TERMS AND CONDITIONS
This is the Terms and Conditions of XAUTECH Ltd. In this document, “we”, “our”, or “us” refer to XAUTECH Ltd.
1.0 Definitions
1.1 Agreement means these terms and conditions and any special terms and conditions incorporated herein or included in the written proposal (if any). The special terms and conditions shall rank equally with these terms and conditions and in the case of conflict between them, the special terms and conditions shall have precedence over these terms and conditions.
1.2 ‘Client’ means a person, company or other legal entity by which work is commissioned, including parent companies and/or subsidiaries.
1.3 Xautech refers to Xautech Limited.
1.4 Xautech is a trading name of Xautech Limited.
1.6 ‘Services’ means the work which is to be earned out under this agreement and includes the supply of information and the provision of opinions.
1.7 ‘Quotation’ is the fixed price Xautech will charge to provide the specified services. The quotation forms part of this Agreement. Where the price is based on information supplied by the Client Xautech reserves the right to refuse to undertake the work, or to issue a new Quotation if it transpires that the information supplied by the client is inaccurate or misleading.
2.0 Term & Termination
2.1 Either party may terminate this Agreement forthwith on written notice to the other party at any time if after 10 days’ notice the other party fails to perform or observe any provision of its part of this Agreements or, the other party becomes insolvent, or is unable to pay its debts when due or ceases to carry on business or a substantial part thereof, or has a receiver (administrative or otherwise) appointed over any part of its assets, or commits an act of bankruptcy or is adjudicated bankrupt, or enters into liquidation whether compulsory or voluntary (except for the purposes of an amalgamation or reconstruction), or makes an arrangement with its creditors, or has its assets assigned or in the case of the Client only is engaged in a merger, or amalgamation or a change in key management or a material change of control; at which point Xautech shall be paid by the Client for all work done under the Agreement at normal daily rates inclusive of profit margin plus a disruption charge of 10% of the Agreement value.
2.2 Xautech has the explicit right to terminate any projects where the client has attempted to bribe, bully or coerce the staff or contractors of Xautech, subject to appeal.
3.0 Prices
3.1 Unless otherwise stated, Quoted prices are valid for 60 days from the date of the quotation. Acceptance of the Quotation includes the acceptance of all the terms and conditions contained in this Agreement which shall have precedence over any oral representations or conditions contained in any order form or other document of the Client; and no variation shall be binding on Xautech unless accepted in writing.
3.2 Where the quotation includes a daily rate, that rate shall be for a seven and a half hour day during normal working hours, and any further time shall be charged at premium rates.
3.3 Taxes, including Value Added Tax, are not included in prices and will be invoiced, if applicable as separate items at the prevailing rate.
3.4 Unless specifically stated in the Quotation, the cost of any travel and accommodation necessary to provide the Services and of any collection, delivery and insurance in transit of any goods, samples or other materials will be charged to the client in addition to the Quotation.
3.5 The price is fixed for the Service specified in the Quotation. Quoted days, inspection days or on-site time is not quoted pro-rata and the overall project cost is firm based on the deliverables. Should an additional service be required that was not covered by the proposal or re-testing/inspection for non-compliances or the specification of the work be changed during the provision of the service, Xautech will make additional charges The Client will be advised of this and work will not proceed until these have been agreed in writing and an order number given against Xautech terms and conditions.
3.6 The prices quoted do not include witnessing by the Client or the clients representative of any tests or assessment. Xautech may permit the witnessing of such tests or calibrations if requested in advance. There will be an additional charge to cover the scheduling and staffing implications of such arrangements.
3.7 Payment will be free of all bank and other charges Xautech may change credit terms without notice.
3.8 Full settlement of all invoices will be required before Xautech will provide Services. Failure to pay on time will result in the project being placed on hold. The works or report will not be delivered until payment in full is received. Xautech documentation remains the property of Xautech and is issued subject to further terms and conditions.
3.9 Charges for Services not covered by this Agreement, work performed outside the normal working day at the Clients request and travel and expenses will be invoiced by Xautech and paid by the Client as they are incurred at Xautech standard rates.
