Purchase and Billing
General Term and Conditions of purchase « Services »
1. Scope
These General Terms and Conditions of the Provision of Services (hereafter referred to as “these Conditions”) are applied to each purchase order from CERTIFICATIONS BAY accepted by the Client and each quote issued by the Service Provider accepted, i.e., CERTIFICATIONS BAY (henceforth referred to as “the Order”), by virtue of which the Service Provider performs particular work and/or services (hereafter referred to as “Services”) for Client, prepares and submits items to CERTIFICATIONS BAY (technical, computing, analyses, examinations, or others) (the “Deliverables”) in conformance with the specifications which the Parties might have defined. The Services may be tangible and/or intellectual. These Conditions are prone to change and only govern the Orders issued during their application period.
The execution or the outset of the execution of the Service by the CERTIFICATIONS BAY shall constitute acceptance of these Terms and Conditions by the Client when signing or returning the approved Order.
As the relations between the Parties are controlled by the Order and these Conditions, under no situations shall the general terms and conditions or other documents of the Service Provider, notwithstanding of the medium, be considered to be applicable and binding on Client.
2. Execution of the Services
2.1 Nature of the Service Provider Obligations
The Service Provider obligation is a performance obligation concerning, particularly, the Services, the handover of the Deliverables, their quality, their volume, and their lead-time. Adhering with the deadlines by the CERTIFICATIONS BAY constitutes a fundamental condition without which CERTIFICATIONS BAY would not have entered into a contract with the Client. The Client accepts to use all resources in certain human, material, and the logistic required to ensure the ideal execution of the Order.
2.2 Duty to inform, advise and warn
The CERTIFICATIONS BAY is responsible to perform the general duty to inform, advise and warn with regard to Client and in this respect responsible in particular to:
– Contribute to the requirements and specifics analysis of the Client by requesting, whensoever necessary, all information and/or documents required to completely understand them;
– Promptly notify all omissions, errors, contradictions, or inaccuracies, recognized by an expert in the field, perceive in the items or instructions given by the Service Provider and which might stave off the contractual requirements from being achieved;
– Notify the Client of the progress of the Services and inform the company, promptly and in writing, concerning the consequences, particularly, technical and financial, of all new requests or choices made by CERTIFICATIONS BAY;
– Notify Client of any issues experienced in performing the Services and submit proposals to resolve them. The CERTIFICATIONS BAY shall only be able to implement these proposals subsequently to obtain the written agreement with the Client.
– In case of defects, errors, or omissions which may be observed in the forwarded information or documents, CERTIFICATIONS BAY must be immediately informed, and confirm it in writing;
– Apprise Client of all directives, laws, and regulations regarding its Service.
– Notify the Client of anything which might affect the use of the Service by Client or a third party.
The Client shall not invoke an absence of information when it could have been acquired by requesting it. In this respect, it assures that it has all the skills and human, material, financial and informative resources required for the ideal execution of the Service. The Client shall notify CERTIFICATIONS BAY in writing of any condition which may imperil or affect the satisfactory execution of the Order, particularly in the event of insolvency proceedings affecting its company, winding up or ceasing trading either partly or completely.
2.3 Resources made available by Service Provider
All rights not expressly granted herein are retained by CERTIFICATIONS BAY and/or its grantors. Under no circumstances may the Client claim intellectual property right concerning an item provided or deriving from an item provided by CERTIFICATIONS BAY.
The Service Provider and its grantors reserve all of the property rights, particularly intellectual property rights, with respect to the items provided and their derivatives. The Service Provider and its grantors shall remain owners, in an unrestricted manner, of all the items, information, data, technical files, specifications, tools, and documents provided within the framework of the Order. If Client makes equipment or goods available to the CERTIFICATIONS BAY, the latter undertakes, at its expenditure and under its responsibility, to:
– use them in a way which abides by and respects the obligations of these Conditions;
– treat them cautiously and return them in the same condition in which they were delivered, the latter being consider delivered detect if no reservations were made by the CERTIFICATIONS BAY upon delivery;
– affix any signage enabling these items to be recognized as the property of CERTIFICATIONS BAY;
– said equipment or goods once the Services have been executed and/or upon request must be returned.
If all or part of the items made available to the CERTIFICATIONS BAY are impaired or demolish because of its fault or lack of care (with this also applicable to any sub-contractors used), the Client takes responsibility at the discretion of CERTIFICATIONS BAY, to replace said items to their normal condition or replace them with equipment or goods of alike quality or pay CERTIFICATIONS BAY an amount corresponding to their market price. This provision shall under no condition be deemed to be a penalty clause.
2.4 Requests for changes
If Client might request additional services, verbal or in writing, which might materially change the CERTIFICATIONS BAY’s obligations by adding or eliminating elements (“Request for Change”). The Client shall reply in written form to this Request for Change within an appropriate time period which must not exceed five (5) working days followed by receipt of the request.
The response from the Client must include a replica of the Request for Change with a report about the availability of the personnel, the resources of the Client, the impact on the schedule, and, if applicable, any extra costs required to carry out the Service. If Client wishes to make a Request for Change, Client must notify the Service Provider in written form. This document shall constitute acceptance on the CERTIFICATIONS BAY’s part of this Request for Change based on the terms established in the response of the CERTIFICATIONS BAY (or the manner in which the Parties have reached an agreement in written form).
2.5 Corrections
At the request of CERTIFICATIONS BAY, the Client shall make all the corrections or improvements required: (i) for the Service execution, (ii) for the possible Service integration, (iii) to adapt the Service to a specific medium, (iv) to make sure that the Service operates ideally, (v) for the delivery of a Service of appropriate quality (vi) for compliance with the Order, specifications, technical files or all other changes which are not a Request for Change. These corrections are deemed to be part of the Service and are not, under any conditions, extra services. If the Client refuses or is unable to make the required Changes, the CERTIFICATIONS BAY might cancel the Order and/or make these Changes itself or entrust a third party to make them at the expenditure of the Client.
2.6 Title of ownership and risk
Title of ownership of the Service shall pass as it is performed.
Risk shall pass to Client upon acceptance of the Services.
3. Acceptance
The Client must remedy the faults within a period fixed by CERTIFICATIONS BAY. The Service Provider shall then have 10 working days prior to receiving the corrected version to signify its acceptance or the cause for its refusal.
