1. Heshan Leo Metrology and Testing Services Co. Ltd. (hereinafter "the agrees to provide its services in accordance with and subject to the terms and conditions herein contained (hereinafter "the Conditions").
The Conditions shall only be modified by a variation expressed in writing and signed on behalf of the Company by a director and no other action on the part of the Company or its employees or agents shall be construed as an acceptance of any other terms and conditions.
2. The Company acts for the person or body from whom the request to provide its services has originated (hereinafter "the Principal"). No other third party is entitled to give instructions to the Company unless agreed by the Company.
3. All rights (including but not limited to copyright) in any test or calibration reports, surveys, certificates or other material produced by the Company in the course of providing its services shall remain vested in the Company. The Principal shall not reproduce or make copies, publish or disclose the contents of any such material or extracts thereof to any third party without the Company's prior written consent. The Principal further undertakes that its employees and agents shall keep confidential and shall not disclose or otherwise use any information that may be acquired relating to the Company's activities. If the Principal breaches this provision, the Principal shall compensate the Company for all consequential loss.
4. The Company undertakes to exercise due care and skill in the performance of its services and, subject to paragraph [5] below, accepts responsibility only where such skill and care is not exercised.
5. The Company shall have no liability in respect of any claims for indirect or consequential loss including loss of profit and/or loss of future business and/or cancellation of contracts entered into by the Principal, and the compensation shall not be exceed the total service charges of the contract.
6. The Company shall not in any event be liable for any loss or damage caused by delay in performance or non-performance of any of its services where the same is occasioned by any cause whatsoever that is beyond the Company's control, including but not limited to war, civil disturbance, requisitioning, governmental policy prohibitions or enactment of any kind, import or export regulations, strike or trade dispute (where involving its own employees or those of), fire or accident, should any such event occur the Company may cancel or suspend any contract for the provisions of services without incurring any liability whatsoever.
7. The Company will not be liable to the Principal for any loss or damage whatsoever sustained by the Principal as a result of any failure by the Company to comply with any time estimate given by the Company relating to the provision of its services.
8. Subject to the Principal's instructions as accepted by the Company, the test or calibration reports, surveys, certificates or other material produced by the Company shall contain statements of opinion made with due care within the limitation of the instructions received by the Company. The Company is under no obligation to refer to or report upon any facts or circumstances which are outside the specific instructions received.
9. Reports, surveys or certificates issued following testing or analysis of samples contain the Company's specific opinion on those samples only but do not express any opinion upon the bulk from which the samples were drawn. If an opinion on the bulk is requested, the Principal and the Company should consent in writing in advance for special arrangement. In no circumstances shall the Company's responsibility extend beyond calibrating and testing reporting upon the sample actually drawn from the bulk, tested and surveyed by the Company and any inference to be drawn from the results of such calibration of survey testing shall be entirely in the discretion and at the sole and exclusive responsibility of the Principal.
10. The Company shall be entitled at its discretion to delegate the performance of the whole or any part of the services contracted for with the Principal to any agent or subcontractor.
11. If the requirements of the Principal necessitate the analysis of samples by the Principal or by any third party, the Company will pass on the results of the analysis without taking any responsibility for its accuracy. Where the Company is the only witness to the analysis conducted by the Principal or by any third party, the Company will provide confirmation, if such be the case, that a correct sample has been analysed but will not otherwise be responsible for the accuracy of such analysis.
