conditions and rendered ineffective to that extent without modifying the remaining provisions or any other parts of such provisions of these Conditions and shall not in any way affect any other circumstances of or the validity or enforcement of these Conditions.
37. Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate, unincorporated associations and partnerships.
38. These Conditions are written in English language. They may be translated into other languages solely for general reference only. In case of any inconsistency or discrepancy in the meaning or interpretation amongst those translated versions with the original English context, the Chinese version shall prevail.
39. These Conditions shall be governed by and construed in accordance with the law of The People’s Republic of China and each party agrees to submit to the relevant law of the People’s Republic of China.
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Yubiao Testing and Certification Laboratory (Shenzhen) Limited
1. In these Conditions, where the context permits: ‘Yu Biao Testing’ means the Yu Biao Testing and Certification Laboratories (Shenzhen) Co .Ltd.; ‘Client’ means the person, firm, company or organization who engages Yu Biao Testing to provide or cause to provide the Service; ‘Document’ means and includes without limitation any report, certificate, statement of comments, and such incidental document compiled or issued by Yu Biao Testing in relation to the Service requested by the Client and shall include any part thereof, or a copy or a replica thereof, whether stored, reproduced or engineered electronically or otherwise; ‘Inspection’ includes the inspection on compliance, quantity, workmanship and functional aspects of a consignment of goods by Yu Biao Testing as requested by the Client; ‘Item’ includes the equipment, machine or tool submitted by the Client to Yu Biao Testing or collected by Yu Biao Testing on Client’s request for the purpose of calibration or for carrying out the other Service; ‘Readers’ means and includes any recipient to whom a Document was sent either by Yu Biao Testing as instructed by the Client or by the Client itself and includes any other recipients who received the document through a source originated from the first-mentioned recipient; ‘Sample’ includes the sample of material submitted by the Client to Yu Biao Testing or collected by Yu Biao Testing on Client’s request for the purpose of carrying out the Service, or the sample of shipment goods for Inspection; ‘Service’ means ‘test’, ‘analysis’, ‘inspection’, ‘consultation’, ‘certification’, ‘calibration’ and/or quality related service rendered by Yu Biao Testing; ‘Testing’ and ‘Test’ mean respectively the testing of a Sample conducted by or caused to be conducted by Yu Biao Testing for or on the request of the Client and the test so carried out; and ‘Working day’ means a day other than a Saturday, a Sunday, Public Holiday in China or a bad-weather day (including a day on which typhoon signal no.8 or above or Black Rainstorm warning signal is hoisted in Shenzhen at any time during that day). All references to time or day in these Conditions or in any Quotation or Confirmation shall refer to Beijing time unless otherwise stated.
2. Yu Biao Testing agrees to provide its services in accordance with and subject to the Conditions.
3. These Conditions shall apply to all service contracts for Service between Yu Biao Testing and the Client to the exclusion of all other terms and conditions including any terms or conditions which the Client may purport to apply (whether by way of correspondence, purchase order or otherwise) and any variation of these Conditions (including any special terms and conditions agreed between Yu Biao Testing and the Client) shall be inapplicable unless the same is agreed in writing by Yu Biao Testing.
4. Requisitions and / or samples reach Yu Biao Testing after 3:00 p.m. or sample pick-up calls received by Yu Biao Testing after 1:00 p.m. will be treated as received on the following working day.
5. This Requisition shall be regarded as an acceptance of these Conditions and shall constitute a valid and binding contract between the Client and Yu Biao Testing.
6. Except with prior written agreement from Yu Biao Testing, in respect of Inspection, the FOB value of the Samples or Items do not exceed HK$1,000.00 per metric tonne, in respect of Calibration, the value of the Items do not exceed HK$5,000.00 per unit, and in respect of any other Service, the value of the Samples or Items do not exceed HK$100.00 per unit or HK$1.00 per kg whichever is the less. Client shall declare the value of the Samples or Items in case of such Samples or Items being of a higher value for Yu Biao Testing to consider a fee adjustment or a cancellation of this contract (as the case may be).
7. Client shall pay the deposit amount upon Yu Biao Testing’s request. A failure to do so shall be treated as a fundamental breach of the contract.
8. Unless with prior written agreement of Yu Biao Testing, this contract is made on the basis that the Samples or Items on which Service is to be rendered are not subjects of an existing dispute and will not be involved in any arbitration or court proceedings. If Client does contemplate or ought to have contemplated any Documents produced pursuant to the Service may be used (whether partly or wholly) in any such proceedings or intended proceedings, that must be fully and fairly set out in details in writing to seek Yu Biao Testing’s prior written agreement. A failure to do so shall be treated as a fundamental breach of the contract.
