COATInGenius
Terms & Conditions
Coatingenius (the Company), operates in accordance with the following conditions unless there is written agreement to the contrary. Together, with the "Contract Proposal" to which they are attached and acceptance thereof, they form the contract between the Company and the Client.
All work carried out by Coatingenius will be subject to its standard confidentiality practices or the specific written terms of any confidentiality agreement explicitly agreed with the Client.
Preliminary
1.1. In these terms and conditions the following terms shall have the following meanings:
1.1.1. “Client”: the person (Limited Company or Corporation) specified in the Contract Proposal;
1.1.2. “Company”: Coatingenius.
1.1.3. “Contract”: any contract between the Company and the Client arising out of or in relation to the provision of the Services by the Company as varied from time to time in accordance with clause 7.
1.1.4. “Premises” any location or premises where the Services are to be performed;
1.1.5. “Contract Proposal”: the proposal document provided by the Company to the Client as varied from time to time in accordance with clauses 7.
1.1.6. “Services”: the services detailed in the Proposal and the Scope of Work.
1.1.7. “Scope of Work” the scope of work to be undertaken by the Company in the course of performing the Services as agreed in writing between the Company and the Client and as varied from time to time in accordance with clause 7.
1.2. These terms and conditions shall apply to and be incorporated into the Contract; (unless agreed otherwise in writing by the Company) they shall prevail over any inconsistent terms or conditions contained, or referred to, in any document supplied by the Client, or implied by law, trade custom, practice or course of dealing and shall be subject to any revisions which have been approved in writing by the Company.
1.3. In the event that there is any conflict between these terms and conditions, the Proposal and/or the Scope of Work the conflict shall be resolved in the following order of priority: (1) these terms and conditions, (2) the Scope of Work and (3) the Contract Proposal.
1.4. The Client is responsible for ensuring that the Contract Proposal and the Scope of Work (including any specification of the Services to be provided that is contained within them) are complete, relevant and accurate.
1.5. Any quotation given by the Company is valid for a period of 30 days from its date, provided that the Company has not previously withdrawn it and/or modified it with a later version.
1.6. References to "writing" or "written" include fax and e-mail communication.
Client’s Obligations
2.1. The Client shall:
2.1.1. co-operate with the Company in all matters relating to the Services;
2.1.2. provide the Company in a timely manner and at no charge, with safe access to any Premises, and with access to data and other facilities as may be required by the Company;
2.1.3. provide to the Company, in a timely manner, all such information as the Company may require and ensure that it is accurate in all material respects;
2.1.4. be responsible (at its own cost) for preparing and maintaining the Premises for the supply of the Services;
2.1.5. inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the Premises and supply at no charge, any personal protective equipment (PPE) as deemed necessary).
2.2. The Client should quote the Contract Proposal Reference Number as stated in the Contract Proposal in all correspondence to the Company.
Company’s Obligations
3.1. The Company shall use reasonable endeavors to perform the Services in accordance with the Contract Proposal and the Scope of Work in all material respects and to meet any deadline dates specified in the Contract Proposal and the Scope of Work, but any such dates shall be estimates only and time for performance of the Services by the Company shall not be of the essence of the Contract.
3.2. Upon completion of the Services the Company will provide the Client with a final electronic copy of its report in pdf format free of charge. If the Client requires any further copies of the report, or has specific printing, binding or stationery requirements, the Client will be charged an additional fee in accordance with the Company’s prevailing rates from time to time.
3.3. The work that the Company produces does not in itself constitute an endorsement of any particular product or products, unless it is specifically agreed by the Company and the Client and documented in the Contract Proposal.
3.4. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client its agents, subcontractors, consultants or employees (including, without limitation any failure of the Client, its agents, subcontractors, consultants or employees to comply with any of the Client’s obligations under clause 2.1) the Company shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
Fee and payment arrangements
4.1. In consideration of the provision of the Services by the Company, the Client shall pay the charges set out in the Contract Proposal.
4.2. Any fee rates specified in the Proposal shall (unless stated otherwise in the Proposal) be based upon the assumption that a “daily rate” is based on a seven hour day; a “weekly rate” is based on a five day week with each day comprising 7 hours, a “monthly rate” is based on a four week month with each week comprising 5 days of 7 hours each, any weeks or months that include an internationally recognised public holiday (e.g. Easter, December 24/25, January 1) are charged as full weeks and months and time spent by the Company in providing the Services shall include travel time spent by the Company’s personnel in the course of providing the Services.
