Terms, Conditions and Policies

GENERAL TERMS AND CONDITIONS FOR AUDIT AND CERTIFICATION SERVICES

PECB MS Inc.


GENERAL

1.1
PECB Group Inc. (collectively, “PECB offers third-party certification services (the “Services”) for prospective and existing clients to be able to demonstrate conformity of products, services, personnel and management systems to customers and end users.

1.2
The Client (as hereinafter defined) wishes to retain the services of PECB to perform the Services and PECB agrees to perform the Services subject to the terms and conditions described herein.


DEFINITIONS, SUBDIVISIONS AND HEADINGS

2.1
In addition to the terms defined elsewhere herein, the following terms shall have the following meanings:
Accreditation Body” means an organization which formally authorized PECB Group Inc. to act as a certification body by providing management system certifications under various International Organization for Standardization (ISO) Standards;
Authorized Agent” means a third-party agent retained by PECB to perform certain services such as audit services required under the certification process;
Certificate” means a certificate of conformance to the Standard delivered by PECB;
Client” means the business or organization as identified in the Contract, whose System(s) has been or is to be Certified;
Client Group” means the Client, its subcontractors, suppliers or customers, together with any of their employees, agents, officers or directors;
Contract” means this document, together with the included Quotation Documents and Terms of Use, which together set the terms and conditions relating to the performance of the Services;
Force Majeure” means any matter beyond a party’s reasonable control;
Indemnitees” means PECB, the Accreditation Body, or any of their respective affiliates, parent, or brother or sister corporations or their successors-in-interest or assigns, or the officers, directors, members and employees thereof;
Intellectual Property” means all intellectual property rights, titles and interests in all service marks, trademarks, certification marks, names or logos, copyright works and inventions;
Quotation Documents” means the application for quote and other quotation documents negotiated between the Client and PECB and/or its Authorized Agent, which form part of the Contract together with this document and the Terms of Use;
Services” shall have the meaning ascribed to such term under clause 1.1;
Services Fees” means the fees as quoted amended from time to time for services agreed to be supplied pursuant to the Contract;
Standard” means a set of conditions and requirements for the issuance of a Certificate, including (but without limiting the generality thereof) all statutes, rules, regulations issued by any statutory or other competent authority, all recommendations, codes and similar matters issued by any authority pursuant to which in compliance with which or for the purpose of which the Certificate is issued or such other reasonable requirements of PECB as are necessary to enable the Certificate to be issued and maintained in force in accordance with the standards reasonably expected of accredited or competent certification
System” means the organizational structure, responsibilities, activities, resources and events that together provide organized procedures and methods of implementation to ensure the capability of the Client to meet the Standard; and
Terms of Use” means the terms of use of the PECB logos and certification marks (as amended from time to time), which are available on the PECB website (www.PECB.com) or on request and which form part of the Contract together with this document and the Quotation Documents.

2.2
The inclusion of headings and subdivisions herein is for ease of reference only and shall not affect the interpretation or construction of the Contract.


SCOPE OF CONTRACT

3.1 
This document, together with the Quotation Documents and the Terms of Use shall form the contract between PECB and the Client (the “Contract”).

3.2
The Contract describes the rights, obligations, responsibilities and duties of PECB and the Client whose System’s compliance to the Standard has been or is to be certified by PECB.

3.3
The Contract supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter.

3.4
PECB reserves the right to amend the Contract by giving the Client not less than 14 days’ notice of the amendment, with the Contract as amended applying immediately on the expiry of such notice.

4
REPRESENTATIONS AND WARRANTIES OF THE CLIENT

4.1
The Client hereby warrants the completeness and accuracy of all documents and accuracy of all information supplied to PECB for the purposes of the Contract, both at the time of supply and subsequently. The Client further warrants that in the event that it discovers that certain information provided is not accurate or complete, it will notify PECB in writing of this as soon as it becomes aware of it.

