Royal Asia Quality Control Services (Raw Inspection Services), header entity as stipulated on the service request form (the “Company”) is the default entity and will conduct, at the request of the submitter (“Client”), the services specified on the submitted quotation and/or Service Request Form. Services performed by the Company may include inspections, audits; Services shall be performed in accordance with and subject to the following terms and conditions.
1. All orders for Services are subject to acceptance by the Company, and no order will constitute a binding commitment of the Company unless and until such order is accepted by it, as evidenced by the issuance of a written report (“Report”) by the Company. The Report is issued solely by the Company, is intended for the exclusive use of Client and shall not be published, used for advertising purposes, copied or replicated for distribution to any other person or entity or otherwise publicly disclosed without the prior written consent of the Company. The Company shall not be liable for any loss or damage whatsoever resulting from the failure of the Company to provide its Services within any time period for completion estimated by the Company. If Client anticipates using the Report in any legal proceeding, arbitration, dispute resolution forum or other proceeding, it shall so notify the Company prior to submitting the Report in such proceeding. The Company has no obligation to provide a fact or expert witness at such proceeding unless the Company agrees in advance to do so for a separate and additional fee.
2. The Report will set forth the findings of the Company solely with respect to the information, processes, drawings, descriptions, and samples identified therein. Reports based upon sampling have inherent limitations and, unless specifically and expressly indicated in the Report, the results set forth in such Report are not intended to be indicative or representative of the quality or characteristics of (a) the lot from which a product sample is taken, or (b) the production capability or social compliance of the audited entity, and Client shall not rely upon the Report as being so indicative or representative of the lot, of the product in general, or of the audited process in its entirety. The Report will reflect the findings of the Company at the time of performance of Service only, and the Company shall have no obligation to update the Report after its issuance. The Report will set forth the results of the Services performed by the Company based upon the written information provided to the Company as set forth in, or attached to, the order form for Services. The Report will be based solely on the information, drawings, descriptions, or samples and other written information submitted to the Company by Client, and the Company shall not be obligated to conduct any independent investigation or inquiry with respect thereto.
3. Where applicable, the Company may, in its sole discretion, destroy samples of products which have been furnished to the Company for performance of the Services and which have not been destroyed in the course of performance of the Services. The Company may delegate the performance of all or a portion of the Services contemplated here under to an affiliate, agent or subcontractor of the Company, and Client consents to such delegation.
4. These Conditions, the order for Services and the Report represent the entire understanding of the parties hereto with respect to the subject matter hereof and of the Report, and no modification, variance or extrapolation with respect thereto shall be permitted without the prior written consent of the Company.
5. The names, service marks, trademarks and copyrights of the Company and its affiliates, including the names “Raw Inspection Services” and “Royal Asia Quality Control Services Private Limited ™” (collectively, the “Marks”) are and shall remain the sole property of the Company or its affiliates and shall not be used by Client except solely to the extent that Client obtains the prior written approval of the Company and then only in the manner prescribed by the Company. Client shall not contest the validity of the Marks or take any action that might impair the value or goodwill associated with the Marks or the image or reputation of the Company or its affiliates.
6. Unless prepayment is required, payment in full shall be due 30 days after the date of the invoice for the Services. The Company reserves the right, at any time and from time to time, to revoke any credit extended to Client. Client shall reimburse the Company for any costs it incurs in collecting past due amounts, including court costs and fees and expenses of attorneys and collection agencies. The Report may not be used or relied upon by Client if and for so long as Client fails to pay when due any invoice issued by the Company or any affiliate of it to Client or any affiliate or subsidiary of Client together with interest and penalties, if any, accrued thereon.
7. Client understands and agrees that the Company is neither an insurer nor a guarantor, that the Company by providing the Services does not take the place of Client or any designer, manufacturer, agent, buyer, distributor, transportation or shipping company, or any other third party and that the Company disclaims all liability in such capacities. Client will not release any third party from its obligations and duties with respect to the goods or processes that were inspected, audited, or reviewed within the scope of the Services. Client further understands that if it seeks assurance against loss or damage, it should obtain appropriate insurance.
8. Client shall, on a timely basis, (a) provide, or cause Client’s suppliers and contractors to provide, adequate instructions to the Company in order to enable the Company to perform properly its Services, and (b) fully exercise all rights and remedies available to Client against third parties.
9. The Company shall undertake due care and ordinary skill in the performance of its Services to Client, and the Company shall accept responsibility only where such skill has not been exercised and, even in such event, only to the extent of the limitation of liability set forth herein.
10. If Client desires to assert a claim arising from or relating to
(i) The performance, purported performance or non-performance of any Services by the Company or
(ii) The sale, resale, manufacture, distribution or use of any inspected goods in terms of quality related issue only, it must submit that claim to the Company in writing that sets forth with particularity the basis for such claim within 60 days from discovery of the potential claim and not more than six months after the date of issuance of the Report to Client. Client waives any and all such claims including, without limitation, claims that the Report is inaccurate, incomplete or misleading or that additional or different testing is required, unless and then only to the extent that Client submits a written claim to the Company within both such time periods.
11. Client shall, except to the extent of company’s liability to client here under (which in no event shall exceed the limitation of liability herein), hold harmless and indemnify the company, its affiliates and their respective directors, officers, employees, agents and subcontractors against all actual or alleged third party claims for loss, damage or expense of whatsoever nature and howsoever arising from or relating to
(i) The performance, purported performance or non-performance of any services by the company or
(ii) The sale, resale, manufacture, distribution or use of any goods reviewed or inspected under these services.
12. Except as may otherwise be expressly agreed to in writing by the company and notwithstanding any provision to the contrary contained herein or in any report, no warranty or guarantee, express or implied, including any warranty of merchantability or fitness for a particular purpose or use, is made.
13. (A) in no event whatsoever shall the company be liable for any consequential, special, incidental, exemplary or punitive damages in connection with, relating to or arising out of the report or the services provided by the company here under, including without limitation loss of or damage to property or reputation; loss of income, profit or use; or any claims or demands made against client or any other person by any third party in connection with, relating to or arising out of the services provided by the company here under.
(B) Notwithstanding any provision to the contrary contained herein, and in recognition of the relative risks and benefits to client and the company associated with the services contemplated hereby, the risks have been allocated such that under no circumstances whatsoever shall the liability of the company to client or any third party in respect of any claim for loss, damage or expense, of whatsoever nature or magnitude, and howsoever arising, exceed an amount equal to the lesser of (A) Three times the amount of the fees paid to the company for the specific services which gave rise to such claim or (B) U.S. $1000.
(C) The above limitations of liability shall not apply where specifically prohibited by law.
14. The Company shall not be liable for any loss or damage resulting from any delay or failure in performance of its obligations here under resulting directly or indirectly from any event of force majeure or any event outside the control of the Company. The Company may immediately cancel or suspend its performance here under If any such event occurs, without incurring any liability whatsoever to Client.
15. Company’s Services, including these Conditions, shall be governed by, and construed in accordance with, the governing law of the country where the service is performed. If any aspect(s) of these Conditions is found to be illegal or unenforceable, the validity, legality and enforceability of all remaining aspects of these Conditions shall not in any way be affected or impaired thereby. Any proceeding related to the subject matter hereof shall be brought, if at all, in the courts of the country where the service is performed. Client waives the right to interpose any counterclaim or set offs of any nature in any litigation arising here under.