3.10 If the Client fails to pay any sum when due, or fails to perform under this or any other Agreement with Xautech after 10 days written notice Xautech may discontinue performance under these terms. Xautech shall be entitled to recover the cost of all Services performed under the Agreement to the date of termination, plus a disruption charge of 10% of the Agreement value expenses, costs of collection and legal fees, and interest on the amount due at the rate of 3% per annum above bank base rate, calculated from the date due.
3.11 Where Services has been discontinued under the above clause, all future work under this Agreement may be undertaken only when the charges have been prepaid by the Client or against a bank guarantee.
3.12 If for any reason outside the control of Xautech, the performance of Services within the scope of the issued Quotation is delayed for more than 3 months, Xautech may invoice charges to date in excess of any initial payment made by the Client. Xautech may also at their sole discretion terminate the Agreement whereupon further work will be the subject of a new agreement at the prices then prevailing.
3.13 Unless separately specified in the contract as ‘Firm’, travel expenses will be charged at cost as below and may be invoiced prior to traveling for customers without an account. Travel cost are reviewed yearly and the current rates and costs associated with travel are provided below:
- Air Travel is charged at cost. Without prior agreement, flights under 10 hours duration will normally be booked as economy and flights over 10 hours duration will normally be booked as business class.
- Food, Accommodation and Taxi/Car hire will be charged at cost.
- Mileage is charged at 60p/Mile
- Travelling time and waiting time (including non-working weekends) is charged at £75/hour (£600/day pro rata)
- A disturbance rate of £100 per night per person (Monday to Friday) £200 a night (Saturday and Sunday) is charged where staff are required to travel or stay overnight.
3,14 Where travel has been agreed and arranged (flights/hotels/taxi etc) and is then cancelled by the customer, a £350 admin fee will be applied to the project for re-booking and rescheduling.
4.0 Property and Copyright Rights
4.1 Xautech copyrighted training materials and reports may not be copied for any purpose unless otherwise agreed in writing by Xautech.
4.2 Test and assessment programs, proposals and project plans supplied as part of this Agreement or in anticipation of it are confidential and may not be copied or shown to any third party, including but not limited to the purpose of obtaining other quotations, and all copyrights in them remain the property of Xautech.
4.3 Xautech undertakes to maintain strict confidentiality over any proprietary material provided by the Client or his agents for the purpose of obtaining certification. Xautech also undertakes not to use or disclose any results of inspections, tests or assessments to any third party without written consent of the Client except as required by law.
4.4 Any certificate, declarations or reports issued as a result of any inspections, tests or assessments carried out under this Agreement remains the property of Xautech. It may be revoked at any time on demonstration of just cause as judged by the Body granting Xautech approval to certify, including but not limited to failure to permit any surveillance inspections to be performed as required from time to time and failure to pay all moneys due under the agreement, including subsequent surveillance visits.
4.5 No right to use, rely upon or display or use in any way whatsoever any certificate or report passes to the Client or his assigns until all moneys due under the Agreement have been paid to Xautech.
5.0 Client’s Responsibilities
5.1 To enable Xautech to carry out the Service specified, the Client shall at his own expense undertake the following responsibilities as appropriate. Xautech shall be excused from all liability for failure to provide Service to the extent that such failure arises from the Client’s failure to observe its responsibilities detailed below.
5.2 The Client will deliver the equipment, samples, drawings or other requirements under the Agreement on or before the date agreed between Xautech and the Client, free of charge and at the client’s cost.
5.3 The Client will supply Xautech with such operating instructions, supplies and consumables as would be required in normal operation of any equipment submitted for calibration, test or examination. Xautech takes no responsibility for the validity of client supplied information or data.
5.4 The Client will supply all equipment and samples in a clean and safe condition commensurate with the work to be carried out. The Client will notify Xautech if products or processes to which Xautech staff or subcontractors will be exposed pose a potential health hazard and will provide any appropriate safety equipment. Xautech may decline to undertake such work if in the sole opinion of its safety officer, the work poses a threat to the health or safety of Xautech staff or subcontractors, to buildings or to the environment. Electrical equipment submitted to Xautech for calibration or testing may be tested for electrical safety before work proceeds. This testing as for the protection of Xautech employees, does not relieve the Client of the responsibility of supplying equipment which is in a safe condition and may not be relied upon for any other purpose.