5
REPRESENTATIONS AND WARRANTIES OF PECB

5.1
PECB hereby represents and warrants to the Client that it is the holder of the required management system certification body accreditation delivered by the relevant Accreditation Body. As such, it can deliver the Certificate which is the object of the Contract.

6
ACKNOWLEDGMENTS AND COVENANTS OF THE CLIENT

6.1 
The Client acknowledges, covenants and agrees as follows:

6.1.1 
The Client acknowledges and agrees to PECB using outsourced resources in the performance of its obligations relating to this Contract, such as the services of an Authorized Agent;

6.1.2
The Client agrees to comply with all conditions and requirements for the issuance of a Certificate, including (but without limiting the generality thereof) all statutes, rules, regulations issued by any statutory or other competent authority, all recommendations, codes and similar matters issued by any authority pursuant to which in compliance with which or for the purpose of which the Certificate is issued or such other reasonable requirements of PECB as are necessary to enable the Certificate to be issued and maintained in force in accordance with the standards reasonably expected of accredited or competent certification (collectively, the “Standard”), and the Client recognizes that PECB has clear and explicit rights to revise the requirements of certification within the period of validity of the Certificate;

6.1.3 
The Client shall ensure that its System complies with the current version of the Standard against which it is certified. Current version of the Standard can be obtained from PECB and from the respective websites of the relevant Accreditation Body and Standard issuing authority;

6.1.4
The Client will declare to PECB any activity which may create a conflict of interest in relation to its certified System; and

6.1.5 
Where necessary, the Client will also enter into and maintain a valid license agreement with the Accreditation Body for its certification scheme.

7
ACKNOWLEDGMENTS AND COVENANTS OF PECB

7.1 
PECB acknowledges, covenants and agrees as follows:

7.1.1
PECB will provide the Services with reasonable care and skill;

7.1.2 
PECB will appoint competent qualified auditors to conduct audits and assessments of the Client’s System(s) in accordance with the Accreditation Body’s rules and procedures and PECB’s management system requirements;

7.1.3 
PECB will ensure that audit and assessment services are delivered at a frequency determined by PECB in order for PECB to maintain confidence in the ongoing efficacy of the System;

7.1.4 
PECB will issue audit and non-conformance reports, if appropriate, after each audit activity;

7.1.5 
PECB will issue a Certificate on successful completion of the initial certification assessment to the satisfaction of PECB; and

7.1.6 
If PECB is not able to verify the implementation of corrections and corrective actions of any major non-conformance within 6 months after the last day of a stage 2 audit, PECB shall conduct another stage 2 audit prior to recommending certification.

7.2 
Subject to the foregoing provisions of this clause 7, all conditions, warranties, terms and undertakings applicable to PECB, express or implied, statutory or otherwise, are hereby excluded to the fullest extent permitted by law.


INTELLECTUAL PROPERTY RIGHTS AND LICENSES

8.1 
PECB’s Intellectual Property shall remain the property of PECB and cannot be transferred or licensed by the Client.

8.2 
PECB shall award a license to the Client to use its certification mark(s) and logo(s) for the duration of this Contract when used in accordance with the applicable Terms of Use.

8.3 
PECB will audit the use of its certification mark(s) and logo(s). PECB reserves the right to substitute or withdraw the right to use any or all its certification mark(s), logo(s), certificates and audit documentation at any time in the event of non-compliance with the Terms of Use or should the Contract be terminated, for whatever reason.

8.4 
Intellectual Property belonging to an Accreditation Body shall remain the property of said Accreditation Body. The Client acknowledges that an Accreditation Body shall retain full ownership of its Intellectual Property rights and that nothing shall be deemed to constitute a right for the Client to use or cause to be used any of the Accreditation Body’s Intellectual Property.

8.5 
Use of the Intellectual Property belonging to an Accreditation Body is governed by the applicable standards and rules which are available from the Accreditation Body or PECB. All claims and uses of an Accreditation Body’s Intellectual Property must be compliant with the requirements of the relevant standards and rules.