9. For Service on Samples or Items submitted by Client, if all the corresponding Samples or Items do not reach Yu Biao Testing’s office within 14 days from Yu Biao Testing’s receipt of this Requisition, Yu Biao Testing shall have no obligation to carry out any of the Service and the contract shall be treated as rescinded by Client on expiry of the said 14 days and any deposit paid may be forfeited by Yu Biao Testing.
10. For Service on Samples or Items collected by Yu Biao Testing, especially outside the Shenzhen city, it is the sole responsibility on the Client’s part to provide a safe system and place for collection. Any known possible hazard that may be encountered in the course of collection or transportation must be sufficiently notified to Yu Biao Testing in writing. Without limiting the generality, it must be so stated in case of any known epidemic, radioactive exposure, hazardous pollution events or risks that having taken place within the past three years within a diameter of 10km from the place where Samples or Items are to be collected.
11. The Client shall notify Yu Biao Testing in writing in case of any of the Samples or Items being or suspected to be fragile, volatile, perishable, hazardous, radioactive, static-sensitive, photosensitive, magnetically, temperature or humidity sensitive, or generally of a nature which requires particular attention or procedure for proper and lawful handling, transportation, unpacking and/or storage. The Client shall be responsible for and fully indemnify Yu Biao Testing against all personal injury, damages, loss and claim that may arise as a result of or in connection with any of the aforesaid that the Client should have notified Yu Biao Testing but fails to ensure the same are so notified pursuant to this clause and clause 10 above.
12. Client shall ensure that all Samples or Items, whether to be submitted by it to Yu Biao Testing or to be collected by Yu Biao Testing may be legally dealt with by Yu Biao Testing in such manner as reasonably contemplated without contravening any applicable laws and that they are well packed with such suitable and secured packing (and in any event, with sufficient suitable warnings for Samples or Items which are or are suspected to be fragile, volatile, perishable, hazardous, radioactive, static-sensitive, photo-sensitive, magnetically, temperature or humidity sensitive, or generally which require particular attention for proper delivery, unpacking, handling and/or storage) as may be necessary (having also regard to the time and mode of the transportation involved) in order that they shall be in the contemplated condition for Yu Biao Testing to carry out the Service.
13. Yu Biao Testing shall have the right without specifying any reason to refuse (i) to take delivery and/or (ii) to keep custody and/or (iii) to provide any of the Service in respect of such Samples or Items if in Yu Biao Testing’s opinion such Samples or Items (i) do not or seem (as they may appear from the packing or their external appearance) not to correspond with their descriptions (whether in term of the components, form, size or quantity) as may have been insufficiently or inaccurately stated in the Requisition or as may have been understood by Yu Biao Testing due to any misrepresentation or mistake or otherwise; or (ii) shall possibly make any Service (including any incidental conducts such as delivery or storage of them) to be carried out on them unsuitable, difficult, impracticable, dangerous, controversial, unlawful or in any other way as Yu Biao Testing may in its sole decision consider undesirable.
14. Yu Biao Testing shall be entitled to claim for additional administrative/collection/transportation charges if for any cause other than Yu Biao Testing’s own fault (including without limitation inaccessibility, inaccurate or incorrect descriptions of the location or of the Samples or Items, failure to comply with all the applicable customs rules (both export and import) or other legal or regulatory requirement for lawful inland and cross-border transportation), collection and/or transportation has not been possible or has to be attempted more than once or by means other than what should have reasonably been contemplated, without prejudice to Yu Biao Testing’s right to cease provision of any of the Service under any of such circumstances.
15. The Client shall provide sufficient assistance, instructions and information, technical and commercial, such as standard, criteria, drawing, specification, inspection plan, access etc., to enable Yu Biao Testing to carry out the Service efficiently and professionally.
16. In the event that Yu Biao Testing is not able to complete the Service at the fee originally agreed or at all due to Client’s nonfulfillment of clause 15 or any problem associated with the characteristics of the Sample or Item or unforeseeable events including but not limited to the shortage or rise in the costs of labour, material or otherwise, then Yu Biao Testing shall be entitled to cease provision of the Service or continue provision of the same at an increased fee provided that Yu Biao Testing shall as soon as practicable upon knowing such an event inform the Client accordingly.
17. It shall be the responsibility of the Client to ascertain and notify Yu Biao Testing of the standards with which the Sample or Item must comply in any country or territory in which the same is intended to be sold, used or dealt with. In default of specific instructions from the Client, Yu Biao Testing shall proceed on the basis that the Client instructs Yu Biao Testing to use whatever testing methods and standards or inspection plan, specifications and/or criteria as Yu Biao Testing may choose in its absolute discretion. The Client acknowledges that by not giving any specific instructions as said, it would probably obtain a lower fee quoted in the Quotation or confirmed in the Confirmation but at a risk that the Service may not meet with its unspecified requirement or purpose. It is acknowledged that Yu Biao Testing strongly advises the Client to provide specific instructions.