5.5 The Client will appoint at least one contact who will he authorized by the Client to act on his behalf with regard to this Agreement on a day-to-day basis in dealing with Xautech.
5.6 The Client will respond in a timely manner to any requests for information, operating instructions, and additional samples, amendments to documentation or drawings or access to previous test data. Any delay may result in the overall project being rescheduled. Any consequential loss and costs will be payable by the client.
5.7 The Client is responsible for the security of any proprietary and confidential information contained within the instrument delivered to Xautech and for maintaining a procedure external to any equipment supplied to reconstruct any lost or altered Client files, data or programs.
5.8 The Client is responsible for all duties and taxes which may arise from the import or export whether permanent or temporary, of products to or from the UK. Duty will be invoiced directly to the Client by the shipping agents, and Xautech will not accept goods for temporary importation which require duty to be paid.
5.9 The Client will comply with the regulations of the service and will immediately return to Xautech any certificate which is revoked under the terms of this Agreement, and will amend all documentation so as not to imply that the certificate still exists.
5.10 Where work is carried out On-site the Client will afford safe and unrestricted access by Xautech staff to the plant and will provide appropriate protective equipment and instructions and comply with all health and safety and similar legislation for the protection of Xautech staff.
5-11 Non-Solicitation: During the term of the contract and for two years after any termination of the contract, the client will not, without the prior written consent of the Xautech either directly or indirectly, (on it’s own behalf or in the service or on behalf of others), solicit or attempt to solicit, divert or hire away any person employed or contracted by Xautech.
6.0 Warranty
6.1 Xautech warrants that all Service provided under this Agreement will he carried out using reasonable skill and care, as laid down by National and International Standards. Xautech will not accept responsibility for any claims made for any loss, consequential or otherwise, expense or damage arising out of Service performed unless Xautech is proved by law to have been negligent.
6.2 Xautech liability under this clause shall be in lieu of any warranty or condition implied by law as to quality or fitness for any particular purpose and to the extent permissible by law all other warranties or conditions expressed or implied by statute or otherwise are excluded.
6.3 Xautech warrants that it has complied with the duties of a company contained in the Health and Safety at Work (1974) Act, as amended, in performing any Service under this Agreement to which they apply.
6.4 Any expressions of opinion concerning compliance or otherwise of equipment with Section 6 of the Health & Safety at Work (1974) Act as amended or any extension thereof are not material to this Agreement, and are not warranted to be either accurate or complete statements of fact.
7.0 Limitation of Remedies and Liability
7.1 The remedies provided herein shall be the client’s sole and exclusive remedies.
7.2 Unless expressly agreed Xautech will not be liable for performance delays or for non-performance due to causes beyond its reasonable control.
7.3 Nothing in this Agreement may be taken as any warranty to issue a certificate.
7.4 The provision of a test report or certificate of conformance in no way infers an approval of the product by Xautech.
7.5 Except as provided in this Agreement Xautech shall not be liable to the Client for any direct losses: or indirect, special or consequential losses including but not limited to loss of anticipated profits, data, business, revenue, goodwill, or anticipated savings howsoever based.
7.6 Xautech accepts no liability for any work done or expenditure incurred by the Client in anticipation of the issue of a report or certificate, whether based on opinions expressed by Xautech or not.
7.7 No government procurement regulations or Agreement clauses are binding on either party unless required by law or mutually agreed.
7.8 Notwithstanding the above Xautech total liability under this Agreement (arising from Agreement, negligence or howsoever) for any one event or series of events shall not exceed the fee earned by Xautech under the Agreement.
7.9 The Client hereby agrees to indemnify Xautech, its employees, agents and subcontractors against all damages, losses, liabilities, actions, claims, expenses and costs whatsoever in respect of any claim that may be made against Xautech, its employees, agents or subcontractors by any third party that may arise out of the provision of the Service or the clients failure to perform its obligations hereunder. This indemnity will survive the termination of this Agreement.