8.6 
PECB reserves the right to use any information that is brought to its attention and to investigate any infringements of Intellectual Property rights of the Accreditation Body.

9
SURVEILLANCE

9.1 
The Client agrees to undergo regular, unannounced or short notice surveillance evaluations and audits as determined by PECB.

9.2 
The Client will provide PECB with reasonable cooperation and assistance and allow PECB access to all premises, documentation and information deemed necessary by PECB to verify the maintenance of the System and perform said surveillance evaluations and audits.

9.3 
PECB may implement higher surveillance frequencies based on a risk assessment of the Client’s Certificate scope, System and location;

9.4 
Additional surveillance visits, as deemed necessary by PECB, will be charged at PECB’s rates current at the time of supply of such services.

10 
CERTIFICATION

10.1
The Client acknowledges and agrees that:

10.1.1
A Certificate awarded by PECB shall cover only those services or products manufactured and/or supplied strictly within the scope of the Client’s System as Certified by PECB;

10.1.2
Initial certification will only be granted once all non-compliances are corrected;

10.1.3
Ongoing certification is reliant on continued compliance with the Standard’s rules and regulations of the relevant Accreditation Body, which may change from time to time, including the requirement to address any non-compliance to the satisfaction of PECB in the specified time periods;

10.1.4
The Client shall inform PECB promptly of any significant changes to its product(s), services, resources, management, System or any other circumstances, which may materially impact the continued validity of its certification, for example but without limitation: change of site, additional sites, change of process, change of ownership, change of scope. In such circumstances, the Client agrees to the payment of applicable additional fees and expenses deemed necessary by PECB to assess the impact of such change(s) and maintain confidence in the System; and

10.1.5
PECB conducts its audit activity through a sampling process to determine if the System meets the Standard. Any statement of conformance issued by PECB in the form of reports, Certificates or other communications is based on these sampling processes. PECB does not warrant, represent or undertake that these statements mean that all activities are in conformance with the relevant Standard at the time of the audit or that subsequent to the audit activity those activities audited will continue to be in conformance with the relevant Standard. The Client undertakes to make all customers and end users aware of the foregoing provisions of this clause. PECB accepts no liability to the Client in the event that any loss or claim is suffered by the Client as a result of any finding that the System does not comply with the Standards.

11
SUSPENSION OR WITHDRAWAL OF CERTIFICATION

11.1
PECB shall be entitled to suspend or withdraw the Client’s certification on seven-day written notice (or with immediate effect in the case of urgent need, as determined at the sole discretion of PECB) and reserves the right to make public the fact that such action has been taken when, in the opinion of PECB:

11.1.1
the Client’s acts, omissions or conduct bring or may bring PECB, the Accreditation Body or the Standards into disrepute;

11.1.2
the Client represents, promotes or advertises any products or System which are outside the scope of its Certificate as certified by PECB;

11.1.3 
the Client makes a fraudulent misrepresentation or provides PECB with any inaccurate or misleading information, which is not corrected within three business days or immediately on being notified by PECB;

11.1.4 
the Client is in material breach of any term of the Contract;

11.1.5 
the Client is in breach of or is not subject to a mandatory license agreement, including any attributable to the Accreditation Body; or

11.1.6 
the Client fails to maintain or demonstrate an effective System such that the confidence in the Certificate is adversely affected.

11.2 
Where it considers it appropriate, PECB may, at its sole discretion, inform the Client of its intention to suspend or withdraw certification and to allow the Client a reasonable opportunity to take corrective action, within such time frame as PECB may reasonably specify, before the suspension or withdrawal takes effect.

11.3 
In the event of PECB’s withdrawal from accreditation or inability to continue to supply the certification accredited by the relevant Accreditation Body, PECB will notify the Client within 30 days of such withdrawal or inability and the Certificates relating to the respective scope of the Accreditation Body will be suspended ipso facto within six months after the effective date of withdrawal or inability.

