1. GENERAL
1.1 Unless otherwise agreed in writing, all offers or services and all resulting contractual relationship(s) between EuroCompliance SAS (“EuroCompliance”) and any person applying for anticorruption certification services (the “Client”) shall be governed by these General Conditions.
1.2 These General Conditions, and, as applicable, the Proposal, the Application, the Codes of Practice, the EuroCompliance Certification Marks License Terms and Conditions constitute the entire agreement (the “Contract”) between the Client and EuroCompliance with respect to the subject matter hereof. Save as otherwise provided no variation to the Contract shall be valid unless it is in writing and signed by or on behalf of the Client and EuroCompliance.
1.3 Where a Certificate is issued to the Client, EuroCompliance will provide the Services using reasonable care and skill and in accordance with the Codes of Practice and its internal procedures.
2. DEFINITIONS
“Accreditation Body” means any organization (whether public or private) having the authorization to appoint Certification Bodies;
“Application” means the request for services by a Client;
“Certificate” means the Certificate issued by EuroCompliance Certification Body when requirements are met by the Client;
“Codes of Practice” means those codes of practice issued by EuroCompliance in accordance with one or several Accreditation Bodies;
“Proposal” means the outline of services to be rendered by EuroCompliance to the Client.
“EuroCompliance Certification Mark License Terms and Conditions” means the terms and conditions of use by the Client of the licensed EuroCompliance Certification Mark.
“Report” a report issued by EuroCompliance to the Client indicating whether or not a recommendation to issue a Certificate is to be made.
3. SERVICES
3.1 These General Conditions cover the Anticorruption Management System (ACMS) certification services (“the Services”) in accordance with international ISO 37001:2016 standard.
3.2 On completion of an assessment program, EuroCompliance will prepare and submit to the Client a Report. Any recommendation given in a Report is not binding on the Certification Body and the decision to issue a Certificate is at the sole discretion of the Certification Body.
3.3 The Client acknowledges that EuroCompliance, either by entering into the Contract or by providing the Services, neither takes the place of the 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 the Client to any third party or that of any third party to the Client.
3.4 Certification, suspension, withdrawal or cancellation of a Certificate shall be in accordance with the applicable Codes of Practice.
3.5 EuroCompliance may delegate the performance of all or part of the Services to an agent or a subcontractor in which case the Client authorizes EuroCompliance to disclose all information necessary for such performance to the agent or subcontractor.
4. OBLIGATIONS OF THE CLIENT
4.1 The Client is committed to provide complete information in good faith.
4.2 The Client shall ensure that all product samples, access, assistance, information, records, documentation and facilities are made available to EuroCompliance when required by EuroCompliance, including the assistance of properly qualified, briefed and authorized personnel of the Client. The Client shall in addition provide EuroCompliance free of charge suitable space for conducting meetings.
4.3 So far as it is permitted by law, the Client acknowledges that it has not been induced to enter into the Contract in reliance upon, nor has it been given any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in these General Conditions and, to the extent that it has been it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto. Any conditions or stipulations included in the Client standard form documents which are inconsistent with, or which purport to modify or add to, these General Conditions shall have no effect unless expressly accepted in writing by EuroCompliance.
4.4 The Client shall take all necessary steps to eliminate or remedy any obstacles to or interruptions in the performance of the Services.
4.5 In order to allow EuroCompliance to comply with the applicable health and safety legislation the Client shall provide EuroCompliance with all available information regarding known or potential hazards likely to be encountered by EuroCompliance personnel during their visits. EuroCompliance shall take all reasonable steps to ensure that whilst on the Client’s premises, its personnel comply with all health and safety regulations of the Client, provided that the Client makes EuroCompliance aware of the same.
4.6 The Client may only reproduce or publish extracts of any report of EuroCompliance if the name of EuroCompliance does not appear in any way or the Client has obtained the prior written authorisation of EuroCompliance. EuroCompliance reserves its rights to lodge a complaint in case of disclosure in breach of this clause or disclosure which EuroCompliance considers in its sole discretion is abusive. The Client shall not publicise details of the way in which EuroCompliance performs, conducts or executes its operations.
4.7 The Client shall immediately inform EuroCompliance of any and all changes in their premises which may affect their management system, their services or their products. Any breach of this obligation to inform may lead to the withdrawal of the Certificate. Furthermore the Client is bound to inform EuroCompliance of any major non conformity identified during internal audits undertaken by the Client, its partners or public authorities
5. FEES AND PAYMENT
5.1 The fees quoted to the Client cover all stages leading to completion of the assessment programme or operations and the submission of a Report and of the periodic surveillances to be carried out by EuroCompliance for the maintenance of the Certificate. Fees are based on the charge rate applicable at the time of submitting a Proposal for a period of three (3) years. EuroCompliance may increase its fees if the Client’s instructions change or are found to be not in accordance with the initial details supplied to EuroCompliance prior to it providing the relevant fee quotation. Clients will be notified beforehand of any increase in fees.