7.10 Any delivery date or period referred to in the Quotation, or in subsequent agreements, is an estimate only and such dates or periods shall in no circumstances he construed as being of the essence of the agreement.
7.11 Xautech accepts responsibility for normal safeguarding of the client’s property whilst on Xautech premises. It does not accept and is indemnified by the Client, against any risk in the service performed or which cannot he reasonably foreseen, or those resulting from inaccurate or inadequate specification of the equipment provided by the client or from defective condition of the equipment, provided by the client.
8.0 General
8.1 Any disputes arising in connection with this Agreement will he governed by the laws of England and Wales. The parties agree to submit to the jurisdiction of the Courts of England and Wales.
8.2 If at any time any question, dispute, or difference shall arise between Xautech and the Client in connection with these terms and conditions either may request that it should be referred to the arbitration of a person to be mutually agreed upon, or failing agreement, of some person appointed by the President of the Law Society for the time being. Such request shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act 1950 or any statutory modification or re-enactment thereof. In the case of certification the appeals procedure laid down in the regulations shall apply in place of the above.
8.3 Any term of this Agreement which is held to be invalid will be deleted but the remainder of these terms will not be affected.
8.4 Neither party may assign any rights or obligations under this Agreement without prior written consent of the other party.
8.5 This Agreement constitutes the entire Agreement between Xautech and the Client relating to transactions hereunder and supersedes any previous communications representations or additional or different terms and conditions. The client’s additional or different terms and conditions will not apply. The client’s delivery of equipment or acceptance of commencement of service will constitute acceptance of these terms and conditions which may not be changed except by a written amendment signed by an authorised representative.
8.6 All work is undertaken in accordance with the requirements for certificate holders as dictated by the in the Xautech Quality Manual.
8.7 In the event that the equipment is shown not to comply with the relevant standard, the Client will be informed and given opportunity to rectify the failing, within 90 days.
8.8 Equipment requiring certification may be subject to destructive tests. Samples will be disposed of by Xautech or returned to the Client at the Client’s cost. There is no liability on Xautech to recompense for repair or refund.
8.9 Where the testing and assessment process is interrupted by redesign of the product or delays on the part of the Client, Xautech will use its best endeavours to maintain the progress of the project. However, due to other loading pressure on the resources it may not be possible to recommence work on a project immediately it becomes available. Xautech accepts no liability for such delays in recommencing the project.
8.10 Products are tested in the manner prescribed by the appropriate Standard and information provided by the Client. Specific tests may be omitted or alternative tests conducted at the discretion of the Test Engineer when a suitable Engineering judgement can be made.
8.11 Tests are conducted under suitable laboratory conditions using suitably calibrated equipment; however, the repeatability of the test is not specified unless requested.
8.12 Results of tests are for the specific equipment tested on the day. Test results in no way infer that all subsequent equipment will produce identical results.
9.0 Additional Terms and Conditions for Certification
The following Terms and Conditions are applicable to Certification projects, in addition to Xautech’s Standard Terms and Conditions:
9.1 When Xautech provides a quotation or estimate, or accepts an order for work leading to the issue of a Certificate (or similar document), this should not be taken to imply that we will issue such a certificate. A certificate (or similar document) can only be issued once the appropriate evidence has been assembled and, in some cases, once the appropriate arrangements have been made to cover the production phase.
9.2 Unless subsequently clarified, work will be carried out in accordance with the standards specified at the time of application, quotation or order.
9.3 The Client is responsible for making all necessary arrangements for the conduct of the evaluation, including provision for examining documentation and access to all areas, records (including internal audit reports) and personnel for the purposes of evaluation (eg testing, inspection, assessment, surveillance, reassessment) and resolution of complaints.
9.4 Compliance Certificates are issued in the name of the “Certificate Holder”. This will normally be the manufacturer and in any event will be the body responsible for controlling the design. Where the manufacturer does not control the design and does not have the certificate issued in their name, special provisions will apply. The relationship between designer and manufacturer must be made clear.
9.5 A Certificate Holder may apply to have documentation issued in the name of a Trade Agent only if approved and registered with Xautech.