18. Yu Biao Testing may delegate the performance of its Service or any part thereof to its agents or subcontractors, either in whole or in part.
19. Samples or Items which have been submitted to or collected by Yu Biao Testing will, unless the Client has made special arrangements in advance with Yu Biao Testing regarding the disposal thereof, be destroyed or disposed of in such manner as Yu Biao Testing sees fit at the expiration of a period of one month from the date (i) the corresponding Documents are issued pursuant to the relevant Service rendered by Yu Biao Testing; or (ii) the contract pursuant to which such Samples or Items are submitted or collected is terminated by either party for any reason; or (iii) the relevant Service has been fully performed by Yu Biao Testing or no outstanding Service on such Samples or Items is to be performed by Yu Biao Testing, whichever is the earlier. If pursuant to any prior arrangements a Sample or an Item is to be returned to or re-collected by the Client that will be at Client’s own costs, expenses and risk. For re-collection, Client shall give at least 3-working-day notice to Yu Biao Testing for arrangement. If the Sample or Item is not collected within the said period of one month, Yu Biao Testing shall be entitled to deal with the Sample or Item in the same manner as aforesaid as if no special arrangements had even been made regarding its disposal. The Client expressly acknowledges that any Samples or Items (save those for Calibration or bulk Inspection) so returned or re-collected may have during the Service being rendered been dismantled, dissected, converted, chemically or physically altered in form, shape, structure, nature or in other aspect. Those returned or re-collected Samples or Items, unless specifically stated otherwise in the Requisition, are to be regarded by the Client and Yu Biao Testing as industrial waste only and must be discarded by the Client as industrial waste in a proper manner and in no event shall they be used.
20. No action whatsoever regarding the Service shall be brought against Yu Biao Testing unless the claim is made within one year from the date of issuance of the Document compiled in furtherance of that Service, or from the date on which the Document ought to be issued in the case of any alleged non-performance on the part of Yu Biao Testing or from the date of the quotation issued in respect of the Service in case no relevant Document would be created for that Service.
21. The Client expressly acknowledges that Yu Biao Testing shall not be liable to the Client or any third party for any indirect, special and/or consequential loss or damage, including but not limited to loss of profits under any circumstances whether or not such loss or damage is caused by the error, negligence, misdescription, misjudgement or default whatsoever on the part of Yu Biao Testing, its associate, subsidiary, agent, sub-contractor or employee and the liability of Yu Biao Testing shall be limited to the amount stated in Clause 22.
22. The liability on Yu Biao Testing’s part for any mis-statement in the Documents regarding Service in furtherance of a Contract causing actual loss or damage to the Client and/or the Readers (if any) shall be limited to three (3) times of the fee payable by the Client to Yu Biao Testing for Service which gives rise to the claim for loss or damage. The amount of any claim for loss or damage of a Sample or an Item shall be limited to its maximum value (or FOB value if provided) as set out in Clause 6 or such higher value as may have been declared by the Client pursuant to Clause 6, whichever is the higher.
23. The Client procures that a Reader is fully aware of the limitation of Yu Biao Testing’s liability regarding the Service and all the other terms as set out herein, in particular Clauses 20 to 23. The Client shall fully indemnify Yu Biao Testing against any claim by a Reader for the amount in excess of such limitation and any claim which is contemplated to be barred or limited by virtue of these provisions.
24. Document relates exclusively to the Sample or Item that having been tested shall not apply to the bulk, unless sampling is expressly requested/stated in the Requisition, indeed carried out by Yu Biao Testing, and stated to have been so carried out in the Document. The document only reflects the result at the specific time and location that the inspection takes place.
25. The Client shall ensure it and the recipient (as specified by the Client) of the Documents, the employees, agents, sub-contractors, subsidiaries and/or affiliates of its as well as the said recipient’s shall treat the Documents as strictly private and confidential and shall not use or permit any other party to use the Documents or any part thereof for any advertising, promotional or adverse-competition purpose, save and except with the prior written permission from Yu Biao Testing.