5.2 Additional fees shall be charged for operations that are not included in the Proposal and for work required due to non-conformances being identified. These will include, without limitation, costs resulting from:
(a) repeats of any part, or all, of the assessment programme or operations due to the registration procedures and rules not being met;
(b) additional work due to suspension, withdrawal and/or reinstatement of a Certificate;
(c) reassessment due to changes in the management system or products, process or services.
5.3 Once the dates for the audit have been fixed they cannot be modified and will be subject to a charge equivalent to 25% of auditing costs if these modifications are requested 30 to 16 calendar days before the planned audit, and to 50% of auditing costs if modifications are requested less than 16 calendar days before the planned audit. Travelling costs will be charged to the Client on presentation of receipts.
All these costs shall not apply in case the Client should cancel due to an act of god. All fees and additional charges are exclusive of any applicable Value Added Tax, Sales Tax or similar tax in the country concerned.
5.4 Unless otherwise stated all fees quoted are exclusive of travelling and subsistence costs. Transportation, visas, meals and accommodation expenses are charged at cost on presentation of receipts. Auditors travel economy class except for long-distance flights longer than 5 hours where they will fly business class. They are accommodated in professional class hotels.
The Client shall not be responsible for paying any expenses (by way of example for telecommunications, documentation and the like) other than those previously identified. Travel time will not be charged except for long-distance daytime flights longer than 5 hours which will be charged to the Client at 50% the rate of a man-day as defined in the Contract.
5.5 EuroCompliance shall issue invoices to the Client as follows:
Stage 1 Invoicing when the commercial proposal is signed;
Stage 2 Invoicing: 40% when Stage 2 Audit is launched, the remaining 60% when the final report is delivered.
Invoices for additional and further work and for auditors’ travels will be issued on completion of the relevant task. Unless advance payment has been agreed upon, all invoices are payable within thirty (30) days of the date of each invoice (the “Due Date”) regardless of whether the Client’s system or products qualify for certification, failing which interests will become due at a rate of three (3) times the legal interest rate from the Due Date up to including the date payment is actually received, along with a 40€ standard payment collection charge.
5.6 TAny use by the Client of any Report or Certificate or the information contained therein is conditional upon the timely payment of all fees and charges. In addition to the remedies set out in the Codes of Practice, EuroCompliance reserves the right to cease or suspend all work and/or cause the suspension or withdrawal of any Certificate for a Client who fails duly to pay an invoice.
5.7 The Client shall not be entitled to retain or defer payment of any sums due to EuroCompliance on account of any dispute, counter claim or set off which may allege against EuroCompliance.
5.8 EuroCompliance may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction.
5.9 The Client shall pay all EuroCompliance’s collection costs including reasonable attorney’s fees and related costs.
6. ARCHIVAL STORAGE
6.1 EuroCompliance shall retain in its archive for the period required by the relevant Accreditation Body or by law in the country of the Certification Body all materials relating to the assessment programme and surveillance programme relating to that Certificate.
6.2 At the end of the archiving period, EuroCompliance shall transfer, retain or dispose of the materials at its discretion, unless instructed otherwise by the Client.
7. REPORT AND CERTIFICATE OWNERSHIP AND INTELLECTUAL PROPERTY
Any document including, but not limited to any Report or any Certificate, provided by EuroCompliance and the copyright contained therein shall be and remain the property of EuroCompliance and the Client shall not alter or misrepresent the contents of such documents in any way. The Client shall be entitled to make copies for its internal purposes only. Duplicates of Certificates are available upon request for external communication purposes.
8. COMMUNICATION
The Client may promote its certification in accordance with the terms set out in the Regulations governing the use of the certification marks. Use of EuroCompliance’ corporate name or any other registered trademarks for advertising purposes is not permitted without EuroCompliance’ prior written consent.
9. CONFIDENTIALITE
9.1 As used herein, “Confidential Information” shall mean any oral or written proprietary information that a party may acquire from the other party pursuant to the Contract or information as to the business of the other party provided, however, that Confidential Information shall not include any information which (1) is or hereafter becomes generally known to the public; (2) was available to the receiving party on a non-confidential basis prior to the time of its disclosure by the disclosing party; (3) is disclosed to a party by an independent third party with a right to make such disclosure.
9.2 Unless required by law or by a judicial, governmental or other regulatory body, neither party nor their agents or subcontractors shall use the Confidential Information other than for the purpose of the Contract nor disclose the other’s Confidential Information to any person or entity without the prior written approval of the other party except as expressly provided for herein.
10. DURATION AND TERMINATION
10.1 Unless otherwise agreed, the Contract shall continue (subject to the termination rights set out in these General Conditions) for the term set forth in the Proposal (the “Initial Term”) that is to say three (3) years. At the end of the Initial Term the Contract shall be continued automatically unless its termination is notified in writing by one Party to the other at least three (3) months before the ending of the Initial Term or after a three (3)-month advance notice at any time after the Initial Term is completed.
10.2 EuroCompliance is entitled, at any time prior to the issue of a Certificate, to terminate the Contract if the Client is in material breach of its obligations and, following receipt of notice of such breach, such party fails to remedy to the satisfaction of the other party within 30 days.
10.3 Either Party shall be entitled to terminate immediately the provision of the Services in the event of any arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by the other Party.