CERTIFICATIONS BAY reserves the right to refuse all or part of the Services in the event of non-conformance with the specifications, technical files, and/or the Order.
If the Client is not able or unwilling to correct the issue, CERTIFICATIONS BAY might, in the exercise of its unconstrained discretion and at the expenditure of the Client, correct or the Service will be corrected by a third party. Should this prove necessary, this third party shall then become the co-author of the Service. Should Client commence to use the Deliverables or pay all or part of the Price of the Services this shall not constitute reception or acceptance of the Service
4. Ownership and Granting Rights
4.1 Generalities
With this, the Client accepts that the Service and all the work carried out in regard to preparing the Service are considered as a commissioned work created within the framework of a mutual collaboration, and that, consequently, the CERTIFICATIONS BAY shall be the owner of each related rights and titles, including but not limited to, all copyright, related rights, derivative rights, patents, trademarks, designs and models, production secrets and other property rights.
In all cases and even if the Service is not considered to be a commissioned work or a collective work, the Client grants and transfers to the CERTIFICATIONS BAY and its successors all copyright, related rights, derivative rights, patents, designs and models, production secrets and other property rights linked to this Service.
The Client hereby grants to the CERTIFICATIONS BAY all of the rights attached to the Service (including but not limited to: drawings, sketches, design, still and/or animated images, texts, objects, textures, computer programs, engines, management tools, navigation systems, architecture, plans and tree structures, source codes, object codes, logs, preparatory design documents, technical documentation used to design and execute the Service, organization charts, algorithms) for all formats, uses, forms or media, both known and unknown as of today.
The rights granted concerning the Service and each item of which it is comprised, all replicates or copies, all secondary and derivative uses, permanently or temporarily, completely or partially, whether against payment or free of charge, regardless of the deliberative purpose, for all process and/or media even if not foresee or not predict in the Order or in these Conditions, for all formats, forms, and definitions, in any language or multilingual, for all the uses referred to hereunder making it possible to communicate it/them to the public in a direct or indirect manner, in private places and/or locations attainable by the public (e.g. school network).
The Client, therefore, grants the intellectual property rights, transferable and sublicensable (literary and artistic property, copyright, industrial property right, rights related to copyright, in particular in its capacity as author, producer, performer, publisher), production secrets, and other property rights attached to the Service on an exclusive basis and for the whole world (hereinafter referred to as “Territory”), for the legal duration of protection of the copyright granted or the duration which shall be granted by the Indian Intellectual Property Code (hereinafter referred to as “Duration”). This act of granting covers, in particular, for each of the above-mentioned rights, the rights concerning distribution, production, reproduction, performance, and all of the adaptation rights making it possible for each of these reproductions, performances, adaptations, be they whole or partial, separately, or within the framework of all products (robotic or not) and/ or service, related or not to any other product and/or service, in particular, to:
- sell, market, give, rent out, exchange or have sold, have marketed, have rented out, directly or indirectly to all types of public,
distribute or have distributed, - publish, disseminate, or have published, disseminated,
- license or sublicense,
- promote, market, or have promoted and marketed by any process and in any network.
- Particularly through the following distribution networks:
– exclusively through:
- wholesalers, retailers, distributors…,
- sale through integrators (OEM),
- tied selling (robot, computer, smartphone, tablet, machine,…)
- direct sales (telesales or door-to-door sales, interactive kiosk, online sales, streaming, mail order, telephony…)
rental, loans, and exchanges, - all techniques making it possible to transfer free of charge or not the property defined herein in particular within the framework of competitions, lotteries, donations, or for advertising or promotional purposes,
- schools, universities, laboratories,
- all other networks referred to or not in the Order.
(Hereafter referred to together as “Network(s)”)
4.2 Ownership
The Client shall not hold any title or right of ownership regarding the Service.
4.3 Pre-existing technology(ies)
The Parties understood that the CERTIFICATIONS BAY shall remain the owner of all already existing technology(ies). Each item falling within the framework of the Service and not identified in an appendix to the Order as a Pre-Existing Technology are governed by articles 4.1 to 4.5 and thus, not considered as Existing Technologies.
Without prejudice to the foregoing, it is agreed by them that the Pre-Existing Technology(ies) are 2 granted to Client charge-free, for the Duration, the Territory, the media, and intended uses stated in this article. This granting of rights suggests the granting of the rights of Reproduction, Performance, and Adaptation mentioned above in addition to sublicensing rights. The previously mentioned rights are transferable, granted on a non-exclusive basis, and are subject to the same guarantees.
4.4 Validation/Execution of documents
The Client shall cooperate with the CERTIFICATIONS BAY, at the expenditure of Client, to procure, apply and register all patents, drawings and models, trademarks, and any other protection, attestation, and/or property rights associated with the Service. If required and should it prove possible, the Client shall commission the CERTIFICATIONS BAY which might make, for itself in the CERTIFICATIONS BAY’s name or in its own name, all applicable to file, search and register patents, trademarks, designs, and models or any other form of protection, certificate and/or property rights in respect to the Service. The Client shall cooperate with CERTIFICATIONS BAY, at the expenditure of the latter, to avail of the benefit of CERTIFICATIONS BAY, any tax credits, any financial aid, and/or public or private grants in respect to the production, design and publishing of the Service. If required and as far as possible, the Client commissions the CERTIFICATIONS BAY, which might make, for itself in the CERTIFICATIONS BAY’s name or in its own name, all applications in this respect. The Client is aware that all of the sums collected in this manner shall remain permanently forfeited to Client. The Client is aware that all of the sums collected in this manner shall remain irreversibly forfeited to the Service. The CERTIFICATIONS BAY guarantees having been approved by the (Indian Ministry of Higher Education and Research) in respect of (R&D Tax Credit) for the period covered by this agreement.
5. Guarantees
5.1 Quality
The Client, as a specialist in its field, must provide Services that are professional and in compliance with the finest practices and standards in the profession.
The Client guarantees that the Service is free from any fault and that it will operate in conformance with the Order, the technical files, and any specifications provided.
5.2 Compliance
The Client guarantees that the Services are performed as per all the laws and regulations applicable regarding employment law, taxation law, patent law, trademark rights, copyright, and other intellectual property rights and including health, safety, and protection of the environment.