4.3. Unless agreed otherwise by the Company in Writing, in the event that the Services are to be provided on a time spent basis and the actual time spent by the Company in performing the Services in any day, week or month (as applicable) exceeds the assumed number of hours specified in clause 4.2 or the Client requests the Company to perform any services which are additional to or are outside of the scope of the Services specified in the Proposal; then any time spent by the Company in performing the excess or additional Services shall be charged at the hourly, weekly or monthly rate (as the case may be) specified in the Proposal on a pro-rata basis.
4.4. In the event that the Services are to be provided on a fixed price basis, the Company reserves the right to increase any fixed price where the Company considers that such an increase is reasonable due to any circumstances that were not reasonably foreseeable by the Company at the date of the Contract Proposal or any assumptions stated by the Company in the Contract Proposal as being relevant to the determination of that fixed price are incorrect or the Client requests the Company to perform any services which are additional to or are outside of the scope of the Services specified in the Contract Proposal.
4.5. In addition to any fees payable by the Client under this clause 4, the Client shall reimburse the Company in respect of all expenses incurred by the Company for travel, accommodation and subsistence in the course of performing the Services, and all other expenses necessarily incurred by the Company in connection with the Contract or the Services including, without limitation, laboratory work, testing, panel preparation and any special publishing needs of the Client. The company will endeavour to keep all expenses incurred to a minimum and will pre-authorise any significant or extrordinary expense items (e.g. International air fares, canceellation fees etc.) beforehand with the client.
4.6. Where the Services are to be provided on a time spent basis, the Company shall be entitled to submit an invoice to the Client on a monthly basis in respect of all time spent by the Company in providing the Services.
4.7. Where the Services are to be provided on a fixed price basis, the Company shall be entitled to submit an invoice to the Client in respect of the fixed price in accordance with the terms set out in the proposal or, if no such terms are set out in the Contract Proposal, at any time following provision by the Company to the Client of the final report.
4.8. Where the Proposal provides that a mobilisation charge shall be payable by the Client the Company shall be entitled to invoice the Client in respect of that mobilisation charge in accordance with the terms of the proposal or, if no such terms are set out in the Proposal, at such time as the Company considers reasonably necessary to enable the Company to perform its obligations under the Contract
4.9. The Company shall be entitled to invoice the Client on a monthly basis in respect of any expenses incurred by the Company in the course of providing the Services.
4.10. The Company shall be entitled at its discretion to require payment in advance and on account of its fees and any expenses to be incurred, and in the event of any such payment requested not being paid shall not be under any obligation to commence or continue its work or incur expenses until payment is made; and in that instance the dates for the performance of any Services shall be deemed to be adjusted accordingly, taking account of any circumstances which might affect the availability of personnel.
4.11. In the event that any invoice remains unpaid by the Client for a period of more than 30 days, without prejudice to any other rights or remedies that the Company may be entitled to in respect of such failure under the Contract, the Company reserves the right to suspend performance of the Services until payment is made and charge interest on the amounts outstanding at the annual rate of 5% above the base lending rates from time to time of USB AG, Switzerland, accruing on a daily basis until payment is made, whether before or after any judicial statement.
4.12. All fees are subject to Value Added Tax and any similar taxes, where applicable, in the country where the Contract is to be performed. (EU Regulated)
4.13. Unless agreed otherwise by the Company in writing, all invoices submitted by the Company shall be payable either in Swiss Francs (CHF) or in US$. Any bank transfer costs and currency fees will be borne by the Client.
Limitation of Liability
5.1. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.2. Nothing in the Contract limits or excludes the liability of the Company for death or personal injury or for any damage or liability incurred by the Client as a result of a fraud or fraudulent misrepresentation by the Company.
5.3. Subject to clause 5.2:
5.3.1. the Company shall not be liable for any loss of profit; loss of goodwill; loss of business, loss of business opportunities, loss of anticipated savings, loss or corruption of data or information or special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
5.3.2. the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to the total charges payable by the Client to the Company under the Contract subject to a maximum amount equal to 12 (twelve) months’ charges. .
5.4. All advice, conclusions, forecasts and recommendations made or given by the Company (including, without limitation, in any proposal, report, document or presentation) are made in good faith and on the basis of information in the Company’s possession at the relevant time. The Company shall have no liability to the Client in the event that any such advice, conclusions, forecasts and recommendations are incorrect as a result of any information provided by the Client’s being incorrect or incomplete or in the event that the Client has failed to provide the Company with any relevant information.