12. The Principal will:
12.1 Ensure that instructions to the Company are given in due time (and, in any event not later than 48 hours prior to the desired intervention) and are accompanied by sufficient information to enable the required services to be performed effectively;
12.2 Accept that documents reflecting arrangements or agreements made between the Principal and any third party, or third party documents such as copies of contracts of sale, letters of credit, bills of lading, etc. are if received by the Company shall be considered to be for reference onlywithout extending or restricting the services to be provided or obligations accepted by the Company;
12.3 Provide the Company’s representatives with access to necessary information to enable the required services to be performed effectively;
12.4 Supply, if required, any special equipment and personnel necessary for the performance of the required services;
12.5 Ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of the required services;
12.6 Take all necessary steps to eliminate or remedy any obstruction to or interruptions in the performance of the required services and repack all calibrated equipment immediately after any calibration or survey of them; and
12.7 Inform the Company in advance of any known hazards or dangers, actual or potential, associated with any request for the provision of services by the Company including but not limited to the presence or risk of radiation, toxic or explosive elements or materials, environment pollution or poisons.
13. The Principal shall guarantee, hold harmless and indemnify the Company and its officers, employees, agents or subcontractors against:
13.1 All claims made by any third party for any loss, damager or expense of whatsoever nature and howsoever arising relating to the performance, purported performance or non-performance of any of services to the extent that the aggregate of any such claims relating to any one service exceeds the limit mentioned in paragraph 4 of the Conditions; and
13.2 Any loss or damage suffered by the Company as a result of the provision of services by the Company otherwise from the Company’s own error, negligence or willful default.
14.The Principal will punctually pay the Company immediately upon presentation of the relevant invoice or within such other period as may have been agreed in writing by the Company all charges rendered by the Company, failing which interest will become due at the rate 1.5 percent per month from the date of invoice until payment. The Principal further agrees and undertakes to reimburse the Company all disbursement reasonably incurred in connection with the provision of its services.
15. The principal shall not be entitled to retain or defer payment of any sums due to the Company on account of any dispute, cross claim or set off which it may allege against the Company.
16. In the event of any suspension of payment arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business or failure of the principal to pay part of all of any sums owning to the Company, the Company shall be entitled to suspend all further performance of its service and withhold the issue of any test and calibration report, survey, certificate or other material requested forthwith and without liability until payment of all sums owing to the Company together with interest thereon is made.
17. Without prejudice to any rights the Company may have at law or under the Conditions, the Company has the following rights in the event of non-payment of sums owing to the Company as set out below:
17.1 The Company has a general and particular lien over all samples delivered to be tested or calibrated for all claims and sums owing by the Principal to the Company under any contract whatsoever and in any other way whatsoever.
17.2 During the currency of any such lien the Company is entitled to be paid reasonable storage charges for samples retained in the Company's custody.
18. In the event of the Company being prevented by reason of any cause whatsoever beyond the Company’s control from performing or completing any services for which an order has been given or an agreement made, the Principal will pay to the Company:
18.1 The amount of all abortive expenditure actually made or incurred;
18.2 And a proportion of the agreed fee or commission equal to the proportion (if any) of the services actually carried out, and the Company shall be relieved of all responsibility whatsoever for the partial or total non-performance of the required service.
19. The Company shall be discharged from all liability to the Principal for all claims for loss, damage or expense unless suit is brought within twelve (12) months after the date of the performance by the Company of the service which gives rise to the claim or in the event of any alleged non-performance within twelve(12) months of the date when such services should have been completed.
20. In the event that any unforeseen additional time or costs are incurred in the course of carrying out any of its services the Company shall be entitled to render additional charges as shall reasonably reflect such to additional time and costs incurred.
21. All contracts for provision of services by the Company and the Conditions shall be construed in accordance with and governed by the laws of the People’s Republic of China and for the purpose of any arbitral or litigation proceedings such contracts shall be deemed to have been made and performed in PRC. If any provision contained in the Conditions is and/or becomes invalid, illegal or unenforceable in any respect under the laws of PRC, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
22. Any dispute or claim arising out of or relating to the Conditions, or the execution thereof shall be settled amicably through negotiation. In case no settlement can be reached through negotiation, either one of the parties may submit to the court where the Company is located for resolution through litigation proceedings.
23. The Conditions are made out in English or in Chinese. Should there be any discrepancy, the Chinese version shall prevail.