11.4 
On suspension or withdrawal of certification, the Client shall immediately cease to use any trademarks associated with PECB and the Accreditation Body, or to sell any products that have previously been labelled or marked (or authorized for labelling and marking) using the trademarks, and cease to make any claims that imply that they comply with the requirements for certification.

11.5 
The Client shall notify all relevant existing customers of the suspension or withdrawal in writing within three business days (or any other period as determined by PECB) of the withdrawal or suspension taking effect, and maintain records of that notice.

11.6
 The Client shall, at the request of PECB, either destroy all electronic and hardcopy Certificates relating to the certification and at its own expense remove all claims, service marks, trademarks, other names or logos and copyright works from products, documents, advertising and marketing materials with immediate effect or return all such certification materials to PECB. The Client shall also cooperate with PECB and the relevant Accreditation Body to confirm that these obligations have been met and shall, if requested, confirm in writing the destruction or return of all such certification materials by one of its directors.

12 
APPEALS AND COMPLAINTS

12.1 
Shall the Client wish to complain or appeal a decision of PECB, it shall do so in accordance with the PECB Complaints and Appeals Processes (as amended from time to time) which are posted on PECB’s website (www.PECB.com) and available on request, and which are deemed to have been reproduced herein at length.

13
SERVICES FEES

13.1 
Services Fees are quoted (and amended from time to time) for services agreed to be supplied pursuant to the Contract on the assumption that the information supplied by the Client was accurate and complete.

13.2 
Services Fees include the cost of audit services and the use of the PECB logo(s) and trademark(s) and, where agreed, the Accreditation Body’s logo(s) and trademark(s).

13.3 
Expenses and disbursements may be charged separately in accordance with the quoted terms.

13.4 
Any service required or supplied additional to the agreed services will be charged at the rates current at the time of supply of such services.

13.5 
Services Fees may be reviewed and amended from time to time, normally but not exclusively on an annual basis.

13.6 
Payment is due as per the stated terms on the invoice. Payment shall be made in full, without set off or deduction.

13.7 
If any payment is not made when due, PECB reserves the right to charge interest (at the statutory rate on commercial debts then applicable) from the due date until payment in full, and/or suspend the provision of all Services and/or terminate the Contract (including suspension or withdrawal of the Certificate), without prejudice to PECB’s other rights and remedies.

13.8 
All fees and expenses quoted are exclusive of all taxes including but not limited to value added or sales tax, which will be charged at the current rate of the country in which the Services are supplied.

13.9 
If applicable, the Services Fees will be charged by PECB using the Authorized Agent’s bank information.

14 
TERM AND TERMINATION

14.1 
The Contract shall remain in force until all stages of the certification are completed.

14.2 
The Contract shall terminate:

14.2.1 
upon expiry of a three months’ written notice given by either party to the other;

14.2.2 
immediately upon either party being notified in writing by the other of any material breach of the Contract and the material breach not being remedied within 14 days from the date of receipt of said notice;

14.2.3 
immediately if a party assigns its assets to the benefit of its creditors, makes a proposal, applies for a bankruptcy order or one is filed against it, if a trustee is appointed to administer its property or if a party benefits from any provisions of any applicable bankruptcy or insolvency law or, more generally, if it becomes insolvent; or

14.2.4 
immediately if either party ceases to conduct commercial activities, whether in whole or in part.

14.3 
In the event of the Contract being terminated (except in the case of material breach by PECB) the Certificate issued by PECB shall immediately become void and the Client shall cease to be entitled to use same or any logo or mark of PECB and the relevant Accreditation Body and shall destroy all electronic and hardcopy Certificates relating to the certification. It shall also at its own expense remove all claims, service marks, trademarks, other names or logos and copyright works from products, documents, advertising and marketing materials with immediate effect. The Client shall confirm in writing that these obligations have been met and shall provide full cooperation to enable PECB and the relevant Accreditation Body to carry out any necessary verification activities.