5.3 Insurance
The Client guarantees that it has taken out an insurance policy – and that it shall ensure the said policy remains valid for the appropriate period – covering the risks of liability, in respect to CERTIFICATIONS BAY and/or third parties, for damage of each type: bodily injury, property damage, and consequential loss, consecutive or not, caused in regard to or during the process of performing the Services. The Client takes the responsibility to provide an annual basis and without being requested to do so a replica of its professional indemnity insurance certificate and payment proof of the latest insurance premium due by the Client. Without this restricted legal and contractual liability of the Client, the latter takes the responsibility to take out insurance covering all the items made available to it and all items enabling it to ensure the consistency of its activity and, in particular, all the goods it requires for the Service execution.
6. Liability
6.1 The Client is responsible to CERTIFICATIONS BAY and, if applicable, to third parties, regarding any non-performance, poor execution, and/or delay in completing the Order and the resulting damage.
Additionally, the Client shall be liable for all harm caused to a third party, within the framework of the Service execution because of its act or the act of its employees, including the goods placed in its custody. Consequently, the Client shall not hold CERTIFICATIONS BAY responsible for all claims made and legal action taken by third parties. The Client accepts to assist and protect CERTIFICATIONS BAY against all complaints, legal action, claims, writs and court proceedings, court rulings, and to indemnify, reimburse and protect CERTIFICATIONS BAY at the same time as they occur, in respect of all damages, losses, liability, costs, expenses, and expenditure (solicitor, bailiff…) which may result, in particular, from
– All use, distribution, reproduction, the performance of the Service;
– The exercise or the violation of a provision of the Agreement by the Service Provider;
– A violation of intellectual or industrial property rights.
In the event of actual or claimed infringement, if the claim, action or complaint is made or is liable to be made, the Client must, at its expense and following the choice of CERTIFICATIONS BAY, (i) obtain, for Client, the right to constantly use the concerned Services, or (ii) alter them in order to eliminate any infringing item, or (iii) replace them with similar Services with equivalent functionalities which do not constitute an infringement.
Each of the Parties undertakes to instantly inform the other Party in written form and keep it notify regarding third parties’ actions in progress in addition to the developments which occur.
The Parties undertake to use all the means in their possession in order to ensure a joint defense during any dispute and to protect and defend the rights they hold within the framework of these Terms and Conditions or the applicable laws and regulations. Each of the Parties may, if required, instigate legal proceedings against a third party, after notifying the other Party. However, the Client might not bring to an end any claim, action, proceedings, dispute, arbitration, regarding the Service without the prior written agreement of CERTIFICATIONS BAY.
7. Confidentiality
The term “Confidential Information” means all or part of the information as of now are exhaustively defined hereby which could come to the knowledge of or be disclosed by one Party to the other Party (verbal or in writing) during the Order execution:
– All information, data, and analysis related to research, products, services, clients, suppliers, shareholders, investors, employees, co contractors, partners, markets;
– All financial, accounting, taxation, social, and/or legal data;
– All marketing and advertising documents, product sheets;
– All the objects, textures, equipment, sounds, still or animated images, texts, software, architectures, tree structures, source codes, object codes, designs, creation, technical documentation used to design and create, developments, inventions liable to be patented, patents, sketches, rough outlines, prototypes, specifications, designs and models, databases, computer files, trademarks, names of products and services, graphs, techniques, procedures, know-how, machines, devices, tools, data;
– The Order, the related negotiations and the existence of a potential business relationship between the Parties; – all information exchanged between the Parties;
– All information, material, and/or documents to which a Party might have had access during a visit, working meeting, execution of services, presentations, etc.
The Confidential Information must not, under any condition, be revealed to any third party or any employee of the Receiving Party not necessarily to be aware of it.
Each Party shall take all the required steps to steer clear of any dissemination of the Confidential Information. For this purpose, the Parties take responsibility to ensure that this Confidential Information is kept in a strictly confidential manner and is treated with the equivalent degree of protection which they give to their own confidential information and ensure that it is only communicated to the members of their appropriate personnel who necessarily must know this information and that it is only used for the purposes of executing the Order.
8. Price-Terms of Payment
8.1 Price
In consideration for the ideal Services execution and the granting of the related rights, the CERTIFICATIONS BAY shall receive a payment in the form of an inclusive financial compensation.
The expenses incurred due to unforeseen trips requested by Client to the Service Provider within the framework of the Services execution shall be the subject of a special agreement between the Parties. These expenses shall only be reimbursed if receipts and/or supporting documents are provided and if prior approval was given.
8.2 Taxes
The prices due are net of GST, taxes on the turnover, or similar taxes.
The Parties agree to pay GST, all taxes on the turnover, or all comparable taxes payable in the application of the national legislation in addition to the price mentioned (including all late-payment interest, penalties, or related additional amounts).
When a taxation agreement specifies a reduced rate or exemption from withholding tax, the Client takes responsibility to provide, as immediately as possible, and before any payment, all the supporting documents enabling the application of this reduced rate or this exemption. In the event of these supporting documents not provided by the Client to CERTIFICATIONS BAY might choose to a) delay the Services until the appropriate documents are provided without it having to pay any late-payment interest, or b) pay the concerned invoices while withholding the tax at the rate mentioned in the agreement and paid by the CERTIFICATIONS BAY.
8.3 Invoicing
Unless otherwise agreed between the Parties in the Order, an invoice shall be issued on the date of reception of the Services. The invoice must include the Order Number given by Client to the CERTIFICATIONS BAY or, failing to which, the reference of the estimate issued by the CERTIFICATIONS BAY accepted by the Client.
8.4 Payment
Unless otherwise agreed in the Order, each invoice shall be payable by bank transfer 45 days after the end of the month during which the invoice is received.
In the event of payment delay, the Client might invoice late-payment interest at a rate equivalent to three (3) times the legal interest rate for all of the amounts not paid by the due date and an amount of at Least FIVE Thousand (5000) INR corresponding to debt recovery costs or any other cost as an when required per actuals basis. The period taken into consideration for calculating this interest is the duration between the contractual date of payment and the effective date of payment.
Have Questions? We’ve got answers.
Does a name, slogan, title, or logo copyright?
As per Copyright law, a name, slogan, title, or logo can not be copyrighted. However, these can be protected under trademark law.
Which law/act governs the copyright?
The Copyright Act, 1957 governs copyright laws which were enforced in January 1958. However, since 1958, it has been modified five times (1983, 1984, 1992, 1999, and 2012). Thus, the Copyright Act, 2012 is the most considerable act.