9.6 Copies of certificates and their schedules shall be made available by the manufacturer on request, to all purchasers of certified equipment.
9.7 Where certification documents contain “Special Conditions for Safe Use”, normally identified by a suffix “X” to the certificate number, all such specific information must be made available to purchasers of the equipment.
9.8 Suppliers must not make claims regarding certification except within the scope for which the certification has been granted.
9.9 Suppliers must not use their product certification in such a way as to bring Xautech into disrepute and must not make any statement regarding its product certification which Xautech may consider misleading or unauthorised.
9.10 Xautech may withdraw a certificate if it is discovered that it should not have been issued either through false information provided to us, withholding relevant information or through our own error
9.11 Xautech may withdraw a certificate if the manufacturer fails to abide by these terms and conditions.
9.12 Xautech may withdraw a certificate if the certificate includes provision for the use of a production mark and the conditions applicable to the use of the production mark are no longer being met.
9.13 On suspension or withdrawal of a certificate, the supplier must discontinue use of advertising material that contains reference to the certification, and return any certification documents as required by Xautech. The supplier must also ensure that no misleading statements are made regarding the status of the certification.
9.14 Suppliers may only use certification to indicate that products are certified as being in conformity with specified standards. Suppliers must endeavour to ensure that no certificate or report, nor any part thereof is used in a misleading manner
9.15 In making reference to its product certification, in communication media such as documents, brochures or advertising, suppliers must comply with these conditions and the Xautech Standard Terms and Conditions.
9.16 The supplier must notify Xautech of any proposed changes to the product, or to aspects of its production, test, inspection, quality system or other factors that are regulated by the QMS Certification to provide control of production.
9.17 The Manufacturer must retain the certificate and associated documents for future reference and, where relevant, for inspection by Xautech or any other body responsible for supervision of production. Certain legislation, for example the ATEX Directive, places a legal requirement on the manufacturer to retain these documents for a stated period (normally ten years) after the last production.
9.18 Xautech will retain copies of the documents as a “Technical File” for a defined period in accordance with our service for retention and storage of technical files.
9.19 Xautech Certificates bearing the UKAS logo indicates that the certification has been done in accordance with the accreditation of Xautech by UKAS. It should not be construed that the product, system or device to which that certificate relates has been approved by UKAS.
9.20 Xautech’s acceptance of a drawing showing marking detail which includes the European Community CE Marking should not be construed as confirmation that Xautech has given permission for the CE Marking to be applied to any particular item of equipment. Applying the CE Marking remains the responsibility of the manufacturer in accordance with the appropriate EU legislation.
9.21 Xautech accepts no responsibility for the accuracy of provisional information relating to the proposed content of certificates, which may be exchanged between Xautech and the client prior to the formal issue of a certificate.
9.22 Complaints and Appeals can be made to Xautech directly.
9.23 Certificate number/s /and coding provided for the generation of marking drawings during the course of a project are subject to change. The release of this information does not indicate that the equipment has achieved Certification. Xautech accepts no responsibility for any costs incurred due to changes made prior to issue of the final hard copy certificate.
9.24 For Voluntary withdrawal or surrendering of certification (to stop future audits) must be given 3 months before the next audit date or fee’s will be incurred
10.0 Duties and Responsibilities of Suppliers
Suppliers of products certified by Xautech are required to abide by the following terms and conditions. Failure to comply may result in the withdrawal of certification.
10.1 Suppliers must make all necessary arrangements for the conduct of the evaluation, including provision for examining documentation and access to all areas, records (including internal audit reports) and personnel for the purposes of evaluation (e.g. testing, inspection, assessment, surveillance, reassessment) and resolution of complaints.
10.2 All documentation must be provided to Xautech in English, or in an alternative language formally accepted in writing by Xautech.
10.3 Suppliers must always comply with the relevant provisions of the certification programme
10.4 Suppliers must take all measures necessary to ensure that the manufacturing process assures compliance of the manufactured equipment with the type as described in the compliance certificate.
10.5 Suppliers may only make claims regarding certification in respect of the scope for which certification has been granted.