5.5. No person other than the Client shall be entitled to use, follow or rely upon any advice, conclusions, forecasts and recommendations made or given by the Company (including, without limitation, in any proposal, report, document or presentation).
Termination
6.1. Without prejudice to other rights or remedies that the parties may have, the Company may terminate the Contract without liability to the Client immediately on giving notice to the Client if:
6.1.1. the Client commits a material breach of any of the terms of the Contract and (if such breach is remediable) fails to remedy that breach within thirty (30) days of the Client being notified in writing of the breach; or
6.1.2. the Client repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract; or
6.1.3. the Client suspends, or threatens to suspend, payment of its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts due to Insolvency or (being an individual) is deemed unable to pay its debts or having no reasonable prospect of so doing.
6.2. Either party may terminate the Contract by giving one (1) month’s notice in writing to the other party.
6.3. On termination of the Contract for any reason the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied and any expenses incurred but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt.
General
7.1. No variation of the Contract, the Proposal, the Scope of Work, these terms and conditions or of any of the documents referred to in them shall be valid unless it is agreed in writing by or on behalf of each of the parties.
7.2. If any provision of this agreement is held by a court of other competent authority to be invalid or unenforceable in whole or in part the validity of other provisions of these terms and conditions and the remainder of the provision in question shall not be affected.
7.3. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted or modified, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
7.4. The Contract (which includes the Proposal and the Scope of Work) constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Contract. Any representations made by the Company will not be binding on the Company unless they are in writing and signed on behalf of the Company.
7.5. The Client cannot assign or transfer this Contract without the Company’s prior written consent.
7.6. Neither party shall be in breach of this Contract, nor liable or responsible for any failure or delay in performance of any obligations under this Contract arising from or attributable to acts, events, omissions or accidents beyond its reasonable control.
7.7. Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by recorded deliverer or commercial courier to the party required to receive the notice at (in respect of the Company) its registered office or (in respect of the Client) the address set out in the Proposal or (in respect of either party) such address as is otherwise specified by the relevant party by notice in writing to the other from time to time. Any notice shall be deemed to have been duly received if delivered personally when left at the address referred to in this clause 7.7 or if sent by recorded delivery or commercial courier, on the date and at the time that the relevant delivery receipt is signed.
7.8. If the Company fails to insist that the Client performs any of its obligations under the Contract, or if the Company does not exercise its rights or remedies under the Contract, that will not mean that the Company has waived such rights and remedies and will not mean that the Client does not have to comply with those obligations. If the Company does waiver a default by the Client that will not mean that the Company will automatically waiver any subsequent default by the Client. No waiver by the Company shall be effective unless the Company expressly states it is a waiver and does so in writing.
7.9. If any dispute arises out of or in connection with this Contract then the parties shall attempt to resolve the dispute in good faith. If the dispute is not resolved, the parties shall attempt to settle the dispute by mediation.
7.10. A person who is not a party to this contract has no right to enforce any term of this contract.
7.11. This Contract and any dispute arising out of or in connection with it shall be governed by and construed in accordance with English law or Swiss law (to be agreed by the Company and the Client beforehand in writing and both the Client and the Company agree to submit to the exclusive jurisdiction of either the English or the Swiss courts. In certain cases, and if no such agreement has been made beforehand, Swiss law and Swiss courts shall apply).
7.12. The company will keep all documentation confidential and will not disclose to any third party without prior agreement with the Client. Depending on the nature of the work, it may be in our Client’s interests that sometimes such information is disclosed to an appropriate third party if it assists in the work of the company or if it is in the Client’s best interest. All confidential information supplied will be kept for a period of 10 years or as agreed in writing. In cases where the Company and the Client fail to agree on a Contract Proposal, all data supplied will be returned to the Client and/or destroyed.
7.13. By accepting written instructions to proceed, the company confirms no actual or possible conflict of interest with any aspect of this assignment, whether financial, personal or professional. The company also confirms that it will not take any steps which lead to a conflict arising during the currency of this assignment. If the company subsequently does become aware of a possible conflict, this will be disclosed to the Client as soon as reasonably possible after it becomes known. At that point the Client may choose to terminate the work after settlement of outstanding invoices for work done to date.
Version 01.2015