9. Labour Law
9.1 Personnel of the Client
The Client shall be completely and solely responsible for its employees to perform the assigned Services. The Client is the sole Party authorized to issue orders and instructions.
All the members of the personnel assigned by the Client to carry out the Services shall remain, at all times, the employees of the Client in respect to whom the latter assumes all the obligations as an employer for said employees. They shall remain completely independent and shall not be considered as employees of CERTIFICATIONS BAY.
The Client exclusively recruits, manages, and pays the members of its personnel carrying out the Services. It directly ensures, through its representative, by the means, it deems appropriate and under its exclusive responsibility, the supervision, management, discipline, and safety of said personnel.
The Client takes responsibility to ensure its personnel respects the safety instructions applied to the location in which they are tasked with conducting the Services and takes responsibility for this purpose to communicate to it all necessary instructions. The Client takes responsibility to inform CERTIFICATIONS BAY in advance and in written form regarding any change in terms of the members of its personnel assigned to perform the Services.
10.Sub-contracting
The Client shall not subcontract the execution of complete or partial Service without having received the express authorization of CERTIFICATIONS BAY in written form. In the event of sub-contracting, the Client takes responsibility to ensure that all the rights regarding the work of the sub-contractor are granted to it and that it, in return, reverses these rights to CERTIFICATIONS BAY within the framework of granting rights.
The Client accepts to provide all the assurances needed by all laws that are applicable to its employees, agents, and the third parties it uses for the Service execution. The Client takes responsibility to assist and protect CERTIFICATIONS BAY against all complaints, legal action, claims, writs, court-ordered proceedings, and court rulings, and to indemnify, reimburse and protect CERTIFICATIONS BAY from all damages, losses, liability, costs, and expenditure (solicitor, bailiff…) which may occur due to its employees, agents and/or their families.
11. Non-sollicitation, Advertising
11.1 Non-sollicitation
The Client takes responsibility not to poach or take on any CERTIFICATIONS BAY employee, in any condition whatsoever, to work for it or for any other company in which it has a shareholding during the time period of twelve (12) months with effect from the date of the end of the Service, except if it procures the prior written agreement of CERTIFICATIONS BAY.
11.2 Advertising
Unless it has a prior express, and written authorization, the Client is not permitted to use the “CERTIFICATIONS BAY” or “CERTIFICATIONS BAY AND TESTING LABS” names and the CERTIFICATIONS BAY logo. If authorization is given to do so, the use must be limited with the motive of Service execution and during the mentioned time limits.
12. Termination
The cases of termination below-mentioned shall not affect the foreseen granting and transferring of rights with these remaining forfeited to CERTIFICATIONS BAY.
12.1 Termination for convenience
The Client might cease the Order by operation of law at all times by issuing a notice of thirty (30) calendar days notified by a registered letter with receipt acknowledgment. In such an event Client must pay the CERTIFICATIONS BAY for the executed Deliverables, finalized, delivered, and approved by CERTIFICATIONS BAY on the termination date.
12.2 Termination due to non-fulfillment of contractual obligations
In the event of failure on the Party’s part to fulfill its contractual obligations, not remedied within the duration of fifteen (15) calendar days with effect from notification by registered letter with receipt acknowledgment going to be neglected, the other Party might nullify the Order by operation of law without prejudice to any damages which the Party canceling the Order might claim from the Party at fault.
12.3 Termination due to non-acceptance
If the Service is rejected by Client because of a quality issue or a major deviation in respect to the technical file and/or the Order, or because the CERTIFICATIONS BAY is more than five (5) days late in Service execution and this delay cannot be attributed to CERTIFICATIONS BAY, CERTIFICATIONS BAY might then instantly cancel the Order by sending written notification to the Client. In this case, no sum shall be due for the Services not executed, not approved, and/or which cannot be used.
12.4 Termination on objective grounds
A Party might cease the Order by operation of law with instant effect in the event of insolvency protection, administration, or court-ordered liquidation in regard to the other Party subject to the statutory provisions in force. In the event of voluntary cessation of trading of the Client or the Client being bought by a company competing with CERTIFICATIONS BAY, CERTIFICATIONS BAY may cancel the Order by operation of law.
12.5 Continued validity of the provisions
The provisions of articles 4, 5, 6, 7, 12.5, and 13 of these Conditions shall remain in force upon the expiry or the termination of the Order.
13. General provisions
13.1 Governing Law
The Order, the manner in which it is prepared and its execution, shall be governed by Indian law, excluding its conflict of laws rules.
13.2 Conciliation and jurisdiction
If the Parties fail to reach an agreement within a duration of a month, all disputes resulting from or in relation to the Order or the violations referred to hereunder shall be submitted to the exclusive jurisdiction of the Indian Laws.
13.3 Force majeure
Neither of the Parties shall be held liable in regard to any non-performance of its obligations stipulated in the Order as a result of an event of force majeure as defined by the law and case law of the Indian courts. The Client shall nevertheless notify CERTIFICATIONS BAY, in written form, immediately, and no later than five (5) calendar days after this event occurs. It must also notify CERTIFICATIONS BAY of the means which it intends to use in order to restrict the effects of this event on its obligations.
However, should the duration of this event exceed thirty (30) calendar days, the CERTIFICATIONS BAY shall be entitled to cease the Order completely or partially.
13.4 Entire Agreement
The provisions of the Order contain the complete agreement between the Parties and replace all proposals or communications, written or verbal, between the Parties regarding the content of the Order.
13.5 Severability
If any provision of the Order becomes invalid or otherwise unenforceable, the validity and enforceability of the other provisions of the Order shall not be affected. In the event of a clause of the Order being deemed invalid and void by any court whatsoever, the Parties take responsibility to come together in order to replace it with a legally valid clause having the same effects.
13.6 Non-waiver
The omission or the failure of one of the Parties to enforce any clause or right as a result of the Order shall not constitute a precedent, novation, or a waiver in respect to the future enforcement of any clause or right because of the Order, or failure to respect its clauses.
13.7 Independence of the Parties
The Parties shall fulfill their contractual obligations in an absolutely independent manner. No part of these Conditions shall be interpreted as creating a relationship of employer/employee, a EIG (Economic Interest Group or any Relevant Economic Relations ), or a joint venture between the Parties. No Party shall contract any obligation in the name of the other Party.