10.6 A supplier must not use its product certification in such a manner as to bring the certification body into disrepute may not make any statement regarding its product certification which the certification body may consider misleading or unauthorised.
10.7 Upon suspension or cancellation of certification, a supplier must discontinue its use of all advertising matter that contains any reference thereto and return any certification documents as required by the certification body.
10.8 Suppliers may use certification only to indicate that products are certified as being in conformity with specified standards.
10.9 Suppliers must endeavours to ensure that no certificate or report nor any part thereof is used in a misleading manner.
10.10 In making reference to its product certification in communication media such as documents, brochures or advertising, a supplier must comply with the requirements of the certification body.
10.11 Suppliers must notify Xautech of any proposed change to the product
10.12 Suppliers must operate a system for complaint handling, whereby they Keep records of complaints relating to their product’s compliance, take appropriate action to resolve the complaint and address any underlying deficiency, and make their records available to Xautech on request.
10.13 Suppliers must check periodically for updates to these to requirements on the Xautech Website. (Xautech will notify in writing of any safety critical updates)
10.14 Suppliers must maintain certification, technical files, Declaration of conformity and any Quality Assurance Notifications for a period of 10 years after the last piece of equipment is manufactured.
10.15 Suppliers must notify Xautech of the last manufacture date of any product certified by Xautech.
10.16 Suppliers are required to operate a complaints handling system whereby they record and document all complaints relating to their product’s compliance with the applicable standards, take appropriate action with respect to the complaint and any underlying deficiencies found in products or services that affect compliance with the requirements for certification. The supplier must make records of complaints and associated actions available to Xautech on request.
11 Guideline for Use Of the Accrediting Mark and Xautech Name and Logo
11.1 Certificate holders must ensure that no incorrect references to Xautech certification system or misleading use of certificates or marks occur.
11.2 Xautech Registered Companies Logo is granted under licence to those client companies who have obtained certification by Xautech after successful assessment to the applicable standard.
11.3 Where the Xautech Certificate has been issued under any accreditation, The UKAS logo is to be used in combination with the Xautech Name and/or Logos applicable.
11.4 The Xautech Accrediting Mark be only be applied to stationery and publicity materials that relates to the company’s Scope of Registration. This can include brochures, product cards, advertisements etc.
11.5 The Xautech Accrediting Mark shall not be used on laboratory test reports, calibration and inspection certificates and not applied directly to the product or packaging, whether secondary or primary or in such a manner as to imply that any individual product has been approved.
11.6 The UKAS Accreditation Logo may only be used in combination with the Xautech Accrediting Mark and is limited to stationery, literature and other written promotional materials. It cannot be applied to the product or packaging and visiting cards whether secondary or primary.
11.7 The Xautech Accrediting Mark shall be reproduced in accordance with the art work provided or in a single colour to confirm with the predominant colour of existing pre-printed stationery, brochures, letterheads or other promotional material. The Accreditation Logo shall be reproduced on a clearly contrasting background In a size which makes all features of the mark clearly distinguishable. The Certification Body/Accreditation Logo may be uniformly reduced or enlarged but shall not be less than 25 mm in height. Where the logo is used, the Certificate Registration number must also be clearly indicated.
11.8 The Xautech Accrediting Mark shall not be used in such a way as to suggest that the Accreditation Body or government Organization it represents have certified or approved the activities of the Company, or in any other manner which can mislead.
11.9 Xautech will determine whether the registration mark is used only in strict accordance with our requirements at each surveillance visit. If an accredited certificate holder fails to comply with these regulations or uses the logos in any misleading manner, Xautech may suspend or withdraw its certificate upon which action, the certificate holder shall immediately cease to use the logos and withdraw the existing stock of its stationery and other promotional brochures etc. bearing the logos, from further use. Such action could include requests for correction and corrective action, suspension, withdrawal of certification, publication of the transgression and, if necessary, legal action
11.10 Where the accreditation mark is used, the client shall include the Xautech certification mark to which it relates, not disproportionately represented regarding the actual accreditation mark, and positioned in a manner that ensures the relationship between the accreditation mark and the certification mark is obvious.
If you have any question regarding our Terms and Conditions policy, please contact us.