10.4 Unless otherwise agreed in writing, the rights and obligations of the parties defined in clauses 8, 9, 12, 13 and 14 shall apply notwithstanding the completion of the Services or termination of the Contract.
10.5 In case the Client transfers its activities to another organization, the transfer of the Certificate is subject to EuroCompliance’s prior written consent. Where such consent is given, the use of the Certificate by such new organization shall be governed by the Contract.
11. FORCE MAJEURE
If EuroCompliance is prevented from performing or completing any service for which the Contract has been made by reason of any cause whatsoever outside EuroCompliance’s control, including, but not limited to, acts of god, war, terrorist activity or industrial action; failure to obtain licenses or registrations; illness; death or resignation of personnel or failure by Client to comply with any of its obligations under the Contract, the Client will pay to EuroCompliance:
(a) the amount of all abortive expenditures actually made or incurred;
(b) a proportion of the agreed fees equal to the proportion (if any) of the service actually carried out;
and EuroCompliance shall be relieved of all responsibility whatsoever for the partial or total non-performance of the required Services.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1 EuroCompliance undertakes to exercise due care and skill in the performance of the Services and accepts responsibility only in cases of proven negligence.
12.2 Nothing in these General Conditions shall exclude or limit EuroCompliance’ liability to the Client for death or personal injury or for fraud or any other matter resulting from EuroCompliance’ negligence for which it would be illegal to exclude or limit its liability.
12.3 Subject to clause 12.2, the total liability of EuroCompliance to the Client in respect of any claim for loss, damage or expense of any nature and howsoever arising shall be limited, in respect of any one event or series of connected events, to an amount equal to the fees paid to EuroCompliance under the Contract (excluding Value Added Tax thereon).
12.4 Subject to clause 12.2, EuroCompliance shall have no liability to the Client for claim for loss, damage or expense unless arbitral proceedings are commenced within one year after the date of the performance by EuroCompliance of the service which gives rise to the claim or in the event of any alleged non-performance within one year of the date when such service should have been completed.
12.5 Subject to clause 12.2, EuroCompliance shall not be liable to the Client nor to any third party for any loss, damage or expense arising from (i) a failure from the Client to comply with any of its obligations herein (ii) any actions taken or not taken on the basis of the Reports or the Certificates; and (iii) any incorrect results, Reports or Certificates, arising from unclear, erroneous, incomplete, misleading or false information provided to EuroCompliance;
12.6 The Client acknowledges that a positive report and the issuance of a certificate may in no way be interpreted as guaranteeing that no act of bribery has taken place before ABMS assessment and/or shall take place after ABMS assessment within the Client’s operations.
The Client acknowledges that a positive report and the issuance of a certificate only attest the fact that it has bribery-prevention programmes and processes in place, which are commensurate to its exposure to risk of bribery and are in accordance with ISO 37001:2016 standard.
Consequently, and without prejudice to the obligation of EuroCompliance to exercise due care and skill in the performance of the Services, the Client recognises that EuroCompliance may in no way be held liable based on their performing of the Assessment in the event legal action would be taken against the Client for an infringement of the anti-corruption laws and regulations, which would have occurred prior to, during or following the term of this Agreement.
12.7 EuroCompliance is neither a counsel nor a legal advisor and disclaims all liability in such capacity. Clients seeking legal expertise regarding their corruption prevention programme shall turn to a law professional.
12.8 EuroCompliance 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.
12.9 Except for cases of proven negligence or fraud by EuroCompliance, the Client further agrees to hold harmless and indemnify EuroCompliance 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 (i) relating to the performance, purported performance or non-performance of the Services or (ii) out of or in connection with the Client’s product, process or service the subject of the certification (including, without limitation, product liability claims).
12.10 Each party shall take out adequate insurance to cover its liabilities under the Contract.
13. MISCELLANEOUS
13.1 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.
13.2 Neither party shall assign the Contract without the prior written consent of the other Party; such consent shall not be unreasonably withheld. Any assignment shall not relieve the assignor from any liability or obligation under the Contract.
13.3 These General Conditions are not subject to the Contracts (Rights of Third Parties) Act 1999.
13.4 A Party giving notice under these General Conditions must do so in writing with such notice being hand delivered or sent by prepaid, first class post or facsimile to the address of the other Party. A notice will be deemed received by the other Party:
(a) if hand delivered, on the date of delivery;
(b) if sent by first class post, three days after the date of posting;
(c) if sent by facsimile, the time indicated on the sending Party’s facsimile transmission confirmation message.
13.5 The Parties acknowledge that EuroCompliance provides the Services to the Client as an independent contractor and that the Contract does not create any partnership, agency, employment or fiduciary relationship between EuroCompliance and the Client.
13.6 Any failure by EuroCompliance to require the Client to perform any of its obligations under these General Conditions or the Contract shall not constitute a waiver of its right to require performance of that or any other obligation.
14. DISPUTES
Unless specifically agreed otherwise, all disputes arising out or in connection with the performance of services shall be governed by the laws of France apart from the conflict of laws and shall be finally settled before the competent courts of EuroCompliance’s headquarters.