13.8 Successors and Subsidiaries
These Conditions are drawn up for the attention of the Parties and the successors and assignees of CERTIFICATIONS BAY.
General Terms and Conditions of Purchase “Products”
1. Scope
1.1 These terms and conditions of purchase (hereafter referred to as “these Terms”) shall be applicable to each purchase order (from now on referred to as “the Order”) from CERTIFICATIONS BAY AND TESTING LABS (from this time on referred to as “CERTIFICATIONS BAY“) and accepted by the Client, pursuant to which the Supplier delivers products (from now referred to as “the Products”) to CERTIFICATIONS BAY. These Terms are likely to modify and shall only govern the Orders issued during their period of applicability.
1.2 The signature or return of a replica of the Order approved by the Supplier, the delivery made in according to the Order, shall be regarded as an acceptance of the Order and of these Terms by the Supplier.
1.3 Under no condition, the Supplier’s general terms or any other document issued by Supplier, be imposed on the Customer or applied to the Order.
In case of a discrepancy between these Terms and the Incoterm mentioned in the Order, these Terms shall exist. If no Incoterm is mentioned on the Order, the Order shall be completely governed by these Terms.
2. Delivery
2.1 Lead times
2.1.1 The lead times are mentioned on the Order.
Supplier shall inform CERTIFICATIONS BAY of any stoppage in the manufacturing of a Product, within 24 hours, by registered letter with notice of receipt, as well as by email. Such a stoppage cannot be implemented without a transition duration of 6 months following said notification to CERTIFICATIONS BAY. In such a case, and even if the same product cannot be delivered by another supplier, the Supplier shall provide CERTIFICATIONS BAY with the most appropriate alternate solution. If not, CERTIFICATIONS BAY has the right to claim damages, without prejudice to any other legal rights it might have. If for any cause, the Supplier anticipates challenges to comply with the delivery schedule, it shall so inform CERTIFICATIONS BAY in written form within 24 hours following the time it became aware of the challenges encountered and provide the information and causes of such challenges(ies), the action taken to correct the problem, and the planned delivery date. Such notification shall have no effect on CERTIFICATIONS BAY’s rights resulting from the delay on the Supplier’s part.
2.1.2 If the Supplier does not conform with the lead times of the Products, CERTIFICATIONS BAY shall be entitled to claim liquidated damages without having to send a formal notice.
2.1.3 Unless provided otherwise in the Order, the liquidated damages applied in case of the Supplier’s delay will be equal to 2% of the Order amount per week or part of a week of delay, with a cap of 10% of the Order amount.
2.1.4 Liquidated damages shall be applied without prejudice to any legal rights that CERTIFICATIONS BAY might have as a result of such delay. Liquidated damages shall be invoiced and might be claimed as soon as they are due.
2.2 Delivery and identification of the Products
2.2.1 All Products will be delivered according to the Incoterm 2010 (ICC India) mentioned in the Order and at the place mentioned in the Order.
The packaging, loading, and bracing for Products transportation and spare parts will be made by the Supplier, at its expense, and under its responsibility. The packaging shall comply with the Supplier’s requirements and with the applicable laws and regulations. All packaging must provide appropriate protection against shipping and palletization risks for air, sea, or road transportation. Each delivery shall be accompanied by a delivery note that must clearly state the Supplier’s references of the Products delivered; the quantities of Products delivered and CERTIFICATIONS BAY Order number.
The Supplier shall not modify the specifications or shape of the Product without CERTIFICATIONS BAY’s written consent.
2.2.2 If the Products are delivered in excess, CERTIFICATIONS BAY is not liable to pay for the excess and the excess delivered Products, but it shall remain at Supplier’s risks. CERTIFICATIONS BAY holds the right, either to ship the Products in excess to Supplier, at Supplier’s risks or to request that Supplier collects the Products in excess, at its own expense.
2.2.3 In case of incomplete delivery, CERTIFICATIONS BAY might, at its own discretion, cumulatively or not, (a) obtain a price reduction; (b) obtain the Products reimbursement ; (c) Cease the Order completely or in part; (d) suspend the Order for a duration of 60 business days maximum ; (e) return or destroy the Products at Supplier’s expense and obtain their reimbursement instantly ; (f) request a new delivery on the basis of the method of transportation chosen by the Customer (sea, air,…), the Supplier paying any extra charges ; (g) request the replacement or reconditioning of the rejected Products within the term provided by the Customer, conduct or have their replacement or reconditioning performed by a third party of its choice according to Article 2.3.2. This provision shall not be considered as a penalty clause and shall be applied without prejudice to any claim by CERTIFICATIONS BAY for damages or liability.
2.3 Non-compliance and refusal of delivery
2.3.1 If the Products are non-compliant upon their arrival at the delivery location, CERTIFICATIONS BAY might refuse them completely or partially. The delivery will then be considered as not having taken place and incomplete. All risks and expenses in regard to these Products shall be borne by the Supplier.
2.3.2 CERTIFICATIONS BAY might proceed to the adjustments mentioned in article 2.2.3 and especially choose to remedy the non-conformance itself and/or have a third party of its choice remedy said non-compliance, at the Supplier’s expenses and risks, after sending a notice to rectify the non-compliance to the Supplier by registered letter with seven (7) calendar days prior notice, which remains unanswered. The Supplier must facilitate CERTIFICATIONS BAY’s and/or third-party interference under the best terms and conditions and, particularly, provide all tools, drawings, studies, and all other documents already performed and required to produce and/ or procure the Products.
2.4 Products subject to acceptance
2.4.1 If the Order states that the Products shall be tested after their completion and/or delivery at CERTIFICATIONS BAY, the Products will be deemed accepted once the tests have indicated the compliance of the Products with the requirements stated in the Order.
2.4.2 If the Order indicates a mutual acceptance procedure, the Parties shall sign the acceptance report upon its completion if they find that the Products conform with the Order. The mutual acceptance report shall be drafted in two (2) replicas.
2.4.3 The signature by the Parties of the acceptance report without any reserve shall permit the Supplier to bill the Customer for the payment owed for the acceptance. The report signature does not relinquish the application of the guarantees.
2.4.4 The Supplier shall remedy the non-compliances within the mentioned duration in the acceptance report. In this case, complete or part of the payments owed upon acceptance might be withheld by the Customer until the Parties mutually agree that the Products concerned are compliant with the Order.
3. Transfer of ownership and transfer of risk
The ownership of the Products sold to CERTIFICATIONS BAY shall be transferred to CERTIFICATIONS BAY upon their complete payment. In the case of partial payment or prior payment, the transfer of ownership is divided into the payments made in the first case and instantly in the second case. In derogation of the applicable Incoterm, the Parties agree that the risks in regard to the Product delivery shall be transferred to CERTIFICATIONS BAY upon receipt of the Products without reserve. In case the Product ownership was transferred to any other party without CERTIFICATIONS BAY physically possessing the Products, the Supplier commits to store the Products separately from its own products and to identify them in order to be able to give them back to CERTIFICATIONS BAY if required.
Without prejudice to any other possible action, in case of transformation, assembly, or incorporation of the Products subject to reservation of this ownership clause with other Supplier’s or third party’s goods, CERTIFICATIONS BAY shall be the co-owner of the new goods for a value equivalent to its billed value.
When the new good or Product is destroyed, damaged, or stolen, the Supplier instantly sells and transfers its rights to compensation and/or compensation to CERTIFICATIONS BAY, which it might have or have received in accordance with the insurance policies, without being released from its obligations to reimburse CERTIFICATIONS BAY in case of difference between the insurance policy payout and the damages suffered by the Customer.
4. Guarantee
4.1 Despite the causes of the failure, subject to its operation or use according to the uses and requirements of the Supplier, the Supplier assures that the material mentioned in the Order for the duration of three (3) years from its date of delivery, against any design, manufacturer, presentation and material disparity.
This guarantee does not limit the applicability of any criminal and legal laws as per Indian Civil Code. This assures that it shall repair or replace the material (as per CERTIFICATIONS BAY’s choice), the manpower, and transportation and the direct and indirect outcome of the failure.
The Supplier shall keep in all conditions in respect to an adequate safety stock ready to be shipped upon CERTIFICATIONS BAY’s request any replacement or repair, including partial, of a Product due to a fault or failure, shall result in the application of a new warranty period for the certain Product, for the duration equal to the original warranty period, commencing on the date of repair or replacement. This warranty shall be applicable without prejudice to any potential actions. This Supplier warranty does not cover the faults due to normal wear and tear of the Products, from use not compliant with the agreed documentation or CERTIFICATIONS BAY and/or its staff negligence. The Supplier agrees to ensure the availability of the Products and their subsystems, components, or spare parts, pursuant to the Specifications, for the duration of thirty (30) years from the date of the Order.
Otherwise, the Supplier shall send to CERTIFICATIONS BAY, free of charge, all the drawings, specifications, certain tools, documents, and other information, nevertheless of the support, to enable CERTIFICATIONS BAY to find a substitute source of production, repair, and/or maintenance for the Products, their sub-systems, components, and spare parts.
4.2 Dangerous Products
The Supplier assures that the Products do not affect the environment and are not hazardous in accordance with the applicable regulations.
4.3 Specific warranties
The Supplier guarantees:
4.3.1 That the Products are available and from any operational fault and that they will function according to their documentation and CERTIFICATIONS BAY’s needs.
4.3.2 That the Products delivered conform with the Order, specifications, and applicable documents.
4.3.3 That the declaration of origin and customs code is compliant and that all the essential certifications for the projected use by CERTIFICATIONS BAY have been obtained. It also guarantees the compliance of the product packaging and labeling.
4.3.4 That the Products use does not need the permission of any third party or the payment of any extra sum in addition to the agreed price.
4.3.5 That all rights, titles and interests necessary for the complete Order execution are held for the Products.
4.3.6 That the Products do not breach any law, standard or regulation applicable in labor law, tax law, patent, trademark, copyright and other intellectual property laws as well as health, security, hygiene and environmental law.
4.3.7 That the Products have not been pledged or placed under a lien and that there is no reservation on ownership or right of retention.
4.3.8 That, excluding for what may have been agreed with CERTIFICATIONS BAY, the Product does not need any transformation and/or integration, addition, insertion or publication for its use :
(i) of any brand, logo, denomination, name,
(ii) of any warning or information,
(iii) of any sign, picture, symbol….
(Hereafter « Signage »).
4.3.9 that, excluding for what may have been agreed with CERTIFICATIONS BAY, the Product is not regarded as a dual-usage good.
4.3.10 that, other than for what might have been agreed with CERTIFICATIONS BAY, the Product shall not be subject to any import or export restriction.
4.3.11 that the Product is delivered with appropriate and complete documentation and by obeying all instructions, recommendations and other essential information to be used accurately and in the adequate security conditions. This documentation, these instructions and recommendations might need to be in English. The Products which do not meet the prior requirements shall be regarded non-compliant.
4.3.12 to have the prerequisite authority to enter into the Order.
5. Price and price adjustment
5.1 Price
Prices of the Products will be provided in the Order and shall, unless otherwise agreed to in written form by CERTIFICATIONS BAY, including all other taxes.
CERTIFICATIONS BAY shall have the right to subtract all duties and taxes, general social contributions and similar fees from the payments owed to the Supplier pursuant to the Order if the Supplier does not provide CERTIFICATIONS BAY with the essential certificates to avail of the exemption from these deductions. The prices agreed by the parties are not negotiable and might not be increased by the Supplier without CERTIFICATIONS BAY’s written consent.
5.2 Payments
Based on the choice, the Incoterm and the delivery location being defined by the parties, the delivery cost and corresponding customs fees shall be included to the Product price.
The invoices are prepared and sent and a replica is sent to the Customer’s Accounting Department to the address mentioned in the Order including following information:
- The invoice number; the delivery note number;
- The customer Order number;
- The Supplier’s Products reference;
- The Products quantity delivered;
- The invoice date.
All Products payments shall be made in the currency provided in the Order and sent to the Supplier’s address mentioned on each invoice. Each invoice shall be due and paid within 45 days preceding the month during which delivery took place or the one during which the Products were accepted, if an acceptance procedure has been followed.
After this term, and without need for further notice, late payment penalties might be charged at a rate equivalent to three (3) times the legal interest rate in effect at the time the penalty is applied.
