1. API (hereinafter referred to as the Company) agrees to provide its services in accordance with and subject to the terms and conditions herein contained (hereinafter referred to as the Conditions). The conditions may only be modified by changes and amendments 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 referred to as the Principal). No other party is entitled to give instructions to the Company unless agreed in writing by the Principal. Under no circumstances, shall the issuance of a report or certificate by the Company be deemed or purport to involve the Company as a party or an agent of in any other way in any relationship contractual or otherwise between the Principal and any other party whomsoever.
3. All rights (including but not limited to copyright) in any test reports, product check list, certificates of test 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 approval, which may be refused at its sole discretion.
4. It shall be the responsibility of the Principal to ascertain and inform the Company of the standards and specifications with which goods intended to be inspected and tested must comply in any country or territory in which the goods are intended to be sold. Absent the said specific instructions, the Company shall select the control points and standards as it considers appropriate on technical, operational and/or financial grounds and the Principal shall not dispute or challenge such selection.
5. 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 are (if provided to the Company) considered to be for information only without extending or restricting the services to be provided or obligations accepted by the Company.
6. The inspection report only refers to the randomly sampled lot and the test report only refers to the sample received. The Company shall not be liable for failure to refer to or report on any facts or circumstances if such fact or circumstances are not present in the sampled lot. Any inference to be drawn from the results of such inspection or survey or testing shall be entirely in the discretion and at the sole and exclusive responsibility of the Principal.
7. Subject to the Principal's instructions as accepted by the Company, the report, certificates or any other material produced by the company shall contain statements of opinion issued with due care within the limitation of the instructions received. The Company is under no obligation to refer to or report upon any facts or circumstances that are outside the specific instructions received.
8. The Company shall not be construed to render any opinion as to the appropriateness of the intended purpose of a product unless specifically requested to do so and the Company agrees to it.
9. The Company shall strive to minimize the inspection fees in accordance with the workload matrix and travelling cost matrix prevailing at the time when the request for services is made. The assigned customer service executive shall make a quotation on request as soon as the necessary information is made available and shall forward it to the Principal. Failure to reply shall be considered as an acceptance thereof.
10. In the event that information given proves to be inadequate or misleading and that additional time or costs are incurred in the course of carrying out any of its services, the company shall be entitled to charge as much as shall be derived from the matrices and actual costs incurred.
11. Samples shall be stored in the Company's warehousing for a period of two months for shipment samples and six months for reference samples, and residual parts of the non-destructive tests. After such indicated period, the samples shall be disposed of at the Company's discretion or returned to the Principal if he so wishes, at his own costs.
12. The principal shall ensure that instructions and information to the company are given in due time, namely at least five days before the inspection due date. A reference sample or digital pictures thereof shall be provided at the same time so that the inspection check lists can be fine tuned, failing which the Company shall not be held responsible for any inaccuracy of the issued report.
13. The principal shall ensure that the Company may contact the third party in charge at the place where the goods are to be inspected, including but not limited to suppliers, agents, sub-contractors, and referred hereinafter as the manufacturer, at least five days before the required service. Any erroneous piece of information as to the location of the said place conveyed to the Company that misleads the Company's employee dispatched shall relieve the Company of any responsibility whatsoever for any delay incurred in the performance of the required services and shall entitle the Company to compensation of the travelling expenses so incurred.
15. In the event that information given proves to be inadequate or misleading and that additional time or costs are incurred in the course of carrying out any of its services, the company shall be entitled to charge as much as shall be derived from the matrices and actual costs incurred.
16. Report, surveys and Certificates issued by the Company contain information at the time and where the Inspection took place. The Principal agree that these documents shall not relieve them or their manufacturers of their contractual responsibilities and legal liabilities.
17. The Principal shall ensure that the manufacturer agrees to the following, preferably in writing:
18. Fees not established between the Company and the Principal at the time the order is placed shall be deemed to be at the Company's standard rates (which are subject to changes) and exclusive of any taxes, fees, levies which shall be paid by the Principal.
19. The Principal shall punctually pay the Company 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 1% per month from the date of invoice until payment. The principal further agrees and undertakes to reimburse the Company all disbursements reasonably incurred in connection with the provisions of its services.
20.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.
21. 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 all of any sums owed to the Company, the Company shall be entitled to suspend all further performance of its services and withhold the issue of any test report, survey, certificate of inspection or other material requested forthwith and without liability until payment of all sums owed to the Company together with interest thereon is made.
22. The Company undertakes to exercise due care and skill in the performance of its services and accepts responsibility only where such skill and care is not exercised.
23. The liability of the Company to the Principal in respect of any claims for loss, damage or expenses of whatsoever nature and howsoever arising in respect of any breach of contract and/or failure to exercise due skill and care shall in no circumstances exceed a total aggregate sum equal to five times the amount of the fee or commission payable in respect of the specific service required under the particular contract with the Company which gives rise to such claims. Save as aforesaid, in no circumstances shall API be liable to compensate or indemnify the Principal or any third party whomsoever for indirect or direct loss including loss of profit and/or loss of future business and/or loss of production and/or cancellation of contracts entered into by the Principal.
24. The Principal shall lodge his claim with the Company within six months from the date of the report or certificate issued by the Company to which the claim relates. If no claim is lodged by the Principal within the aforesaid time period, the liabilities of the Company under the said report or certificate shall cease absolutely.
25. The Company reserves the right to re-inspect the goods related to the claim.
26. 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, prohibitions, trade regulations, regulatory enactments, strike, natural or accidental disasters. Should any such event occur the Company may cancel or suspend any contract for the provision of services without incurring any liability whatsoever.
27. The Principal shall hold harmless and indemnify the Company and its officers, employees, agents or subcontractors against all claims made by any third party for any loss, damage 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 clause 20.
28. Neither the Principal, nor any of its affiliates shall be entitled to solicit staff of the Company to work on their behalf during the course of this contract or 18 months after the termination thereof. Failure to comply with this restriction shall justify the Company in seeking indemnity up to as many months of salary as the said staff worked for the Company. Such restriction can be lifted at the sole discretion of the Company.
29. 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 Hong Kong Special Administrative Region. If any provision contained in the Conditions is and/or becomes invalid, illegal or unenforceable in any respect under the laws of Hong Kong, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
30. Any dispute or claim arising out of or relating to the provision of, or any agreement to provide, services by the company shall be referred to and determined by arbitration subject to the Company's sole and overriding discretion to commence litigation proceedings in the courts of the Hong Kong Special Administration Region or the courts of any other country as the Company may choose. The parties may agree to the appointment of an arbitrator failing which either party may, after having made a written request to concur in the appointment of an arbitrator, request the Hong Kong Arbitration Centre to appoint an arbitrator. The place of arbitration shall be Hong Kong. There shall be only one arbitrator. The language to be used in the arbitral proceedings shall be English.