26. Except with prior written approval from Yu Biao Testing, no Document shall be reproduced in full or in part. The Client hereby acknowledges that the findings and comments contained in the Document incorporate the professional effort and valuable goodwill of Yu Biao Testing and all of them must be read together as a full Document without contamination. No document shall thus be used or produced to any Reader in part only or in combination or conjunction with any test report, certificate or comment issued by other party or with any other Document. Without prejudice to other rights Yu Biao Testing may have, the Client acknowledges and procures all Readers to acknowledge that Yu Biao Testing shall be entitled to seek an injunctive relief for a breach of Clauses 24, 25 or 26 whether actual damage is caused to Yu Biao Testing or whether the consequence of the breach may have misled any reader of the Document to think certain goods materials or articles possess the quality same as the particular Sample or Item referred to in the Document as found by Yu Biao Testing, irrespective of whether such goods materials or articles do indeed possess the quality as found for that Sample or Item.
27. The Client hereby acknowledges that if it chooses not to collect the Documents at Yu Biao Testing’s office, it then agrees to assume the risk of loss or damage or late delivery of the Documents sent by ordinary mail or registered mail or through courier or otherwise and in no event shall Yu Biao Testing be responsible for any such loss, damage or late delivery.
28. Unless otherwise specifically requested by the Client and accepted by Yu Biao Testing in writing, Yu Biao Testing shall have the right to retain and/or reproduce copies or replicas in whatever forms whether digital or otherwise, of any of the Documents and such copies or replicas shall absolutely be the property of Yu Biao Testing which, without limiting the generality, may make use of the same or any part thereof in such manner as may be necessary for the normal course of Yu Biao Testing’s business, and may disclose the same or any part thereof to any third-party accreditation or recognition bodies, their employees, agents, sub-contractors, related associations or affiliates. For avoidance of doubt, nothing herein shall restrict Yu Biao Testing’s right of disclosure of the Documents or any contents thereof for audit purposes or for meeting with the requirements of the applicable judicial, governmental or regulatory authorities and the right of the Client, if any, whether implied or provided by any applicable laws, as to preservation of confidentiality regarding the Documents and any information of the Client contained therein, is hereby absolutely waived in favour of Yu Biao Testing to the fullest extent as shall be allowed by the applicable laws.
29. The Client shall pay the fee punctually on the date specified in the relevant quotation, debit note or invoice or within such period as may be agreed by Yu Biao Testing in writing. If an invoice amount or any part thereof has not been paid when due, interest shall accrue on such sum on a daily basis from the due date until payment at a rate of 2% per annum over the prime lending rate for Renminbi (RMB) quoted from time to time by Bank of China Limited. For avoidance of doubt, in respect of an invoice issued to a third party as per Client’s instructions, Client shall still be primarily liable for paying the invoice amount and any interest payable thereof.
30. The Client agrees to indemnify and keep indemnified Yu Biao Testing from and against all demands, claims, liabilities (whether criminal or civil), losses, costs and expenses whatsoever (including legal costs and expenses) which Yu Biao Testing may suffer or incur arising out of or in connection with the performance of its services to the Client.
31. The Client shall also reimburse or pay to Yu Biao Testing all expenses and charges (including legal costs on a solicitor and client basis) incurred by Yu Biao Testing in connection with the demand for and collection of payment of any sum owed to Yu Biao Testing by the Client and any enforcement process regarding the provisions contained in these Conditions or otherwise.
32. If the Client fails to pay any sum due under these Conditions, ceases or threatens to cease business, makes or offers to make any arrangements or composition with creditors or commits an act of bankruptcy, or if a receiving order is made against it, or if any resolution or petition is passed or made for its winding up (other than for the purpose of amalgamation or reconstruction), or if an administrator, administrative receiver, receiver or manager is appointed of any business, assets or undertakings, or if it takes or suffers the seizure of any assets for non-payment of any debt or if it takes or suffers any similar or analogous action in consequence of debt, then without prejudice to any other rights and remedies which Yu Biao Testing may have and without being liable for any loss or damage occasioned thereby, Yu Biao Testing may forthwith suspend the performance or, at its option, terminate all or any contracts for Service that have been entered into between Yu Biao Testing and the Client.
33. Yu Biao Testing reserves its right to amend these Conditions and the amount of fees charged by it for Service from time to time without prior notice.
34. If any provisions or any parts thereof contained in these Conditions shall be prohibited by law or adjudged by a court or other competent authority to be unlawful, void, or unenforceable, such provisions or such parts shall to the extent required be severed from these Conditions and rendered ineffective to that extent without modifying the remaining provisions or any other parts of such provisions of these Conditions and shall not in any way affect any other circumstances of or the validity or enforcement of these Conditions.
35. Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate, unincorporated associations and partnerships.
36. These Conditions are written in English language. They may be translated into other languages solely for general reference only. In case of any inconsistency or discrepancy in the meaning or interpretation amongst those translated versions with the original English context, the English version shall prevail.
37. These Conditions shall be governed by and construed in accordance with the law of the people’s Republic of China and each party agrees to submit to the relevant law of the people’s Republic of China.