Acceptance and/or payment by CERTIFICATIONS BAY of Supplier’s invoices shall not in any condition be considered as an acceptance of Supplier’s terms which might be written at the back of, or be attached to, Supplier’s invoices. CERTIFICATIONS BAY holds the right to subtract any sum that might be due by Supplier from any sum owed to Supplier. In case of a global price reduction of the raw materials used by the Supplier to manufacture the Products or a reduction of the manufacturing costs, CERTIFICATIONS BAY shall be entitled to a proportional depletion of the agreed price by the parties. If the Suppliers provide the same Products to third parties at the more attractive conditions than those agreed with CERTIFICATIONS BAY, it shall grant similar conditions to CERTIFICATIONS BAY.
No payment by CERTIFICATIONS BAY might release the Supplier from its liability arising due to the Products delivered or the price invoiced, nor might be regarded as a waiver by CERTIFICATIONS BAY of any of its rights towards Supplier.
6. Controls and Tests
6.1 CERTIFICATIONS BAY, assisted by all authorized staff, might conduct control visits at any time period as considered essential at the Product manufacturing locations, during normal business hours, in order to ensure the adequate execution by Supplier of its contractual obligations.
6.2 The Supplier shall as immediately as possible rectify any fault found in the Products during the above mentioned controls and any fault reported by CERTIFICATIONS BAY in respect to their execution.
6.3 The Parties might test the Products at any time. CERTIFICATIONS BAY and any authorized person shall be allowed to observe the Supplier’s tests. The Supplier shall provide CERTIFICATIONS BAY with the corresponding test reports.
6.4 If the test’s outcome does not conform with the specifications and the Order, the Supplier shall instantly adopt the essential corrective measures and repeat, at its own expense, the tests under circumstances which shall match the execution period mentioned in the Order.
6.5 The controls and tests conducted shall not release the Supplier from its liability and shall not not indicate the acceptance of those Products, CERTIFICATIONS BAY retaining all its rights and recourse, especially those in the below-mentioned articles.
7. Liability
The Supplier shall compensate CERTIFICATIONS BAY, either during or after the performance of the Order, for all material or immaterial damages suffered partially or completely due to non-performance of the Order for any reason attributable to the Supplier, and for any damage or loss, material or immaterial, which is the outcome of the Supplier’s acts or omissions, and in the case of death or physical damage caused due to the Supplier. The Supplier’s liability shall include its subcontractors’, representatives and agents. The before mentioned indemnity includes, if required, all fees and convictions in case of proceedings. The Supplier’s staff shall be at any time regarded as the Supplier’s representatives and must remain under its administrative and hierarchical control.
The Supplier provides consent to provide assistance, defend, indemnify and reimburse CERTIFICATIONS BAY for any complaint, proceedings, requests, actions and prosecutions, litigation, damages, penalties, fees and expenses (including reasonable legal fees and expenses), losses or liability which could arise or result due to:
(i) The Products ;
(ii) Breach of a provision of the Order, a statement, guarantee or agreement from the Supplier;
(iii) Exclusion causing direct or indirect damage to CERTIFICATIONS BAY.
8. Respect of Regulations
The Supplier consents to respect all the applicable laws both in the country of Product origin and the destination country as long as certain country has been communicated to the Supplier.
In addition, the Supplier provides consent in particular to :
(i) proceed, at its expense, to all formalities and obligations implemented by India Regulation and any other directives framed by BIS and any other ministry of India in regard to the registration, evaluation, authorization and restriction of chemical substances (« REACH » regulation). It ensures that its own suppliers conform with these regulations. In case of non-compliance of the formalities implemented by the Regulation, the Supplier provides consent to compensate any damage which could result henceforth.
(ii) Obey the RoHS directive (Reduction of hazardous Substances) of. It agrees to ensure that its supplier comply with the mentioned directive.
(iii) Guarantee that the Products are free from any chemicals in accordance with the Indian provisions.
(iv) ensure that, to the extent it is applicable, abide by the European directive 2005/32/EC and any other directives or regulaions framed by BIS and any other ministry for « Energy-using products ».
9. Intellectual property
9.1 CERTIFICATIONS BAY neither grants nor transfers any intellectual property rights to Supplier. Any document, plan, specification, is and must remain sole property of CERTIFICATIONS BAY.
9.2 All intellectual property rights (literary and artistic property, industrial property) related to the results, studies, potential or achieved developments as a result from the Order, including all information and/or technical solutions, results of measurement, analyses, simulations, drawings, plans toolings and materials, and all the associated documentation (hereafter the « Results »), despite the nature of the Results, shall be sole property of CERTIFICATIONS BAY as immediately as they are procured or created by the Supplier. The Supplier gives CERTIFICATIONS BAY all the rights in regard to the Results, especially of reproduction, representation and adaptation rights on a global basis.
9.3 These rights include especially : (a) permanent or temporary reproduction right, including any format (press, Internet, digital media and format, etc) and on all sites, (b) identification and branding rights, (c) representation right by all processes, (d) right of adaptation, correction, to do or have a few changes, improvements, additions or creations of derivative works done; (e) right to distribute, rent, publish, use for business p, whether or not in return for payment.
9.4 The above-mentioned transfer is made on an absolute basis, for the legal duration of the rights according to the Intellectual Property Laws, on a global basis, on any format existing at the time period of the Order or which will exist in the future, for all direct or indirect uses.
The rights hereunder granted might be transferred and/or sub-licensed by CERTIFICATIONS BAY to any third party of its choice.
9.5 The consideration for such transfer is comprised in the price paid by CERTIFICATIONS BAY to the Supplier.
9.6 CERTIFICATIONS BAY will choose in its own discretion whether or not to protect the Results, in completely or partially, in its name or in name of a third party, without any consideration to be paid to the Supplier except the price mentioned in the Order.
9.7 The Supplier’s obligations resulting from this article shall apply to its representatives, agents and subcontractors too, who must obey essential formalities to ensure the application of these provisions.
9.8 The Supplier shall indemnify CERTIFICATIONS BAY from and against any and all claims, legal or administrative proceedings brought against CERTIFICATIONS BAY by a third party alleging the infringement of any intellectual property right by the Product. The Supplier shall be liable to compensate CERTIFICATIONS BAY for all outcomes (including damages, fees of all kinds, including legal fees) which might be implemented on CERTIFICATIONS BAY.
9.9 In case legal proceedings are commenced or a claim is brought against CERTIFICATIONS BAY as above-mentioned, CERTIFICATIONS BAY shall inform the Supplier to handle the proceedings at its expense. Upon Supplier’s request and at its expense, CERTIFICATIONS BAY must provide Supplier all required assistance.