15 
LIMITATION OF LIABILITY

15.1
The Client agrees to the following with respect to PECB’s liability:

15.1.1
A PECB Certificate does not imply any guarantee or warranty, express or implied, including but not limited to any warranty of merchantability or fitness for any particular purpose, of any services inspected by PECB or its Authorized Agent or certified by PECB, or any guarantee or warranty of any nature by the Accreditation Body concerning any certification activity conducted by PECB or its Authorized Agent;

15.1.2
The Client shall have no cause of action or claim against PECB, the Accreditation Body, or any of their respective affiliates, parent, or brother or sister corporations or their successors-in-interest or assigns, or the officers, directors, members and employees thereof (collectively, the “Indemnitees”), arising in any manner from any denial of the Contract or from any Certificate delivered pursuant to the Contract, whether or not such Certificate is or is not subject to any conditions;

15.1.3
The Client shall have no cause of action or claim against the Indemnitees, arising in any manner from any breach of the Contract or non-performance of the Contract or from any services delivered by or actions performed by the Authorized Agent pursuant to the Contract, any other agreement between the Client and the Authorized Agent, or otherwise;

15.1.4
Subject to clause 15.1.5, the aggregate liability of PECB, or its respective officers, subcontractors, representatives and employees, to the Client for all direct and indirect loss in contract, tort or otherwise arising out of or about this Contract shall be limited to 150% of the Services Fees for the calendar year of the date that such liability arises;

15.1.5
Except in respect of death or personal injury caused by negligence of PECB or fraudulent misrepresentation in respect of which liability shall be unlimited, PECB shall not be liable to the Client for any loss of profit (whether direct or indirect), contracts or goodwill, loss or corruption of data or for any indirect, special or consequential loss or damage or any other claims for compensation whatsoever which arise out of or in connection with performance or non-performance of the Contract by PECB and/or its Authorized Agent; and

15.1.6
In any action, claim, loss or damage arising out of this Agreement and any Services, the Client agrees that PECB’s liability will be several and not joint and several and the Client may only claim payment from PECB of PECB’s proportionate share of the total liability based on the degree of fault of PECB.

15.2
This clause 15 shall survive the termination or expiry of the Contract.

16 
INDEMNITY

16.1 
The Client agrees to hold the Indemnitees harmless, and to protect, defend and indemnify them, with respect to any claim, liability, demand, action, judgment, proceeding, costs, damages and expenses (including legal advisors’ fees) whether for personal injury, wrongful death, property damage, or any type of injury or damage whatsoever, arising from: (i) any defect in its products, services or System; (ii) any certification services of any nature provided by PECB or its Authorized Agent; (iii) the use of any service of any nature offered by PECB or its Authorized Agent, or the use or operation by any person of any product inspected by PECB or its Authorized Agent or certified by PECB; or (iv) the reference to or reliance upon, actual or asserted, any certification or approval given by PECB or any inspection services rendered by PECB or its Authorized Agent including but not limited to the results of any certification delivered by PECB or inspections conducted by PECB or its Authorized Agent.

16.2
The Client further agrees to hold the Indemnitees harmless, and to protect, defend and indemnify them, with respect to any claim, liability, demand, action, judgment, proceeding, costs, damages and expenses (including legal advisors fees) whether for personal injury, wrongful death, property damage, or any type of injury or damage whatsoever, arising from:

16.2.1
The use or misuse by the Client of any Certificate, license, logo, service mark or trademark provided by PECB or the Accreditation Body in accordance with the Contract;

16.2.2
Any breach of the Contract by the Client;

16.2.3
Illness, injury or death to any personnel of PECB, the Client, its subcontractors, suppliers or customers, together with any of their employees, agents, officers or directors (“Client Group”), other than where due to the gross fault of PECB;

16.2.4
Damage to or loss of property or equipment owned, leased or used by PECB or the Client Group;

16.2.5
The Client hereby acknowledges that a breach, default, non-compliance or non-observance by it of its duties and obligations under the Contract or otherwise may result in PECB being in breach, default, non-compliance or non-observance of its duties, liabilities and obligations owed to third parties such that PECB will be liable in damages or otherwise will sustain loss, costs or expenses. Any such damages, loss, cost and expense are hereby agreed to be within the contemplation of the parties as being the probable results of any such breach, default, non-compliance or non-observance by the Client of its duties and obligations.