Although, the Supplier must not be able to end a dispute or settle a claim without written permission of the CERTIFICATIONS BAY, in case the decision or settlement might damage CERTIFICATIONS BAY directly or indirectly, or impact its activity or its rights.
9.10 In case intellectual property right is judged to be counterfeiting, the Supplier must, upon the request of the CERTIFICATIONS BAY, alter or replace the infringing element at its expense. This change or replacement shall have no influence on the destination, value, use or performances of the Products and goods.
10. Materials available
10.1 The materials provided to Supplier by CERTIFICATIONS BAY must remain at Supplier’s custody. Supplier shall insure them against all damages and label them accurately as CERTIFICATIONS BAY’s property.
10.2 The Supplier must not use these materials for a cause except mentioned in the Order, it shall maintain them in appropriate state of repair, normal wear and tear as expected, and must bear the risks, for the duration for which they are at Supplier’s disposal.
10.3 Any damage or stagnation of these materials due to a wrong use or negligence from the Supplier shall be repaired at Supplier’s expense, without prejudice to CERTIFICATIONS BAY’s rights, the Supplier shall return these materials upon CERTIFICATIONS BAY’s first request.
10.4 The ownership of the toolings manufactured or bought by the Supplier for the Order to be executed shall be transferred to CERTIFICATIONS BAY upon their manufacture or acquisition by the Supplier. The Supplier shall return these materials to CERTIFICATIONS BAY by the end of the execution of the Order at the latest.
11. Insurance
The Supplier consents to purchase all insurance to cover the liability which could arise due to the Order, from an insurance company of notorious solvency. The Supplier shall explain this to CERTIFICATIONS BAY upon first request. These certificates must provide the amount and warranty scopes, including their period of validity. The policies shall be purchased for the adequate amounts on the basis of the object of the Order. The amounts that could be received by the Supplier from its insurance company shall be completely paid to CERTIFICATIONS BAY up to the damage amount or loss suffered by CERTIFICATIONS BAY.
12. Transfer or subcontracting
The Order is considered to have been finalized in consideration of the Supplier. The Supplier must not delegate any obligation and must not transfer any right resulting from the Order without CERTIFICATIONS BAY’s prior consent in writing. CERTIFICATIONS BAY might transfer the Order and all rights affixed to it to any third party without an advance notice to the Supplier and without the Supplier being able to claim any compensation, amount or royalty(ies) in this regard.
13. Force Majeure
The Parties must not be held liable and shall not be considered to have violated their obligations if they are prevented from performing them completely or partially following a case of force majeure as defined by Indian case law and courts.
The time period of the contractual obligations execution of the Party resulting in such conditions shall be extended if required for a time period at least equal to the duration of these conditions. No penalty or indemnity of any kind might be claimed for a delay directly caused due to such conditions. If these circumstances prevail for more than twenty (20) days, the Parties consent to discuss to amend the Order to take this into account.
If the Parties cannot agree or if the situation lasts more than thirty (30) days, the Order might cease by the law by either Party without indemnity on any side.
14. Termination
In case of violation of the obligations performed by one of the Parties, the other Party might request a registered letter with return receipt, that the Party make the required corrections to perform the Order within fifteen (15) calendar days. If, upon expiry of this term, the Party has not resolved the problems provided in the above mentioned letter, the Order might cease by the law at the request of the concerned party.
CERTIFICATIONS BAY might completely or partially cease the Order, at any time and at its convenience by sending a thirty (30) days following a written notification sent to the Supplier. The Supplier shall then cease all work provided in the Order and CERTIFICATIONS BAY must pay a fair and reasonable amount for the work achieved till the date of termination. Though, CERTIFICATIONS BAY shall not be liable for any loss of profit.
Moreover, on termination of the Order, the Supplier shall return any item which is CERTIFICATIONS BAY’s property which is still in the custody or control of the Supplier.
15. Confidentiality
The Parties consents to not to disclose any confidential information of the other Party.
The following information shall be regarded as confidential:
– Any exchange of either written or verbal data and information in respect to a Party and/or to the Order;
– The products, prices, techniques, methods and procedures belong to a Party and shared with the other Party;
– The Order and the delivery note;
– Any information or data included in a confidentiality agreement.
A Party must not use the commercial names, logos, drawings and models, blueprints, trademarks, commercial trademarks or services of the other Party, nor refer to the Order, without the other Party’s advance consent in writing.
However, it is agreed that CERTIFICATIONS BAY might use, reproduce, print Supplier’s trademarks, logos, drawings and models to conform with any applicable certification process and with the applicable laws and regulations. Hereby, the Supplier permits all the required rights to the CERTIFICATIONS BAY.
16. Applicable law, competent court and dispute resolution
The Order must be governed by Indian law. The application of the United Nations Convention on Contracts for the International Sale of Goods signed in Vienna in 1980 is expressly excluded.
The parties shall make their appropriate efforts to peacefully resolve disputes arising due to Order within thirty (30) days following notification of a party to the other party.
If amicable settlement is not possible, any dispute arising out of the Order shall be submitted to the Commercial Court of India, to which the parties expressly grant jurisdiction despite the location performance location of the Order or domicile of the defendant. This jurisdiction clause must be applicable in case of an interim ruling, a supplementary request or multiple claimants or defendants.
17. General information
17.1 Integrity
The provisions of the Order reflect the integrity of the parties of the agreement and replace all proposals or communications, written or verbal, between the parties and the Order.
17.2 Enforceability
The invalidation or ineffectiveness of any Order’s provision must not influence the validity and effectiveness of the other provisions of the Order. In case a provision of the Order is declared invalid and canceled by any court, the Parties consent to meet to replace the clause with a legally valid clause having the same effects.
17.3 Non waiver
The omission or waiver by either Party of its rights to impose any of the clauses or use of any right arising from the Order shall not establish a precedent, novation or waiver in regard to the future execution of any clause or the exercise of any right resulting from the Order or the non-respect of these clauses.
17.4 Independence of the Parties
The Parties shall independently carry out their contractual obligations. No element of the Order might be comprehended as having created and employer/employee relationship, a common business, economic interest group or a joint venture between the Parties. The negotiation in regard to any obligation in the name of the other Party, shall not be allowed
17.5 Successors and Subsidiaries
The provisions of the Order reflects the motive of the Parties and successors and assigns of CERTIFICATIONS BAY.