17 
FORCE MAJEURE

17.1 PECB shall not be liable in any respect should it be delayed or prevented from performing its obligations under the Contract as a result of an event of Force Majeure and the time allowed to PECB for performance of these obligations shall be extended by the duration of the event of Force Majeure.

18
CONFIDENTIALITY

18.1
The Client shall grant the Accreditation Body and its representatives, access to any part of the audit or surveillance process for the purposes of witnessing PECB’s or the Authorized Agent’s audit team performing the Services to assess PECB’s management system and/or determine conformity with the requirements of the Standard. This will include the right of access to confidential information that is directly applicable to the audit process in question and does not contravene privacy regulations.

18.2
The Client agrees that information relating to the certification and scope of certification can be made publicly available by PECB and the Accreditation Body.

18.3
Except as provided under clause 18.2 and as may be required by law or required by the Accreditation Body, PECB and the Client will treat as strictly confidential and will not disclose to any third party without prior written consent of the other, any information which comes into their possession, the possession of their employees, agents or others by virtue of the Contract, provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Contract or which was already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is required to be disclosed by law. PECB may disclose confidential information to its Authorized Agent, subcontractors, auditors and legal advisors, however any such Authorized Agent, subcontractor, auditor and legal advisor will be caused to comply with the obligations of confidentiality set out in this clause of the Contract.

18.4
The Client will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, PECB will not be responsible on any basis (contract, tort or otherwise) for any loss, damage or omission in any way arising from the use of the internet or other technological means by PECB or its personnel, including any Authorized Agent, subcontractor, auditor or legal advisor, to access the networks, applications, electronic data or other systems of the Client.

18.5
This clause 18 shall survive the termination and expiry of the Contract.

19
GOVERNING LAW

19.1 This Contract shall be exclusively governed and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein.

20
WAIVER OF REMEDIES

20.1
Any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder shall not operate as a waiver of any breach or default by the other party. A right under the Contract may only be waived if in writing and signed by all parties to the Contract.

21
ASSIGNMENT

21.1
The Client party shall not assign the Contract or any of its rights and/or obligations thereunder, whether in whole or in part, without the prior written consent of PECB. PECB may assign the Contract or any of its rights and/or obligations thereunder, whether in whole or in part, to any affiliated corporation or to any successor in interest or transferee.

22
INVALIDITY AND SEVERABILITY

22.1
Shall any provision of the Contract be found invalid or unenforceable by any court or administrative body of competent jurisdiction, the invalidity or unenforceability of such provisions shall not affect the other provisions of the Contract and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

23
NOTICES

23.1 
Any application, notice or any other communication to be given hereunder by a party to the other shall be in writing by facsimile or similar telecommunications device or by email and shall be deemed to have been effectively delivered and received, if delivered and received on the date of such delivery (confirmation of receipt by confirmed facsimile transmission being deemed receipt of communication sent by telecopy or other telecommunications device) provided, however, that if such date is not a business day then it shall be deemed to have been delivered and received on the business day next following such delivery.

24 
INDEPENDENT CONTRACTORS

24.1 
The parties to the Contract are independent contractors and nothing in the Contract shall be deemed to place the parties in the relationship of employer/employee, principal/agent, partners or a joint venture.

ACCEPTANCE OF TERMS AND CONDITIONS BY THE CLIENT

Signed:  
Name:  
Date:  
For and on behalf of: